10TH CIRCUIT CRIMINAL PATTERN JURY INSTRUCTIONS (2005) (Updated 2/2006)
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SUBSTANTIVE OFFENSES

    2.01     Food Stamps—Unauthorized Use 7 USC 2024(b)
    2.02     Bringing in an Alien 8 USC 1324(a)(1)(A)(i)
    2.02.1  Bringing in an Alien 8 USC 1324(a)(2)
    2.03     Alien—Illegal Transportation 8 USC 1324(a)(1)(A)(ii)
    2.04     Alien—Concealment 8 USC 1324(a)(1)(A)(iii)
    2.05     Reentry of Deported Alien 8 USC 1326(a)
    2.06     Aid and Abet 18 USC 2(a)
    2.07     Accessory After the Fact 18 USC 3
    2.08     Misprision of a Felony 18 USC 4
    2.09     Assaulting a Federal Officer 18 USC 111
    2.10     Bankruptcy Fraud (Property Concealment) 18 USC 152(1)
    2.11     Bribery of a Public Official 18 USC 201(b)(1)
    2.12     Receiving a Bribe by a Public Official 18 USC 201(b)(2)
    2.13     Illegal Gratuity to a Public Official 18 USC 201(c)(1)(A)
    2.14     Receiving an Illegal Gratuity by a Public Official 18 USC 201(c)(1)(B)
    2.15     Bribery or Reward of a Bank Officer 18 USC 215(a)(1)
    2.16     Conspiracy to Deprive Person of Civil Rights 18 USC 241
    2.17     Deprivation of Civil Rights 18 USC 242
    2.18     False Claims Against the Government 18 USC 287
    2.19     Conspiracy 18 USC 371
    2.20     Conspiracy: Evidence of Multiple Conspiracies
    2.21     Conspirator’s Liability for Substantive Count
    2.22     Withdrawal Instruction
    2.23     Counterfeiting 18 USC 471
    2.24     Passing Counterfeit Obligations or Securities USC 472
    2.24.1  Importation, Possession or Concealment of Counterfeit Obligations 
                or Securities 18 USC 472
    2.25     Forgery 18 USC 495
    2.26     Passing a Forged Writing 18 USC 495
    2.27     Forgery of Endorsement on United States Treasury Check, Bond, 
                or Security 18 USC 510(a)(1)
    2.28     Passing a Forged United States Treasury Check, Bond or Security 18 USC 510(a)(2)
    2.29     Smuggling 18 USC 545 (First Paragraph)
    2.30     Unlawful Importation 18 USC 545 (Second Paragraph)
    2.31     Theft of Government Property 18 USC 641
    2.32     Embezzlement and Misapplication of Bank Funds 18 USC 656
    2.33     Theft from Interstate or Foreign Shipment 18 USC 659 (Paragraph One)
    2.34     Buying, Receiving, Possessing Goods Stolen from Interstate Shipment 
                18 USC 659 (Paragraph Two)
    2.35     Escape 18 USC 751(a)
    2.36     Threats Against the President 18 USC 871
    2.37     Interstate Transmission of Extortionate Communication 18 USC 875(b)
    2.38     Mailing Threatening Communications 18 USC 876 (Second Paragraph)
    2.39     Misrepresentation of Citizenship 18 USC 911
    2.40     False Impersonation of Federal Officer or Employee—Demanding or Obtaining 
                Anything of Value 18 USC 912
    2.41     Dealing In Firearms Without License 18 USC 922(a)(1)(A)
    2.42     False Statement to Firearms Dealer 18 USC 922(a)(6)
    2.43     Unlawful Sale or Disposition of Firearm 18 USC 922(d)
    2.44     Possession of a Firearm by a Convicted Felon 18 USC 922(g)(1)
    2.45     Using/Carrying a Firearm During Commission of a Drug Trafficking Crime or 
                Crime of Violence 18 USC 924(c)(1)
    2.45.1  Possession of a Firearm in Furtherance of a Drug Trafficking Crime or Crime 
                of Violence 18 USC 924(c)(1)
    2.46     Concealment of a Material Fact 18 USC 1001(a)(1)
    2.46.1  False Statement 18 USC 1001(a)(2)
    2.46.2  Using a False Writing 18 USC 1001(a)(3)
    2.47     False Statements in Bank Records 18 USC 1005 (Third Paragraph)
    2.48     False Statement to a Bank 18 USC 1014
    2.49     False Identification Documents 18 USC 1028(a)(3)
    2.50.1  Fraud in Connection with Counterfeit Credit Cards or Other Access Devices 
                18 USC 1029(a)(1)
    2.50.2  Use of Unauthorized Access Device 18 USC 1029(a)(2)
    2.51     Transmission of Wagering Information 18 USC 1084
    2.52     First Degree Murder 18 USC 1111
    2.52.1  First Degree Murder (Felony Murder) 18 USC 1111
    2.53     Murder in the Second Degree 18 USC 1111
    2.54     Voluntary Manslaughter 18 USC 1112
    2.54.1  Involuntary Manslaughter 18 USC 1112
    2.55     Kidnapping 18 USC 1201(a)(1)
    2.56     Mail Fraud 18 USC 1341
    2.57     Wire Fraud 18 USC 1343
    2.58     Bank Fraud 18 USC 1344
    2.59     Mailing Obscene Material 18 USC 1461
    2.60     Interstate Transportation of Obscene Material 18 USC 1462
    2.61     Interstate Transportation of Obscene Material for Sale or Distribution 18 USC 1465
    2.62     Corruptly Obstructing Administration of Justice 18 USC 1503(a)
    2.63     Obstructing Administration of Justice by Threats or Force 18 USC 1503(a)
    2.64     Corruptly Influencing a Juror 18 USC 1503
    2.65     Witness Tampering 18 USC 1512(b)(1)
    2.66     False Declaration (Perjury) Before a Court or Grand Jury 18 USC 1623(a)
    2.67     Mail Theft 18 USC 1708
    2.68     Possession of Stolen Mail 18 USC 1708 (Third Paragraph)
    2.69     Embezzlement/Theft of Mail Matter by Postal Service Employee 18 USC 1709
    2.70     [Robbery] [Extortion] by Force, Violence or Fear 18 USC 1951(a) (Hobbs Act)
    2.71     Extortion Under Color of Official Right 18 USC 1951(a) (Hobbs Act)
    2.72     Illegal Gambling Business 18 USC 1955
    2.73     Money Laundering Using Illegal Proceeds to Promote Illegal Activity 
                18 USC 1956(a)(1)(A)(i)
    2.73.1  Money Laundering Concealing Illegal Proceeds 18 USC 1956(a)(1)(B)(i)
    2.73.2  Money Laundering ‘‘Sting’’ Concealing Purported Proceeds of Illegal Activity 
                18 USC 1956(a)(3)(B)
    2.74     Racketeer Influenced and Corrupt Organizations Act 18 USC 1962(a) 
                (Introductory Paragraph)
    2.74.1  Racketeer Influenced and Corrupt Organizations Act
    2.74.2  Racketeer Influenced and Corrupt Organizations Act—‘‘Section A’’
    2.74.3  Racketeer Influenced and Corrupt Organizations Act—‘‘Section A’’
    2.74.4  Racketeer Influenced and Corrupt Organizations Act—‘‘Section A’’
    2.74.5  Racketeer Influenced and Corrupt Organizations Act—‘‘Section A’’
    2.74.6  Racketeer Influenced and Corrupt Organizations Act—‘‘Section A’’
    2.74.7  Racketeer Influenced and Corrupt Organizations Act—‘‘Section A’’
    2.75     Racketeer Influenced and Corrupt Organizations Act 18 USC 1962(b) 
                (Introductory Paragraph)
    2.75.1  Racketeer Influenced and Corrupt Organizations Act—‘‘Section B’’
    2.75.2  Racketeer Influenced and Corrupt Organizations Act—‘‘Section B’’
    2.75.3  Racketeer Influenced and Corrupt Organizations Act—‘‘Section B’’
    2.75.4  Racketeer Influenced and Corrupt Organizations Act—‘‘Section B’’
    2.75.5  Racketeer Influenced and Corrupt Organizations Act—‘‘Section B’’
    2.75.6  Racketeer Influenced and Corrupt Organizations Act—‘‘Section B’’
    2.76     Racketeer Influenced and Corrupt Organizations Act 18 USC 1962(c) 
                (Introductory Paragraph)
    2.76.1  Racketeer Influenced and Corrupt Organizations Act—‘‘Section C’’
    2.76.2  Racketeer Influenced and Corrupt Organizations Act—‘‘Section C’’
    2.76.3  Racketeer Influenced and Corrupt Organizations Act—‘‘Section C’’
    2.76.4  Racketeer Influenced and Corrupt Organizations Act—‘‘Section C’’
    2.76.5  Racketeer Influenced and Corrupt Organizations Act—‘‘Section C’’
    2.76.6  Racketeer Influenced and Corrupt Organizations Act—‘‘Section C’’
    2.76.7  Racketeer Influenced and Corrupt OrganizationsAct—‘‘Section C’’
    2.77     Bank Robbery 18 USC 2113(Subsections (a) and (d) Alleged in the Same Count)
    2.78     Bank Theft 18 USC 2113(b)
    2.79     Carjacking 18 USC 2119
    2.80     Transportation of Stolen Vehicles 18 USC 2312
    2.81     Receipt or Sale of a Stolen Motor Vehicle or Aircraft 18 USC 2313
    2.82     Interstate Transportation of Stolen Property 18 USC 2314 (First Paragraph)
    2.83     Sale or Receipt of Stolen Property 18 USC 2315 (First Paragraph)
    2.84     Failure to Appear 18 USC 3146
    2.85     Controlled Substances— Possession with Intent to Distribute 21 USC 841(a)(1)
    2.85.1  Distribution of a Controlled Substance 21 USC 841(a)(1)
    2.86     Unlawful Use of Communications Facility 21 USC 843(b)
    2.87     Controlled Substances—Conspiracy 21 USC 846
    2.88     Continuing Criminal Enterprise 21 USC 848
    2.89     Controlled Substances—Manufacturing Operations 21 USC 856(a)(1)
    2.90     Controlled Substances—Unlawful Importation 21 USC 952(a) and § 960(a)(1)
    2.91     Possession of an Unregistered Firearm 26 USC 5861(d)
    2.92     Tax Evasion 26 USC 7201
    2.93     False Statements on Income Tax Return 26 USC 7206(1)
    2.94     Aiding or Assisting In Preparation of False Documents Under Internal 
                Revenue Service Laws 26 USC 7206(2)
    2.95     Reports on Exporting and Importing Monetary Instruments 31 USC 5316(a)(1)
    2.96     Structuring Transactions to Evade Reporting Requirements 31 USC 5324(a)(3)
    2.97     Assimilative Crimes Act—Elements 18 USC 13

CRIMINAL PATTERN JURY INSTRUCTIONS - 10TH CIRCUIT (2005)

The defendant is charged in count ___ with a violation of 7 USC 2024(b).

This law makes it a crime to knowingly use, transfer, acquire, alter, or possess United States Department of Agriculture food stamp coupons, authorization cards, or access devices in any manner contrary to the laws and/or Department regulations governing the food stamp program, where the coupons, cards, or devices have a value of $100 or more. [The statute makes it a more serious crime if the value of the coupons, cards, or devices equals or exceeds $5000.]

To find the defendant guilty of this crime you must be convinced that the government has proved each of the following beyond a reasonable doubt:

First: the defendant used [transferred] [acquired] [altered] [possessed] food stamp coupons [authorization cards] [access devices] in a manner contrary to the law or Department of Agriculture regulations;

Second: the defendant knew he acted contrary to the law or Department regulations; and

Third: the [food stamp coupons] [authorization cards] [access devices] had a value of $100 [$5,000] or more.

It is contrary to the law and Department regulations for anyone [to sell or purchase] [food stamp coupons] [authorization cards] [access devices for cash] [to use, transfer, or acquire food stamp coupons, authorization cards, or access devices for non-food items, including, for example, clothes, drugs, cigarettes, or liquor]. The government need not show that the defendant knew of specific laws or regulations prohibiting his conduct; it is sufficient if the government shows by reference to facts and circumstances surrounding the case that the defendant knew his conduct was unauthorized or illegal. Finally, in determining the value of [food stamp coupons] [authorization cards] [access devices], you should rely on their face value [if specified or otherwise determinable].

As the Supreme Court took pains to clarify in Liparota v. United States, 471 U.S. 419 (1985), although section 2024(b) speaks of intentional conduct "contrary to this chapter or the regulations issued pursuant to this chapter," to prove a section 2024(b) violation

the Government need not show that [the defendant] had knowledge of specific regulations governing food stamp acquisition or possession.... Rather, as in any other criminal prosecution requiring mens rea, the Government may prove by reference to facts and circumstances surrounding the case that [the defendant] knew that his conduct was unauthorized or illegal.

Id. at 433; see also id. at 434 n.17 (identifying circumstantial evidence in record from which jury could have inferred requisite mens rea). The instruction closely tracks this passage.

CRIMINAL PATTERN JURY INSTRUCTIONS - 10TH CIRCUIT (2005)

2.02
BRINGING IN AN ALIEN
8 USC 1324(a)(1)(A)(i)

(Bringing in—not port of entry)

The defendant is charged in count _______ with a violation of 8 USC 1324(a)(1)(A)(i).

This law makes it a crime to bring an alien into the United States at a place other than a designated port of entry.

To find the defendant guilty of this crime you must be convinced that the government has proved each of the following beyond a reasonable doubt:

First: the defendant [brought] [attempted to bring] an alien into the United States,

Second: That entry was [attempted] at a place other than a designated port of entry;

Third: the defendant knew that the person was an alien; and

Fourth: the defendant acted with the intent to violate the law.

An alien is a person who is not a citizen or national of the United States.

In United States v. Nguyen, 73 F.3d 887, 894 (9th Cir. 1995), the Ninth Circuit said "[t]he 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)). Specific intent does not require that a defendant know which law that he is violating. He need only know he is violating some law. See United States v. Blair, 54 F.3d 639, 642–43 (10th Cir. 1995) ("Thus, a specific intent crime 'normally does not necessitate proof that the defendant was specifically aware of the law penalizing his conduct.' "). Although there are no Tenth Circuit cases discussing the elements of this crime, in United States v. Alvillar, 575 F.2d 1316, 1318 n.3 (10th Cir. 1978), the court implied knowledge of the alien's status was necessary to support the related charge of causing transportation within the United States.

Section 1182 lists aliens who are excluded from the United States. An alien who falls within one of the categories is not lawfully entitled to enter or reside in the United States. United States v. Bunker, 532 F.2d 1262, 1265–66 (9th Cir. 1976). Where there is evidence that the alien falls within one of the excluded classes, the last clause of the instruction may be so worded as to require the jury to make a finding that the person is within that class. If the defendant raises the defenses that he or she is "a national," see United States v. Jimenez–Alcala, 353 F.3d 858, 861–62 (10th Cir. 2003).

The statute also describes aggravating factors raising the statutory maximum penalty, which must be submitted as additional elements if charged in the indictment. These include: whether the offense was done for the purpose of commercial advantage or private gain, 8 USC 1324(a)(1)(B)(i); whether the defendant caused serious bodily injury, 8 USC 1324(a)(1)(B)(iii); or whether death resulted, 8 USC 1324(a)(1)(B)(iv).

CRIMINAL PATTERN JURY INSTRUCTIONS - 10TH CIRCUIT (2005)

(Bringing in—without authorization)

The defendant is charged in count _______ with a violation of 8 USC 1324(a)(2).

This law makes it a crime to bring an alien into the United States who has not received prior official authorization to enter.

To find the defendant guilty of this crime you must be convinced that the government has proved each of the following beyond a reasonable doubt:

First: the defendant [brought] [attempted to bring] an alien into the United States;

Second: the defendant knew that the person was an alien;

Third: the alien had not received prior official authorization to enter and the defendant knew, or recklessly disregarded, the fact that the alien had no prior authorization; and

Fourth: the defendant acted with the intent to violate the law.

An alien is a person who is not a citizen or national of the United States.

This is a completely separate crime from the "bringing in–not port of entry" covered by Instruction 2.02. See United States v. Aslam, 936 F.2d 751 (2d Cir. 1991). The two crimes share the same elements except (a)(1)(i) requires that the entry be at a place not designated as a port of entry and (a)(2) requires that the alien lack prior authorization to enter the United States. Validity, Construction and Application of §§ 274(a)(1)(A)(I) and 274 (A)(2) of Immigration and Nationality Act Making It Unlawful To Bring Alien To United States, 136 A.L.R. Fed. 511, § 2 (1997).

The statute also describes aggravating factors raising the statutory maximum penalty, which must be submitted as additional elements if charged in the indictment. These include: whether the offense was committed with the intent or with reason to believe that the alien unlawfully brought into the United States will commit an offense against the United States or any State, 8 USC 1324(a)(2)(B)(i); whether the offense was done for the purpose of commercial advantage or private gain, 8 USC 1324(a)(2)(B)(ii); or whether the alien was not immediately brought and presented to an immigration officer at a designated port of entry, 8 USC 1324(a)(2)(B)(iii).

CRIMINAL PATTERN JURY INSTRUCTIONS - 10TH CIRCUIT (2005)

2.03
ALIEN—ILLEGAL TRANSPORTATION
8 USC 1324(a)(1)(A)(ii)

The defendant is charged in count _______ with a violation of 8 USC 1324(a)(1)(A)(ii).

This law makes it a crime to illegally transport an alien.

To find the defendant guilty of this crime you must be convinced that the government has proved each of the following beyond a reasonable doubt:

First: [name of alien] was an alien;

Second: [name of alien] entered or remained in the United States unlawfully;

Third: the defendant knew, or recklessly disregarded the fact, that [name of alien] was not lawfully in the United States; and

Fourth: the defendant transported or moved, or attempted to transport or move, [name of alien], intending to help [him/her] remain in the United States illegally.

When determining whether the defendant intended to help the alien remain in the United States illegally, the jury should consider all relevant evidence including the time of the trip, place, distance of the intended trip, reason for the trip, the overall impact of the trip and the defendant's role.

"Reckless disregard" means deliberate indifference to facts which, if considered and weighed in a reasonable manner, indicate the highest probability that the alleged aliens were in fact aliens and were in the United States unlawfully.

See Comment to Instruction 2.02 (Alien—Bringing in–not port of entry).

"Reckless disregard" is not defined in Title 8, United States Code, but in United States v. Uresti–Hernandez, 968 F.2d 1042, 1046 (10th Cir. 1992), on a "plain error" standard, the court upheld the use of an instruction defining reckless indifference as "deliberate indifference to facts which, if considered and weighed in a reasonable manner, indicate the highest probability that the alleged aliens were in fact aliens and were in the United States unlawfully." If the defendant raises the defense that he or she is a national, see United States v. Jimenez–Alcala, 353 F.3d 858, 861–62 (10th Cir. 2003).

When making the determination of whether the defendant was acting with the intent to assist the defendant's illegal presence, the fact-finder should consider all relevant evidence including the time, place, distance, reason for the trip, overall impact of the trip as well as defendant's role. United States v. Barajas–Chavez, 162 F.3d 1285, 1289 (10th Cir. 1999); see also United States v. Hernandez, 327 F.3d 1110, 1113–14 (10th Cir. 2003). In United States v. Martinez–Nava, 838 F.2d 411, 414 (10th Cir. 1988), the jury, during deliberation, sent out a question as to whether the jury instruction which required the government prove only that the defendant transport or move or attempt to transport or move the alleged alien included transportation within Albuquerque since the indictment charged defendant " 'knowingly did transport by vehicle from El Paso, Texas, to Albuquerque, New Mexico,' " an alien. The Tenth Circuit affirmed use of a supplemental instruction which concluded "that any transportation between points in El Paso and points in Albuquerque or between points within El Paso or between points within Albuquerque is comprehended within the language of the indictment," saying "the trial court should clear away the difficulty with 'concrete accuracy,' " quoting United States v. Walker, 557 F.2d 741, 746 (10th Cir. 1977) (further quotation omitted).

The statute describes aggravating factors raising the statutory maximum penalty, which must be submitted as additional elements if charged in the indictment. These include: whether the offense was done for the purpose of commercial advantage or private gain, 8 USC 1324(a)(1)(B)(i); whether the defendant caused serious bodily injury, 8 USC 1324(a)(1)(B)(iii); or whether death resulted, 8 USC 1324(a)(1)(B)(iv).

CRIMINAL PATTERN JURY INSTRUCTIONS - 10TH CIRCUIT (2005)

The defendant is charged in count _______ with a violation of 8 USC 1324(a)(1)(A)(iii).

This law makes it a crime to conceal, shield from detection or harbor an alien.

To find the defendant guilty of this crime you must be convinced that the government has proved each of the following beyond a reasonable doubt:

First: [name of alien] was an alien;

Second: [name of alien] entered or remained in the United States unlawfully;

Third: the defendant [knew] [or] [recklessly disregarded the fact] that [name of alien] was not lawfully in the United States; and

Fourth: the defendant concealed, shielded from detection, or harbored the alien;

Fifth: The defendant intended the concealment, shield from detection or harboring to facilitate the alien's continued illegal presence.

An alien is a person who is not a citizen or national of the United States.

See Comment to Instruction 2.02 (Alien—Bringing in–not port of entry) and 2.03 (Alien–Illegal Transportation) discussing United States v. Martinez–Nava, 838 F.2d 411 (10th Cir. 1988), which charged harboring as well as transporting. That note should also be consulted regarding additional elements when aggravating factors are charged. See Apprendi v. New Jersey, 530 U.S. 466 (2000).

CRIMINAL PATTERN JURY INSTRUCTIONS - 10TH CIRCUIT (2005)

The defendant is charged in count _______ with a violation of 8 USC 1326(a).

This law makes it a crime for an alien [to enter] [to attempt to enter] [to be found in] the United States after having been [deported] [excluded] [removed] from the United States.

To find the defendant guilty of this crime you must be convinced that the government has proved each of the following beyond a reasonable doubt:

First: the defendant was an alien at the time alleged in the indictment;

Second: the defendant had previously been [denied admission] [excluded] [deported] [removed] from the United States; and

Third: the defendant knowingly [entered] [attempted to enter] [was found in] the United States.

Fourth: the defendant had not received the consent of the proper legal authority to reapply for admission to the United States.

An alien is a person who is not a citizen or national of the United States.

This instruction is patterned on the instruction approved in United States v. Martinez–Morel, 118 F.3d 710 (10th Cir. 1997); however, as of April 1, 1997, the statute was amended to delete "arrest" as an element of the crime. United States v. Wittgenstein, 163 F.3d 1164, 1168 (10th Cir. 1998). In Martinez-Morel, the Tenth Circuit recognized 8 USC 1326(a) was a regulatory statute which required only general intent and thus the alien's belief he had not previously been deported was irrelevant. 118 F.3d at 713. See also United States v. Berrios–Centeno, 250 F.3d 294, 297–8 (5th Cir. 2001) (Government must only show defendant had the intent to reenter).

The statute criminalizes not only "entering," but attempting to enter and being found in the United States. See United States v. Rosales–Garay, 283 F.3d 1200, 1201–02 (10th Cir. 2002) (section 1326(a) "provides that a previously deported alien who, without permission, 'enters, attempts to enter, or is at any time found in, the United States' is guilty of the crime of unlawful reentry"). The statute applies not only to aliens who have been deported, but also to aliens denied admission, excluded or removed. 8 U.S.C. 1326(a)(1). The jury must find that the defendant was an alien at the time alleged in the indictment. See United States v. Figueroa, 221 F.3d 1353, 2000 WL 963346 (10th Cir. July 12, 2000) (unpublished); see also Fifth Cir. Pattern Instruction 2.05 (West 2001). United States v. Miranda–Enriquez, 842 F.2d 1211, 1212 (10th Cir. 1988). The fourth element as modified quotes directly from the relevant statute, 8 USC 1326(a)(2): "to reapply for admission to the United States."

There is a presumption that prior deportation proceedings were legal and the defendant carries the burden to prove the contrary. United States v. Arevalo–Tavares, 210 F.3d 1198, 1200 (10th Cir. 2000). If the defendant raises the defense that he or she is a national, see United States v. Jimenez–Alcala, 353 F.3d 858 (10th Cir. 2003).

CRIMINAL PATTERN JURY INSTRUCTIONS - 10TH CIRCUIT (2005)

Chapter 64: Accomplice Liability (Aiding and Abetting, Accessory Before The Fact, Etc.)

Each count of the indictment also charges a violation of 18 USC 2, which provides that: "Whoever commits an offense against the United States, or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal."

This law makes it a crime to intentionally help someone else commit a crime. To find the defendant guilty of this crime, you must be convinced that the government has proved each of the following beyond a reasonable doubt:

First: someone else committed the charged crime, and

Second: the defendant intentionally associated himself in some way with the crime and intentionally participated in it as he would in something he wished to bring about. This means that the government must prove that the defendant consciously shared the other person's knowledge of the underlying criminal act and intended to help him.

The defendant need not perform the underlying criminal act, be present when it is performed, or be aware of the details of its commission to be guilty of aiding and abetting. But a general suspicion that an unlawful act may occur or that something criminal is happening is not enough. Mere presence at the scene of a crime and knowledge that a crime is being committed are also not sufficient to establish aiding and abetting.

The Committee believes that this instruction is consistent with Nye & Nissen v. United States, 336 U.S. 613, 618–19 (1949); United States v. Anderson, 189 F.3d 1201, 1207 (10th Cir. 1999); United States v. Scroger, 98 F.3d 1256, 1262 (10th Cir. 1996).

CRIMINAL PATTERN JURY INSTRUCTIONS - 10TH CIRCUIT (2005)

Chapter 68: Accessory After The Fact

The defendant is charged in count _______ with a violation of 18 USC 3.

This law makes it a crime for anyone, knowing that a crime against the United States has been committed, to obstruct justice by giving assistance to another person who committed that crime, in order to hinder or prevent that person's apprehension or punishment. A person who does this is called an accessory after the fact.

In this case, the defendant is not charged with actually committing the crime of [_______]. Instead, he is charged with helping someone else try to avoid being arrested, prosecuted or punished for that crime.

To find the defendant guilty of this crime you must be convinced that the government has proved each of the following beyond a reasonable doubt:

First: the defendant knew someone else had already committed the crime of [_______].

Second: the defendant then helped that person try to avoid being arrested, prosecuted or punished.

Third: the defendant did so with the intent to help that person avoid being arrested, prosecuted or punished.

Comment

This instruction is consistent with United States v. McGuire, 200 F.3d 668, 674–76 (10th Cir. 1999); United States v. Lepanto, 817 F.2d 1463, 1467–69 (10th Cir. 1987); United States v. Balano, 618 F.2d 624, 631 (10th Cir. 1979), overruled on other grounds by Richardson v. United States, 468 U.S. 317, 325–26 (1984).

CRIMINAL PATTERN JURY INSTRUCTIONS - 10TH CIRCUIT (2005)

See NCJIC 251.6.3 [No Legal Duty To Prevent Another From Committing A Crime (Misprison Not An Offense)].

The defendant is charged in count _______ with a violation of 18 USC 4.

This law makes it a crime to conceal from the authorities the fact that a federal felony has been committed. [Predicate offense] is a federal felony.

To find the defendant guilty of this crime you must be convinced that the government has proved each of the following beyond a reasonable doubt:

First: a federal felony was committed, as charged in count _______ of the Indictment;

Second: the defendant had knowledge of the commission of that felony;

Third: the defendant failed to notify an authority as soon as possible. An "authority" includes a federal judge or some other federal civil or military authority, such as a federal grand jury, Secret Service or FBI agent; and

Fourth: the defendant did an affirmative act, as charged, to conceal the crime.

Mere failure to report a felony is not a crime. The defendant must commit some affirmative act designed to conceal the fact that a federal felony has been committed.

This instruction is supported by United States v. Baez, 732 F.2d 780, 782 (10th Cir. 1984) (stating elements of "misprision" of felony).

CRIMINAL PATTERN JURY INSTRUCTIONS - 10TH CIRCUIT (2005)

77.4 Assault On Law Enforcement Officer, Custodial Officer Or Firefighter

The defendant is charged in count _______ with a violation of 18 USC 111.

This law makes it a crime to forcibly [assault] [resist] [oppose] [impede] [intimidate] or [interfere with] a federal officer while the officer is engaged in the performance of his official duties.

To find the defendant guilty of this crime you must be convinced that the government has proved each of the following beyond a reasonable doubt:

First: the defendant forcibly [assaulted] [resisted] [opposed] [impeded] [intimidated] or [interfered with] [the person described in the indictment];

Second: the person [assaulted] [resisted] [opposed] [impeded] [intimidated] or [interfered with] was a federal officer who was then engaged in the performance of his official duty, as charged; and

Third: the defendant did such act[s] intentionally.

[Fourth: in doing such acts, the defendant [used a deadly or dangerous weapon] [inflicted bodily injury]].

[The term "forcible assault" means any intentional attempt or threat to inflict injury upon someone else, when coupled with an apparent present ability to do so, and includes any intentional display of force that would give a reasonable person cause to expect immediate bodily harm, whether or not the threat or attempt is actually carried out or the victim is injured.]

[The term "deadly or dangerous weapon" includes any object capable of inflicting death or serious bodily injury. For such a weapon to have been "used," the government must prove that the defendant not only possessed the weapon, but that the defendant intentionally displayed it in some manner while forcibly [assaulting] [resisting] [opposing] [impeding] [intimidating] or [interfering with] the federal officer. The term "bodily injury" means an injury that is painful and obvious, or is of a type for which medical attention ordinarily would be sought.]

You are instructed that a [name agent] is a federal officer, and that it is a part of the official duty of such an officer to [name duty performed, e.g., execute arrest warrants issued by a judge or magistrate of this court].

It is not necessary to show that the defendant knew the person being forcibly [assaulted] [resisted] [opposed] [impeded] [intimidated] or [interfered with] was, at that time, a federal officer carrying out an official duty so long as it is established beyond a reasonable doubt that the victim was, in fact, a federal officer acting in the course of his duty and that the defendant intentionally forcibly [assaulted] [resisted] [opposed] [impeded] [intimidated] or [interfered with] that officer.

[On the other hand, the defendant would not be guilty of [assaulting] [resisting] [opposing] [impeding] [intimidating] or [interfering with] an officer if the defendant had no knowledge of the officer's identity and reasonably believed he was the subject of a hostile attack against his person such that he was entitled to use reasonable force in his defense. The government must establish beyond a reasonable doubt that the defendant did not act in self defense.]

This statute creates three separate offenses, each element of which must be charged in the indictment and proven to the jury beyond a reasonable doubt. United States v. Hathaway, 318 F.3d 1001, 1007 (10th Cir. 2003); see also Apprendi v. New Jersey, 530 U.S. 466, 490 (2000) (holding that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt."). The fourth element above and the accompanying bracketed definitions constitute a felony offense carrying a maximum penalty of 20 years imprisonment. Without that element, the above instruction defines the misdemeanor crime of "simple assault," carrying a maximum penalty of not more than one year confinement. "Simple assault" means "assault which does not involve actual physical contact, a deadly or dangerous weapon, bodily injury, or the intent to commit murder or any felony other than those referred to in [18 USC] § 113(a)(2)." Hathaway, 318 F.3d at 1008. The third crime is under the category of "all other cases," carrying a maximum penalty of eight years imprisonment. "All other cases" assault means

any assault that is neither "simple assault" ... nor assault as defined in [18 USC] § 111(b). Thus, "all other cases" assault ... includes any assault that involves actual physical contact or the intent to commit murder or any felony other than those referred to in § 113(a)(2) but does not involve a deadly or dangerous weapon or bodily injury.

Id. at 1008–09. The instruction above would have to be modified accordingly to fit this category.

A federal officer is "engaged in the performance of his official duties" if he is acting within the scope of what he is employed to do, rather than engaging in a personal frolic of his own. United States v. Young, 614 F.2d 243, 244 (10th Cir. 1980) (Internal Revenue Service agent was engaged in the performance of his official duties even if summons he was serving was invalid).

In addition to prohibiting assaults and similar conduct on certain federal officials "while engaged in" their official duties, a prosecution under this statute also would be proper if the defendant forcibly assaulted a federal official "on account of" some official duty during such person's term of service. 18 USC 111(a)(2); see generally United States v. Treff, 924 F.2d 975 (10th Cir. 1991). The above instruction would have to be modified accordingly for such a charge.

18 USC 111 gives a person of ordinary intelligence fair notice of what conduct is proscribed and is not unconstitutionally vague, indefinite, or ambiguous. United States v. Linn, 438 F.2d 456, 458 (10th Cir. 1971).

The last paragraph of the instruction is appropriate only when the evidence raises self defense or other justifiable action. United States v. Corrigan, 548 F.2d 879, 883 (10th Cir. 1977); see also United States v. Feola, 420 U.S. 671, 685–86 (1975).

If the government seeks to prove the "forcibly" element by proof of threats rather than by proof of actual touching, the threat must have been of immediate harm. In other words, the defendant must have had the present ability to harm the federal officer at the time he made the threat against the officer. United States v. Disney, 253 F.3d 1211, 1214–15 (10th Cir. 2001).

CRIMINAL PATTERN JURY INSTRUCTIONS - 10TH CIRCUIT (2005)

The defendant is charged in count _______ with a violation of 18 USC 152(1).

This law makes it a crime to conceal property belonging to the estate of a debtor in bankruptcy.

To find the defendant guilty of this crime you must be convinced that the government has proved each of the following beyond a reasonable doubt:

First: a bankruptcy proceeding was pending on or about [date], in which [___] was the debtor;

Second: [description of the property alleged in indictment] was a part of the debtor's bankruptcy estate;

Third: [defendant name] knowingly concealed the property from the [custodian or trustee or marshal or other officer of the court, who was charged with control or custody of the property] [in Ch. 11 cases: creditors or United States Trustee]; and

Fourth: [defendant name] concealed the property fraudulently.

The "bankruptcy estate" includes all property in which the debtor has a legal or equitable interest at the time the bankruptcy case is filed. It also includes proceeds, products, rents, or profits from the estate's property.

"Conceal" means not only to hide or secrete, but also to prevent discovery or withhold knowledge of an asset. In addition, preventing disclosure or recognition of an asset is to conceal it. Concealment of property of the estate may include transferring property to a third party or entity, destroying the property, withholding knowledge about the property's existence or location, or knowingly doing anything else that hinders, unreasonably delays, or defrauds any creditors. Concealment is a continuing offense, so the actions taken toward concealment may have begun either before or after the bankruptcy proceeding began.

An act is done fraudulently if it is done with intent to deceive in order to cause financial loss or loss of property or property rights, or in order to cause a financial gain, either to oneself or another, to the detriment of a third party.

For a case defining "concealment," see United States v. Arge, 418 F.2d 721, 724 (10th Cir. 1969).

Description of the property in the indictment should not be "so general that it would inhibit the preparation of a defense." Arge, 418 F.2d at 724. It follows that the property should be sufficiently identified in the instructions.

Although 18 USC 152(1) does not state that the concealment of property must be material, the Tenth Circuit has implied that materiality requirement with regard to other subsections of this statute. See United States v. McIntosh, 124 F.3d 1330, 1337 (10th Cir. 1997) (holding that the instructions as a whole correctly stated the governing law where they referred to the materiality of a concealed fact and a false statement in connection with bankruptcy fraud under §§ 152(3) and (7)). The court did not discuss, however, the then-seven-month-old Supreme Court decision in United States v. Wells, 519 U.S. 482 (1997). That case held that materiality was not an element of 18 USC 1014 (which makes it a crime to knowingly make a false statement or report to influence a bank with regard to a loan) where, among other things, the statute does not mention materiality of the false statement or the facts underlying the false statement. Id. at 489–90. Casting further doubt on "materiality" as an element of § 152, the Committee notes that, of the nine subsections in that statute, only subsection (5) explicitly requires materiality.

"Property of the estate" is defined at 11 USC 541. The definition is extensive, so the Committee recommends that the court tailor the definition of "property of the estate" to the particular facts of the case.

In appropriate cases, where the defense is raised, the trial court might add the following instruction(s):

It is no defense that the concealment may have proved unsuccessful. Even though the property [document] [books] [records] in question may have been recovered for the debtor's estate, the defendant still may be guilty of the offense charged.

Similarly, it is no defense that there was no demand by any officer of the court or creditor for the property [document] [books] [records] alleged to have been concealed. Demand on the defendant for such property [document] [books] [records] is not necessary in order to establish concealment.

CRIMINAL PATTERN JURY INSTRUCTIONS - 10TH CIRCUIT (2005)

103.9 Bribery

The defendant is charged in count _______ with a violation of 18 USC 201(b)(1).

This law makes it a crime to bribe a public official.

To find the defendant guilty of this crime you must be convinced that the government has proved each of the following beyond a reasonable doubt:

First: the defendant [gave] [offered] [promised] [directly] [indirectly] anything of value to [name of official]; and

Second: at the time [name of official] was a public official, and

Third: the defendant did this act [i.e., (specify what defendant is alleged to have done)], intentionally and with the unlawful purpose to influence an official act by [name of official].

"Public official" and "official act" are defined by 18 USC 201(a)(1–3):

(1) the term "public official" means Member of Congress, Delegate, or Resident Commissioner, either before or after such official has qualified, or an officer or employee or person acting for or on behalf of the United States, or any department, agency or branch of Government thereof, including the District of Columbia, in any official function, under or by authority of any such department, agency, or branch of Government, or a juror;

(2) the term "person who has been selected to be a public official" means any person who has been nominated or appointed to be a public official, or has been officially informed that such person will be so nominated or appointed; and

(3) the term "official act" means any decision or action on any question, matter, cause, suit, proceeding or controversy, which may at any time be pending, or which may by law be brought before any public official, in such official's official capacity, or in such official's place of trust or profit.

CRIMINAL PATTERN JURY INSTRUCTIONS - 10TH CIRCUIT (2005)

103.9 Bribery

The defendant is charged in count _______ with a violation of 18 USC 201(b)(2).

This law makes it a crime for a public official to [demand] [seek] [receive] [accept] [agree to receive or accept] a bribe.

To find the defendant guilty of this crime you must be convinced that the government has proved each of the following beyond a reasonable doubt:

First: the defendant, a public official, directly or indirectly [demanded] [sought] [received] [accepted] [agreed to receive or accept] personally [for another person] [for an entity] something of value; and

Second: the defendant did so intentionally and with an unlawful purpose in return for being [influenced in his performance of an official act] [persuaded to omit an act in violation of his official duty] [persuaded to do an act in violation of his official duty].

Refer to Instruction 2.11 (Comment) for appropriate definitions.

CRIMINAL PATTERN JURY INSTRUCTIONS - 10TH CIRCUIT (2005)

103.9 Bribery

The defendant is charged in count _______ with a violation of 18 USC 201(c)(1)(A).

This law makes it a crime to [give] [offer] [promise] anything of value to a public official [for] [because of] an official act [performed] [to be performed] by that official.

To find the defendant guilty of this crime you must be convinced that the government has proved each of the following beyond a reasonable doubt:

First: the defendant [gave] [offered] [promised] anything of value not authorized by law to [name of official] [directly or indirectly] and

Second: at that time, [name of official] was a public official, and

Third: the defendant did so [for] [because of] an official act [performed] [to be performed] by [name of official].

Refer to Instruction 2.11 (Comment) for appropriate definitions.

CRIMINAL PATTERN JURY INSTRUCTIONS - 10TH CIRCUIT (2005)

103.9 Bribery

The defendant is charged in count _______ with a violation of 18 USC 201(c)(1)(B).

This law makes it a crime for a public official to [demand] [seek] [receive] [accept] [agree to receive or accept] anything of value personally [for] [because of] an official act [performed] [to be performed] by that official.

To find the defendant guilty of this crime you must be convinced that the government has proved each of the following beyond a reasonable doubt:

First: the defendant was a public official;

Second: the defendant directly or indirectly [demanded] [sought] [received] [accepted] [agreed to receive or accept] something of value personally, and

Third: the defendant did so [for] [because of] an official act [performed] [to be performed] by the defendant.

Refer to Instruction 2.11 (Comment) for appropriate definitions.

CRIMINAL PATTERN JURY INSTRUCTIONS - 10TH CIRCUIT (2005)

2.15
BRIBERY OR REWARD OF A BANK OFFICER
18 USC 215(a)(1)

103.9 Bribery

The defendant is charged in count _______ with a violation of 18 USC 215(a)(1).

This law makes it a crime to corruptly [give] [offer] [promise] anything of value to any person, with the intent to influence or reward an officer, director, employee, agent, or attorney of a financial institution in connection with any business or transaction of that financial institution.

To find the defendant guilty of this crime you must be convinced that the government has proved each of the following beyond a reasonable doubt:

First: the defendant [gave] [offered] [promised] anything of value in excess of $1,000 to [name of bank officer], and

Second: the defendant did so intentionally and with the unlawful purpose to [influence] [reward] an [officer] [director] [employee] [agent] [attorney] of a financial institution in connection with any [business] [transaction] of that institution.

If there is a dispute as to whether the value exceeds $1,000 (felony), a lesser included misdemeanor instruction should be given. To the extent that sentencing is based on the amount given, offered or promised, that amount should be charged and proved before the jury, consistently with Apprendi v. New Jersey, 530 U.S. 466 (2000).

CRIMINAL PATTERN JURY INSTRUCTIONS - 10TH CIRCUIT (2005)

77.15.1.1 Hate Crimes: Cross References And Research Notes

77.15.2.3 Hate Crimes: Mens Rea

The defendant is charged in count _______ with a violation of 18 USC 241.

This law makes it a crime for two or more persons to conspire to [injure] [oppress] [threaten] [intimidate] someone in the free exercise or enjoyment of any right or privilege secured by the Constitution or laws of the United States.

To find the defendant guilty of this crime you must be convinced that the government has proved each of the following beyond a reasonable doubt:

First: the defendant knowingly agreed with another to [injure] [oppress] [threaten] [intimidate] one or more persons; and

Second: in doing so, the defendant intended to [hinder] [prevent] [interfere with] [name of person's] exercise or enjoyment of [his] [her] right [name right, e.g., to vote], which is a right secured by the Constitution or laws of the United States.

[Third: Include any statutory enhancement element, e.g., [name of person] died as a result of acts committed in furtherance of the conspiracy.]

[The government need not prove that the defendant intended for [name of person] to die. It must prove that [name of person]'s death was a foreseeable result of the defendant's conduct.]

The elements of Section 241 are set forth in United States v. Whitney, 229 F.3d 1296, 1301 (10th Cir. 2000). See also United States v. Magleby, 241 F.3d 1306, 1314 (10th Cir. 2001). Section 241 does not require proof of an overt act in furtherance of the conspiracy. Whitney, at 1301.

This instruction must be accompanied by appropriate defining language from the standard conspiracy instruction for 18 USC 371, excluding the element requiring a conspirator to commit at least one overt act.

If the indictment alleges any of the several statutory enhancement elements, that element must be submitted to the jury.

Certain constitutional rights such as those under the Equal Protection Clause "arise only when there has been involvement of the state or of one acting under color of its authority." United States v. Guest, 383 U.S. 745, 755 (1966). If these rights are alleged in a section 241 case, the jury must be required to find that the defendant acted "under color of law," as defined in Instruction 2.17 for Deprivation of Civil Rights, 18 USC 242.

CRIMINAL PATTERN JURY INSTRUCTIONS - 10TH CIRCUIT (2005)

77.15.1.1 Hate Crimes: Cross References And Research Notes

77.15.2.3 Hate Crimes: Mens Rea

The defendant is charged in count _______ with a violation of 18 USC 242.

This law makes it a crime for anyone acting under color of law wilfully to deprive someone of a right secured by the Constitution or laws of the United States.

To find the defendant guilty of this crime you must be convinced that the government has proved each of the following beyond a reasonable doubt:

First: the defendant was acting under color of law when he committed the acts charged in the indictment.

Second: the defendant deprived [name of person] of [his] [her] right to [name right], which is a right secured by the Constitution or laws of the United States.

Third: the defendant acted willfully, that is, the defendant acted with a bad purpose, intending to deprive [name of person] of that right.

[Fourth: (Include any appropriate enhancement element), e.g., [name of person] died as a result of defendant's conduct.] [The government need not prove that the defendant intended for [name of person] to die. The government must prove only that [name of person]'s death was a foreseeable result of the defendant's willful deprivation of [name of person]'s constitutional rights.]

"Under color of law" means acts done under any state law, county or city ordinance, or other governmental regulation, and includes acts done according to a custom of some governmental agency. It means that the defendant acted in his official capacity or else claimed to do so, but abused or misused his power by going beyond the bounds of lawful authority. [If a private citizen is charged, substitute the following: A private person acts "under color of law" if that person participates in joint activity with someone that person knows to be a public official.]

Comment

A conviction under section 242 requires proof that the defendant acted with the specific intent to deprive a person of some constitutional right. See Screws v. United States, 325 U.S. 91, 106 (1945) (charging violation of section 242 predecessor, 18 USC 52). "[I]t was not sufficient that the defendants may have had a general bad purpose; ... it was necessary that they have the actual purpose of depriving [victim] of the constitutional rights enumerated in the indictment,.... " Apodaca v. United States, 188 F.2d 932, 937 (10th Cir. 1951).

Section 242 includes a number of elements which enhance punishment. If such an element is charged in the indictment, it should be submitted to the jury. See Apprendi v. New Jersey, 530 U.S. 466 (2000).

CRIMINAL PATTERN JURY INSTRUCTIONS - 10TH CIRCUIT (2005)

The defendant is charged in count _______ with a violation of 18 USC 287.

This law makes it a crime to knowingly make a false or fraudulent claim against any department or agency of the United States. The [name of entity] is a department or agency of the United States within the meaning of that law.

To find the defendant guilty of this crime you must be convinced that the government has proved each of the following beyond a reasonable doubt:

First: the defendant knowingly made and presented to the [name of entity] a false or fraudulent claim against the United States;

Second: the defendant knew that the claim was false or fraudulent.

It is not necessary to show that the government agency or department was in fact deceived or misled.

To make a claim, the defendant need not directly submit the claim to an employee or agency or department of the United States. It is sufficient if the defendant submits the claim to a third party knowing that the third party will submit the claim or seek reimbursement from the United States or a department or agency thereof.

The elements of 18 USC 287 are set forth in United States v. Kline, 922 F.2d 610, 611 (10th Cir. 1990).

Materiality is not an element of a false claims charge.

CRIMINAL PATTERN JURY INSTRUCTIONS - 10TH CIRCUIT (2005)

See NCJIC Federal Models By Offense: Conspiracy: Essential Elements (18 USC 371)

See NCJIC Federal Models By Offense: Conspiracy To Defraud United States (18 USC 371 (Second Clause))

Chapter 83: Conspiracy

The defendant is charged in count _______ with a violation of 18 USC 371.

This law makes it a crime to conspire to commit an offense against the United States.

To find the defendant guilty of this crime you must be convinced that the government has proved each of the following beyond a reasonable doubt:

First: the defendant agreed with at least one other person to violate the law.

Second: one of the conspirators engaged in at least one overt act furthering the conspiracy's objective.

Third: the defendant knew the essential objective of the conspiracy.

Fourth: the defendant knowingly and voluntarily participated.

Fifth: there was interdependence among the members of the conspiracy; that is, the members, in some way or manner, intended to act together for their shared mutual benefit within the scope of the conspiracy charged.

Comment

United States v. Rahseparian, 231 F.3d 1267, 1272 (10th Cir. 2000); United States v. Hanzlicek, 187 F.3d 1228, 1232 (10th Cir. 1999); United States v. McVeigh, 153 F.3d 1166, 1196 (10th Cir. 1998); United States v. Edwards, 69 F.3d 419, 431 (10th Cir. 1995); United States v. Johnson, 12 F.3d 1540, 1545 (10th Cir. 1993); United States v. Arutunoff, 1 F.3d 1112, 1116 (10th Cir. 1993).

In drafting Instruction 2.19 (and the correlative drug conspiracy instruction, 2.87), the Committee considered the state of Tenth Circuit conspiracy law.

The United States Code contains a number of conspiracy statutes in addition to the general conspiracy statute, 18 USC 371, and the narcotics conspiracy statute, 21 USC 846. See, e.g., 18 USC 241(conspiracy against rights of citizens); 18 USC 286 (conspiracy to defraud the government with respect to claims); 18 USC 1951 (interference with commerce by threats or violence); and 21 USC 963 (conspiracy to import or export controlled substances). These statutes are necessarily affected by the instructions given in the more common conspiracy cases brought under the general and drug conspiracy statutes.

Proof of an overt act is a required element in conspiracies charged under 18 USC 371, but proof of an overt act is not required in 21 USC 846 conspiracies. United States v. Shabani, 513 U.S. 10, 13 (1994). This important distinction between these two statutes has become blurred in recent Tenth Circuit conspiracy cases. See, e.g., Rahseparian, 213 F.3d at 1272. In stating the elements of a section 371 conspiracy, Rahseparian omits the overt act requirement. Id. (citing United States v. Edwards, 69 F.3d 419, 430 (10th Cir. 1995), a section 846 case).

The Tenth Circuit is unique, at least among federal jurisdictions, in requiring the inclusion of "interdependence" between or among conspirators as an essential element of conspiracies charged under 18 USC 371 and 21 USC 846. Interdependence, as an essential element of § 371 conspiracy, is an innovation of Tenth Circuit jurisprudence that evolved during the 1990s. It now appears to be settled law. See, e.g., United States v. Quarrell, 310 F.3d 664, 678 (10th Cir. 2002) (including interdependence as an element of 18 USC 371) (citing Hanzlicek, 187 F.3d at 1232)); United States v. (Jalal) Rahseparian, 231 F.3d 1257, 1262 (10th Cir. 2000) (same); Rahseparian, 231 F.3d at 1272 (same); United States v. Lampley, 127 F.3d 1231, 1243 (10th Cir. 1997) (same); United States v. Dimeck, 24 F.3d 1239, 1242 (10th Cir. 1994) (same); Arutunoff, 1 F.3d at 1116 (same).

Use Note

Conspiracy to commit a particular substantive offense requires at least the degree of criminal intent necessary to commit the underlying offense. United States v. Feola, 420 U.S. 671, 686 (1975). If the underlying offense requires a special criminal intent (for example, premeditation or malice), further instruction on that intent would be necessary.

The verdict form should include a finding as to the overt act.

Regarding the notion of interdependence, please refer to Instruction 2.87.

Regarding aiding and abetting, if there is an aiding and abetting count, a separate instruction should be given. A suggested instruction follows:

Sometimes jurors have difficulty understanding the legal difference between the criminal offenses of "conspiracy" and "aiding and abetting."

"Conspiracy" depends and is based on any agreement, unspoken or expressed, whether carried over into a conspiratorial act or not; whereas "aiding and abetting" depends on a showing of conscious participation in a criminal act, i.e., knowingly assisting in the performance of the criminal act charged.

It is the element of "agreement" that distinguishes conspiracy from aiding and abetting.

CRIMINAL PATTERN JURY INSTRUCTIONS - 10TH CIRCUIT (2005)

Chapter 83: Conspiracy

Count _______ of the indictment charges that [the defendant was a] [the defendants were all] member[s] of one single conspiracy to commit the crime of ____________________ .

[The defendant has] [Some of the defendants have] argued that there were really two or more separate conspiracies, instead of the single conspiracy charged in the indictment.

You must determine whether the single conspiracy, as charged in the indictment, existed, and if it did, whether the defendant was a member of it.

Proof of several separate conspiracies is not proof of the single, overall conspiracy charged in the indictment, unless one of the several conspiracies which is proved is the single conspiracy charged in the indictment.

If you find that the defendant was not a member of the conspiracy charged, then you must find the defendant not guilty, even though the defendant may have been a member of some other conspiracy. This is because proof that a defendant was a member of some other conspiracy is not enough to convict.

But proof that a defendant was a member of some other conspiracy would not prevent you from returning a guilty verdict, if the government proved that he was also a member of the conspiracy charged in the indictment.

A multiple conspiracy instruction should "instruct [] the jury to acquit if it finds that the defendant was not a member of the indicted conspiracy but rather was involved in another conspiracy." United States v. Edwards, 69 F.3d 419, 433 (10th Cir. 1995).

"[T]he question whether there existed evidence sufficient to establish a single conspiracy is one of fact for the jury to decide." United States v. Evans, 970 F.2d 663, 671 (10th Cir. 1992) (quotation omitted).

"A variance arises when the evidence adduced at trial establishes facts different from those alleged in an indictment." United States v. Ailsworth, 138 F.3d 843, 848 (10th Cir. 1998) (quotation omitted). "Accordingly, where a single conspiracy is charged in the indictment, and the government proves only multiple conspiracies, a defendant who suffers substantial prejudice must have his conviction reversed." Edwards, 69 F.3d at 432.

"The inquiry focuses on whether the necessary interdependence existed between the coconspirators." United States v. Hanzlicek, 187 F.3d 1228, 1232 (10th Cir. 1999). In the context of a wheel conspiracy, this court has held that an element to be proved is that the conspirators were interdependent. Evans, 970 F.2d at 668.

"Separate spokes meeting at a common center constitute a wheel conspiracy only if those spokes are enclosed by a 'rim.' " Evans, 970 F.2d at 668 n. 8 (quoting Kotteakos v. United States, 328 U.S. 750, 755 (1946)).

Use Note

A multiple conspiracy instruction is generally required when the indictment charges several defendants with one overall conspiracy, but the proof at trial indicates that some of the defendants were only involved in separate conspiracies, and not in the overall conspiracy charged in the indictment.

CRIMINAL PATTERN JURY INSTRUCTIONS - 10TH CIRCUIT (2005)

Chapter 83: Conspiracy

If you find the defendant guilty of the conspiracy charged in count ___ and you find beyond a reasonable doubt that during the time the defendant was a member of that conspiracy another coconspirator committed the offense in count ___, and the offense in count ___ was committed to achieve an objective of or was a foreseeable consequence of that conspiracy, then you may find the defendant guilty of count ___, even though the defendant may not have participated in any of the acts which constitute the offense[s] described in count ___.

This instruction charges the jury on the Pinkerton principle. Pinkerton v. United States, 328 U.S. 640, 645–47 (1946). This instruction is supported by United States v. Cherry, 217 F.3d 811, 817 (10th Cir. 2000); United States v. Russell, 963 F.2d 1320, 1322 (10th Cir. 1992); see also United States v. Dumas, 688 F.2d 84, 87 (10th Cir. 1982).

CRIMINAL PATTERN JURY INSTRUCTIONS - 10TH CIRCUIT (2005)

Chapter 83: Conspiracy

The defendant has raised the affirmative defense of withdrawal from the conspiracy.

If you have first found the defendant was a member of the conspiracy charged in count ___, then you must determine whether the defendant thereafter withdrew from the conspiracy.

In order to find that the defendant withdrew from the conspiracy, you must be convinced that the defendant has proven by a preponderance of the evidence that he took an affirmative step to either defeat the purpose of the conspiracy or to tell his coconspirators that he was no longer participating in the conspiracy.

United States v. Cherry, 217 F.3d 811, 817–18 (10th Cir. 2000); United States v. Parnell, 581 F.2d 1374, 1384 (10th Cir. 1978); Hyde v. United States, 225 U.S. 347, 369–70 (1912).

Withdrawal is typically raised in one of the following situations: (1) as a defense to Pinkerton liability, when the defendant claims he withdrew from the conspiracy prior to the commission of substantive offenses by other conspirators; (2) as a defense based on the statute of limitations, when the defendant claims that his involvement in the conspiracy ended beyond the limitations period; or (3) as a defense to the conspiracy charge itself, when the defendant claims withdrawal prior to the commission of any overt act and the charged conspiracy requires an overt act. The judge might wish to add language to the opening paragraph explaining which situation applies in the case.

CRIMINAL PATTERN JURY INSTRUCTIONS - 10TH CIRCUIT (2005)

2.23
COUNTERFEITING
18 USC 471

The defendant is charged in count _______ with a violation of 18 USC 471.

This law makes it a crime to, with intent to defraud, falsely make, forge, counterfeit, or alter any obligation or other security of the United States.

[Name obligation or security] is an obligation or security of the United States within the meaning of the law.

To find the defendant guilty of this crime you must be convinced that the government has proved each of the following beyond a reasonable doubt:

First: the defendant made counterfeit [name obligation or security]; and

Second: the defendant did so with intent to defraud.

An item is "counterfeit" if it bears such a likeness to a genuine item as is calculated to deceive an unsuspecting person of ordinary observation and care.

To act with "intent to defraud" means to act with intent to cheat or deceive. It does not matter, however, whether anyone was in fact cheated or deceived.

Comment

The definition of "counterfeit" is a shorter version of an instruction approved in United States v. Cantwell, 806 F.2d 1463, 1470 (10th Cir. 1986). While shorter, the pattern instruction retains the content of the instruction approved in Cantwell. The actual instruction approved in Cantwell was:

An item is "counterfeit" if it bears such a likeness or resemblance to a genuine obligation or security issued under the authority of the United States as is calculated to deceive an honest, sensible, and unsuspecting person of ordinary observation and care dealing with a person supposed to be honest and upright.

Cantwell, 806 F.2d at 1470.

Where whether the item is an "obligation or other security of the United States" is in dispute, the question should be submitted to the jury. See United States v. Hanzlicek, 187 F.3d 1228, 1229 (10th Cir. 1999). "Obligation or other security of the United States" is defined in 18 USC 8.

CRIMINAL PATTERN JURY INSTRUCTIONS - 10TH CIRCUIT (2005)

The defendant is charged in count _______ with a violation of 18 USC 472.

This law makes it a crime to, with intent to defraud, pass any falsely made, forged, counterfeited, or altered obligation or other security of the United States.

[Name obligation or security] is an obligation or security of the United States within the meaning of that law.

To find the defendant guilty of this crime you must be convinced that the government has proved each of the following beyond a reasonable doubt:

First: the defendant passed counterfeit [name obligation or security];

Second: the defendant knew that the [name obligation or security] was counterfeit; and

Third: the defendant did so with intent to defraud.

An item is "counterfeit" if it bears such a likeness to a genuine item as is calculated to deceive an unsuspecting person of ordinary observation and care.

To "pass" means to spend, attempt to spend, or otherwise to place, or attempt to place, in circulation.

To act with "intent to defraud" means to act with intent to cheat or deceive. It does not matter, however, whether anyone was in fact cheated or deceived.

Comment

This instruction is consistent with United States v. Drumright, 534 F.2d 1383, 1385 (10th Cir. 1976), in which the Tenth Circuit stated that: "The elements of the offense proscribed by § 472 are the passing or uttering of a falsely made and altered obligation of the United States with intent to defraud."

The definition of "counterfeit" is drawn from United States v. Cantwell, 806 F.2d 1463, 1470 (10th Cir. 1986). See Comment accompanying instruction 2.23.

CRIMINAL PATTERN JURY INSTRUCTIONS - 10TH CIRCUIT (2005)

2.24.1
IMPORTATION, POSSESSION OR CONCEALMENT OF COUNTERFEIT
OBLIGATIONS OR SECURITIES
18 USC 472

The defendant is charged in count _______ with a violation of 18 USC 472.

This law makes it a crime to, with intent to defraud, bring into the United States, or keep in possession or conceal, any falsely made, forged, counterfeited, or altered obligation or other security of the United States.

[Name security or obligation] is an obligation or security of the United States within the meaning of that law.

To find the defendant guilty of this crime you must be convinced that the government has proved each of the following beyond a reasonable doubt:

First: the defendant [brought into the United States] [kept in his possession] [concealed] counterfeit [name obligation or security];

Second: the defendant knew that the [name obligation or security] was counterfeit; and

Third: the defendant did so with intent to defraud.

An item is "counterfeit" if it bears such a likeness to a genuine item as is calculated to deceive an unsuspecting person of ordinary observation and care.

To act with "intent to defraud" means to act with intent to cheat or deceive. It does not matter, however, whether anyone was in fact cheated or deceived.

See Comment accompanying previous instruction.

CRIMINAL PATTERN JURY INSTRUCTIONS - 10TH CIRCUIT (2005)

86.1 Forgery

The defendant is charged in count _______ with a violation of 18 USC 495.

This law makes it a crime to forge a signature on any paper [for the purpose of obtaining] [for the purpose of enabling another person to obtain] money from the United States or any of its officers or agents.

To find the defendant guilty of this crime you must be convinced that the government has proved each of the following beyond a reasonable doubt:

First: the defendant wrote the signature of [name payee] on a [describe written instrument] without his permission; and

Second: the defendant [did so for the purpose of obtaining money from the United States when he knew he had no right to have it] [did so for the purpose of enabling another person to obtain money from the United States when the defendant knew the other person had no right to have it].

The "payee" of a check is the true owner or person to whom the check is payable.

The evidence does not have to show that the defendant or anyone else actually obtained any money.

CRIMINAL PATTERN JURY INSTRUCTIONS - 10TH CIRCUIT (2005)

The defendant is charged in count _______ with a violation of 18 USC 495.

This law makes it a crime to pass any false, forged, altered, or counterfeited writing, with intent to defraud the United States, knowing the same to be false, altered, forged, or counterfeited.

To find the defendant guilty of this crime you must be convinced that the government has proved each of the following beyond a reasonable doubt:

First: the defendant passed a [name written instrument];

Second: the defendant knew at the time that the [name written instrument] was [forged] [false] [altered] [counterfeit]; and

Third: the defendant did so with intent to defraud.

To "pass" means to spend, attempt to spend, or otherwise to place, or attempt to place, in circulation.

To act with "intent to defraud" means to act with intent to cheat or deceive. It does not matter, however, whether anyone was in fact cheated or deceived.

CRIMINAL PATTERN JURY INSTRUCTIONS - 10TH CIRCUIT (2005)

86.1 Forgery

The defendant is charged in count _______ with a violation of 18 USC 510(a)(1).

This law makes it a crime to, with intent to defraud, falsely make or forge any endorsement or signature on a Treasury check or bond or security of the United States.

[A [name item if other than a Treasury check] is a bond or security of the United States within the meaning of that law.]

To find the defendant guilty of this crime you must be convinced that the government has proved each of the following beyond a reasonable doubt:

First: the defendant wrote the signature of [name payee] on a [United States Treasury check] [name other bond or security] without his permission; and

Second: the defendant did so with intent to defraud.

To act with "intent to defraud" means to act with intent to cheat or deceive. It does not matter, however, whether anyone was in fact cheated or deceived.

[If a felony violation is charged, add:

Third: [the face value of the United States [Treasury check] [name other bond or security] is $1,000 or more] [the aggregate face value of the United States [Treasury checks] [name other bonds or securities] is $1,000 or more.]

The "payee" of a check is the true owner or person to whom the check is payable.

CRIMINAL PATTERN JURY INSTRUCTIONS - 10TH CIRCUIT (2005)

86.1 Forgery

The defendant is charged in count _______ with a violation of 18 USC 510(a)(2).

This law makes it a crime to, with intent to defraud, pass any Treasury check or bond or security of the United States bearing a falsely made or forged endorsement or signature.

[A [name item if other than a Treasury check] is a bond or security of the United States within the meaning of that law.]

To find the defendant guilty of this crime you must be convinced that the government has proved each of the following beyond a reasonable doubt:

First: the defendant passed a United States [Treasury check][name bond or security];

Second: the defendant knew at the time that [the check] [name bond or security] was forged; and

Third: the defendant did so with intent to defraud.

[If a felony violation is charged, add:

Fourth: That [the face value of the United States [Treasury check] [name bond or security] is $1,000 or more] [the aggregate face value of the United States [Treasury checks] [name bonds or securities] is $1,000 or more.]]

"Forge" means to write the payee's endorsement or signature on a check without the payee's permission or authority.

The "payee" of a check is the true owner or person to whom the check is payable.

To act with "intent to defraud" means to act with intent to cheat or deceive. It does not matter, however, whether anyone was in fact cheated or deceived or whether money was actually obtained.

CRIMINAL PATTERN JURY INSTRUCTIONS - 10TH CIRCUIT (2005)

The defendant is charged in count _______ with a violation of 18 USC 545.

This law makes it a crime for anyone knowingly and willfully to [smuggle] [attempt to smuggle] with intent to defraud merchandise into the United States in violation of the customs laws and regulations of the United States.

To find the defendant guilty of this crime you must be convinced that the government has proved each of the following beyond a reasonable doubt:

First: the defendant [brought] [attempted to bring] [describe merchandise] into the United States;

Second: the defendant knew that the [describe merchandise] should have been declared or reported to customs authorities as required by law;

Third: the defendant acted knowingly and willfully with intent to defraud the United States. [It is not necessary, however, to prove that any tax or duty was owed on the merchandise.]

[Fourth: the defendant did something which was a substantial step toward committing [crime charged], with all of you agreeing as to what constituted the substantial step. Mere preparation is not a substantial step toward committing [crime charged], rather the government must prove that the defendant, with the intent of committing [crime charged], did some overt act adapted to, approximating, and which in the ordinary and likely course of things would result in, the commission of [crime charged].

To act with "intent to defraud" means to act with intent to deceive or cheat someone.

This instruction is based on the first paragraph of 18 USC 545. The first two paragraphs of section 545 set forth two separate offenses. Olais-Castro v. United States, 416 F.2d 1155, 1157–58 (9th Cir. 1969). The statute also provides that "[p]roof of defendant's possession of such goods, unless explained to the satisfaction of the jury, shall be deemed evidence sufficient to authorize conviction for violation of this section." 18 USC 545.

The committee, following the lead of several other circuits with pattern instructions has chosen not to suggest an instruction be given on section 545's statutory presumption of knowledge and intent to defraud from the mere fact of unexplained possession of undeclared goods. For cases discussing this point, see United States v. Kenaan, 496 F.2d 181, 184 (1st Cir. 1974) (presumption is unconstitutional); United States v. Bentley, 875 F.2d 1114, 1119 (5th Cir. 1989) (such an instruction is not plain error); and United States v. Matalon, 425 F.2d 70, 74 (2d Cir. 1970) (same given strength of evidence).

The phrase "intent to defraud the United States" means intent to avoid and defeat the United States custom laws. United States v. Boggus, 411 F.2d 110, 113 (9th Cir. 1969).

The majority of circuits have concluded that 18 USC 545 does not require as an element that the defendant specifically intended to deprive the government of revenue. See United States v. Ahmad, 213 F.3d 805, 811 (4th Cir. 2000); United States v. Robinson, 147 F.3d 851, 854 (9th Cir. 1998); United States v. Borello, 766 F.2d 46, 51–52 (2d Cir. 1985); United States v. Kurfess, 426 F.2d 1017, 1019 (7th Cir. 1970). But see United States v. Menon, 24 F.3d 550, 554–55 (3d Cir. 1994) (holding that intent to deprive government of revenue is an essential element).

Use Note

The Committee believes this general instruction is acceptable in the absence of an objection. If requested, however, the defendant would be entitled to an instruction as to unanimity, which should be reflected on the verdict form.

This instruction may be used when the defendant is charged with the crime of smuggling goods or attempting to smuggle goods. The bracketed fourth element should be used when the defendant is charged with an attempt to smuggle goods.

CRIMINAL PATTERN JURY INSTRUCTIONS - 10TH CIRCUIT (2005)

The defendant is charged in count _______ with a violation of 18 USC 545.

This law makes it a crime for anyone [knowingly] [fraudulently] to import merchandise (that is, to bring merchandise or to cause it to be brought) into the United States contrary to law.

To find the defendant guilty of this crime you must be convinced that the government has proved each of the following beyond a reasonable doubt:

First: the defendant imported [describe merchandise] into the United States;

Second: the defendant's importation was contrary to law [describe law(s) in detail]; and

Third: the defendant knew the importation was contrary to law.

See comment under instruction 2.29. The term "merchandise" includes marijuana. United States v. Garcia–Paz, 282 F.3d 1212, 1214 (9th Cir. 2002). The term "law" includes not only statutes, but substantive agency regulations having the force and effect of law. United States v. Mitchell, 39 F.3d 465, 468–70 (4th Cir. 1994). In instructing the jury on the "contrary to law" element, the court should specify which law or laws defendant's act of importation violated. See, e.g., Babb v. United States, 218 F.2d 538, 540–41 (5th Cir. 1955) (addressing necessity of including essential elements in indictment).

Note that under the second paragraph of 18 USC 545, the government is not required to prove specific intent to defraud the government, United States v. Davis, 597 F.2d 1237, 1239 (9th Cir. 1979), or knowledge of specific law violated, Babb v. United States, 252 F.2d 702, 708 (5th Cir. 1958).

Despite its inclusion in the statute, the Committee chose to eliminate the alternative phrase "clandestinely introduce" from the suggested instruction.

When the offense is receiving, concealing, buying or selling unlawfully imported property pursuant to the second paragraph of 18 USC 545, the following instruction may be given:

The defendant is charged in count _______ with a violation of 18 USC 545.

This law makes it a crime for anyone to [receive] [conceal] [buy] [sell] unlawfully imported merchandise knowing that merchandise to have been imported or brought into the United States contrary to law.

To find the defendant guilty of this crime you must be convinced that the government has proved each of the following beyond a reasonable doubt:

First: merchandise had been imported or brought into the United States contrary to law [describe law(s) in detail]; and

Second: the defendant [received] [concealed] [bought] [sold] the merchandise knowing that it had been imported or brought into the United States contrary to law.

The second element of this suggested instruction is in the disjunctive and the instruction should be tailored to the mental state alleged in the indictment.

CRIMINAL PATTERN JURY INSTRUCTIONS - 10TH CIRCUIT (2005)

2.31
THEFT OF GOVERNMENT PROPERTY
18 USC 641

Chapter 103: Theft/Larceny Based Crimes

The defendant is charged in count _______ with a violation of 18 USC 641.

This law makes it a crime to [steal] [embezzle] [convert] government property. The defendant is accused of [stealing] [embezzling] [converting] [name property].

To find the defendant guilty of this crime you must be convinced that the government has proved each of the following beyond a reasonable doubt:

First: the [name property] belonged to the United States government [if lack of knowledge is asserted, add: It does not matter whether the defendant knew that the [name property] belonged to the United States government, only that he knew it did not belong to him.];

Second: the defendant [stole] [embezzled] [converted] the [name property] intending to put it [to his own use or gain] [to the use or gain of another] or the defendant took the [name property] knowing it was not his and intending to deprive the owner of the use or benefit of the [name property]; and

Third: the value of the [name property] was more than $1000.

"Value" means the face, or market value, or cost price, either wholesale or retail, whichever is greater.

Comment

It is not necessary that the defendant knew the property belonged to the government. United States v. Speir, 564 F.2d 934, 937–38 (10th Cir. 1977).

Knowledge that the property is stolen and intent to convert it to one's own (or another's) use or gain are essential elements of the offense. United States v. Butler, 494 F.2d 1246, 1249 (10th Cir. 1974).

When instructing on embezzlement, existence of a fiduciary relationship is not an essential element. United States v. Davila, 693 F.2d 1006, 1007–08 (10th Cir. 1982).

Use Note

If there is a dispute about whether the property has a value of more or less than $1000, the court should consider giving a lesser included offense instruction. It is suggested that the verdict form might contain a line requiring the jury to specify a value, in light of Apprendi v. New Jersey, 530 U.S. 466 (2000).

The Committee suggests that the trial court include the term "par value" only if the term is an issue in the case. No Tenth Circuit case defines this term.

CRIMINAL PATTERN JURY INSTRUCTIONS - 10TH CIRCUIT (2005)

Chapter 103: Theft/Larceny Based Crimes

The defendant is charged in count _______ with a violation of 18 USC 656.

This law makes it a crime for certain people to embezzle or misapply the money, funds, or credits of a federally insured bank.

To find the defendant guilty of this crime you must be convinced that the government has proved each of the following beyond a reasonable doubt:

First: the defendant was [an officer of] [an agent of] [an employee of] [connected in any capacity with–describe relationship] the [name bank];

Second: the [name bank] was a [describe federal status, i.e., "federally insured institution"];

Third: the defendant [knowingly embezzled] [willfully misapplied] [funds] [credits] [belonging to] [entrusted to the care of] the bank;

Fourth: the defendant acted with the intent to injure or defraud the bank; and

Fifth: the amount of money taken was more than $1,000.

To act with intent to defraud means to act with intent to deceive or cheat someone.

To 'embezzle' means the wrongful, intentional taking of money or property of another after the money or property has lawfully come within the possession or control of the person taking it. No particular type of moving or carrying away is required.

Sections 656 and 657 are parallel statutes that require the same proof. When instructing under 657, the designation of institution should be changed in the appropriate places.

The statute's "connected in any capacity with" language "should be given a 'broad interpretation' in accordance with congressional intent of protection of federally insured institutions against fraud." United States v. Davis, 953 F.2d 1482, 1489 (10th Cir. 1992) (noting that either a stockholder who exerts control or a financial advisor of a federally protected institution may be within the reach of statutes because both persons occupy "positions of trust").

Good faith is a legitimate theory of defense to violation of §§ 656 and 657. See United States v. Haddock, 956 F.2d 1534, 1547–48 (10th Cir. 1992) (applying § 656). If the evidence supports the defense theory, it is error to refuse a good faith instruction–general instructions defining willfulness and intent will not suffice. Id.

If the charge involved is embezzlement, the relevant inquiry is not one of timing. Rather, the question is whether the defendant has been "given all the means for effective access to and control of the money by virtue of a special trust placed in her by her employer." United States v. Weller, 238 F.3d 1215, 1219 (10th Cir. 2001) (discounting defendant's argument that she had no authority to be in the bank at the time she possessed the funds) (quotation omitted).

If the charge involved is misapplication of funds, as opposed to embezzlement or theft, some causal connection is required between the defendant's actions as an officer, agent, employee, or person connected with the institution and the misapplication, such as a loan. For example, the defendant, in his special capacity, must misapply the funds by either making the loan or influencing the loan in a significant way. United States v. Mitchell, 15 F.3d 953, 955 (10th Cir. 1994). For a discussion of "misapplication," see United States v. Davis, 953 F.2d 1482, 1492–93 (10th Cir. 1992) (also noting that §§ 656 and 657 are parallel statutes). The possibility of future benefit to the bank is not a defense to misapplication of funds. United States v. Acree, 466 F.2d 1114, 1118 (10th Cir. 1972). "Misapplication covers acts not covered by embezzlement ... [and] does not require previous lawful possession." United States v. Holmes, 611 F.2d 329, 331 (10th Cir. 1979). The fact that a bank suffers no loss, or that the defendant offers to repay a loss does not negate an earlier intent to defraud. United States v. McKinney, 822 F.2d 946, 949–50 (10th Cir. 1987).

The Tenth Circuit has held that evidence of intent to deceive satisfies the scienter requirement of § 656. United States v. Harenberg, 732 F.2d 1507, 1511–12 (10th Cir. 1984).

CRIMINAL PATTERN JURY INSTRUCTIONS - 10TH CIRCUIT (2005)

Chapter 103: Theft/Larceny Based Crimes

The defendant is charged in count _______ with a violation of 18 USC 659.

This law makes it a crime to commit a theft from an interstate or foreign shipment in certain circumstances.

To find the defendant guilty of this crime you must be convinced that the government has proved each of the following beyond a reasonable doubt:

First: the defendant [embezzled] [stole] [unlawfully took, carried away or concealed] [by fraud or deception obtained] the property described in the indictment from [here describe the location, e.g., any pipeline system, railroad car, wagon, motortruck or other vehicle, or from any tank or storage facility, station, station house, platform or depot or from any steamboat, vessel, or wharf, or from any aircraft, air terminal, airport, aircraft terminal or air navigation facility];

Second: the defendant did so with the intent to deprive the owner of the use or benefit of the property or goods;

Third: such property or goods were a part of an interstate or foreign shipment at the time; and

Fourth: the value of the property was more than $1,000.

The word "steal" is defined by its well known meaning of taking the property of another for one's own use without benefit of law. United States v. Scott, 592 F.2d 1139, 1143 (10th Cir. 1979). Intent to permanently deprive the owner of the property is not a required element. United States v. Cook, 967 F.2d 431 (10th Cir. 1992). A fur coat stolen from a railroad passenger qualifies as an "interstate shipment." Cathcart v. United States, 244 F.2d 74, 74 (10th Cir. 1957). No single event can be used to determine when goods lose their interstate character and become intrastate or inventory. United States v. Luman, 622 F.2d 490, 492 (10th Cir. 1980).

This crime contains a separate element (thefts of interstate shipment) not present in the charge of theft of government property, 18 USC 641, so an acquittal on that charge does not bar a second prosecution arising from the same theft if it also occurred in interstate commerce. United States v. Huffman, 595 F.2d 551, 555 (10th Cir. 1979). On the other hand, a defendant may not be convicted of both theft and possession of the same interstate property and it is "obvious and substantial error" for the trial court to fail to so instruct the jury. United States v. Brown, 996 F.2d 1049, 1053 (10th Cir. 1993).

Section 653 describes six distinct offenses, and further provides that if the goods or chattels in question do not exceed the value $1,000, the offense is a misdemeanor. If the value of the goods or chattels (see 18 USC 641 defining value) is in issue, the court should consider giving a lesser included offense instruction.

The Committee suggests that the trial court include the term "par value" only if the term is an issue in the case. No Tenth Circuit case defines this term.

CRIMINAL PATTERN JURY INSTRUCTIONS - 10TH CIRCUIT (2005)

Chapter 97: Receiving Or Possession Of Stolen Property

Chapter 103: Theft/Larceny Based Crimes

The defendant is charged in count ___ with a violation of 18 USC 659.

This law makes it a crime to [buy] [receive] [possess] goods stolen from interstate commerce.

To find the defendant guilty of this crime you must be convinced that the government has proved each of the following beyond a reasonable doubt:

First: the goods described in the indictment were in defendant's possession;

Second: the goods described in the indictment [were part of] [were moving in] interstate or foreign commerce at the time the goods were stolen;

Third: the defendant knew those goods were stolen; and

Fourth: such property had a value in excess of $1,000.00.

A defendant may not be convicted of both theft of goods in interstate commerce (see previous instruction) and possession of the same goods. United States v. Brown, 996 F.2d 1049 (10th Cir. 1993). Paragraph two of 18 USC 659 does, however, provide several alternatives, see brackets. In United States v. Koran, 453 F.2d 144 (10th Cir. 1972), for example, the Court of Appeals recognized there may not have been sufficient evidence to prove defendant knew the goods were stolen when he "received" them, however, the record did show knowledge over the period he continued to "possess" them. And a defendant may be guilty of this offense as well as to being an accessory before the fact when he both plans the theft and receives the stolen goods. United States v. Pauldino, 487 F.2d 127 (10th Cir. 1973).

The goods must be part of an interstate shipment only when stolen; it is not necessary that they be so when the "receiving" or "possession" occurs. United States v. Tyers, 487 F.2d 828, 830 (2d Cir. 1973); Winer v. United States, 228 F.2d 944, 947 (6th Cir. 1956); United States v. Gollin, 166 F.2d 123, 125 (3d Cir. 1948). The defendant must know that the goods were stolen, but need not know they were stolen from an interstate shipment. United States v. Polesti, 489 F.2d 822, 824 (7th Cir. 1973). Even though a defendant charged with possession of stolen goods must be shown to have guilty knowledge, long continued possession in the proper circumstances may be sufficient circumstantial evidence of such knowledge. United States v. Koran, 453 F.2d 144 (10th Cir. 1972).

If there is a dispute over whether the value is greater or less than $1,000.00, a lesser included offense instruction may be given. United States v. Roy, 843, F.2d 305, 309 (8th Cir. 1988); United States v. Alvarez, 755 F.2d 830, 851 (11th Cir. 1985). This may also raise sentencing issues under Apprendi v. New Jersey, 530 U.S. 466 (2000).

CRIMINAL PATTERN JURY INSTRUCTIONS - 10TH CIRCUIT (2005)

Chapter 91: Escape

The defendant is charged in count _______ with a violation of 18 USC 751(a).

This law makes it a crime to [escape] [attempt to escape] from a lawfully imposed custodial situation.

To find the defendant guilty of this crime you must be convinced that the government has proved each of the following beyond a reasonable doubt:

First: the defendant was in federal custody pursuant to a lawful arrest on a felony [misdemeanor] charge at an institution or facility where the defendant was confined by direction of the Attorney General for conviction of an offense;

Second: the defendant departed without permission; and

Third: the defendant knew he did not have permission to leave federal custody.

Comment

The elements of the offense are set out in United States v. McCray, 468 F.2d 446 (10th Cir. 1972). "Custody" means the detention of an individual by virtue of lawful process or authority. A person may be "in federal custody" even though not under constant supervision by guards as long as some restraint remains on his or her freedom. Read v. United States, 361 F.2d 830, 831 (10th Cir. 1966). A defendant may also be in federal custody following arraignment. United States v. Allen, 432 F.2d 939, 940 (10th Cir. 1970). The failure to return to custody is sufficient to sustain a conviction for escape. United States v. Woodring, 464 F.2d 1248, 1250 (10th Cir. 1972); see also United States v. Bailey, 444 U.S. 394, 413 (1980). But the government must prove defendant is confined by virtue of a judgment resulting in delivery of defendant to the prison from which he escapes. Strickland v. United States, 339 F.2d 866, 868 (10th Cir. 1965).

The nature of the custody must be proven specifically since the statute provides dual penalties; escape is a felony if custody was by reason of a felony arrest, but only a misdemeanor if custody was by reason of a misdemeanor, exclusion or expulsion arrest. United States v. Green, 797 F.2d 855, 858 n.4 (10th Cir. 1986); United States v. Vanover, 888 F.2d 1117, 1121 (6th Cir. 1989).

Necessity or duress is a common defense to this charge. For the requirements of such a defense, see Bailey, 444 U.S. at 409–13; United States v. Boomer, 571 F.2d 543, 545 (10th Cir. 1978). But see United States v. Haney, 318 F.3d 1161, 1163 (10th Cir. 2003), where the en banc court, finding the defendant either failed to raise the defense or limited the reach of the defense, noted that "[a] criminal defendant is entitled to an instruction on his theory of defense provided that theory is supported by some evidence and the law" (citing United States v. Scafe, 822 F.2d 928, 932 (10th Cir. 1987)).

Use Note

Refer to Instruction 1.36 on coercion and duress defenses.

CRIMINAL PATTERN JURY INSTRUCTIONS - 10TH CIRCUIT (2005)

2.36
THREATS AGAINST THE PRESIDENT
18 USC 871

77.14 Terrorist Threats