PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003
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Offense Instructions (OI 24 - OI 48)

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

    18 USC 666(a)(1)(B) and (b) provides:

    (a) Whoever, if the circumstance described in subsection (b) of this section exists - -

    (1) being an agent of an organization, or of a State, local, or Indian tribal government, or any agency thereof --

    (B) corruptly solicits or demands for the benefit of any person, or accepts or agrees to accept, anything of value from any person, intending to be influenced or rewarded in connection with any business, transaction, or series of transactions of such organization, government, or agency involving anything of value of $5,000 or more [shall be guilty of an offense against the United States].

    (b) The circumstance referred to in subsection (a) of this section is that the organization, government, or agency receives, in any one year period, benefits in excess of $10,000 under a Federal program involving a grant, contract, subsidy, loan, guarantee, insurance, or other form of Federal assistance.

    Maximum Penalty: Ten (10) years imprisonment and applicable fine.

    In United States v. Fischer, 168 F.3d 1273 (11th Cir. 1999), Affirmed, Fischer v. United States, 529 U.S. 667, 120 S.Ct. 1780 (2000), the Court held that Medicare disbursements are “benefits” within the meaning of the statute, and that the Government is not required to prove a direct link between the federal assistance and the fraudulent conduct in issue.

NCJIC CASE NOTES:  See NCJIC 103.9.3.3 [Bribery Concerning Federal Program: Requirement Of Nexus Between Bribe Or Kickback And Expenditure Of Federal Funds (18 USC 666(a)(1)(B))].

[For 1997 Version of this instruction, see below]

18 USC 666(a)(1)(B) and (b) provides:

(a) Whoever, if the circumstance described in subsection (b) of this section exists - -

(1) being an agent of an organization, or of a State, local, or Indian tribal government, or any agency thereof - -

(B) corruptly solicits or demands for the benefit of any person, or accepts or agrees to accept, anything of value from any person, intending to be influenced or rewarded in connection with any business, transaction, or series of transactions of such organization, government, or agency involving anything of value of $5,000 or more [shall be guilty of an offense against the United States].

(b) The circumstance referred to in subsection (a) of this section is that the organization, government, or agency receives, in any one year period, benefits in excess of $10,000 under a Federal program involving a grant, contract, subsidy, loan, guarantee, insurance, or other form of Federal assistance.

Maximum Penalty: Ten (10) years imprisonment and applicable fine.

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

    18 USC 751(a) provides:

    Whoever escapes or attempts to escape from the custody of the Attorney General or his authorized representative, or from any institution or facility in which he is confined by direction of the Attorney General, or from any custody under or by virtue of any process issued under the laws of the United States by any court, judge, or commissioner, or from the custody of an officer or employee of the United States pursuant to lawful arrest [shall be guilty of an offense against the United States].

    Maximum Penalty: Five (5) years imprisonment and $250,000 fine. 

    In United States v. Bailey, 444 U.S. 394, 408, 100 S.Ct. 624, 633, 62 L.Ed.2d 575 (1980), the Supreme Court rejected the notion that 751(a) requires proof of "an intent to avoid confinement." The Court held that the prosecution meets its burden by showing that the escapee knew his actions would result in leaving physical confinement without permission.

    Regarding escape from an INS Detention Facility, see United States v. Rodriguez-Fernandez, 234 F.3d 498 (11th Cir. 2000).

    The first element, pertaining to custody or confinement, normally can be established by demonstrating that a subject was (1) in the custody of the Attorney General or her authorized representative; (2) confined in an institution by direction of the Attorney General; (3) in custody under or by virtue of any process issued under the laws of the United States by any court, judge, or magistrate; or (4) in the custody of an officer or employee of the United States pursuant to a lawful arrest. Id. at 500, fn.6.

    The Eighth, Ninth and Tenth Circuits hold that custody may be minimal or even constructive. See United States v. Gluck, 542 F.2d 728, 731 (8th Cir. 1976). 

    If the indictment alleges an attempt, see Special Instruction 11.

[For 1997 Version of this instruction, see below]

18 USC 751(a) provides:

Whoever escapes or attempts to escape from the custody of the Attorney General or his authorized representative, or from any institution or facility in which he is confined by direction of the Attorney General, or from any custody under or by virtue of any process issued under the laws of the United States by any court, judge, or commissioner, or from the custody of an officer or employee of the United States pursuant to lawful arrest [shall be guilty of an offense against the United States].

Maximum Penalty: Five (5) years imprisonment and $250,000 fine.

In United States v. Bailey, 444 U.S. 394, 408, 100 S.Ct. 624, 633, 62 L.Ed.2d 575 (1980), the Supreme Court rejected the notion that 751(a) requires proof of "an intent to avoid confinement." The Court held that the prosecution meets its burden by showing that the escapee knew his actions would result in leaving physical confinement without permission.

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

    18 USC 752(a) provides:

    Whoever rescues or attempts to rescue or instigates, aids or assists the escape, or attempt to escape, of any person arrested upon a warrant or other process issued under any law of the United States, or committed to the custody of the Attorney General or to any institution or facility by his direction [shall be guilty of an offense against the United States].

    Maximum Penalty: Five (5) years imprisonment and $250,000 fine.

    It may be necessary in some cases to define the boundary line between aiding an escape (under this section) and harboring a fugitive (in violation of 18 USC 1072). If an escapee reaches safety so that the escape itself is accomplished, any aid given to the fugitive after that point would constitute harboring, not aiding the escape. See United States v. DeStefano, 59 F.3d 1 (1st Cir. 1995) in which the Court of Appeals approved the following instruction: "The crime of aiding or assisting an escape cannot occur after the escapee reaches temporary safety. After that, aid or assistance to a fugitive is no longer aiding or assisting his escape . . ."

[For 1997 Version of this instruction, see below]

18 USC 752(a) provides:

Whoever rescues or attempts to rescue or instigates, aids or assists the escape, or attempt to escape, of any person arrested upon a warrant or other process issued under any law of the United States, or committed to the custody of the Attorney General or to any institution or facility by his direction [shall be guilty of an offense against the United States].

Maximum Penalty: Five (5) years imprisonment and $250,000 fine.

It may be necessary in some cases to define the boundary line between aiding an escape (under this section) and harboring a fugitive (in violation of 18 USC 1072). If an escapee reaches safety so that the escape itself is accomplished, any aid given to the fugitive after that point would constitute harboring, not aiding the escape. See United States v. DeStefano, 59 F.3d 1 (1st Cir. 1995) in which the Court of Appeals approved the following instruction: "The crime of aiding or assisting an escape cannot occur after the escapee reaches temporary safety. After that, aid or assistance to a fugitive is no longer aiding or assisting his escape . . ."

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

OI 27  
Making Threats By Mail Or Telephone
(18 USC 844(e))

    Title 18, United States Code, Section 844(e) makes it a Federal crime or offense for anyone to use an instrument of commerce, including the [mail] [telephone] to willfully communicate any threat to [kill, injure or intimidate any individual] [unlawfully damage or destroy any building] by means of [fire] [an explosive]. 

    The Defendant can be found guilty of that offense only if all of the following facts are proved beyond a reasonable doubt:

    First: That the Defendant made, or caused to be made, a threat to [kill, injure or intimidate any individual] [unlawfully damage or destroy a building] by means of [fire] [an explosive] as charged;

    Second: That the Defendant used, or caused to be used, an instrument of commerce, such as [the mail] [a telephone] to communicate the threat; and 

    Third: That the Defendant acted knowingly and willfully.

    A "threat" means a statement expressing an intention to [kill, injure or intimidate an individual] [unlawfully damage or destroy a building] by means of [fire] [an explosive], and made with the intent that it be understood by others as a serious threat. It is not necessary to prove that the Defendant actually intended to carry out the threat.

ANNOTATIONS AND COMMENTS

    18 USC 844(e) provides:

    Whoever, through the use of the mail, telephone, telegraph, or other instrument of commerce, willfully makes any threat, or maliciously conveys false information knowing the same to be false, concerning an attempt or alleged attempt being made, or to be made, to kill, injure, or intimidate any individual or unlawfully to damage or destroy any building, vehicle, or other real or personal property by means of fire or an explosive [shall be guilty of an offense against the United States].

    Maximum Penalty: Five (5) years imprisonment and applicable fine.

    The term “explosive” is defined in 18 USC 844(j) if the circumstances of the case require inclusion of a definition of the term in the instructions.

[For 1997 Version of this instruction, see below]

Annotations and Comments

18 USC 844(e) provides:

Whoever, through the use of the mail, telephone, telegraph, or other instrument of commerce, willfully makes any threat, or maliciously conveys false information knowing the same to be false, concerning an attempt or alleged attempt being made, or to be made, to kill, injure, or intimidate any individual or unlawfully to damage or destroy any building, vehicle, or other real or personal property by means of fire or an explosive [shall be guilty of an offense against the United States].

Maximum Penalty: Five (5) years imprisonment and applicable fine.

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

OI 28
Federal Arson Statute
(18 USC 844(i))

    Title 18, United States Code, Section 844(i), makes it a Federal crime or offense of anyone to [attempt to] maliciously damage or destroy by fire or explosive any building, vehicle, or any other real or personal property used in interstate or foreign commerce, or affecting interstate or foreign commerce.

    The Defendant can be found guilty of that offense only if all of the following facts are proven beyond a reasonable doubt:

    First: That the Defendant [damaged] [destroyed] [attempted to damage or destroy] a [building] [vehicle] [other real or personal property] as described in the indictment by means of a [fire] [explosive], as charged.

    Second: That the Defendant acted intentionally or with willful disregard of the likelihood that damage or injury would result from [his] [her] acts.

    Third: That the [building] [vehicle] [other real or personal property] that was [damaged] [destroyed] [attempted to be damaged or destroyed] by the Defendant, was used [in interstate or foreign commerce] [in any activity affecting foreign or interstate commerce].

    “Interstate or foreign commerce” refers to commercial activity between places in different states, or between some place in the United States and some place outside the United States, and it must be proved that the [building] [vehicle] [other real or personal property] described in the indictment was actually used for a function that either involved interstate or foreign commerce or directly affected such commerce.

ANNOTATIONS AND COMMENTS

    18 USC 844(i) provides:

    (i) Whoever maliciously damages or destroys, or attempts to damage or destroy, by means of fire or an explosive, any building, vehicle, or other real or personal property used in interstate or foreign commerce or in any activity affecting interstate or foreign commerce shall be imprisoned . . .

    Penalty ranges from 5 years imprisonment to the death penalty and includes an applicable fine. See 18 USC 844(i).

    United States v. Gullett, 75 F.3d 941, 948 (4th Cir. 1996), “maliciously,” as contained in 844(i), is comparable to the common law definition of malice and “is satisfied if the defendant acted intentionally or with willful disregard of the likelihood that damage or injury would result from his or her acts.”

    Jones v. United States, 529 U.S. 848, 859, 120 S.Ct. 1904, 1912 (2000), holding that “building” in 844(i) “covers only property currently used in commerce or in an activity affecting commerce,” and does not cover an owner occupied dwelling.

    For a discussion of the interstate commerce requirement of 844(i) in light of Jones, see United States v. Odom, 252 F.3d 1289 (11th Cir. 2001). 

    Explosive is defined in 18 USC 844(j).

    If the indictment alleges an attempt, see Special Instruction 11.

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

    18 USC 871(a) provides:

    Whoever knowingly and willfully deposits for conveyance in the mail . . . any letter . . . or document containing any threat to take the life of, to kidnap, or to inflict bodily harm upon the President of the United States . . . or knowingly and willfully otherwise makes any such threat against the President [shall be guilty of an offense against the United States].

    Maximum Penalty: Five (5) years imprisonment and $250,000 fine.

    The language defining a "true threat" provides explanation and clarification as to the proper standard to be applied in determining whether a threat is a true threat or not. See, e.g., United States v. Callahan, 702 F.2d 964, 965 (11th Cir. 1983); see generally Lucero v. Trosch, 904 F.Supp. 1336, 1340 (S.D. Ala. 1995).

[For 1997 Version of this instruction, see below]

Annotations and Comments

USC 871(a) provides:

Whoever knowingly and willfully deposits for conveyance in the mail . . . any letter . . . or document containing any threat to take the life of, to kidnap, or to inflict bodily harm upon the President of the United States . . . or knowingly and willfully otherwise makes any such threat against the President [shall be guilty of an offense against the United States].

Maximum Penalty: Five (5) years imprisonment and $250,000 fine.

The language defining a "true threat" provides explanation and clarification as to the proper standard to be applied in determining whether a threat is a true threat or not. See, e.g., United States v. Callahan, 702 F.2d 964, 965 (11th Cir. 1983); see generally Lucero v. Trosch, 904 F.Supp. 1336, 1340 (S.D. Ala. 1995).

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

OI 30.1 
Interstate Transmission Of Demand For Ransom 
For Return Of Kidnapped Person 
(18 USC 875(a)) 

    Title 18, United States Code, Section 875(a), makes it a Federal crime or offense for anyone to knowingly and willfully transmit in interstate or foreign commerce a demand or request for reward or ransom for the release of any kidnapped person.

    The Defendant can be found guilty of that offense only if all of the following facts are proved beyond a reasonable doubt:

    First: That the Defendant sent or transmitted in [interstate] [foreign] commerce a demand or request for a ransom or reward for the release of a kidnapped person.

    Second: That the Defendant sent or transmitted that demand or request with intent to extort money or other thing of value; and

    Third: That the Defendant did so knowingly and willfully.

    [To transmit something in “interstate commerce” merely means to send it from a place in one state to a place in another state.] [To transmit something in “foreign commerce” merely means to send it from a place in the United States to any place in a country other than the United States.]

    To act with intent to “extort” means to act with the intent to obtain money or something of value from someone else, with his or her consent, but induced by the wrongful use of actual or threatened force, violence or fear.

    A “thing of value” includes property rights or other tangible objects as well as any intangible objects of value to the Defendant. 

    A kidnapped person is someone who is forcibly and unlawfully held, kept, detained or confined against his or her will.

    The essence of the offense is the willful transmission of an extortionate communication in interstate commerce with the intent to obtain money or other thing of value for the release of a kidnapped victim, and it is not necessary to prove that the Defendant actually participated in any kidnapping or actually succeeded in obtaining the money or other thing of value.

ANNOTATIONS AND COMMENTS

    18 USC 875(a) provides that:

    Whoever transmits in interstate commerce any communication containing any demand or request for a ransom or reward for the release of any kidnapped person, shall be fined under this title or imprisoned not more than twenty years, or both.

    Maximum Penalty: Twenty (20) years imprisonment and applicable fine.

    Although this subsection of 875 does not specifically require an intent to extort, it has been held that such intent is implicitly an element. “Congress intended not only that there be a criminal intent element of the crime charged in the statute [18 USC 875(a)] but also that this intent element be specifically the intent to extort.” United States v. Heller, 579 F.2d 990, 995 (6th Cir. 1978).

    Under United States v. Nilsen, 967 F.2d 539, 543 (11th Cir. 1992), “thing of value” is a clearly defined term that includes both tangibles and intangibles.

    The federal kidnapping statute is 18 USC 1201.

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

    18 USC 875(b) provides that:

    Whoever, with intent to extort from any person . . . any money or other thing of value, transmits in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another [shall be guilty of an offense against the United States].

    Maximum Penalty: Twenty (20) years imprisonment and applicable fine.

    The language defining a “true threat” provides explanation and clarification as to the proper standard to be applied in determining whether a threat is a true threat or not. See, e.g., United States v. Callahan, 702 F.2d 964, 965 (11th Cir. 1983); see generally Lucero v. Trosch, 904 F.Supp. 1336, 1340 (S.D. Ala. 1995).

    Under United States v. Nilsen, 967 F.2d 539, 543 (11th Cir. 1992), “thing of value” is a clearly defined term that includes both tangibles and intangibles.

[For 1997 Version of this instruction, see below]

Annotations and Comments

18 USC 875(b) provides that:

Whoever, with intent to extort from any person . . . any money or other thing of value, transmits in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another [shall be guilty of an offense against the United States].

Maximum Penalty: Twenty (20) years imprisonment and applicable fine.

The language defining a "true threat" provides explanation and clarification as to the proper standard to be applied in determining whether a threat is a true threat or not. See, e.g., United States v. Callahan, 702 F.2d 964, 965 (11th Cir. 1983); see generally Lucero v. Trosch, 904 F.Supp. 1336, 1340 (S.D. Ala. 1995).

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

OI 30.3
Interstate Transmission Of Threat To Kidnap Or Injure
(18 USC 875(c))

    Title 18, United States Code, Section 875(c), makes it a Federal crime or offense for anyone to knowingly and willfully transmit in interstate commerce or foreign commerce a threat to kidnap or injure someone.

    The Defendant can be found guilty of that offense only if all of the following facts are proved beyond a reasonable doubt:

    First: That the Defendant sent or transmitted in [interstate] [foreign] commerce a communication containing a true threat [to kidnap any person] [to injure the person of another], as charged;

    Second: That the Defendant did so knowingly and willfully.

    [To transmit something in “interstate commerce” merely means to send it from a place in one state to a place in another state.] [To transmit something in “foreign commerce” merely means to send it from a place in the United States to any place outside the United States.]

    A “true threat” means a serious threat as distinguished from idle or careless talk, or something said in a joking manner. A statement is a true threat if it was made under such circumstances that a reasonable person would construe it as a serious expression of an intent [to kidnap] [to injure] another person.

    The essence of the offense is the willful transmission of a true threat in interstate or foreign commerce. It is not necessary that anyone actually intended to carry out the threat.

ANNOTATIONS AND COMMENTS

    18 USC 875(c) provides that:

    Whoever transmits in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another, shall be fined under this title or imprisoned not more than five years, or both.

    Maximum Penalty: Five (5) years imprisonment and applicable fine.

    The language defining a “true threat” provides explanation and clarification as to the proper standard to be applied in determining whether a threat is a true threat or not. See, e.g., United States v. Callahan, 702 F.2d 964, 965 (11th Cir. 1983); see generally, Lucero v. Trosch, 904 F.Supp. 1336, 1340 (S.D. Ala. 1995).

    This subsection, as distinguished from 875(a) (implicitly), and 875(b) and 875(d) (explicitly), does not require an intent to extort.

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

OI 30.4 
Interstate Transmission Of Extortionate Communication 
(18 USC 875(d))

    Title 18, United States Code, Section 875(d), makes it a Federal crime of offense for anyone to knowingly and willfully send or transmit in interstate or foreign commerce a threat to injure the property or reputation of another.

    The Defendant can be found guilty of that offense only if all of the following facts are proved beyond a reasonable doubt:

    First: That the Defendant sent or transmitted in [interstate] [foreign] commerce a communication containing a true threat [to injure the reputation] [to injure the property] of another, as charged; 

    Second: That the Defendant sent or transmitted that communication with intent to extort money or other thing of value; and 

Third: That the Defendant did so knowingly and willfully.

    [To transmit something in “interstate commerce” merely means to send it from a place in one state to a place in another state.] [To transmit something in “foreign commerce” merely means to send it from a place in the United States to any place outside the United States.]

    A “true threat” means a serious threat as distinguished from idle or careless talk, or something said in a joking manner. A statement is a true threat if it was made under such circumstances that a reasonable person would construe it as a serious expression of an intent to injure the [property] [reputation] of another person.

    To act with intent to “extort” means to act with the intent to obtain money or something of value from someone else, with his or her consent, but induced by the wrongful use of actual or threatened force, violence or fear.

    A “thing of value” includes property rights or other tangible objects as well as any intangible objects of value to the Defendant. 

    The essence of the offense is the willful transmission of an extortionate communication in interstate commerce with the intent to obtain money or other thing of value, and it is not necessary to prove that the Defendant actually succeeded in obtaining the money or other thing of value, or that the Defendant actually intended to carry out the threat.

ANNOTATIONS AND COMMENTS

    18 USC 875(d) provides that:

    Whoever, with intent to extort from any person, firm, association, or corporation, any money or other thing of value, transmits in interstate or foreign commerce any communication containing any threat to injure the property or reputation of the addressee or of another or the reputation of a deceased person or any threat to accuse the addressee or any other person of a crime, shall be fined under this title or imprisoned not more than two years, or both.

    Maximum Penalty: Two (2) years imprisonment and applicable fine.

    The language defining a “true threat” provides explanation and clarification as to the proper standard to be applied in determining whether a threat is a true threat or not. See, e.g., United States v. Callahan, 702 F.2d 964, 965 (11th Cir. 1983); see generally Lucero v. Trosch, 904 F. Supp. 1336, 1340 (S.D. Ala. 1995). 

    Under United States v. Nilsen, 967 F.2d 539, 543 (11th Cir. 1992), “thing of value” is clearly defined term that includes both tangibles and intangibles.

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

OI 31.1
Mailing Threatening Communications
(18 USC 876) (First Paragraph)

    Title 18, United States Code, Section 876, makes it a Federal crime or offense for anyone to knowingly and willfully use the United States mail to transmit a demand or request for reward or ransom for the release of any kidnapped person.

    The Defendant can be found guilty of that offense only if all of the following facts are proved beyond a reasonable doubt:

    First: That the Defendant knowingly deposited or caused to be deposited in the mail, for delivery by the United States Postal Service, a demand or request for a ransom or reward for the release of a kidnapped person;

    Second: That the Defendant sent or caused to be sent that demand or request with intent to extort money or some other thing of value; and

    Third: That the Defendant did so knowingly and willfully.

    To act with intent to "extort" means to act with the intent to obtain money or something of value from someone else, with his or her consent, but induced by the wrongful use of actual or threatened force, violence or fear.

    A “thing of value” includes property rights or other tangible objects as well as any intangible objects of value to the Defendant.

    The essence of the offense is the willful transmission of an extortionate communication through the use of the mails with the intent to obtain money or other thing of value for the release of a kidnapped victim, and it is not necessary to prove that the Defendant actually participated in any kidnapping or succeeded in obtaining the money or other thing of value.

ANNOTATIONS AND COMMENTS

    18 USC 876 (first paragraph) provides:

    Whoever knowingly deposits in any post office or authorized depository for mail matter, to be sent or delivered by the Postal Service or knowingly causes to be delivered by the Postal Service according to the direction thereon, any communication, with or without a name or designating mark subscribed thereto, addressed to any other person, and containing any demand or request for ransom or reward for the release of any kidnapped person, shall be fined under this title or imprisoned not more than twenty years, or both.

    Maximum Penalty: Twenty (20) years imprisonment and applicable fine.

    Under United States v. Nilsen, 967 F.2d 539, 543 (11th Cir. 1992), “thing of value” is a clearly defined term that includes both tangible and intangibles.

    The federal kidnapping statute is 18 USC 1201.

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

OI 31.2 Mailing Threatening Communications
(18 USC 876) (Second Paragraph)

    Title 18, United States Code, Section 876, makes it a Federal crime or offense for anyone to use the United States mail to transmit an extortionate communication.

    The Defendant can be found guilty of that offense only if all of the following facts are proved beyond a reasonable doubt:

    First: That the Defendant knowingly deposited or caused to be deposited in the mail, for delivery by the United States Postal Service, a communication containing a true threat, as charged;

    Second: That the nature of the threat was to [kidnap] [injure] the person of someone; and

    Third: That the Defendant made the threat willfully and with intent to extort money or other thing of value.

    A "true threat" is a statement expressing an intention to [kidnap someone, that is, to steal and carry away someone's person] [to inflict bodily injury upon someone]; and it means a real or serious threat as distinguished from idle or careless talk, or something said in a joking manner. A statement is a true threat if it was made under such circumstances that a reasonable person would construe it as a serious expression of an intent [to kidnap] [to injure] another person.

    To act with intent to "extort" means to act with the intent to induce someone else to pay money or something of value by willfully threatening [a kidnaping] [an injury] if such payment is not made.

    A “thing of value” includes property rights or other tangible objects as well as any intangible objects of value to the Defendant. 

    So, the essence of the offense is the knowing conveyance through the mail of a threat to [kidnap] [injure] the person of someone, willfully made with intent to extort money or something of value; and it is not necessary to prove that any money or other thing of value was actually paid or that the Defendant actually intended to carry out the threat.

ANNOTATIONS AND COMMENTS

    18 USC 876 (second paragraph) provides:

    Whoever, with intent to extort from any person any money or other thing of value, [deposits in any post office or authorized depository for mail matter, or causes to be delivered by the Post Office] any communication containing any threat to kidnap any person or any threat to injure the person of the addressee or of another [shall be guilty of an offense against the United States].

    Maximum Penalty: Twenty (20) years imprisonment and applicable fine.

    United States v. Wilkes, 685 F.2d 135 (5th Cir. 1982), approved the inclusion of willfulness as an essential element of this offense.

    United States v. DeShazo, 565 F.2d 893 (5th Cir. 1978), present intent to actually do injury is not required.

    The language defining a "true threat" provides explanation and clarification as to the proper standard to be applied in determining whether a threat is a true threat or not.  See United States v. Taylor, 972 F.2d 1247, 1251 (11th Cir. 1992) (standard is whether a reasonable recipient, familiar with context of the communication at issue, would interpret it as a threat).

    Under United States v. Nilsen, 967 F.2d 539, 543 (11th Cir. 1992) “thing of value” is a clearly defined term that includes both tangibles and intangibles.

[For 1997 Version of this instruction, see below]

Annotations and Comments

18 USC 876 (second paragraph) provides:

Whoever, with intent to extort from any person any money or other thing of value, [deposits in any post office or authorized depository for mail matter, or causes to be delivered by the Post Office] any communication containing any threat to kidnap any person or any threat to injure the person of the addressee or of another [shall be guilty of an offense against the United States].

Maximum Penalty: Twenty (20) years imprisonment and applicable fine.

United States v. Wilkes, 685 F.2d 135 (5th Cir. 1982), approved the inclusion of willfulness as an essential element of this offense.

United States v. DeShazo, 565 F.2d 893 (5th Cir. 1978), present intent to actually do injury is not required.

The language defining a "true threat" provides explanation and clarification as to the proper standard to be applied in determining whether a threat is a true threat or not. See United States v. Taylor, 972 F.2d 1247, 1251 (11th Cir. 1992) (standard is whether a reasonable recipient, familiar with context of the communication at issue, would interpret it as a threat).

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

OI 31.3 
Mailing Threatening Communications 
(18 USC  876) (Third Paragraph)

    Title 18, United States Code, Section 876, makes it a Federal crime or offense for anyone to knowingly and willfully use the United States mail to transmit a threat to kidnap or injure someone.

    The Defendant can be found guilty of that offense only if all of the following facts are proved beyond a reasonable doubt:

    First: That the Defendant knowingly deposited or caused to be deposited in the mail, for delivery by the United States Postal Service, a true threat to [kidnap] [injure] someone, as charged; and

    Second: That the Defendant did so knowingly and willfully.

    A “true threat” means a serious threat as distinguished from idle or careless talk, or something said in a joking manner. A statement is a true threat if it was made under such circumstances that a reasonable person would construe it as a serious expression of an intent to [kidnap] [injure] another person.

    The essence of the offense is the willful transmission of a true threat through the use of the mails. It is not necessary that anyone actually intended to carry out the threat.

ANNOTATIONS AND COMMENTS

    18 USC 876 (third paragraph) provides:

    Whoever knowingly so deposits or causes to be delivered as aforesaid, any communication with our without a name or designating mark subscribed thereto, addressed to any other person and containing any threat to kidnap any person or any threat to injure the person of the addressee or of another, shall be fined under this title or imprisoned not more than five years, or both.

    Maximum Penalty: Five (5) years imprisonment and applicable fine.

    The language defining a “true threat” provides explanation and clarification as to the proper standard to be applied in determining whether a threat is a true threat or not. See, e.g., United States v. Callahan, 702 F.2d 964, 965 (11th Cir. 1983); see generally Lucero v. Trosch, 904 F.Supp. 1336, 1340 (S.D. Ala. 1995).

    This subsection, like its counterpart §875(c), does not require an intent to extort.

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

OI 31.4 
Mailing Threatening Communications 
(18 USC  876) (Fourth Paragraph)

    Title 18, United States Code, Section 876, makes it a Federal crime or offense for anyone to knowingly and willfully use the United States mail to transmit any threat to [injure the property of another person] [injure the reputation of another person] [accuse another person of a crime].

    The Defendant can be found guilty of that offense only if all of the following facts are proved beyond a reasonable doubt:

    First: That the Defendant knowingly deposited or caused to be deposited in the mail, for delivery by the United States Postal Service, a true threat [to injure the reputation of someone] [to injure the property of someone] [to accuse someone of a crime], as charged; and 

    Second: That the Defendant made the threat willfully and with intent to extort money or other thing of value.

    A “true threat” means a serious threat as distinguished from idle or careless talk, or something said in a joking manner. A statement is a true threat if it was made under such circumstances that a reasonable person would construe it as a serious expression of an intent to injure the [property] [reputation] of another person [accuse another person of a crime].

    To act with intent to “extort” means to act with the intent to obtain money or something of value from someone else, with his or her consent, but induced by the wrongful use of actual or threatened force, violence or fear.

    A “thing of value” includes property rights or other tangible objects as well as any intangible objects of value to the Defendant.

    The essence of the offense is the willful transmission by mail of an extortionate communication with the intent to obtain money or other thing of value, and it is not necessary to prove that the Defendant actually succeeded in obtaining the money or other thing of value, or that anyone actually intended to carry out the threat.

ANNOTATIONS AND COMMENTS

    18 USC 876(fourth paragraph) provides that:

    Whoever, with intent to extort from any person, firm, association, or corporation, any money or other thing of value, transmits in interstate or foreign commerce any communication containing any threat to injure the property or reputation of the addressee or of another or the reputation of a deceased person or any threat to accuse the addressee or any other person of a crime, shall be fined under this title or imprisoned not more than two years, or both.

    Maximum Penalty: Two (2) years imprisonment and applicable fine.

    The language defining a “true threat” provides explanation and clarification as to the proper standard to be applied in determining whether a threat is a true threat or not. See, e.g., United States v. Callahan, 702 F.2d 964, 965 (11th Cir. 1983); see generally Lucero v. Trosch, 904 F.Supp. 1336, 1340 (S.D. Ala. 1995).

    Under United States v. Nilsen, 967 F.2d 539, 543 (11th Cir. 1992), “thing of value” is a clearly defined term that includes both tangibles and intangibles.

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

OI 32  
False Impersonation Of A Citizen
(18 USC 911)

    Title 18, United States Code, Section 911, makes it a Federal crime or offense for anyone to falsely and willfully impersonate a citizen of the United States.

    The Defendant can be found guilty of that offense only if all of the following facts are proved beyond a reasonable doubt:

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

    Second: That the Defendant falsely represented [himself] [herself] to be a citizen of the United States, as charged; and

    Third: That the Defendant made such false representation knowingly and willfully.

    An "alien" is any person who is not a citizen of the United States.

    American citizenship is acquired by birth within the United States, or through judicial proceedings known as "naturalization". One is also a citizen, even though born outside the United States, if both parents were citizens and one of them had a residence in the United States prior to the birth.

    [The Immigration and Naturalization Service is the agency having jurisdiction, supervision and control over the entry of aliens into the United States, and officers of that agency have the right to administer oaths, and to take and consider evidence, concerning the right or privilege of any alien to enter, re-enter, pass through or remain in the United States.]

ANNOTATIONS AND COMMENTS

    18 USC 911 provides:

    Whoever falsely and willfully represents himself to be a citizen of the United States [shall be guilty of an offense against the United States]."

    Maximum Penalty: Three (3) years imprisonment and applicable fine.

    The Eleventh Circuit has not discussed it, but the Ninth Circuit makes it clear that “fraudulent purpose” is not an element of the crime. It must only be proved that “the misrepresentation was voluntarily and deliberately made.” See Chow Bing Kew v.
United States, 248 F.2d 466, 469 (9th Cir.) cert. denied, 355 U.S. 889, 78 S.Ct. 259 (1957).

[For 1997 Version of this instruction, see below]

Annotations and Comments

18 USC 911 provides:

Whoever falsely and willfully represents himself to be a citizen of the United States [shall be guilty of an offense against the United States]."

Maximum Penalty: Three (3) years imprisonment and applicable fine.

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

    Title 18, United States Code, Section 912, makes it a Federal crime or offense for anyone to falsely impersonate an officer of the United States.

    The Defendant can be found guilty of that offense only if all of the following facts are proved beyond a reasonable doubt:

    First: That the Defendant falsely assumed or pretended to be an officer or employee acting under the authority of the United States, as charged;

    Second: That, while pretending to be a federal officer or employee, the Defendant [acted as such] [demanded or obtained money or other thing of value]; and

    Third: That the Defendant did so knowingly and willfully with intent to deceive or defraud another.

    To act "with intent to deceive or defraud" means to act with the specific intent to mislead another, ordinarily for the purpose of causing some financial loss to another or bringing about some financial gain to one's self.

ANNOTATIONS AND COMMENTS

    18 USC 912 provides:

    Whoever falsely assumes or pretends to be an officer or employee acting under the authority of the United States or any department, agency, or officer thereof, and [1] acts as such, or [2] in such pretended character demands or obtains any money . . . or thing of value [shall be guilty of an offense against the United States].

    Maximum Penalty: Three (3) years imprisonment and applicable fine.

    United States v. Gayle, 967 F.2d 483, 486-87 (11th Cir. 1992) (en banc), intent to defraud is an essential element of this offense.

[For 1997 Version of this instruction, see below]

Annotations and Comments

18 USC 912 provides:

Whoever falsely assumes or pretends to be an officer or employee acting under the authority of the United States or any department, agency, or officer thereof, and [1] acts as such, or [2] in such pretended character demands or obtains any money . . . or thing of value [shall be guilty of an offense against the United States].

Maximum Penalty: Three (3) years imprisonment and applicable fine.

United States v. Gayle, 967 F.2d 483, 486-87 (11th Cir. 1992) (en banc), intent to defraud is an essential element of this offense.

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

    Title 18, United States Code, Section 922(a)(1)(A), makes it a Federal crime or offense to be in the business of dealing in firearms without a Federal license.

    The Defendant can be found guilty of that offense only if all of the following facts are proved beyond a reasonable doubt:

    First: That the Defendant engaged in the business of dealing in firearms; 

    Second: That the Defendant engaged in such business without a license issued under federal law; and

    Third: That the Defendant did so knowingly and willfully.

    The term "firearm" means any weapon which is designed to, or may readily be converted to, expel a projectile by the action of an explosive; and the term includes the frame or receiver of any such weapon, or any firearm muffler or firearm silencer.

    A person is "engaged in the business of selling firearms at wholesale or retail," if that person devotes time, attention, and labor to dealing in firearms as a regular course of trade or business with the principal objective of livelihood and profit through the repetitive purchase and resale of firearms. Such term does not include a person who makes occasional sales, exchanges, or purchases of firearms for the enhancement of a personal collection or for a hobby, or who sells all or part of that person's personal collection of firearms. 

    The term "dealer" means any person engaged in the business of selling firearms at wholesale or retail regardless of whether the selling of firearms is the Defendant’s principal business or job.

    The term "with the principal objective of livelihood and profit" means that the intent underlying the sale or disposition of firearms is predominantly one of obtaining livelihood and pecuniary gain (whether one actually earns a profit or not) as opposed to other intents, such as improving or liquidating a personal firearms collection. [However, proof of profit motive is not required as to a person who engages in the regular and repetitive purchase and disposition of firearms for criminal purposes or terrorism.]

ANNOTATIONS AND COMMENTS

    18 USC 922(a)(1) provides:

    (a) It shall be unlawful - -

    (1) for any person - -

    (A) except a licensed . . . dealer, to engage in the business of . . . dealing in firearms.

    Maximum Penalty: Five (5) years imprisonment and applicable fine.

    The definition of "firearm" is taken from 18 USC 921(a)(3). The definition of "dealer" is taken from 18 USC 921(a)(11). The definition of "engaged in the business" is taken from 18 USC 921(a)(21)(C). The definition of "principal objective of livelihood and profit" is taken from 18 USC 921(a)(22).

    Willfulness is an essential element of the offense under 18 USC 924(a)(1)(D), but the Government does not have to prove that the Defendant knew of the licensing requirement to satisfy this element. Bryan v. United States, 524 U.S. 184, 118 S.Ct. 1939 (1998).

[For 1997 Version of this instruction, see below]

Annotations and Comments

18 USC 922(a)(1) provides:

(a) It shall be unlawful --

(1) for any person --

(A) except a licensed . . . dealer, to engage in the business of . . . dealing in firearms.

Maximum Penalty: Five (5) years imprisonment and applicable fine.

The definition of "firearm" is taken from 18 USC 921(a)(3). The definition of "dealer" is taken from 18 USC 921(a)(11). The definition of "engaged in the business" is taken from 18 USC 921(a)(21)(A). The definition of "principal objective of livelihood and profit" is taken from 18 USC 921(a)(22). Willfulness is an essential element of the offense under 18 USC 924(a)(1)(D). See also, regarding the element of willfulness, United States v. Sanchez-Corcino, 85 F.3d 549 (11th Cir. 1997).

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

    Title 18, United States Code Section 922(a)(5), makes it a Federal crime or offense under certain circumstances for anyone who is not a licensed firearms dealer to sell or transfer a firearm to someone who lives in another state.

    The Defendant can be found guilty of that offense only if all of the following facts are proved beyond a reasonable doubt:

    First: That the Defendant willfully transferred, sold or delivered a firearm to another person as charged;

    Second: That neither the Defendant nor the person to whom the firearm was transferred was a licensed firearms importer, manufacturer, dealer or collector at the time of such transfer; and

    Third: That the Defendant knew or had reasonable cause to believe that the person to whom the firearm was transferred resided in a state other than the state in which the Defendant resided.

    The term "firearm" means any weapon which is designed to, or may readily be converted to, expel a projectile by the action of an explosive; and the term includes the frame or receiver of any such weapon, or any firearm muffler or firearm silencer.

    To "transfer" a firearm simply means to deliver possession of a firearm to another person.

    To have "reasonable cause to believe" that someone is a resident of another state means to have knowledge of facts which, although not amounting to direct knowledge, would cause a reasonable person knowing the same facts to reasonably conclude that such other person was a resident of another state. The essence of the offense is to knowingly transfer a firearm to a resident of another state. It is not a violation of the law to transfer a firearm to a resident of one's own state of residency.

    [The law does not apply to the loan or rental of a firearm to any person for temporary use for lawful sporting purposes; nor does the law apply to any transfer or delivery of a firearm to carry out a bequest to, or an acquisition by intestate succession by, a person who is permitted to acquire or possess a firearm by the laws of the state of his or her residence.]

    [A "bequest" refers to a provision in a person's will providing for the disposition of property after death; and the term "intestate succession" refers to the law of the state providing for the inheritance of property from a person who dies without leaving a will. Thus, to carry out a "bequest" or "intestate succession" simply means to transfer something after the owner has died and in accordance with the owner's will or the state law of intestate succession, as the case might be.]

ANNOTATIONS AND COMMENTS

    18 USC 922(a)(5) provides:

    (a) It shall be unlawful - -

* * * * *

    (5) for any person [other than a licensed dealer] to transfer, sell . . . or deliver any firearm to any person [other than a licensed dealer] who the transferor knows or has reasonable cause to believe does not reside in . . . the State in which the transferor resides [unless] the transfer [is] made to carry out a bequest . . . [or constitutes] a loan or rental . . . for temporary use for lawful sporting purposes.

    Maximum Penalty: Five (5) years imprisonment and applicable fine.

    18 USC 924(a)(1)(D) makes willfulness an element of the offense, and in Bryan v. United States, 524 U.S. 184, 118 S.Ct. 1939 (1998) the Court held that “willfulness” should be given its usual meaning and did not require proof that the Defendant had specific knowledge of the criminal statute being violated by his conduct.

[For 1997 Version of this instruction, see below]

Annotations and Comments

18 USC 922(a)(5) provides:

(a) It shall be unlawful --

* * * * *

(5) for any person [other than a licensed dealer] to transfer, sell . . . or deliver any firearm to any person [other than a licensed dealer] who the transferor knows or has reasonable cause to believe does not reside in . . . the State in which the transferor resides [unless] the transfer [is] made to carry out a bequest . . . [or constitutes] a loan or rental . . . for temporary use for lawful sporting purposes.

18 USC 924(a)(1)(D) makes willfulness an element of the offense.

Maximum Penalty: Five (5) years imprisonment and applicable fine.

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

    Title 18, United States Code, Section 922(a)(6), makes it a Federal crime or offense for anyone, in the process of buying a firearm, to make a false statement to a licensed firearms dealer.

    The Defendant can be found guilty of that offense only if all of the following facts are proved beyond a reasonable doubt:

    First: That the Defendant acquired or attempted to acquire a firearm from a Federally licensed firearms dealer, as charged;

    Second: That in so doing the Defendant [knowingly made a false or fictitious statement, orally or in writing] [knowingly furnished or exhibited a false or fictitious identification], [intended to deceive] [likely to deceive] such dealer; and

    Third: That the subject matter of the false [statement] [identification] was material to the lawfulness of the sale.

    The term "firearm" means any weapon which is designed to, or may readily be converted to, expel a projectile by the action of an explosive; and the term includes the frame or receiver of any such weapon, or any firearm muffler or firearm silencer.

    A [statement] [identification] is "false or fictitious" if it was untrue when [made] [used] and was then known to be untrue by the person [making it] [using it]. 

    A false [statement] [identification] is "likely to deceive" if the nature of the [statement] [identification], considering all of the surrounding circumstances at the time, would probably mislead or deceive a reasonable person of ordinary prudence.

    The "materiality" of the alleged false [statement] [identification] is not a matter with which you are concerned, but rather is a question for the Court to decide. You are instructed that the alleged false [statement] [identification] described in the indictment, if proved, did relate to a material fact.

ANNOTATIONS AND COMMENTS

    18 USC 922(a)(6) provides:

    (a) It shall be unlawful - -

    * * * * *

    (6) for any person in connection with the acquisition or attempted acquisition of any firearm or ammunition from a licensed importer, . . . manufacturer, . . . dealer, or . . . collector, knowingly to make any false or fictitious oral or written statement or to furnish or exhibit any false, fictitious, or misrepresented identification, intended or likely to deceive such importer, manufacturer, dealer, or collector with respect to any fact material to the lawfulness of the sale or other disposition of such firearm or ammunition . . . .

    Maximum Penalty: Ten (10) years imprisonment and applicable fine.

    United States v. Klais, 68 F.3d 1282 (11th Cir. 1995), held that under 922(a)(6) materiality is a question of law, distinguishing the Supreme Court's decision in United States v. Gaudin, 515 U.S. 506, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995), holding that in context of 18 USC 1001 materiality is question for jury.

    Willfulness is not an essential element of this offense. See 18 USC 924(a)(1)(A).

[For 1997 Version of this instruction, see below]

Annotations and Comments

18 USC 922(a)(6) provides:

(a) It shall be unlawful --

* * * * *

(6) for any person in connection with the acquisition or attempted acquisition of any firearm or ammunition from a licensed importer, . . . manufacturer, . . . dealer, or . . . collector, knowingly to make any false or fictitious oral or written statement or to furnish or exhibit any false, fictitious, or misrepresented identification, intended or likely to deceive such importer, manufacturer, dealer, or collector with respect to any fact material to the lawfulness of the sale or other disposition of such firearm or ammunition . . . .

Maximum Penalty: Ten (10) years imprisonment and applicable fine.

United States v. Klais, 68 F.3d 1282 (11th Cir. 1995), held that under 922(a)(6) materiality is a question of law, distinguishing the Supreme Court's decision in United States v. Gaudin, U.S. , 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995), holding that in context of 18 USC 1001 materiality is question for jury.

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

    Title 18, United States Code, Section 922(b)(5), makes it a Federal crime or offense for a Federally licensed firearms dealer to sell [a firearm] [armor-piercing ammunition] to anyone without keeping a record concerning the purchaser.

    The Defendant can be found guilty of that offense only if all of the following facts are proved beyond a reasonable doubt:

    First: That the Defendant was a Federally licensed firearms dealer at the time the alleged offense occurred;

    Second: That the Defendant sold or delivered [a firearm] [armor-piercing ammunition] to the person named in the indictment; and

    Third: That having sold or delivered the [firearm] [armor-piercing ammunition] to such person, the Defendant knowingly and willfully failed to record the name, age and place of residence of that individual in the records required to be kept
by law.

    [The term "firearm" means any weapon which is designed to, or may readily be converted to, expel a projectile by the action of an explosive; and the term includes the frame or receiver of any such weapon, or any firearm muffler or firearm silencer.]

    [The term "armor-piercing ammunition" means a projectile or projectile core which may be used in a handgun and which is constructed entirely (excluding the presence of traces of other substances) from one or a combination of tungsten alloys, steel, iron, brass, bronze, beryllium copper or depleted uranium. The term also includes a full jacketed projectile larger than .22 caliber designed and intended for use in a handgun and whose jacket has a weight of more than 25 percent of the total weight of the projectile.]

ANNOTATIONS AND COMMENTS

    18 USC 922(b)(5) provides:

    (b) It shall be unlawful for any licensed . . . dealer . . . to sell or deliver--

    * * * * *

    (5) any firearm or armor-piercing ammunition to any person unless the licensee notes in his records, required to be kept pursuant to section 923 of this chapter, the name, age, and place of residence of such person . . . .

    Maximum Penalty: Five (5) years imprisonment and applicable fine.

    18 USC 924(a)(1)(D) makes willfulness an element of the offense, and in Bryan v. United States, 524 U.S. 184, 118 S.Ct. 1939 (1998) the Court held that “willfulness” should be given its usual meaning and did not require proof that the Defendant had specific knowledge of the criminal statute being violated by his conduct.

[For 1997 Version of this instruction, see below]

18 USC 922(b)(5) provides:

(b) It shall be unlawful for any licensed . . . dealer . . . to sell or deliver --

* * * * *

(5) any firearm or armor-piercing ammunition to any person unless the licensee notes in his records, required to be kept pursuant to section 923 of this chapter, the name, age, and place of residence of such person . . . .

18 USC 924(a)(1)(D) makes willfulness an element of the offense.

Maximum Penalty: Five (5) years imprisonment and applicable fine.

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

OI 34.5  
Sale Of Firearm To Convicted Felon
(18 USC 922(d)(1))

    Title 18, United States Code, Section 922(d)(1), makes it a Federal crime or offense for any person to knowingly sell a firearm to a convicted felon.

    The Defendant can be found guilty of that offense only if all of the following facts are proved beyond a reasonable doubt:

    First: That the Defendant sold the firearm described in the indictment, at or about the time alleged;

    Second: That the person who bought the firearm had been convicted in a court of a crime punishable by imprisonment for a term exceeding one year, that is, a felony offense; and

    Third: That the Defendant acted with knowledge or with reasonable cause to believe that such person had been so convicted.

    The term "firearm" means any weapon which is designed to, or may readily be converted to, expel a projectile by the action of an explosive; and the term includes the frame or receiver of any such weapon, or any firearm muffler or firearm silencer.

    To have "reasonable cause to believe" that someone is a convicted felon means to have knowledge of facts which, although not amounting to direct knowledge, would cause a reasonable person, knowing the same things, to reasonably conclude that the other person was in fact a convicted felon.

ANNOTATIONS AND COMMENTS

    18 USC 922(d)(1) provides:

    (d) It shall be unlawful for any person to sell or otherwise dispose of any firearm or ammunition to any person knowing or having reasonable cause to believe that such person - -

* * * * *

    (1) is under indictment for, or has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year.

    Maximum Penalty: Ten (10) years imprisonment and applicable fine.

    Willfulness is not an essential element of this offense. See 18 USC 924(a)(2).

    When a Defendant offers to stipulate to his or her status as a previously convicted felon, and the Government declines the stipulation, the issue should be evaluated under the balancing test of FRE 403. While there is no per se rule requiring the Government to accept such a stipulation, it can be an abuse of discretion to admit evidence of the nature of a stipulated conviction where the nature of the crime (as distinguished from the fact of the conviction itself) has potential prejudice outweighing any probative value. Old Chief v. United States, 519 U.S. 172, 117 S.Ct. 644 (1997).

[For 1997 Version of this instruction, see below]

Annotations and Comments

18 USC 922(d) provides:

(d) It shall be unlawful for any person to sell or otherwise dispose of any firearm or ammunition to any person knowing or having reasonable cause to believe that such person - -

* * * * *

(1) is under indictment for, or has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year.

Maximum Penalty: Ten (10) years imprisonment and applicable fine.

When a Defendant offers to stipulate to his or her status as a previously convicted felon, and the Government declines the stipulation, the issue should be evaluated under the balancing test of FRE 403. While there is no per se rule requiring the Government to accept such a stipulation, it can be an abuse of discretion to admit evidence of the nature of a stipulated conviction where the nature of the crime (as distinguished from the fact of the conviction itself) has potential prejudice outweighing any probative value. Old Chief v. United States, U.S. , 117 S.Ct. 644, (1/7/97), 1997 WL 3230(US).

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

OI 34.6  
Possession Of Firearm By A Convicted Felon
(18 USC 922(g)(1))

    Title 18, United States Code, Section 922(g), makes it a Federal crime or offense for anyone who has been convicted of a felony offense to possess any firearm in or affecting interstate commerce.

    The Defendant can be found guilty of that offense only if all of the following facts are proved beyond a reasonable doubt:

    First: That the Defendant knowingly possessed a firearm in or affecting interstate commerce, as charged; and

    Second: That before the Defendant possessed the firearm the Defendant had been convicted in a court of a crime punishable by imprisonment for a term in excess of one year, that is, a felony offense.

    The term "firearm" means any weapon which is designed to, or may readily be converted to, expel a projectile by the action of an explosive; and the term includes the frame or receiver of any such weapon, or any firearm muffler or firearm silencer.

    The term "interstate commerce" includes the movement of a firearm between any place in one state and any place in another state. It is not necessary for the Government to prove that the Defendant knew that the firearm had moved in interstate commerce before the Defendant possessed it, only that it had made such movement.

ANNOTATIONS AND COMMENTS

    18 USC 922(g)(1) provides:

    (g) It shall be unlawful for any person - -

    (1) who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year - - to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.

    Maximum Penalty: Ten (10) years imprisonment and applicable fine.

    When a Defendant offers to stipulate to his or her status as a previously convicted felon, and the Government declines the stipulation, the issue should be evaluated under the balancing test of FRE 403. While there is no per se rule requiring the Government to accept such a stipulation, it can be an abuse of discretion to admit evidence of the nature of a stipulated conviction where the nature of the crime (as distinguished from the fact of the conviction itself) has potential prejudice outweighing any probative value. Old Chief v. United States, 519 U.S. 172, 117 S.Ct. 644 (1997).

    Willfulness is not an essential element of this offense. See 18 USC 924(a)(2).

    The Government is not required to prove that the unlawfully possessed firearm was operable. United States v. Adams, 137 F.3d 1298 (11th Cir. 1998).

    What constitutes a prior state court “conviction” is determined, under 18 USC §921(a)(20), according to state law; and, under Florida law, a “conviction” requires an adjudication of guilt by a jury verdict or a plea of guilty. A plea of nolo contendere followed by a withholding of adjudication by the Court is not a “conviction” for purposes of 922(g)(1). United States v. Willis, 106 F.3d 966 (11th Cir. 1997).

    In United States v. Scott, 263 F.3d 1270 (11th Cir. 2001), the Court held that as long as the weapon at issue had a minimal nexus to interstate commerce, application of 922(g) was constitutional. The interstate nexus was demonstrated by the fact that the firearm Defendant possessed was manufactured in California and had moved in interstate commerce to Georgia, where Defendant was found in possession of the weapon.

    With regard to a “justification” defense under 922(g), see United States v. Deleveaux, 205 F.3d 1292 (11th Cir. 2000). The Court held that in order to establish a justification defense, Defendant must prove by a preponderance of the evidence
that: (1) Defendant was under unlawful and present, imminent, and impending threat of death or serious bodily injury, (2) Defendant did not negligently or recklessly place himself in a situation where Defendant would be forced to engage in criminal conduct, (3) Defendant had no reasonable legal alternative to violating the law, and (4) there was a direct causal relationship between the criminal action and the avoidance. Id. at 1297. See Special Instruction 16, Justification or Necessity.

[For 1997 Version of this instruction, see below]