PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003
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Offense Instructions (OI 49 - OI 70.6)

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

    Title 18, United States Code, Section 1201 (a)(1), makes it a Federal crime or offense for anyone to kidnap [seize] [confine] [inveigle] [decoy] [abduct] [carry away] another person and then transport that person in 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 and willfully kidnapped [seized] [confined] [inveigled] [decoyed] [abducted] [carried away] the person described in the indictment, as charged;

    Second: That the Defendant held such person for ransom or reward or other benefit which the Defendant intended to derive from the kidnapping; and

    Third: That such person was thereafter transported in interstate commerce while so kidnapped [seized] [confined] [inveigled] [decoyed] [abducted] [carried away].

    To "kidnap" a person means to forcibly and unlawfully hold, keep, detain and confine the person against his or her will. So,
involuntariness or coercion in connection with the victim's detention is an essential part of the offense.

    [To "inveigle" a person means to lure, or entice, or lead the person astray by false representations or promises, or other deceitful means.]

    It need not be proved, however, that a kidnapping was carried out for ransom or personal monetary gain so long as it is proved that the Defendant acted willfully, intending to gain some benefit from the kidnapping.

    "Interstate commerce" means commerce or travel between one state and another state. A person is transported in interstate commerce whenever that person moves across state lines from one state into another state. The Government does not have to prove that the Defendant knew of the crossing of state lines, but only that it was done while the Defendant was intentionally transporting the victim.

ANNOTATIONS AND COMMENTS

    18 USC 1201(a)(1) provides:

    Whoever unlawfully seizes, confines, inveigles, decoys, kidnaps, abducts, or carries away and holds for ransom or reward or otherwise any person [and willfully transports such person in interstate or foreign commerce] [shall be guilty of an offense against the United States].

    Maximum Penalty: Imprisonment for any term of years or for life or if the death of any person results, shall be punished by death or life imprisonment.

    An additional element, prompted by the Apprendi doctrine, is required when the indictment alleges that the kidnapping resulted in the death of a person and the prosecution is seeking the death penalty. Hernandez v. United States, 226 F.3d
839, 841 (7th Cir. 2000). If a disputed issue is whether a death resulted, the Court should consider giving a lesser included offense instruction. 

    Inveiglement or decoying someone across state lines is not in and of itself conduct proscribed by the federal kidnapping statute. “Inveiglement” becomes unlawful under the federal kidnapping statute, “when the alleged kidnapper interferes with his
victim’s action, exercising control over his victim through the willingness to use forcible action should his deception fail.” United States v. Boone, 959 F.2d 1550, 1555 & n.5 (11th Cir. 1992). However, the mere fact that physical force was not ultimately necessary does not take such conduct outside of the statute. See id. at 1556.

    See United States v. Lewis, 115 F.3d 1531, 1535 (11th Cir. 1997) (setting forth elements of crime of kidnapping and transporting in interstate commerce under 18 USC 1201): (1) “the transportation in interstate commerce (2)of an unconsenting person who is (3) held for ransom, reward, or otherwise, (4) with such acts being done knowingly and willfully.” “Knowledge of crossing state lines is not an essential element . . . . The requirement that an offender cross state lines merely furnishes a basis for the exercise of federal jurisdiction.” Id.; United States v. Broadwell, 870 F.2d 594, 601 & n.16 (11th Cir. 1989) (recognizing that crime of kidnapping is complete upon transportation across state lines).

    Note that Section 1201 also sets out four other jurisdictional circumstances in subparts (a)(2) through (a)(5), and this instruction will need to be modified to fit those if the charge is not under subpart (a)(1).

[For 1997 Version of this instruction, see below]

18 USC 1201(a)(1) provides:

Whoever unlawfully seizes, confines, inveigles, decoys, kidnaps, abducts, or carries away and holds for ransom or reward or otherwise any person [and willfully transports such person in interstate or foreign commerce] [shall be guilty of an offense against the United States].

Maximum Penalty: Imprisonment for any term of years or for life.

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

    Title 18, United States Code, Section 1341, makes it a Federal crime or offense for anyone to [use the United States mails] [transmit something by private or commercial interstate carrier] in carrying out a scheme to defraud.

    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 devised or participated in a scheme to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations or promises;

    Second: That the false or fraudulent pretenses, representations or promises related to a material fact; 

    Third: That the Defendant acted willfully with an intent to defraud; and

    Fourth: That the Defendant used [the United States Postal Service by mailing or by causing to be mailed] [a private or commercial interstate carrier by depositing or causing to be deposited with such carrier] some matter or thing for the purpose of executing the scheme to defraud.

    [A “private or commercial interstate carrier” includes any business engaged in the transmission, transportation or delivery of messages or other articles in interstate commerce, that is, from any place in one state to any place in another state. If a message or other article is deposited with such a carrier it need not be proved that the message or article thereafter moved in interstate commerce from one state to another.]

    The term "scheme to defraud" includes any plan or course of action intended to deceive or cheat someone out of money or property by means of false or fraudulent pretenses, representations, or promises.

    A statement or representation is "false" or "fraudulent" if it relates to a material fact and is known to be untrue or is made with reckless indifference as to its truth or falsity, provided it is made or caused to be made with intent to defraud. A statement or representation may also be "false" or "fraudulent" when it constitutes a half truth, or effectively conceals a material fact, provided it is made with intent to defraud. 

    A “material fact” is a fact that would be important to a reasonable person in deciding whether to engage or not to engage in a particular transaction. A fact is “material” if it has a natural tendency to influence, or is capable of influencing, the decision of the person or entity to whom or to which it is addressed. A false or fraudulent statement, representation or promise can be material even if the decision maker did not actually rely on the statement, or even if the decision maker actually knew or should have known that the statement was false.

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

    It is not necessary that the Government prove all of the details alleged in the indictment concerning the precise nature and purpose of the scheme; or that the material [mailed] [deposited with an interstate carrier] was itself false or fraudulent; or that the alleged scheme actually succeeded in defrauding anyone; or that the use of [the mail] [the interstate carrier] was intended as the specific or exclusive means of accomplishing the alleged fraud; or that the Defendant did the actual [mailing] [depositing].

    What must be proved beyond a reasonable doubt is that the Defendant, with the specific intent to defraud, knowingly devised, intended to devise, or participated in, a scheme to defraud substantially the same as the one alleged in the indictment, and that the use of [the United States mail] [an interstate carrier] was closely related to the scheme because the Defendant either [mailed] [deposited] something or caused it to be [mailed] [deposited] in an attempt to execute or carry out the scheme.

    To "cause" [the mails] [an interstate carrier] to be used is to do an act with knowledge that the use of [the mails] [such carrier] will follow in the ordinary course of business or where such use can reasonably be foreseen.

    Each separate use of [the mails] [an interstate carrier] in furtherance of a scheme to defraud constitutes a separate offense.

ANNOTATIONS AND COMMENTS

    18 USC 1341 provides:

    Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, . . . for the purpose of executing such scheme or artifice or attempting so to do, places in any post office or authorized depository for mail matter, any matter or thing whatever to be sent or delivered by the Postal Service [by any private or commercial interstate carrier] [shall be guilty of an offense against the laws of the United States].

    Maximum Penalty: Five (5) years imprisonment and applicable fine. (If the violation affects a financial institution, thirty (30) years imprisonment and $1 million fine).

    If the offense involved telemarketing, 18 USC 2326 requires enhanced imprisonment penalties:

    A person who is convicted of an offense under section 1028, 1029, 1341, 1342, 1343, or 1344, or a conspiracy to commit such an offense, in connection with the conduct of telemarketing - - -

    (1) shall be imprisoned for a term of up to 5 years in addition to any term of imprisonment imposed under any of those sections, respectively; and

    (2) in the case of an offense under any of those sections that - - -

    (A) victimized ten or more persons over the age of 55; or

    (B) targeted persons over the Age of 55, shall be imprisoned for a term of up to 10 years in addition to any term
of imprisonment imposed under any of those sections, respectively.

    An additional element, prompted by the Apprendi doctrine, is required when the indictment alleges any facts that would result in enhanced penalties under 18 USC 1341 or 2326. If the alleged offense involved telemarketing, or involved telemarketing and victimized 10 or more persons over age 55 or targeted persons over age 55, or the scheme affected a financial institution, the Court should consider including a fourth element for that part of the offense and giving a lesser included offense instruction for just the Section 1341 offense. Alternatively, an instruction (to be used with a special interrogatory on the verdict form) can address those statutory variations of the scheme:

    If you find beyond a reasonable doubt that the Defendant is guilty of using the mails in carrying out a scheme to defraud, then you must also determine whether the Government has proven beyond a reasonable doubt that [the scheme was in connection with the conduct of telemarketing and (a) victimized ten or more persons over the age of 55, or (b) targeted persons over the age of 55] [the scheme affected a financial institution].

    The 1994 amendment to Section 1341 now also applies it to the use of “any private or commercial interstate carrier.” Where such private carriers are involved, the statute requires the government to prove only that the carrier engages in interstatedeliveries and not that state lines were crossed. See United States v. Marek, 238 F.3d 310, 318 (5th Cir.) cert. denied U.S. , 122 S.Ct. 37, 151 L.Ed.2d 11 (2000).

    Mail fraud requires a showing of “(1) knowing participation in a scheme to defraud, and (2) a mailing in furtherance of the scheme.” United States v. Photogrammetric Data Svcs., Inc. 259 F.3d 229, 253 (4th Cir. 2001). The mailing, however, need only “be incident to an essential part of the scheme or a step in the plot,” and does not have to be an essential element of the scheme to be part of the execution of the fraud. Schmuck v. United States, 489 U.S. 705, 710-11, 109 S.Ct. 1443, 103
L.Ed.2d 734 (1989).

    Materiality is an essential element of the crime of mail fraud, wire fraud, and bank fraud to be decided by the jury. Neder v. United States, 527 U.S. 1, 25, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999). The definition of materiality used here comes from
that decision and the Eleventh Circuit’s decision in the case upon remand. United States v. Neder, 197 F.3d 1122, 1128-29 (11th Cir. 1999), cert. denied 530 U.S. 1261, 120 S.Ct. 2727, 147 L.Ed.2d 982 (2000).

    In mail fraud cases involving property rights, “the Government must establish that the defendant intended to defraud a victim of money or property of some value.” United States v. Cooper, 132 F.3d 1400, 1405 (11th Cir. 1998). State and municipal
licenses in general are not “property” for the purposes of Title 18, United States Code, Section 1341. Cleveland v. United States, 531 U.S. 12, 15, 121 S.Ct. 365, 369, 148 L.Ed.2d 221 (2000).

[For 1997 Version of this instruction, see below]

(See Annotations and Comments following Offense Instruction 41.2, infra.)

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

FORECITE National™ ALERT: See also FORECITE National™ 103.7.2.4 [Mail Theft And Mail Fraud: Materiality Is An Element].

    Title 18, United States Code, Sections 1341 and 1346, make it a Federal crime or offense for anyone to [use the United States mails] [transmit something by private or commercial interstate carrier] in carrying out a scheme to fraudulently deprive another of an intangible right of honest services.

    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 devised or participated in a scheme to fraudulently deprive [the public] [another] of the intangible right of honest services, as charged;

    Second: That the Defendant did so willfully with an intent to defraud; and 

    Third: That the Defendant used [the United States Postal Service by mailing or by causing to be mailed] [a private or commercial interstate carrier by depositing or causing to be deposited with such carrier] some matter or thing for the purpose of executing the scheme to defraud.

    [A “private or commercial interstate carrier” includes any business engaged in the transmission, transportation or delivery of messages or other articles in interstate commerce, that is, from any place in one state to any place in another state. If a message or other article is deposited with such a carrier it need not be proved that the message or article thereafter moved in interstate commerce from one state to another.]

    The word "scheme" includes any plan or course of action intended to deceive or cheat someone; and to act with "intent to defraud" means to act knowingly and with the specific intent to deceive someone, ordinarily for the purpose of causing some financial loss to another or bringing about some financial gain to one's self. 

    To "deprive another of the intangible right of honest services" means to violate, or to cause [a public official or employee] [an employee or agent of another person] to violate, the employee's or agent's duty to provide honest services to the employer. 

    [Public officials and public employees inherently owe a duty to the public to act in the public’s best interest. If, instead, the [official] [employee] acts or makes [his] [her] decision based on the official’s own personal interests - - such as accepting a bribe, taking a kickback or receiving personal benefit from an undisclosed conflict of interest - - the official has defrauded the public of the official’s honest services even though the public agency involved may not suffer any monetary loss in the transaction.]

    [With regard to employers in the private sector, the Government must prove that the employee intended to breach a fiduciary duty, and that the employee foresaw, or reasonably should have foreseen, that the employer might suffer an economic harm as a result of that breach.]

    Under the law, every agent or employee representing or working for someone else - - the employer - - has a duty (called a fiduciary duty) to act honestly and faithfully in all of his or her dealings with the employer, and to transact business in the best interest of the employer, including a duty to make full and fair disclosure to the employer of any personal interest or profit [or "kickback"] the employee expects to derive or has derived from any transaction in which he or she participates in the course of the employment.

    [A "kickback" includes any kind of undisclosed payment or reward to an employee for dealing in the course of employment with the person making the payment so that the employee's personal financial interest interferes with the employee's duty to secure the most favorable bargain for the employer.]

    It is not necessary that the Government prove all of the details alleged in the indictment concerning the precise nature and purpose of the scheme; or that the material [mailed] [deposited with an interstate carrier] was itself false or fraudulent; or that the alleged scheme actually succeeded in defrauding anyone; or that the use of [the mail] [the interstate carrier] was intended as the specific or exclusive means of accomplishing the alleged fraud; or that the Defendant did the actual [mailing] [depositing].

    What must be proved beyond a reasonable doubt is that the Defendant, with the specific intent to defraud, knowingly devised, intended to devise, or participated in, a scheme to defraud substantially the same as the one alleged in the indictment; and that the use of [the United States mail] [the interstate carrier] was closely related to the scheme because the Defendant either [mailed] [deposited] something or caused it to be [mailed] [deposited] in an attempt to execute or carry out the scheme.

    To "cause" [the mails] [an interstate carrier] to be used is to do an act with knowledge that the use of [the mails] [an interstate carrier] will follow in the ordinary course of business or where such use can reasonably be foreseen. Each separate use of [the mails] [an interstate carrier] in furtherance of a scheme to defraud constitutes a separate offense.

ANNOTATIONS AND COMMENTS

    18 USC 1341 provides:

    Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises . . . for the purpose of executing such scheme or artifice or attempting so to do, places in any post office or authorized depository for mail matter, any matter or thing whatever to be sent or delivered by the Postal Service [by any private or commercial interstate carrier] [shall be guilty of an offense against the laws of the United States].

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

    18 USC 1346 provides:

    For the purposes of this chapter, the term "scheme or artifice to defraud" includes a scheme or artifice to deprive another of the intangible right of honest services.

    In addition to property rights, the statute protects the intangible right to honest services as a result of the addition of 18 USC 1346 in 1988. The Supreme Court had ruled in McNally v. United States, 483 U.S. 350, 360, 107 S.Ct. 2875, 2882, 97 L.Ed.2d 292 (1987), that Section 1341 was limited in scope to the protection of property rights and did not prohibit schemes to defraud citizens of their intangible right to honest and impartial government. Thus, Congress passed Section 1346 to overrule McNally and reinstate prior law. Defrauding one of honest services typically involves government officials depriving their constituents of honest governmental services. Such “public sector” fraud falls into two categories: first, “a public official owes a fiduciary duty to the public, and misuse of his office for private gain is a fraud;” second, “an individual without formal office may be held to be a public fiduciary if others rely on him because of a special relationship in the government and he in fact makes governmental decisions.” United States v. deVegter, 198 F.3d 1324, 1328 n.3 (11th Cir. 1999) (quoting McNally and addressing wire fraud); United States v. Lopez-Lukis, 102 F.3d 1164, 1169 (11th Cir. 1997) (addressing mail fraud). Public officials inherently owe a fiduciary duty to the public to make governmental decisions in the public’s best interest. “If the official instead secretly makes his decision based on his own personal interests - - as when an official accepts a bribe or personally benefits from an undisclosed conflict of interest - - the official has defrauded the public of his honest services.” Lopez-Lukis, 102 F.3d at 1169).

    Although the typical case of defrauding one of honest services is the bribery of a public official, section 1346 also extends to defrauding some private sector duties of loyalty. Since a strict duty of loyalty ordinarily is not part of private sector relationships, it is not enough to prove that a private sector defendant breached the duty of loyalty alone. In the private sector context, the breach of loyalty must inherently harm the purpose of the parties’ relationship. deVegter, 198 F.3d at 1328-29. “‘The prosecution must prove that the employee intended to breach a fiduciary duty, and that the employee foresaw or reasonably should have foreseen that his employer might suffer an economic harm as a result of the breach.’” Id. at 1329 (quoting United States v. Frost, 125 F.3d 346, 368 (6th Cir. 1997)). Federal law governs the existence of a fiduciary duty owed under this statute. Id. at 1329 & n.5.

    The mail fraud and wire fraud statutes are “given a similar construction and are subject to the same substantive analysis.” Belt v. United States, 868 F.2d 1208, 1211 (11th Cir. 1989).

[For 1997 Version of this instruction, see below]

18 USC 1341 provides:

Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises . . . for the purpose of executing such scheme or artifice or attempting so to do, places in any post office or authorized depository for mail matter, any matter or thing whatever to be sent or delivered by the Postal Service [shall be guilty of an offense against the laws of the United States].

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

18 USC 1346 provides:

For the purposes of this chapter, the term "scheme or artifice to defraud" includes a scheme or artifice to deprive another of the intangible right of honest services.

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

FORECITE National™ ALERT: See also FORECITE National™ 103.7.2.4 [Mail Theft And Mail Fraud: Materiality Is An Element]. 

    Title 18, United States Code, Section 1343, makes it a Federal crime or offense for anyone to use interstate [wire] [radio] [television] communications facilities in carrying out a scheme to defraud.

    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 devised or participated in a scheme to defraud, or for obtaining money or property by means of false pretenses, representations or promises;

    Second: That the false pretenses, representations or promises related to a material fact; 

    Third: That the Defendant did so willfully and with an intent to defraud; and

    Fourth: That the Defendant transmitted or caused to be transmitted by [wire] [radio] [television] in interstate commerce some communication for the purpose of executing the scheme to defraud.

    The term "scheme to defraud" includes any plan or course of action intended to deceive or cheat someone out of money or property by means of false or fraudulent pretenses, representations, or promises.

    A statement or representation is "false" or "fraudulent" if it relates to a material fact and is known to be untrue or is made with reckless indifference as to its truth or falsity, and is made or caused to be made with intent to defraud. A statement or representation may also be "false" or "fraudulent" when it constitutes a half truth, or effectively conceals a material fact, with intent to defraud. 

    A “material fact” is a fact that would be important to a reasonable person in deciding whether to engage or not to engage in a particular transaction. A fact is “material” if it has a natural tendency to influence, or is capable of influencing, the decision of the person or entity to whom or to which it is addressed. A false or fraudulent statement, representation or promise can be material even if the decision maker did not actually rely on the statement, or even if the decision maker actually knew or should have known that the statement was false.

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

    It is not necessary that the Government prove all of the details alleged in the indictment concerning the precise nature and purpose of the scheme; or that the material transmitted by [wire] [radio] [television] was itself false or fraudulent; or that the alleged scheme actually succeeded in defrauding anyone; or that the use of interstate [wire] [radio] [television] communications facilities was intended as the specific or exclusive means of accomplishing the alleged fraud; or that the Defendant personally used the [wire] [radio] [television] communication facility.

    What must be proved beyond a reasonable doubt is that the Defendant, with intent to defraud, knowingly and willfully devised, intended to devise, or participated in, a scheme to defraud substantially the same as the one alleged in the indictment; and that the use of the interstate [wire] [radio] [television] communications facilities was closely related to the scheme because the Defendant either used, or caused to be used, [wire] [radio] [television] communications facilities in interstate commerce in an attempt to execute or carry out the scheme.

    To "cause" interstate [wire] [radio] [television] communications facilities to be used is to do an act with knowledge that the use of such facilities will follow in the ordinary course of business or where such use can reasonably be foreseen.

    Each separate use of the interstate [wire] [radio] [television] communications facilities in furtherance of a scheme to defraud constitutes a separate offense.

ANNOTATIONS AND COMMENTS

    18 USC 1343 provides:

    Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, transmits or causes to be transmitted by means of wire, radio, or television communication in interstate or foreign commerce, any writings, signs, signals, pictures, or sounds for the purpose of executing such scheme or artifice [shall be guilty of an offense against the laws of the United States].

    Maximum Penalty: Five (5) years imprisonment and applicable fine. (If the violation affects a financial institution, thirty (30) years imprisonment and $1 million fine.)

    If the offense involved telemarketing, 18 USC 2326 requires enhanced imprisonment penalties:

    A person who is convicted of an offense under section 1028, 1029, 1341, 1342, 1343, or 1344, or a conspiracy to commit such an offense, in connection with the conduct of telemarketing - -

    (1) shall be imprisoned for a term of up to 5 years in addition to any term of imprisonment imposed under any of those sections respectively; and (2) in the case of an offense under any of those sections that - -

    (A) victimized ten or more persons over the age of 55; or

    (B) targeted persons over the age of 55, shall be imprisoned for a term of up to 10 years in addition to any term of imprisonment imposed under any of those sections, respectively.

    An additional element, prompted by the Apprendi doctrine, is required when the indictment alleges any facts that would result in enhanced penalties under 18 USC 1343 or 2326. If the alleged offense involved telemarketing, or involved telemarketing and victimized 10 or more persons over age 55 or targeted persons over age 55, or the scheme affected a financial institution, the Court should consider including a fourth element for that part of the offense and giving a lesser included offense instruction for just the Section 1341 offense. Alternatively, an instruction (to be used with a special interrogatory on the verdict form) can address those statutory variations of the scheme:

    If you find beyond a reasonable doubt that the defendant is guilty of using interstate [wire] [radio] [television] communications facilities in carrying out a scheme to defraud, then you must also determine whether the Government has proven beyond a reasonable doubt that [the scheme was in connection with the conduct of telemarketing] [the scheme was in connection with the conduct of telemarketing and (a) victimized ten or more persons over the age of 55, or (b) targeted persons over the age of 55] [the scheme affected a financial institution].

    Wire fraud requires a showing (1) that the Defendant knowingly devised or participated in a scheme to defraud; (2) that the Defendant did so willfully and with an intent to defraud; and (3) that the Defendant used interstate wires for the purpose of executing the scheme. Langford v. Rite Aid of Ala., Inc., 231 F.3d 1308, 1312 (11th Cir. 2000). Materiality is an essential element of the crime of mail fraud, wire fraud, and bank fraud to be decided by the jury. Neder v. United States, 527 U.S. 1, 25, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999). The definition of materiality used here comes from that decision and the Eleventh Circuit’s decision in the case upon remand. United States v. Neder, 197 F.3d 1122, 1128-20 (11th Cir. 1999),
cert. denied 530 U.S. 1261 (2000).

    In wire fraud cases involving property rights, “the Government must establish that the defendant intended to defraud a victim of money or property of some value.” United States v. Cooper, 132 F.3d 1400, 1405 (11th Cir. 1998). State and municipal licenses in general are not “property” for the purposes of this statute. Cleveland v. United States, 531 U.S. 12, 15, 121 S.Ct. 365, 369, 148 L.Ed.2d 221 (2000) (addressing “property” for purposes of mail fraud statute).

    The mail fraud and wire fraud statutes are “given a similar construction and are subject to the same substantive analysis.” Belt v. United States, 868 F.3d 1208, 1211 (11th Cir. 1989).

[For 1997 Version of this instruction, see below]

(See Annotations and Comments following Offense Instruction 42.2, infra.)

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

FORECITE National™ ALERT: See also FORECITE National™ 103.7.2.4 [Mail Theft And Mail Fraud: Materiality Is An Element]. 

    Title 18, United States Code, Sections 1343 and 1346, make it a Federal crime of offense for anyone to use interstate [wire] [radio] [television] communications facilities in carrying out a scheme to fraudulently deprive another of an intangible right of honest services.

    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 devised or participated in a scheme to fraudulently deprive [the public] [another] of the intangible right of honest services, as charged;

    Second: That the Defendant did so willfully and with an intent to defraud; and

    Third: That the Defendant transmitted or caused to be transmitted by [wire] [radio] [television] in interstate commerce some communication for the purpose of executing the scheme to defraud.

    The word "scheme" includes any plan or course of action intended to deceive or cheat someone; and to act with "intent to defraud" means to act knowingly and with the specific intent to deceive someone, ordinarily for the purpose of causing some financial loss to another or bringing about some financial gain to one's self.

    To "deprive another of the intangible right of honest services" means to violate, or to cause [a public official or employee] [an employee or agent of another person] to violate, the employee's or agent's duty to provide honest services to the employer. 

    [Public officials and public employees inherently owe a duty to the public to act in the public’s best interest. If, instead, the [official] [employee] acts or makes [his] [her] decision based on the official’s own personal interests - - such as accepting a bribe, taking a kickback or receiving personal benefit from an undisclosed conflict of interest - - the official has defrauded the public of the official’s honest services even though the public agency involved may not suffer any monetary loss in the transaction.] 

    [With regard to employers in the private sector, the Government must prove that the employee intended to breach a fiduciary duty, and that the employee foresaw, or reasonably should have foreseen, that the employer might suffer an economic harm as a result of that breach.] 

    Under the law, every agent or employee representing or working for someone else - - the employer - - has a duty (called a fiduciary duty) to act honestly and faithfully in all of his or her dealings with the employer, and to transact business in the best interest of the employer, including a duty to make full and fair disclosure to the employer of any personal interest or profit [or "kickback"] the employee expects to derive or has derived from any transaction in which he or she participates in the course of the employment.

    [A "kickback" includes any kind of undisclosed payment or reward to an employee for dealing in the course of employment with the person making the payment so that the employee's personal financial interest interferes with the employee's duty to secure the most favorable bargain for the employer.]

    It is not necessary that the Government prove all of the details alleged in the indictment concerning the precise nature and purpose of the scheme; or that the material transmitted by [wire] [radio] [television] was itself false or fraudulent; or that the alleged scheme actually succeeded in defrauding anyone; or that the use of interstate [wire] [radio] [television] communications facilities was intended as the specific or exclusive means of accomplishing the alleged fraud; or that the Defendant personally used the [wire] [radio] [television] communication facility.

    What must be proved beyond a reasonable doubt is that the Defendant, with intent to defraud, knowingly and willfully devised, intended to devise, or participated in, a scheme to defraud substantially the same as the one alleged in the indictment; and that the use of the interstate [wire] [radio] [television] communications facilities was closely related to the scheme because the Defendant either used, or caused to be used, [wire] [radio] [television] communications facilities in interstate commerce in an attempt to execute or carry out the scheme. 

    To "cause" interstate [wire] [radio] [television] communications facilities to be used is to do an act with knowledge that the use of such facilities will follow in the ordinary course of business or where such use can reasonably be foreseen.

    Each separate use of the interstate [wire] [radio] [television] communications facilities in furtherance of a scheme to defraud constitutes a separate offense.

ANNOTATIONS AND COMMENTS

    18 USC 1343 provides:

    Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, transmits or causes to be transmitted by means of wire, radio or television communication in interstate or foreign commerce, any writings, signs, signals, pictures, or sounds for the purpose of executing such scheme [shall be guilty of an offense against the United States].

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

    18 USC 1346 provides:

    For the purposes of this chapter, the term "scheme or artifice to defraud" includes a scheme or artifice to deprive another of the intangible right of honest services.

    (See the Annotations and Comments following Offense Instruction 50.2, supra).

[For 1997 Version of this instruction, see below]

18 USC 1343 provides:

Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, transmits or causes to be transmitted by means of wire, radio or television communication in interstate or foreign commerce, any writings, signs, signals, pictures, or sounds for the purpose of executing such scheme [shall be guilty of an offense against the United States].

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

18 USC 1346 provides:

For the purposes of this chapter, the term "scheme or artifice to defraud" includes a scheme or artifice to deprive another of the intangible right of honest services.

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

OI 52
Bank Fraud 
(18 USC 1344) 

    Title 18, United States Code, Section 1344, makes it a Federal crime or offense for anyone to execute, or to attempt to execute, a scheme to defraud a financial institution, or to obtain any money, assets, or other property owned by or under the control of a financial institution by means of false or fraudulent pretenses, representations, or promises.

    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 executed or attempted to execute a scheme [to defraud a financial institution] [to obtain money, assets, or property from a financial institution by means of false or fraudulent pretenses, representations, or promises relating to a material fact], as charged;

    Second: That the Defendant did so willfully with an intent to defraud; 

    Third: That the false or fraudulent pretenses, representations, or promises were material; and 

    Fourth: That the financial institution was federally [insured] [chartered].

    The term “scheme to defraud” includes any plan or course of action intended to deceive or cheat someone out of money or property by means of false or fraudulent pretenses, representations, or promises relating to a material fact.

    A statement or representation is “false” or “fraudulent” if it is known to be untrue or is made with reckless indifference as to its truth or falsity, and is made or caused to be made with intent to defraud. A statement or representation may also be “false” or “fraudulent” when it constitutes a half truth, or effectively conceals a material fact, with intent to defraud, provided it is made with intent to defraud. 

    A fact is “material” if it has a natural tendency to influence, or is capable of influencing, the decision of the person or entity to whom or to which it is addressed. A false or fraudulent statement, representation, or promise can be material even if the decision maker did not actually rely on the statement, or even if the decision maker actually knew or should have known that the statement was false. 

    To act with “intent to defraud” means to act knowingly and with the specific intent to deceive or cheat someone, ordinarily for the purpose of causing some financial loss to another or bringing about some financial gain to one’s self.

    It is not necessary that the Government prove all of the details alleged in the indictment concerning the precise nature and purpose of the scheme; or that the alleged scheme actually succeeded in defrauding anyone. What must be proved beyond a reasonable doubt is that the Defendant knowingly executed or attempted to execute a scheme that was substantially similar to the scheme alleged in the indictment.

ANNOTATIONS AND COMMENTS

    18 USC 1344 provides:

    Whoever knowingly executes, or attempts to execute, a scheme or artifice - -

    (1) to defraud a financial institution; or

    (2) to obtain any of the moneys, funds, credits, assets, securities, or other property owned by, or under the custody or control of, a financial institution, by means of false or fraudulent pretenses, representations, or promises; shall be fined not more than $1,000,000 or imprisoned not more than 30 years, or both.

    See 18 USC 20 for an enumeration of the financial institutions covered by 1344.

    An additional element, prompted by the Apprendi doctrine, is required when the indictment alleges any facts that would result in enhanced penalties under 18 USC 2326.

    Proof that the financial institution is federally chartered or insured is an essential element of the crime, as well as necessary to establish federal jurisdiction. United States v. Scott, 159 F.3d 916, 921 (5th Cir. 1998). Materiality is an essential element of the crime of bank fraud. Neder v. United States, 527 U.S. 1, 25, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999).

    There are two separate offenses possible under Section 1344: (1) defrauding a financial institution, or (2) obtaining money or funds from the financial institution by means of material false or fraudulent pretenses, representations, or promises. United States v. Dennis, 237 F.3d 1295, 1303 (11th Cir. 2001) (discussing elements of bank fraud under section 1344); United States v. Mueller, 74 F.3d 1152, 1159 (11th Cir. 1996). In the case of defrauding a financial institution, the Government must establish “that the defendant (1)intentionally participated in a scheme or artifice to defraud another of money or property; and (2) that the victim of the scheme or artifice was an insured financial institution.” United States v. Goldsmith, 109 F.3d 714, 715 (11th Cir. 1997). Under the alternative theory, the Government must prove “(1) that a scheme existed in order to obtain money, funds, or credit in the custody of the federally insured institution; (2) that the defendant participated in the scheme by means of false pretenses, representations or promises, which were material; and (3) that the defendant acted knowingly.” Id.

    While materiality is an element of the bank fraud offense under Neder, the Supreme Court has held (pre-Neder) that materiality is not an element of the offense in a prosecution under 18 USC 1014, a similar statute which prohibits making a false statement to a federally insured bank or designated financial institution. United States v. Wells, 519 U.S. 482, 117 S.Ct. 921, 137 L.Ed.2d 107 (1997).

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

    Title 18, United States Code, Section 1461, makes it a Federal crime or offense for anyone to use the United States mails to transmit obscene material.

    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 used or caused the mails to be used for the conveyance or delivery of certain material, as charged;

    Second: That the Defendant knew at the time of such mailing the general nature of the content of the material so mailed; and

    Third: That the material so mailed was "obscene" as defined in these instructions.

    While the Government must prove that the Defendant knew the general sexual nature of the material that was transported in the mails, the Government does not have to prove that the Defendant knew that such material was legally obscene.

    Therefore, if you find beyond a reasonable doubt that the Defendant transmitted the material in question through the mails and that the Defendant knew the general sexual nature of the material - - that the Defendant knew what the material actually was - - and if you then find beyond a reasonable doubt that the material was in fact "obscene" within the meaning of these instructions, you may then find that the Defendant had the requisite knowledge, or scienter as we call it in the law.

    Freedom of expression is fundamental to our system, and has contributed much to he development and well being of our free society.  In the exercise of the constitutional right of free expression that all of us enjoy, sex may be portrayed and the subject of sex may be discussed, freely and publicly. Material is not to be condemned merely because it contains passages or sequences that are descriptive of sexual activity. However, the constitutional right to free expression does not extend to that which is “obscene.”

    To prove beyond a reasonable doubt that material is “obscene,” the Government must satisfy a three-part test:

    (1) that the work appeals predominantly to "prurient" interest;

    (2) that it depicts or describes sexual conduct in a patently offensive way; and

    (3) that it lacks serious literary, artistic, political or scientific value.

    The first test to be applied, therefore, in determining whether given material is obscene, is whether the predominant theme or purpose of the material, when viewed as a whole and not part by part, and when considered in relation to the intended and probable recipients, is an appeal to the prurient interest of the average person of the community as a whole, [or the prurient interest of members of a deviant sexual group, as the case might be]. An appeal to “prurient” interest is an appeal to a morbid, degrading, and unhealthy interest in sex, as distinguished form a mere candid interest in sex.

    The "predominant theme or purpose of the material, when viewed as a whole," means the main or principal thrust of the material when assessed in its entirety and on the basis of its total effect, and not on the basis of incidental themes or isolated passages or sequences. 

    Whether the predominant theme or purpose of the material is an appeal to the prurient interest of the "average person of the community as a whole" is a judgment that must be made in the light of contemporary standards as would be applied by the average person with an average and normal attitude toward, and interest in, sex. Contemporary community standards, in turn, are set by what is accepted in the community as a whole; that is to say, by society at large or people in general. So, obscenity is not a matter of individual taste and the question is not how the material impresses an individual juror; rather, as stated before, the test is how the average person of the community as a whole would view the material.

    [In addition to considering the average or normal person, the prurient appeal requirement may also be assessed in terms of the sexual interest of a clearly defined deviant sexual group if you find, beyond a reasonable doubt, that the material was intended to appeal to the prurient interest of such a group as, for example, homosexuals.]

    The second test to be applied in determining whether given material is obscene is whether it depicts or describes, in a patently offensive way, sexual conduct such as ultimate sexual acts, normal or perverted, actual or simulated; masturbation; excretory functions; or lewd exhibition of the genitals. In making that judgment, however, you must not condemn by your own standards, regardless of whether you believe them to be less strict or more strict than those generally held. Rather, you must measure whether the material is patently offensive by contemporary community standards; that is, whether it so exceeds the generally accepted limits of public tolerance as to be clearly offensive.

    I emphasize that both the first test regarding prurient interests and the second test regarding patently offensive depictions or descriptions are to be evaluated by applying contemporary community standards. This means that the question is not how the material impresses you as an individual juror, but how it would be considered by the average person in the community, with an ordinary and normal attitude toward - - and interest in - - sex and sexual matters. Contemporary community standards are those accepted in this community as a whole; that is to say, by society at large or people in general, and not by what some segments or groups of persons may believe this community ought to accept or refuse to accept. It is a matter of common knowledge that customs and standards change and that the community as a whole may from time to time find acceptable that which was formerly not acceptable.

    The third test to be applied in determining whether given material is obscene is whether the material, taken as a whole, lacks serious literary, artistic, political or scientific value. An item may have serious value in one or more of these areas even though it portrays explicit sexual conduct, and it is for you to say whether the material in this case has such value. The ideas that a work represents need not obtain majority approval to merit protection, and the value of that work does not vary from community to community. Therefore, unlike the first two tests, you should not apply the contemporary community standards to the third test. Instead, you should make this determination on an objective basis: whether a reasonable person considering the material as a whole would find that it has, or does not have, serious literary, artistic, political, or scientific value.

    All three of these tests must be met before the material in question can be found to be obscene. If any one of them is not met, then the material would not be obscene within the meaning of the law.

    To “cause” the mails to be used is to do an act with knowledge that the use of the mails will follow in the ordinary cause of business or where such use can reasonably be foreseen.

ANNOTATIONS AND COMMENTS

    18 USC 1461 provides:

    Every obscene, lewd, lascivious, indecent, filthy or vile article, matter, thing, device, or substance . . . Is declared to be nonmailable matter and shall not be conveyed in the mails [and] . . . Whoever knowingly uses the mails for the mailing, carriage in the mails, or delivery of anything declared . . . to be nonmailable [shall be guilty of an offense against the United States].

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

    A Defendant charged under 18 USC 1461 has the requisite scienter if the Defendant knows of the nature and character of the allegedly obscene material. Hamling v. United States, 418 U.S. 87, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974). See United States v. Johnson, 855 F.2d 299, 306 (6th Cir. 1988); United States v. Friedman, 528 F.2d 784 (10th Cir. 1976) vacated by, 430 U.S. 925, 97 S.Ct. 1541, 51 L.Ed.2d 769 (1977); United States v. Grassi, 602 F.2d 1192, 1195 n.3 (5th Cir. 1979); United States v. Groner, 494 F.2d 499 (5th Cir.), cert. denied, 419 U.S. 1010, 95 S.Ct. 331, 42 L.Ed.2d 285 (1975). It is not necessary to prove that the Defendant knew the material was obscene under legal standards. United States v. Schmeltzer, 20 F.3d 610, 612 (5th Cir. 1994), cert. denied, 513 U.S. 1041, 115 S.Ct. 634, 130 L.Ed.2d 540 (1994); United States v. Hill, 500 F.2d 733, 740 (5th Cir. 1974), cert. denied, 420 U.S. 952, 95 S.Ct. 1336, 43 L.Ed.2d 430 (1975). See Devitt & Blackmar, Federal Jury Practice and Instructions 40A.05; 40A.17. The only questions as to intent are whether the Defendant knowingly used (or caused to be used) the mail for the transmission or delivery of the material, and whether the Defendant was aware of the nature of the material sent through the mail. See United States v. Shumway, 911 F.2d 1528 (11th Cir. 1990); Spillman v. United States, 413 F.2d 527 (9th Cir. 1969). A specific intent to mail something known to be obscene is not required. Hamling v. United States, 418 U.S. 87, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974).

    The “statute’s intent is to punish for the use of the mails, not the mere possession of obscene materials”. Therefore, the prohibition in Section 1461 against knowingly using the mails for obscene materials applies to “persons who order obscene materials through the mails for personal use, and thus cause the mails to be used for delivery of those materials.” United States v. Carmack, 910 F.2d 748, (11th Cir. 1990).

    The three-part test used in this instruction for determining whether a matter is legally obscene is set forth in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973). See United States v. Bagnell, 679 F.2d 826, 835-37 (11th Cir. 1982) (applying Miller test for obscenity), cert. denied, 460 U.S. 1047, 103 S.Ct. 1449, 75 L.Ed.2d 803 (1983). Although the first two prongs of the Miller test are to be judged by the community standards, the third prong is to be objective - - a “reasonable person” standard. See, Pope v. Illinois, 481 U.S. 497, 500-01, 107 S.Ct. 1918, 1921, 95 L.Ed.2d 439 (1987).

[For 1997 Version of this instruction, see below]

18 USC 1461 provides:

Every obscene, lewd, lascivious, indecent, filthy or vile article, matter, thing, device, or substance . . .

Is declared to be nonmailable matter and shall not be conveyed in the mails [and] . . .

Whoever knowingly uses the mails for the mailing, carriage in the mails, or delivery of anything declared . . . to be nonmailable [shall be guilty of an offense against the United States].

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

A Defendant charged under 18 USC 1461 has the requisite scienter if the Defendant knows of the nature and character of the allegedly obscene material. Hamling v. United States, 418 U.S. 87, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974). See United States v. Johnson, 855 F.2d 299, 306 (6th Cir. 1988); United States v. Friedman, 528 F.2d 784 (10th Cir. 1976); United States v. Grassi, 602 F.2d 1192, 1195 n.3 (5th Cir. 1979); United States v. Groner, 494 F.2d 499 (5th Cir.), cert. denied, 419 U.S. 1010, 95 S.Ct. 331, 42 L.Ed.2d 285 (1975). It is not necessary to prove that the Defendant knew the material was obscene under legal standards. United States v. Schmeltzer, 20 F.3d 610, 612 (5th Cir. 1994); United States v. Hill, 500 F.2d 733, 740 (5th Cir. 1974), cert. denied, 420 U.S. 952, 95 S.Ct. 1336, 43 L.Ed.2d 430 (1975). See Devitt & Blackmar, Federal Jury Practice and Instructions 40A.05; 40A.17. The only questions as to intent are whether the Defendant knowingly sent the material through the mail, and whether the Defendant was aware of the nature of the material sent through the mail. See United States v. Shumway, 911 F.2d 1528 (11th Cir. 1990); Spillman v. United States, 413 F.2d 527 (9th Cir. 1969). A specific intent to mail something known to be obscene is not required. Hamling v. United States, 418 U.S. 87, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974).

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

    Title 18, United States Code, Section 1462, makes it a Federal crime or offense for anyone to use a common carrier to transmit obscene materials in 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 used or caused to be used a common carrier to transport certain materials as described in the indictment in interstate commerce, as charged;

    Second: That the Defendant knew, at the time of such transportation, the general sexual nature of the content of the materials; and 

    Third: That the materials were "obscene" as defined in these instructions.

    A “common carrier” includes any person or corporation engaged in the business of carting, hauling or transporting goods and commodities for members of the public for hire.

    The term "interstate commerce" includes any movement of goods or articles from one state into another state.

    While the Government must prove that the Defendant knew the general sexual nature of the materials that were transported in interstate commerce. The Government does not have to prove that the Defendant knew that such materials were in fact legally obscene. 

    Therefore, if you find beyond a reasonable doubt that the Defendant transported by common carrier in interstate commerce the articles in question, and that the Defendant knew the general sexual nature of the materials - - that the Defendant knew what they actually were - - and if you then find beyond a reasonable doubt that the materials were in fact "obscene" within the meaning of these instructions, you may then find that the Defendant had the requisite knowledge, or scienter as we call it in the law.

    Freedom of expression is fundamental to our system, and has contributed much to the development and well being of our free society. In the exercise of the constitutional right to free expression which all of us enjoy, sex may be portrayed and the subject of sex may be discussed, freely and publicly. Material is not to be condemned merely because it contains passages or sequences that are descriptive of sexual activity. However, the constitutional right to free expression does not extend to that which is "obscene."

    To prove beyond a reasonable doubt that material is “obscene,” the Government must satisfy a three-part test:

    (1) that the work appeals predominantly to "prurient" interest;

    (2) that it depicts or describes sexual conduct in a patently offensive way; and

    (3) that it lacks serious literary, artistic, political or scientific value.

    The first test to be applied, therefore, in determining whether given material is obscene, is whether the predominant theme or purpose of the material, when viewed as a whole and not part by part, and when considered in relation to the intended and probable recipients, is an appeal to the prurient interest of the average person of the community as a whole [or the prurient interest of members of a deviant sexual group, as the case might be]. An appeal to "prurient" interest is an appeal to a morbid, degrading and unhealthy interest in sex, as distinguished from a mere candid interest in sex.

    The "predominant theme or purpose of the material, when viewed as a whole," means the main or principal thrust of the material when assessed in its entirety and on the basis of its total effect, and not on the basis of incidental themes or isolated passages or sequences. 

    Whether the predominant theme or purpose of the material is an appeal to the prurient interest of the "average person of the community as a whole" is a judgment that must be made in the light of contemporary standards as would be applied by the average person with an average and normal attitude toward, and interest in, sex. Contemporary community standards, in turn, are set by what is accepted in the community as a whole; that is to say, by society at large or people in general. So, obscenity is not a matter of individual taste and the question is not how the material impresses an individual juror; rather, as stated before, the test is how the average person of the community as a whole would view the material.

    [In addition to considering the average or normal person, the prurient appeal requirement may also be assessed in terms of the sexual interest of a clearly defined deviant sexual group if you find, beyond a reasonable doubt, that the material was intended to appeal to the prurient interest of such a group as, for example, homosexuals.]

    The second test to be applied in determining whether given material is obscene is whether it depicts or describes, in a patently offensive way, sexual conduct such as ultimate sexual acts, normal or perverted, actual or simulated; masturbation; excretory functions; or lewd exhibition of the genitals. In making that judgment, however, you must not condemn by your own standards, regardless of whether you believe them to be less strict or more strict than those generally held. Rather, you must measure whether the material is patently offensive by contemporary community standards; that is, whether it so exceeds the generally accepted limits of public tolerance as to be clearly offensive.

    I emphasize that both the first test regarding prurient interests and the second test regarding patently offensive depictions or descriptions are to be evaluated by applying contemporary community standards. This means that the question is not how the material impresses you as an individual juror, but how it would be considered by the average person in the community, with an ordinary and normal attitude toward - - and interest in - - sex and sexual matters. Contemporary community standards are those accepted in this community as a whole; that is to say, by society at large or people in general, and not by what some segments or groups of persons may believe this community ought to accept or refuse to accept. It is a matter of common knowledge that customs and standards change, and that the community as a whole may from time to time find acceptable that which was formerly not acceptable or find unacceptable that which was formerly acceptable.

    The third test to be applied in determining whether given material is obscene is whether the material, taken as a whole, lacks serious literary, artistic, political or scientific value. An item may have serious value in one or more of these areas even though it portrays explicit sexual conduct, and it is for you to determine whether the material in this case has such value. The ideas that a work represents need not obtain majority approval to merit protection, and the value of that work does not vary from community to community. Therefore, unlike the first two tests, you should not apply the contemporary community standards to the third test. Instead, you should make this determination on an objective basis: whether a reasonable person considering the material as a whole would find that it has, or does not have, serious literary, artistic, political, or scientific value.

    All three of these tests must be met before the material in question can be found to be obscene. If any one of them is not met, then the material would not be obscene within the meaning of the law.

    To “cause” the common carrier to be used is to do an act with knowledge that the use of the common carrier will follow in the ordinary course of business or where such use can reasonably be foreseen.

ANNOTATIONS AND COMMENTS

    18 USC 1462 provides:

    Whoever . . . knowingly uses any express company or other common carrier . . . for carriage in interstate . . . commerce - -

    (a) any obscene . . . book, pamphlet, picture [or] motion picture film [shall be guilty of an offense against the United States].

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

    The scienter requirement for this offense is the same as for 18 USC 1461: It is not necessary to prove that the Defendant knew the material was obscene under legal standards.

    (See Annotations and Comments following Offense Instruction 53, supra.)

[For 1997 Version of this instruction, see below]

18 USC 1462 provides:

Whoever . . . knowingly uses any express company or other common carrier . . . for carriage in interstate . . . commerce --

(a) any obscene . . . book, pamphlet, picture [or] motion-picture film [shall be guilty of an offense against the United States].        

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

The scienter requirement for this offense is the same as for 18 USC 1861: It is not necessary to prove that the Defendant knew the material was obscene under legal standards.

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

    Title 18, United States Code, Section 1465, makes it a Federal crime or offense for anyone to transport obscene materials in interstate commerce for the purpose of selling or distributing them.

    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 transported in interstate commerce certain materials as described in the indictment, as charged;

    Second: That the Defendant transported such materials for the purpose of selling or distributing them;

    Third: That the Defendant knew, at the time of such transportation, the general sexual nature of the content of the materials; and

    Fourth: That the materials were "obscene" as defined in these instructions.

    The term "interstate commerce" includes any movement of goods or articles from one state into another state.

    To transport "for the purpose of sale or distribution" means to transport, not for personal use, but with the intent to ultimately transfer possession of the materials involved to another person or persons, with or without any financial interest in the transaction.

    [The transportation of two or more copies of any publication or two or more of any article of the kind described in the indictment, or a combined total of five such publications and articles, creates a presumption that such publications or articles are intended for sale or distribution, but such presumption is "rebuttable," which means that it may be overcome or outweighed by other evidence.]

    While the Government must prove that the Defendant knew the general sexual nature of the materials that were transported in interstate commerce, the Government does not have to prove that the Defendant knew that such materials were in fact legally obscene.

    Therefore, if you find beyond a reasonable doubt that the Defendant transported in interstate commerce the materials in question, and that the Defendant knew the general sexual nature of the materials - - that the Defendant knew what they actually were - - and if you then find beyond a reasonable doubt that the materials were in fact "obscene" within the meaning of these instructions, you may then find that the Defendant had the requisite knowledge, or scienter as we call it in the law.    

    Freedom of expression is fundamental to our system, and has contributed much to the development and well being of our free society. In the exercise of the constitutional right to free expression which all of us enjoy, sex may be portrayed and the subject of sex may be discussed, freely and publicly. Material is not to be condemned merely because it contains passages or sequences that are descriptive of sexual activity. However, the constitutional right to free expression does not extend to that which is "obscene."

    To prove beyond a reasonable doubt that material is “obscene,” the Government must satisfy a three-part test:

    (1) that the work appeals predominantly to "prurient" interest;

    (2) that it depicts or describes sexual conduct in a patently offensive way; and

    (3) that it lacks serious literary, artistic, political or scientific value.

    The first test to be applied, therefore, in determining whether given material is obscene, is whether the predominant theme or purpose of the material, when viewed as a whole and not part by part, and when considered in relation to the intended and probable recipients, is an appeal to the prurient interest of the average person of the community as a whole, [or the prurient interest of members of a deviant sexual group, as the case might be]. An appeal to "prurient" interest is an appeal to a morbid, degrading and unhealthy interest in sex, as distinguished from a mere candid interest in sex.

    The "predominant theme or purpose of the material, when viewed as a whole," means the main or principal thrust of the material when assessed in its entirety and on the basis of its total effect, and not on the basis of incidental themes or isolated passages or sequences. 

    Whether the predominant theme or purpose of the material is an appeal to the prurient interest of the "average person of the community as a whole" is a judgment that must be made in the light of contemporary standards as would be applied by the average person with an average and normal attitude toward, and interest in, sex. Contemporary community standards, in turn, are set by what is accepted in the community as a whole; that is to say, by society at large or people in general. So, obscenity is not a matter of individual taste and the question is not how the material impresses an individual juror; rather, as stated before, the test is how the average person of the community as a whole would view the material.

    [In addition to considering the average or normal person, the prurient appeal requirement may also be assessed in terms of the sexual interest of a clearly defined deviant sexual group if you find, beyond a reasonable doubt, that the material was intended to appeal to the prurient interest of such a group as, for example, homosexuals.]

    The second test to be applied in determining whether given material is obscene is whether it depicts or describes, in a patently offensive way, sexual conduct such as ultimate sexual acts, normal or perverted, actual or simulated; masturbation; excretory functions; or lewd exhibition of the genitals. In making that judgment, however, you must not condemn by your own standards, regardless of whether you believe them to be less strict or more strict than those generally held. Rather, you must measure whether the material is patently offensive by contemporary community standards; that is, whether it so exceeds the generally accepted limits of public tolerance as to be clearly offensive.

    I emphasize that both the first test regarding prurient interests and the second test regarding patently offensive depictions or descriptions are to be evaluated by applying contemporary community standards. This means that the question is not how the material impresses you as an individual juror, but how it would be considered by the average person in the community, with an ordinary and normal attitude toward - - and interest in - - sex and sexual matters. Contemporary community standards are those accepted in this community as a whole; that is to say, by society at large or people in general, and not by what some segments or groups of persons may believe this community ought to accept or refuse to accept. It is a matter of common knowledge that customs and standards change, and that the community as a whole may from time to time find acceptable that which was formerly not acceptable or find unacceptable that which was formerly acceptable.

    The third test to be applied in determining whether given material is obscene is whether the material, taken as a whole, lacks serious literary, artistic, political or scientific value. An item may have serious value in one or more of these areas even though it portrays explicit sexual conduct, and it is for you to determine whether the material in this case has such value. The ideas that a work represents need not obtain majority approval to merit protection, and the value of that work does not vary from community to community. Therefore, unlike the first two tests, you should not apply the contemporary community standards to the third test. Instead, you should make this determination on an objective basis: whether a reasonable person considering the material as a whole would find that it has, or does not have, serious literary, artistic, political, or scientific value.

    All three of these tests must be met before the material in question can be found to be obscene. If any one of them is not met the material would not be obscene within the meaning of the law.

ANNOTATIONS AND COMMENTS

    18 USC 1465 provides:

    Whoever knowingly transports [in interstate commerce] for the purpose of sale or distribution of any obscene . . . book, pamphlet, picture [or] film [shall be guilty of an offense against the United States].

    The transportation as aforesaid of two or more copies of any publication or two or more of any article of the character described above, or a combined total of five such publications and articles, shall create a presumption that such publications or articles are intended for sale or distribution, but such presumption shall be rebuttable.

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

    The scienter requirement for this offense is the same as for 18 USC 1461: It is not necessary to prove that the Defendant knew the material was obscene under legal standards.

    (See Annotations and Comments following Offense Instruction 53, supra.)

[For 1997 Version of this instruction, see below]

18 USC 1465 provides:

Whoever knowingly transports [in interstate commerce] for the purpose of sale or distribution of any obscene . . . book, pamphlet, picture [or] film [shall be guilty of an offense against the United States].

The transportation as aforesaid of two or more copies of any publication or two or more of any article of the character described above, or a combined total of five such publications and articles, shall create a presumption that such publications or articles are intended for sale or distribution, but such presumption shall be rebuttable.

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

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

OI 56.1
Obstruction Of Justice
18 USC 1503
(Omnibus Clause)

    Title 18, United States Code, Section 1503, makes it a Federal crime or offense for anyone [corruptly] [by threats or force] [by any threatening letter or communication] to endeavor to influence, obstruct or impede the due administration of justice.

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

    First: That there was a proceeding pending [before this Court] [a United States Magistrate Judge of this Court] [a grand jury of this Court] as described in the indictment; and 

    Second: That the Defendant [by threats or force] [by a threatening letter or communication] knowingly and willfully endeavored to influence, obstruct or impede the due administration of justice in that [judicial] [grand jury] proceeding, as charged.

OR

    Second: That the Defendant knowingly and corruptly endeavored to influence, obstruct or impede the due administration of justice in that [judicial] [grand jury] proceeding as charged. 

    To “endeavor” means to strive or to attempt to accomplish a goal or a result; and to endeavor to “influence, obstruct or impede” the due administration of justice means to take some action for the purpose of swaying or changing, or preventing or thwarting in some way any of the actions likely to be taken in the [judicial] [grand jury] proceeding involved.

    [To act “corruptly” means to act knowingly and dishonestly with the specific intent to influence, obstruct or impede the due
administration of justice]. 

    While it must be proved that the Defendant [corruptly] endeavored to influence, obstruct or impede the due administration of justice [by threats or force] [by a threatening letter or communication] as charged, and that the natural and probable effect of the Defendant’s acts would be to influence, obstruct or impede the due administration of justice, it is not necessary for the Government to prove that the [judicial] [grand jury] proceeding was in fact influenced or obstructed or impeded in any
way.

ANNOTATIONS AND COMMENTS

    18 USC 1530(a) provides (in the omnibus clause):

    Whoever . . . corruptly or by threats or force, or by any threatening letter or communication, influences, obstructs, or impedes, or endeavors to influence, obstruct, or impede, the due administration of justice [shall be guilty of an offense against the United States].

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

    An obstruction of justice charge under the omnibus clause of 1503 must relate to a specific judicial or grand jury proceeding - - the “nexus” requirement. United States v. Aguilar, 515 U.S. 593, 115 S.Ct. 2357 (1995). See also United States v. Brenson, 104 F.3d 1267 (11th Cir. 1997) (Hancock, District Judge, sitting by designation).

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

    Title 18, United States Code, Section 1503, makes it a Federal crime or offense for anyone to corruptly endeavor to influence or impede any [grand] [petit] juror in any Federal Court.

    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 person described in the indictment was a [grand] [petit] juror in this Court as alleged;

    Second: That the Defendant endeavored to influence, intimidate or impede such person in the discharge of the juror's duty as a [grand] [petit] juror;

    Third: That the Defendant's acts were done knowingly and corruptly; and 

    [Fourth: That the case in which the petit juror served as such in this Court was a criminal case in which a [class A] [class B] felony was charged.]

    To endeavor to "influence, intimidate or impede" a [grand] [petit] juror means to take some action for the purpose of swaying or changing or preventing the juror's performance of duty. However, it is not necessary for the Government to prove that the juror was in fact swayed or changed or prevented in any way, only that the Defendant corruptly attempted to do so.

    To act "corruptly" means to act knowingly and dishonestly with the specific intent to subvert or undermine the integrity of the court proceeding in which the juror served.

    [A class A felony is any federal criminal offense punishable by life imprisonment.]

    [A class B felony is any federal criminal offense punishable by a term of imprisonment up to twenty-five (25) years.]

ANNOTATIONS AND COMMENTS

    18 USC 1503(a) provides:

    Whoever corruptly . . . endeavors to influence, intimidate, or impede any grand or petit juror . . . in the discharge of his duty [shall be guilty of an offense against the United States].

    Maximum Penalty: If the offense is committed against a petit juror in a case in which a class A or B felony was charged, twenty (20) years imprisonment, a fine under Title 18, or both. In any other case, ten (10) years imprisonment, a fine under Title 18, or both.

    The optional Fourth element is included in order to comply with Apprendi where the indictment alleges facts triggering the enhanced penalty under the statute. 

    Class A and class B felonies are defined in 18 USC 3581.

[For 1997 Version of this instruction, see below]

18 USC 1503(a) provides:

Whoever corruptly . . . endeavors to influence, intimidate, or impede any grand or petit juror . . . in the discharge of his duty [shall be guilty of an offense against the United States].

Maximum Penalty: If the offense is committed against a petit juror in a case in which a class A or B felony was charged, twenty (20) years imprisonment, a fine under Title 18, or both. In any other case, ten (10) years imprisonment, a fine under Title 18, or both.

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

    Title 18, United States Code, Section 1503, makes it a Federal crime or offense for anyone to endeavor to influence or impede any [grand] [petit] juror in any Federal Court [by threats or force] [by any threatening letter or 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 person described in the indictment was a [grand] [petit] juror in this Court as alleged; 

    Second: That the Defendant endeavored to influence, intimidate or impede such juror by [threats or force] [by threatening letter or communication] in the manner charged in the indictment;

    Third: That the Defendant did so willfully; and 

    [Fourth: That the case in which the petit juror served as such in this Court was a criminal case in which a [class A] [class B] felony was charged.]

    To endeavor to "influence, intimidate or impede" a juror means to take action [by means of threat or force] [by threatening letter or communication] for the purpose of swaying or changing or preventing the juror's performance of duty. However, it is not necessary for the Government to prove that the juror was in fact swayed or changed or prevented, only that the Defendant attempted to do so in the manner charged.

    [A class A felony is any federal criminal offense punishable by life imprisonment.]

    [A class B felony is any federal criminal offense punishable by a term of imprisonment up to twenty-five (25) years.]

ANNOTATIONS AND COMMENTS

    18 USC 1503(a) provides:

    Whoever . . . by threats or force, or by any threatening letter or communication, endeavors to influence, intimidate, or impede any grand or petit juror . . . in the discharge of his duty [shall be guilty of an offense against the United States].

    Maximum Penalty: If the offense is committed against a petit juror in a case in which a class A or B felony was charged, twenty (20) years imprisonment, a fine under Title 18, or both. In any other case, ten (10) years imprisonment, a fine under Title 18, or both. 

    The optional Fourth element is included in order to comply with Apprendi where the indictment alleges facts triggering the enhanced penalty under the statute.

    Class A and class B felonies are defined in 18 USC 3581.

[For 1997 Version of this instruction, see below]

18 USC 1503(a) provides:

Whoever . . . by threats or force, or by any threatening letter or communication, endeavors to influence, intimidate, or impede any grand or petit juror . . . in the discharge of his duty [shall be guilty of an offense against the United States].

Maximum Penalty: If the offense is committed against a petit juror in a case in which a class A or B felony was charged, twenty (20) years imprisonment, a fine under Title 18, or both. In any other case, ten (10) years imprisonment, a fine under Title 18, or both.

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

    Title 18, United States Code, Section 1512(a)(1)(A), makes it a Federal crime or offense for anyone to kill or attempt to kill another person to prevent the attendance or testimony of a witness in any proceeding in this Court.

    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 person described in the indictment was [a witness] [scheduled to be a witness] in this Court, as alleged;

    Second: That the Defendant [killed] [attempted to kill] such person, as charged; and

    Third: That the Defendant did so knowingly and willfully with the intent to prevent the attendance or testimony of the witness.

ANNOTATIONS AND COMMENTS

    18 USC 1512(a)(1)(A) provides:

    Whoever kills or attempts to kill another person, with intent to --

    (A) prevent the attendance or testimony of any person in an official proceeding [shall be guilty of an offense against the United States]. 

    Maximum Penalty: In the case of murder (as defined in 18 USC 1111), death or life imprisonment. For any other killing, the punishment provided in 18 USC 1112. For any attempt, imprisonment for not more that twenty (20) years.

[For 1997 Version of this instruction, see below]

18 USC 1512(a)(1)(A) provides:

Whoever kills or attempts to kill another person, with intent to -

(A) prevent the attendance or testimony of any person in an official proceeding [shall be guilty of an offense against the United States].

Maximum Penalty: In the case of murder (as defined in 18 USC 1111), death or life imprisonment. For any other killing, the punishment provided in 18 USC 1112. For any attempt, imprisonment for not more that twenty (20) years.

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

    Title 18, United States Code, Section 1512(b)(1), makes it a Federal crime or offense for anyone [to use intimidation] [to use physical force] [to threaten another person] with intent to [influence] [delay] [prevent] the testimony of a witness in any proceeding in this Court. 

    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 person described in the indictment was [a witness] [scheduled to be a witness] in this Court as alleged;

    Second: That the Defendant used [intimidation] [physical force] [threats] against such person, as charged; and

    Third: That the Defendant did so knowingly and willfully with the intent to [influence] [delay] [prevent] the testimony of the witness.

    To "intimidate" someone means to intentionally say or do something that would cause a person of ordinary sensibilities to be fearful of bodily harm. It is not necessary for the Government to prove, however, that the victim was actually frightened, and neither is it necessary to prove that the behavior of the Defendant was so violent that it was likely to cause terror, panic or hysteria.

    To act with intent to "influence" the testimony of a witness means to act for the purpose of getting the witness to change or color or shade his or her testimony in some way; but it is not necessary for the Government to prove that the witness' testimony was, in fact, changed in any way.

ANNOTATIONS AND COMMENTS

    18 USC 1512(b)(1) provides:

    Whoever knowingly uses intimidation or physical force, or threatens . . . another person, or attempts to do so, . . . with intent to --

    (1) influence, delay, or prevent the testimony of any person in an official proceeding [shall be guilty of an offense against the United States].

    Maximum Penalty: Ten (10) years imprisonment, applicable fine, or both.

    In United States v. Moody, 977 F.2d 1420 (11th Cir. 1992), the Eleventh Circuit confirmed that witness tampering may also be prosecuted under section 1503.

[For 1997 Version of this instruction, see below]

18 USC 1512(b)(1) provides:

Whoever knowingly uses intimidation or physical force, or threatens . . . another person, or attempts to do so, . . . with intent to --

(1) influence, delay, or prevent the testimony of any person in an official proceeding [shall be guilty of an offense against the United States].

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

In United States v. Moody, 977 F.2d 1420 (11th Cir. 1992), the Eleventh Circuit confirmed that witness tampering may also be prosecuted under section 1503.

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

ANNOTATIONS AND COMMENTS

    18 USC 1546(a) (first paragraph) provides:

    Whoever knowingly . . . utters, uses [or] attempts to use . . . any [immigrant or nonimmigrant] visa, permit, border crossing card, alien registration receipt card, or other document prescribed by statute or regulation for entry into or as evidence of authorized stay or employment in the United States, knowing it to be forged, counterfeited, altered, or falsely made, or to have been procured by means of any false claim or statement [shall be guilty of an offense against the United States].

    Maximum Penalty: Twenty-Five (25) years imprisonment and applicable fine if committed to facilitate international terrorism; twenty (20) years imprisonment and applicable fine if committed to facilitate a drug trafficking crime; ten (10) years and applicable fine for first or second offense.

    The optional Third element is included in order to comply with Apprendi where the indictment alleges facts triggering the enhanced penalty under the statute.

    The definition of “act of intentional terrorism” is taken from 18 USC 2331.

    The definition of “drug trafficking crime” is taken from 18 USC 929.

[For 1997 Version of this instruction, see below]

18 USC 1546(a) (first paragraph) provides:

Whoever knowingly . . . utters, uses [or] attempts to use . . . any [immigrant or nonimmigrant] visa, permit, border crossing card, alien registration receipt card, or other document prescribed by statute or regulation for entry into or as evidence of authorized stay or employment in the United States, knowing it to be forged, counterfeited, altered, or falsely made, or to have been procured by means of any false claim or statement [shall be guilty of an offense against the United States].

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

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

    Title 18, United States Code, Section 1584, makes it a Federal crime or offense for anyone to wilfully hold another person in involuntary servitude.

    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 held the person named in the indictment in a condition of "involuntary servitude;"

    Second: That such holding was for a "term," as hereafter defined; and 

    Third: That the Defendant acted knowingly and willfully.

    The term "involuntary servitude" means a condition of compulsory service in which the victim is compelled to perform labor or services against the victim's will for the benefit of another person due to the use or threat of physical restraint or physical injury, or by the use or threat of coercion through law or the legal process.

    In considering whether service or labor was performed by someone involuntarily, it makes no difference that the person may have initially agreed, voluntarily, to render the service or perform the work.  If a person willingly begins work, but later desires to withdraw and is then forced to remain and perform work against that person's will by the use or threatened use of coercion, that person's service becomes involuntary. Also, whether a person is paid a salary or a wage is not determinative of the question of whether that person has been held in involuntary servitude. In other words, if a person is forced to labor against that person's will by the use or threatened use of coercion, such service is involuntary even though the person is paid for the work.

    However, it is necessary to prove that the Defendant knowingly and willfully used or threatened to use coercion, causing the victim to reasonably believe that there was no way to avoid continued service. In deciding whether a particular person reasonably believed that there was no way to avoid continued service, you should consider the method or form of the coercion threatened or used in relation to the person's particular station in life, the person's physical and mental condition, age, education, training, experience and intelligence; and also any reasonable means the person may have had to escape. Servitude cannot be "involuntary" under the law unless the coercion threatened or used was sufficient in kind or degree to completely overcome the will of an ordinary person having the same general station in life as that of the alleged victim, causing a belief that there was no reasonable means of escape and no choice except to remain in the Defendant's service.

    It must also be shown that a person held to involuntary servitude was so held for a "term." It is not necessary, however, that any specific period of time be proved so long as the "term" of the involuntary service was not wholly insubstantial or insignificant.

    Title 18, United States Code, Section 1581(a) is the peonage law cited in the indictment. The specific facts that must be proved beyond a reasonable doubt in order to establish the offense of peonage include each and all of the three specific factual elements constituting involuntary servitude as previously stated and explained in these instructions, plus a fourth specific fact, namely, that the involuntary servitude was compelled by the Defendant in order to satisfy a real or imagined debt regardless of amount.

ANNOTATIONS AND COMMENTS

    18 USC §1581 and 1584 provide:

    Whoever holds or returns any person to a condition of peonage [shall be guilty of an offense against the United States]. (1581)

    Whoever knowingly and willfully holds to involuntary servitude . . . any other person for any term [shall be guilty of an offense against the United States]. (1584)

    Maximum Penalty: Twenty (20) years imprisonment, a fine under Title 18, or both (as to each section). If the offense results in death or involves kidnapping, aggravated sexual abuse, or an attempt to kill, the penalty is enhanced to life imprisonment under both sections. The reference to compulsion "by the use or threatened use of physical or legal coercion" incorporates the United States Supreme Court's holding in United States v. Kozminski, 487 U.S. 931 (1987).

    If the indictment alleges one of the factors that would enhance the possible maximum punishment applicable to the offense, that factor should be stated as an additional element in the instructions under the principle of Apprendi. In such case it may also be appropriate to give a lesser included offense instruction, Special Instruction 10.

[For 1997 Version of this instruction, see below]

18 USC 1581 and 1584 provide:

Whoever holds or returns any person to a condition of peonage [shall be guilty of an offense against the United States]. ( 1581)

Whoever knowingly and willfully holds to involuntary servitude . . . any other person for any term [shall be guilty of an offense against the United States]. ( 1584).

Maximum Penalty: Five (5) years imprisonment, a fine under Title 18, or both (as to each section).

The reference to compulsion "by the use or threatened use of physical or legal coercion" incorporates the United States Supreme Court's holding in United States v. Kozminski, 487 U.S. 931 (1987).

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

    Title 18, United States Code, Section 1623, makes it a Federal crime or offense for anyone [to make a false statement under oath] [to use a false document] while appearing as a witness before a Federal grand jury.

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

    First: That [testimony was given] [the described record or document was used] while the Defendant was under oath as a witness before the Grand Jury of this Court, as charged;

    Second: That [such testimony] [such record or document] was false in one or more of the ways charged concerning some material matter in the Grand Jury proceedings; and

    Third: That such [false testimony] [false record or document] was knowingly and willfully [given] [used] by the Defendant as charged.

    [Testimony is false if it was untrue when it was given and was then known to be untrue by the witness or person giving it.] [A statement contained within a document is false if it was untrue when used and was then known to be untrue by the person using it.]

    The [making of a false statement] [use of a false document] is not an offense unless the falsity relates to a "material" fact. A misrepresentation is "material" if it has a natural tendency to affect or influence, or is capable of affecting or influencing, the exercise of the Grand Jury's decision making process. The test is whether the false statement had the capacity to impair or pervert the functioning of the Grand Jury. In other words, a misrepresentation is material if it relates to an important fact as distinguished from some unimportant or trivial detail. It is not necessary for the Government to prove, however, that the Grand Jury was, in fact, misled or influenced in any way by the false [statement] [record or document].

    In reviewing the testimony that is charged to have been false, you should consider that testimony in the context of the series of questions asked and answers given, and the words used should be given their common and ordinary meaning unless the context clearly shows that a different meaning was mutually understood by the questioner and the witness.

    If you should find that a particular question was ambiguous or capable of being understood in two different ways, and that the Defendant truthfully answered one reasonable interpretation of the question under the circumstances presented, then such answer would not be false. Similarly, if you should find that the question was clear, but the answer was ambiguous, and that one reasonable interpretation of the answer would be truthful, then the answer would not be false.

ANNOTATIONS AND COMMENTS

    18 USC 1623(a) provides:

    Whoever under oath . . . in any proceeding before [any] grand jury of the United States knowingly makes any false material declaration or makes or uses any other information, including any book, paper, document, record, recording, or other material, knowing the same to contain any false material declaration [shall be guilty of an offense against the United States].

    Maximum Penalty: Five (5) years imprisonment, applicable fine, or both. 

    The materiality instruction is required by United States v. Gaudin, 515 U.S. 506, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995) and United States v. Kramer, 73 F.3d 1067, 1074 (11th Cir. 1996).

[For 1997 Version of this instruction, see below]

18 USC 1623(a) provides:

Whoever under oath . . . in any proceeding before [any] grand jury of the United States knowingly makes any false material declaration or makes or uses any other information, including any book, paper, document, record, recording, or other material, knowing the same to contain any false material declaration [shall be guilty of an offense against the United States].

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

The materiality instruction is required by United States v. Gaudin, ____ U.S. ____, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995) and United States v. Kramer, 73 F.3d 1067, 1074 (11th Cir. 1997).

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

    Title 18, United States Code, Section 1702, makes it a Federal crime or offense for anyone to obstruct the delivery of mail by taking or removing it from the United States mails.

    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 took mail [out of a post office] [out of an authorized depository for mail matter] [from a letter or mail carrier] [that had been in the custody of any letter or mail carrier] before delivery to the person to whom it was directed, as charged; and

    Second: That in doing so the Defendant acted willfully with design or intent to obstruct the correspondence.

    A private mail box or mail receptacle is an "authorized depository for mail matter," and mail has not been delivered until it has been removed from such a depository by the addressee or someone acting for the addressee.

    To "take" mail with "design to obstruct the correspondence" means to seize or take such mail for the purpose of preventing or obstructing its delivery to the person to whom it was directed.

ANNOTATIONS AND COMMENTS

    18 USC 1702 provides:

    Whoever takes any letter, postal card, or package out of any post office or any authorized depository for mail matter, or from any letter or mail carrier, or which has been in any post office or authorized depository, or in the custody of any letter or mail carrier, before it has been delivered to the person to whom it was directed, with design to obstruct the correspondence [shall be guilty of an offense against the United States].

Maximum Penalty: Five (5) years imprisonment, applicable fine, or both.

[For 1997 Version of this instruction, see below]

18 USC 1702 provides:

Whoever takes any letter, postal card, or package out of any post office or any authorized depository for mail matter, or from any letter or mail carrier, or which has been in any post office or authorized depository, or in the custody of any letter or mail carrier, before it has been delivered to the person to whom it was directed, with design to obstruct the correspondence [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

    Title 18, United States code, Section 1708, makes it a Federal crime or offense for anyone to steal mail matter from the United States mails.

    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 [letter] [package] [mail matter] described in the indictment was [in the United States mails] [in a post office or station thereof] [in a letter box] [in a mail receptacle] [in a mail route] [in an authorized depository for mail matter] [with a letter or mail carrier]; and

    Second: That the Defendant did knowingly and willfully steal, take or abstract it from the mail as charged in the indictment.

    A private mail box or mail receptacle is an "authorized depository for mail matter."

    The words "steal," "take" and "abstract" include any act by which a person willfully obtains possession of property that belongs to someone else, without the owner's permission and with the intent to deprive the owner of the benefits of ownership by converting it to one's own use or the use of someone else.

ANNOTATIONS AND COMMENTS

    18 USC 1708 (first paragraph) provides:

    Whoever steals, takes, or abstracts . . . from or out of any mail, post office, or station thereof, letter box, mail receptacle, or any mail route or other authorized depository for mail matter, or from a letter or mail carrier, any letter, postal card, package, bag, or mail [shall be guilty of an offense against the United States].

    Maximum Penalty: Five (5) years imprisonment, applicable fine, or both.

[For 1997 Version of this instruction, see below]

18 USC 1708 (first paragraph) provides:

Whoever steals, takes, or abstracts . . . from or out of any mail, post office, or station thereof, letter box, mail receptacle, or any mail route or other authorized depository for mail matter, or from a letter or mail carrier, any letter, postal card, package, bag, or mail [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

    Title 18, United States Code, Section 1708, makes it a Federal crime or offense for anyone to possess stolen mail matter with knowledge that it had been stolen.

    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 [letter] [mail matter] described in the indictment was stolen from [the United States mails] [a post office or station thereof] [a letter box] [a mail receptacle] [a mail route] [an authorized depository for mail matter] [a letter or mail carrier];

    Second: That the Defendant thereafter had possession of such mail matter, as charged; and

    Third: That the Defendant possessed such mail matter willfully and with knowledge that it had been stolen.

    A private mail box or mail receptacle is an "authorized depository for mail matter."

    Mail matter is "stolen" when it has been willfully taken from [the United States mails] [a post office or station thereof] [a letter box] [a mail receptacle] [a mail route] [an authorized depository for mail matter] [a letter or mail carrier] with intent to deprive the owner of its use and benefit, and to convert it to one's own use or to the use of someone else.

    Because the essence of the offense is willful possession of mail matter previously stolen, it is not necessary to prove the identity of the person or persons who may have stolen it. Also, it is not necessary to prove that the Defendant knew that the matter had been stolen from the mail, only that the Defendant knew it had been stolen.

ANNOTATIONS AND COMMENTS

    18 USC 1708 (third paragraph) provides:

    Whoever . . . unlawfully has in his possession, any letter . . . or mail, or any article or thing contained therein, which has been . . . stolen, taken, embezzled, or abstracted [from or out of any mail, post office or station thereof, letter box, mail receptacle, or any mail route or other authorized depository for mail matter, or from a letter or mail carrier], knowing the same to have been stolen, taken, embezzled or abstracted [shall be guilty of an offense against the United States].

    Maximum Penalty: Five (5) years imprisonment, applicable fine, or both.

    United States v. Hall, 632 F.2d 500 (5th Cir. 1980), the Government does not have to prove that the Defendant knew the mail matter had been stolen from the mail, only that it had been stolen.

[For 1997 Version of this instruction, see below]

18 USC 1708 (third paragraph) provides:

Whoever . . . unlawfully has in his possession, any letter . . . or mail, or any article or thing contained therein, which has been . . . stolen, taken, embezzled, or abstracted [from or out of any mail, post office or station thereof, letter box, mail receptacle, or any mail route or other authorized depository for mail matter, or from a letter or mail carrier], knowing the same to have been stolen, taken, embezzled or abstracted [shall be guilty of an offense against the United States].

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

United States v. Hall, 632 F.2d 500 (5th Cir. 1980), the Government does not have to prove that the Defendant knew the mail matter had been stolen from the mail, only that it had been stolen.

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

OI 63 
Theft Of Mail Matter By Postal Service Employee
(18 USC 1709)

    Title 18, United States Code, Section 1709, makes it a Federal crime or offense for any Postal Service employee to embezzle any mail matter possessed by the employee during such employment.

     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 Postal Service employee at the time stated in the indictment;

    Second: That as a Postal Service employee the Defendant had been entrusted with, or had come into possession of, the mail matter described in the indictment, which mail matter was intended to be conveyed by mail; and

    Third: That the Defendant thereafter knowingly and willfully embezzled such mail matter.

    Mail matter is "intended to be conveyed by mail" if a reasonable person who saw the item would think it was something intended to be delivered through the mail.

    [The fact that a particular letter or other mail matter may have been a "decoy" that was not meant to go anywhere would not prevent your finding that it was intended to be conveyed by mail if a reasonable person who saw the item would think it was normal mail matter that was to be delivered.]

    To "embezzle" means the wrongful or willful taking of money or property belonging to someone else after the money or property has lawfully come into the possession or control of the person taking it.

ANNOTATIONS AND COMMENTS

    18 USC 1709 provides:

    Whoever, being a Postal Service officer or employee, embezzles any letter, postal card, package, bag, or mail, or any article or thing contained therein entrusted to him or which comes into his possession intended to be conveyed by mail [shall be guilty of an offense against the United States].

    Maximum Penalty: Five (5) years imprisonment, applicable fine, or both.

[For 1997 Version of this instruction, see below]

18 USC 1709 provides:

Whoever, being a Postal Service officer or employee, embezzles any letter, postal card, package, bag, or mail, or any article or thing contained therein entrusted to him or which comes into his possession intended to be conveyed by mail [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

    Title 18, United States Code, Section 1791, makes it a Federal crime or offense for anyone to knowingly provide a prohibited object to a Federal prisoner.

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

    First: That [name of inmate] was, at the time stated in the indictment, an inmate of a Federal prison or correctional facility;

    Second: That the Defendant knowingly provided, or attempted to provide, a prohibited object to [name of inmate], as charged; and

    Third: That the provision, or attempted provision of the prohibited object to such inmate was a violation of [a statute] [a rule or order issued under a statute], as charged.

    To "provide" something to someone else simply means to knowingly deliver or transfer the object to another person either directly or through indirect means.

    The term "prohibited object" includes [describe the relevant object as enumerated in subsection (d)(1) of the statute]. And, you are instructed that the knowing transfer, delivery or provision of such a prohibited object to a Federal prisoner at the time alleged in the indictment would have been in violation of [a statute] [a rule or order issued under a statute] as charged.

ANNOTATIONS AND COMMENTS

    (See Annotations and Comments following Offense Instruction 64.2, infra.)

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

[For 1997 Version of this instruction, see below]

(See Annotations and Comments following Offense Instruction 54.2, infra.)

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

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

    Title 18, United States Code, Section 1791, makes it a Federal crime or offense for a Federal prisoner to knowingly [make] [possess] [obtain] certain prohibited objects.

    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, at the time stated in the indictment, an inmate of a Federal prison or correctional facility, as charged;

    Second: That at such time the Defendant knowingly [made] [possessed] [obtained] the object described in the indictment, as charged; and

    Third: That such object was a prohibited object.

    The term "prohibited object" includes [describe the relevant object as enumerated in subsection (d)(1) of the statute].

ANNOTATIONS AND COMMENTS

    18 USC 1791 provides:

    (a) Offense. - - Whoever - -

    (1) in violation of a statute or a rule or order issued under a statute, provides to an inmate of a prison a prohibited object, or attempts to do so; or 

    (2) being an inmate of a prison, makes, possesses, or obtains, or attempts to make or obtain, a prohibited object [shall be guilty of an offense against the United States].

* * * * *

(d) Definitions. - - As used in this section - -

    (1) the term "prohibited object" means - - 

    (A) a firearm or destructive device or a controlled substance in schedule I or II, other than marijuana or a controlled substance referred to in subparagraph (C) of this subsection;

    (B) marijuana or a controlled substance in schedule III, other than a controlled substance referred to in subparagraph (C) of this subsection, ammunition, a weapon (other than a firearm or destructive device), or an object that is designed or intended to be used as a weapon or to facilitate escape from a prison;

    (C) a narcotic drug, methamphetamine, its salts, isomers, and salts of its isomers, lysergic acid diethylamide, or phencyclidine; 

    (D) a controlled substance (other than a controlled substance referred to in subparagraph (A), (B), or (C) of this subsection) or an alcoholic beverage;

    (E) any United States or foreign currency; and

    (F) any other object that threatens the order, discipline, or security of a prison, or the life, health, or safety of an individual.

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

    In United States v. Allen, 190 F.3d 1208 (11th Cir. 1999), the Court held that where the indictment alleged that the “prohibited object” was “an object that is designed or intended to be used as a weapon” as proscribed by 1791(d)(1)(B), rather than simply alleging possession of “a weapon,” the requisite intent was an essential element of the offense to be submitted to the jury.

[For 1997 Version of this instruction, see below]

18 USC 1791 provides:

(a) Offense. -- Whoever --

(1) in violation of a statute or a rule or order issued under a statute, provides to an inmate of a prison a prohibited object, or attempts to do so; or

(2) being an inmate of a prison, makes, possesses, or obtains, or attempts to make or obtain, a prohibited object [shall be guilty of an offense against the United States].

* * * * *

(d) Definitions. - - As used in this section - -

(1) the term "prohibited object" means - -

(A) a firearm or destructive device or a controlled substance in schedule I of II, other than marijuana or a controlled substance referred to in subparagraph (C) of this subsection;

(B) marijuana or a controlled substance in schedule III, other than a controlled substance referred to in subparagraph (C) of this subsection, ammunition, a weapon (other than a firearm or destructive device), or an object that is designed or intended to be used as a weapon or to facilitate escape from a prison;

(C) a narcotic drug, methamphetamine, its salts, isomers, and salts of its isomers, lysergic acid diethylamide, or phencyclidine;

(D) a controlled substance (other than a controlled substance referred to in subparagraph (A), (B), or (C) of this subsection) or an alcoholic beverage;

(E) any United States or foreign currency; and

(F) any other object that threatens the order, discipline, or security of a prison, or the life, health, or safety of an individual.

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

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

    Title 18, United States Code, Section 1920, makes it a Federal offense for anyone to knowingly and willfully make a false statement in connection with an application for, or receipt of, Federal Workers' Compensation Benefits.

    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 and willfully made a false statement or report to the Department of Labor, Office of Workers' Compensation Programs, as charged;

    Second: That the false statement or report was made in connection with an application for, or receipt of, Federal Workers' Compensation Benefits; and 

    Third: That the false statement or report related to a material fact.

    A statement or report is "false" when made if it is untrue, and is then known to be untrue by the person making it.

    A fact is "material" if it is important to any decision to be made by the officers or employees of the Department of Labor, Office of Workers' Compensation Programs, and has the capacity of influencing them in making that decision. It is not necessary, however, for the Government to prove that the Department of Labor, Office of Workers' Compensation Programs was, in fact, influenced or misled. The gist of the offense is an attempt to influence that agency by willfully making a false statement or report concerning a material matter.

ANNOTATIONS AND COMMENTS

    18 USC 1920 provides:

    Whoever knowingly and willfully falsifies, conceals, or covers up a material fact, or makes a false, fictitious, or fraudulent statement or representation, or makes or uses a false statement or report knowing the same to contain any false, fictitious, or fraudulent statement or entry in connection with the application for or receipt of compensation or other benefit, or payment under subchapter I or III of chapter 81 of title 5 [shall be guilty of an offense against the United States].

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

    The materiality instruction is required by United States v. Gaudin, 515 U.S. 506, 115 S.Ct. 2310, 132 L.Ed.444 (1995).

[For 1997 Version of this instruction, see below]

18 USC 1920 provides:

Whoever knowingly and willfully falsifies, conceals, or covers up a material fact, or makes a false, fictitious, or fraudulent statement or representation, or makes or uses a false statement or report knowing the same to contain any false, fictitious, or fraudulent statement or entry in connection with the application for or receipt of compensation or other benefit, or payment under subchapter I or III of chapter 81 of title 5 [shall be guilty of an offense against the United States].

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

The materiality instruction is required by United States v. Gaudin, ____ U.S. ____, 115 S.Ct. 2310, 132 L.Ed.444 (1995).

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

    Title 18, United States Code, Section 1951(a), makes it a Federal crime or offense for anyone to extort something from someone else and in doing so to obstruct, delay or affect commerce or the movement of articles in 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 induced the person described in the indictment to part with property;

    Second: That the Defendant did so knowingly and willfully by means of "extortion," as hereafter defined; and

    Third: That the extortionate transaction delayed, interrupted or affected commerce.

    The term "property" includes not only money and other tangible things of value, but also includes any intangible right considered as a source or element of income or wealth.

    Extortion means to obtain property from someone else with that person's consent, but whose consent is brought about or induced by the wrongful use of actual or threatened force, violence or fear.

    The term "fear" means a state of anxious concern, alarm or apprehension of harm, and it includes fear of economic loss as well as fear of physical violence.

    The term "wrongful" means to obtain property unfairly and unjustly by one having no lawful claim to it.

    While it is not necessary to prove that the Defendant specifically intended to affect commerce, it is necessary that the Government prove that the natural consequences of the acts alleged in the indictment would be to delay, interrupt or affect “commerce," which means the flow of commerce or business activities between a state and any point outside of that state.

    You are instructed that you may find that the requisite affect upon commerce has been proved if you find beyond a reasonable doubt that [describe effect on commerce alleged in the indictment on which proof was offered at trial, e.g., that the banks described in the indictment were formed for the purpose of doing business both within and without the State of Florida, and actually did business outside the State of Florida].

ANNOTATIONS AND COMMENTS

    18 USC 1951(a) provides:

    Whoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce . . . by extortion [shall be guilty of an offense against the United States].

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

    In United States v. Blanton, 793 F.2d 1553 (11th Cir. 1986), the Eleventh Circuit upheld the District Court's refusal to instruct the jury that the Defendant must cause or threaten to cause the force, violence or fear to occur. The Court explained that the Defendant need only be aware of the victim's fear and intentionally exploit that fear to the Defendant's own possible advantage. 

    In United States v. Kaplan, 171 F.3d 1351, 1356-58 (11th Cir. 1999), the Eleventh Circuit held that under 1951 the affect on commerce need not be adverse. The effect on commerce can involve activities that occur outside of the United States. See, e.g. Kaplan, 171 F.3d at 1355-58 (use of interstate communication facilities and claimed travel to carry out extortion scheme’s object, which was the movement of substantial funds from Panama to Florida, constituted sufficient affect under 1951).

    The commerce nexus for an attempt or conspiracy under 1951 can be shown by evidence of a potential impact on commerce or by evidence of an actual, de minimis impact on commerce. Kaplan, 171 F.3d at 1354 (citations omitted). In the case of a substantive offense, the impact on commerce need not be substantial. See id.; see also United States v. Le, 256 F.3d 1229 (11th Cir. 2001).

[For 1997 Version of this instruction, see below]

18 USC 1951(a) provides:

Whoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce . . . by extortion [shall be guilty of an offense against the United States].

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

In United States v. Blanton, 793 F.2d 1553 (11th Cir. 1986), the Eleventh Circuit upheld the District Court's refusal to instruct the jury that the Defendant must cause or threaten to cause the force, violence or fear to occur. The Court explained that the Defendant need only be aware of the victim's fear and intentionally exploit that fear to the Defendant's own possible advantage.

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

    Title 18, United States Code 1951(a), makes it a Federal crime or offense for anyone to extort something from someone else and in doing so to obstruct, delay or affect commerce or the movement of articles in 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 induced the person described in the indictment to part with property;

    Second: That the Defendant did so knowingly and willfully by means of "extortion," as hereafter defined; and

    Third: That the extortionate transaction delayed, interrupted or affected commerce.

    The term "property" includes not only money and other tangible things of value, but also includes any intangible right considered as a source or element of income or wealth. 

    The term "extortion," in this context, means the wrongful acquisition of property from someone else under color of official right.

    Extortion "under color of official right" is the wrongful taking or receipt by a public officer of property not due to the officer knowing that the payment or property was taken or received in return for [performing] [withholding] official acts.

    The term "wrongful" means to obtain property unfairly and unjustly by one having no lawful claim to it.

    While it is not necessary to prove that the Defendant specifically intended to affect commerce, it is necessary that the Government prove that the natural consequences of the acts alleged in the indictment would be to delay, interrupt or affect “commerce," which means the flow of commerce or business activities between a state and any point outside of that state.

    You are instructed that you may find that the requisite affect upon commerce has been proved if you find beyond a reasonable doubt that [describe affect on commerce alleged in the indictment on which proof was offered at trial].

ANNOTATIONS AND COMMENTS

    18 USC 1951(a) provides:

    (a) Whoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, . . . by extortion [shall be guilty of an offense against the United States].

    18 USC 1951 (b)(2) provides:

    The term "extortion" means the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right.

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

    In United States v. Martinez, 14 F.3d 543 (11th Cir. 1994), the Eleventh Circuit acknowledged that a Hobbs Act conviction for extortion under color of official right requires proof of a quid pro quo. See United States v. Evans, 504 U.S. 255, 112 S.Ct. 1881, 119 L.Ed.2d 57 (1992); McCormick v. United States, 500 U.S. 257, 111 S.Ct. 1807, 114 L.Ed.2d 307 (1991). Fulfillment of the quid pro quo is not an element of the offense.

    In United States v. Kaplan, 171 F.3d 1351, 1356-58 (11th Cir. 1999), the Eleventh Circuit held that under 1951 the affect on commerce need not be adverse. The effect on commerce can involve activities that occur outside of the United States. See, e.g. Kaplan, 171 F.3d at 1355-58 (use of interstate communication facilities and claimed travel to carry out extortion scheme’s object, which was the movement of substantial funds from Panama to Florida, constituted sufficient affect under 1951).

    The commerce nexus for an attempt or conspiracy under 1951 can be shown by evidence of a potential impact on commerce or by evidence of an actual, de minimis impact on commerce. Kaplan, 171 F.3d at 1354 (citations omitted). In the case of a substantive offense, the impact on commerce need not be substantial. See id.; see also United States v. Le, 256 F.3d 1229 (11th Cir. 2001).

[For 1997 Version of this instruction, see below]

18 USC 1951(a) provides:

(a) Whoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, . . . by extortion [shall be guilty of an offense against the United States].

18 USC 1951 (b)(2) provides:

The term "extortion" means the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right.

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

In United States v. Martinez, 14 F.3d 543 (11th Cir. 1994), the Eleventh Circuit acknowledged that a Hobbs Act conviction for extortion under color of official right requires proof of a quid pro quo. See United States v. Evans, 504 U.S. 255, 112 S.Ct. 1881, 119 L.Ed.2d 57 (1992); McCormick v. United States, 500 U.S. 257, 111 S.Ct. 1807, 114 L.Ed.2d 307 (1991). Fulfillment of the quid pro quo is not an element of the offense.

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

    Title 18, United States Code, Section 1951(a), makes it a Federal crime or offense for anyone to obtain or take the property of another by robbery and in so doing to obstruct, delay or affect commerce or the movement of articles in 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 obtained or took the personal property of another, or from the presence of another, as charged;

    Second: That the Defendant took the property against the victim's will, by means of actual or threatened force or violence or fear of injury, whether immediately or in the future; and

    Third: That, as a result of the Defendant's actions, commerce, or an item moving in commerce, was delayed, obstructed or affected in any way or degree.

    The term "property" includes not only money and other tangible things of value, but also includes any intangible right considered as a source or element of income or wealth.

    The term "fear" means a state of anxious concern, alarm or apprehension of harm.

    While it is not necessary to prove that the Defendant specifically intended to affect commerce, it is necessary that the Government prove that the natural consequences of the acts alleged in the indictment would be to delay, interrupt or adversely affect "interstate commerce," which means the flow of commerce or business activities between a state and any point outside of that state.

    You are instructed that you may find that the requisite effect upon commerce has been proved if you find beyond a reasonable doubt that [describe effect on commerce alleged in the indictment on which proof was offered at trial, e.g. that the banks described in the indictment were formed for the purpose of doing business both within and without the State of Florida, and actually did business outside the State of Florida].

ANNOTATIONS AND COMMENTS

    18 USC 1951(a) provides:

    Whoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery [shall be guilty of an offense against the United States].

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

    In United States v. Thomas, 8 F.3d 1552, 1562-63 (11th Cir. 1993), the Eleventh Circuit suggested that the Government need not prove specific intent in order to secure a conviction for Hobbs Act robbery. See also United States v. Gray, 260 F.3d 1267, 1283 (11th Cir. 2001) (noting that the Court in Thomas suggested that specific intent is not an element under 1951).

    In United States v. Kaplan, 171 F.3d 1351, 1356-58 (11th Cir. 1999), the Eleventh Circuit held that under 1951 the affect on commerce need not be adverse. The effect on commerce can involve activities that occur outside of the United States. See, e.g. Kaplan, 171 F.3d at 1355-58 (use of interstate communication facilities and claimed travel to carry out extortion scheme’s object, which was the movement of substantial funds from Panama to Florida, constituted sufficient affect under 1951).

    The commerce nexus for an attempt or conspiracy under 1951 can be shown by evidence of a potential impact on commerce or by evidence of an actual, de minimis impact on commerce. Kaplan, 171 F.3d at 1354 (citations omitted). In the case of a substantive offense, the impact on commerce need not be substantial. See id.; see also United States v. Le, 256 F.3d 1229 (11th Cir. 2001).

[For 1997 Version of this instruction, see below]

18 USC 1951(a) provides:

Whoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery [shall be guilty of an offense against the United States].

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

In United States v. Thomas, 8 F.3d 1552, 1562-63 (11th Cir. 1993), the Eleventh Circuit suggested that the Government need not prove specific intent in order to secure a conviction for Hobbs Act robbery.

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

ANNOTATIONS AND COMMENTS

18 USC 1952(a)(3) provides:

    (a) Whoever travels in interstate or foreign commerce or uses the mail or any facility in interstate or foreign commerce, with intent to - - (3) . . . promote, manage, establish, carry on, or facilitate the promotion, management, establishment, or carrying on, of any unlawful activity, and thereafter performs or attempts to perform any of the acts specified in subparagraph . . . (3) [shall be guilty of an offense against the United States].

    (b) As used in this section "unlawful activity" means (1) any business enterprise involving gambling, liquor on which the Federal excise tax has not been paid, narcotics or controlled substances (as defined in section 102(6) of the Controlled Substances Act), or prostitution offenses in violation of the laws of the State in which they are committed or of the United States, (2) extortion, bribery, or arson in violation of the laws of the State in which they are committed or of the United States, or (3) any act which is indictable under subchapter II of chapter 53 of title 31, United States Code, or under section 1956 or 1957 of this title . . . 

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

    A conviction under this statute does not require the Government to prove that the Defendant knew or intended that interstate facilities be used in the commission of the offense. See, United States v. Broadwell, 870 F.2d 594 (11th Cir. 1989).

[For 1997 Version of this instruction, see below]

18 USC 1952(a)(3) provides:

(a) Whoever travels in interstate or foreign commerce or uses the mail or any facility in interstate or foreign commerce, with intent to - - (3) . . . promote, manage, establish, carry on, or facilitate the promotion, management, establishment, or carrying on, of any unlawful activity, and thereafter performs or attempts to perform any of the acts specified in subparagraph . . . (3) [shall be guilty of an offense against the United States].

(b) As used in this section "unlawful activity" means (1) any business enterprise involving gambling, liquor on which the Federal excise tax has not been paid, narcotics or controlled substances (as defined in section 102(6) of the Controlled Substances Act), or prostitution offenses in violation of the laws of the State in which they are committed or of the United States, (2) extortion, bribery, or arson in violation of the laws of the State in which they are committed or of the United States, or (3) any act which is indictable under subchapter II of chapter 53 of title 31, United States Code, or under section 1956 or 1957 of this title . . .

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

A conviction under this statute does not require the Government to prove that the Defendant knew or intended that interstate facilities be used in the commission of the offense. See, United States v. Broadwell, 870 F.2d 594 (11th Cir. 1989).

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

    Title 18, United States Code, Section 1953, makes it a Federal crime or offense for anyone to carry or transmit so-called bookmaking materials in 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 carried or sent, or caused to be sent, in interstate commerce, the items described in the indictment, as charged;

    Second: That the items so carried or sent were used, or were intended to be used, in "bookmaking"; and

    Third: That the Defendant acted knowingly and willfully.

    "Interstate commerce" means commerce or movement between one state and another state, and includes all transportation between states including the mail.

    The word "bookmaking" refers to the business of establishing certain terms and conditions applicable to given bets or wagers, usually called a line or odds, and then accepting bets from customers on either side of the wagering proposition for the purpose of making a profit, not from the betting itself, but from a percentage or commission collected from the bettors or customers for the privilege of placing the bets.

ANNOTATIONS AND COMMENTS

    18 USC 1953 provides:

    Whoever . . . knowingly carries or sends in interstate . . . commerce any record, paraphernalia, ticket, certificate, bills, slip, token, paper, writing or other device used, or to be used, . . . in bookmaking [shall be guilty of an offense against the United States]."

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

[For 1997 Version of this instruction, see below]

18 USC 1953 provides:

Whoever . . . knowingly carries or sends in interstate . . . commerce any record, paraphernalia, ticket, certificate, bills, slip, token, paper, writing or other device used, or to be used, . . . in bookmaking [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

    Title 18, United States Code, Section 1955, makes it a Federal crime or offense for anyone to conduct an "illegal gambling business." An "illegal gambling business" is defined to be a gambling business which:

    (1) Is a violation of the law of the state in which it is conducted; and

    (2) Involves five or more persons who conduct, finance, manage, supervise, direct or own all or part of such business; and

    (3) Has been or remains in substantially continuous operation for a period in excess of thirty days or has a gross revenue of $2,000 in any single day.

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

    First: That five or more persons, including the Defendant, knowingly and willfully conducted, financed, managed, supervised, directed or owned all or part of a gambling business, as charged;

    Second: That such gambling business violated the laws of the state of _____ ; and

    Third: That such gambling business was in substantially continuous operation for a period of thirty days or more, or, alternatively, had a gross revenue of $2,000 or more on any one day.

    "Bookmaking" is a form of gambling, and involves the business of establishing certain terms and conditions applicable to given bets or wagers, usually called a line or odds, and then accepting bets from customers on either side of the wagering proposition for the purpose of making a profit, not from the betting itself, but from a percentage or commission collected from the bettors or customers for the privilege of placing the bets.

    You are instructed that "bookmaking" is unlawful in the state of _____.

    The words "finances, manages, supervises, directs or owns" are all used in their ordinary sense and include those who finance or manage or supervise a business; but the word "conduct" is a broader term and would include anyone working with the business enterprise as an employee with or without a voice in management or a share in profits. A mere bettor or customer, however, would not be participating in the "conduct" of the business. 

    While it must be proved, as previously stated, that five or more people conducted, financed or supervised an illegal gambling business that remained in substantially continuous operation for at least thirty days, or had a gross revenue of $2,000 or more on any single day, it need not be shown that five or more people have been charged with an offense; nor that the same five people, including the Defendant, owned, financed or conducted such gambling business throughout a thirty day period; nor that the Defendant even knew the names and identities of any given number of people who might have been so involved. Neither must it be proved that bets were accepted every day over a thirty day period, nor that such activity constituted the primary business or employment of the Defendant.

ANNOTATIONS AND COMMENTS

    18 USC 1955 provides:

    Whoever conducts, finances, manages, supervises, directs, or owns all or part of an illegal gambling business [shall be guilty of an offense against the United States].

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

    For purposes of the statute, one "conducts" an illegal gambling business by performing any necessary function in the gambling operation, other than that of mere bettor. Thus, a Defendant's proposed instruction that "[a] person who took bets on five or six occasions over a year's time could not be considered [a] participant in conduct[ing] [a] gambling business" was properly refused where the evidence established that the Defendant, in addition to taking bets, collected gambling debts and forwarded them to another participant. United States v. Miller, 22 F.3d 1075 (11th Cir. 1994).

    In United States v. Herring, 955 F.2d 703 (11th Cir. 1992), the Eleventh Circuit approved the district court's instruction concerning "layoff bets."

[For 1997 Version of this instruction, see below]

18 USC 1955 provides:

Whoever conducts, finances, manages, supervises, directs, or owns all or part of an illegal gambling business [shall be guilty of an offense against the United States].

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

For purposes of the statute, one "conducts" an illegal gambling business by performing any necessary function in the gambling operation, other than that of mere bettor. Thus, a Defendant's proposed instruction that "[a] person who took bets on five or six occasions over a year's time could not be considered [a] participant in conduct[ing] [a] gambling business" was properly refused where the evidence established that the Defendant, in addition to taking bets, collected gambling debts and forwarded them to another participant. United States v. Miller, 22 F.3d 1075 (11th Cir. 1994).

In United States v. Herring, 955 F.2d 703 (11th Cir. 1992), the Eleventh Circuit approved the district court's instruction concerning "layoff bets."

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

    Title 18, United States Code, Section 1956(a)(1)(A)(i), makes it a Federal crime or offense for anyone to knowingly engage in certain kinds of financial transactions commonly known as money laundering. 

    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 conducted, or attempted to conduct, a "financial transaction" as hereafter defined;

    Second: That the Defendant knew that the funds or property involved in the financial transaction represented the proceeds of some form of unlawful activity;

    Third: That the funds or property involved in the financial transaction did in fact represent the proceeds of "specified unlawful activity" - - in this case the proceeds of [describe the specified unlawful activity alleged in the indictment]; and

    Fourth: That the Defendant engaged in the financial transaction with the intent to promote the carrying on of such specified unlawful activity.

    The term "conducts" means initiating, concluding, or participating in initiating or concluding a transaction.

    The term "transaction" means a purchase, sale, loan, pledge, gift, transfer, delivery or other disposition of funds or property; [and, with respect to a financial institution, includes a deposit, withdrawal, transfer between accounts, exchange of currency, loan, extension of credit, purchase or sale of any stock, bond, certificate of deposit, or other monetary instrument, or use of a safe deposit box.]

    The term "financial transaction" means - -

    [a transaction which in any way or degree affects interstate or foreign commerce involving the movement of funds by wire or other means]

or

    [a transaction which in any way or degree affects interstate or foreign commerce involving one or more "monetary instruments" which includes coin or currency of any country, travelers or personal checks, bank checks or money orders, or investment securities or negotiable instruments in such form that title thereto passes upon delivery]

or

    [a transaction which in any way or degree affects interstate or foreign commerce involving the transfer of title to any real property, vehicle, vessel or aircraft]

or

    [a transaction involving the use of a "financial institution" which is engaged in, or the activities of which affect, interstate or foreign commerce in any way or degree. The term "financial institution: includes [give appropriate reference from 31 USC 5312(a)(2) or the regulations thereunder]].

    The term "interstate or foreign commerce" includes any commercial activity that involves transportation or communication between places in two or more states or between some place in the United States and some place outside the United States.

    The term "knowing that the funds or property involved in the financial transaction represented the proceeds of some form of unlawful activity" means that the Defendant knew that such funds or property involved in the transaction represented proceeds from some form, though not necessarily which form, of activity that constitutes a felony offense under state or Federal or foreign law.

    The term "specified unlawful activity" means [describe the specified unlawful activity listed in subsection (c)(7) of the statute and alleged in the indictment].

    The term “with the intent to promote the carrying on of specified unlawful activity” means that the Defendant must have [conducted] [attempted to conduct] the financial transaction for the purpose of facilitating or making easier or helping to bring about the “specified unlawful activity” as just defined.

ANNOTATIONS AND COMMENTS

    18 USC 1956(a)(1) provides:

    Whoever, knowing that the property involved in a financial transaction represents the proceeds of some form of unlawful activity, conducts or attempts to conduct such a financial transaction which in fact involves the proceeds of specified unlawful activity - - 

    (A)(i) with the intent to promote the carrying on of specified unlawful activity [shall be guilty of an offense against the United States].

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

    In United States v. Cancelliere, 69 F.3d 1116 (11th Cir. 1995), the Court held that although proof of willfulness is not a statutory element of money laundering, where the indictment expressly charged willfulness, the District Court erred in not giving the usual instruction on willfulness (Basic Instruction 9.1).

[For 1997 Version of this instruction, see below]

18 USC 1956(a)(1) provides:

Whoever, knowing that the property involved in a financial transaction represents the proceeds of some form of unlawful activity, conducts or attempts to conduct such a financial transaction which in fact involves the proceeds of specified unlawful activity --

(A)(i) with the intent to promote the carrying on of specified unlawful activity [shall be guilty of an offense against the United States].

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

In United States v. Cancelliere, 69 F.3d 1116 (11th Cir. 1995), the Court held that although proof of willfulness is not a statutory element of money laundering, where the indictment expressly charged willfulness, the District Court erred in not giving the usual instruction on willfulness (Basic Instruction 9.1).

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

    Title 18, United States Code, Section 1956(a)(1)(B), makes it a Federal crime or offense for anyone to knowingly engage in certain kinds of financial transactions commonly known as money laundering.

    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 conducted, or attempted to conduct, a "financial transaction" as hereafter defined;

    Second: That the Defendant knew that the funds or property involved in the financial transaction represented the proceeds of some form of unlawful activity;

    Third: That the funds or property involved in the financial transaction did in fact represent the proceeds of "specified unlawful activity" - - in this case the proceeds of [describe the specified unlawful activity alleged in the indictment]; and

    [Fourth: That the Defendant engaged in the financial transaction knowing that the transaction was designed in whole or in part to conceal or disguise the nature, location, source, ownership or the control of the proceeds of such specified unlawful activity.]

or

    [Fourth: That the Defendant engaged in the financial transaction for the purpose of avoiding a transaction reporting requirement under state or Federal law.]

    The term "conducts" means initiating, concluding, or participating in initiating or concluding a transaction.

    The term "transaction" means a purchase, sale, loan, pledge, gift, transfer, delivery or other disposition of funds or property; [and, with respect to a financial institution, includes a deposit, withdrawal, transfer between accounts, exchange of currency, loan, extension of credit, purchase or sale of any stock, bond, certificate of deposit, or other monetary instrument, or use of a safe deposit box.]

    The term "financial transaction" means - -

    [a transaction which in any way or degree affects interstate or foreign commerce involving the movement of funds by wire or other means]

or

    [a transaction which in any way or degree affects interstate or foreign commerce involving one or more "monetary instruments" which includes coin or currency of any country, travelers or personal checks, bank checks or money orders, or investment securities or negotiable instruments in such form that title thereto passes upon delivery] 

or

    [a transaction which in any way or degree affects interstate or foreign commerce involving the transfer of title to any real property, vehicle, vessel or aircraft]

or

[a transaction involving the use of a "financial institution" which is engaged in, or the activities of which affect, interstate or foreign commerce in any way or degree. The term "financial institution: includes [give appropriate reference from 31 USC 5312(a)(2) or the regulations thereunder]].

    The term "interstate or foreign commerce" includes any commercial activity that involves transportation or communication between places in two or more states or between some place in the United States and some place outside the United States.

    The term "knowing that the funds or property involved in the financial transaction represented the proceeds of some form of unlawful activity" means that the Defendant knew that such funds or property involved in the transaction represented proceeds from some form, though not necessarily which form, of activity that constitutes a felony offense under state or Federal or foreign law.

    The term "specified unlawful activity" means [describe the specified unlawful activity listed in subsection (c)(7) of the statute and alleged in the indictment].

    [The term "transaction reporting requirement" refers to the legal requirement that a domestic financial institution report any transaction involving a payment, receipt or transfer of United States coins or currency in an amount over $10,000. Transactions involving only personal checks, cashier's checks, wire transfers or other monetary instruments need not be reported.]

    [The term “transaction reporting requirement” refers to the legal requirement that a person who [physically transports, mails, or ships] [causes to be physically transported, mailed, or shipped] [attempts to cause to be physically transported, mailed or shipped] currency [describe any other reportable monetary instruments as alleged in the indictment] in an amount over $10,000 at one time [from the United States to any place outside the United States] [into the United States from a place outside the United States] must report that transaction.]

    [The term “transaction reporting requirement” refers to the legal requirement that a person engaged in a trade or business who, in the course of that trade or business, receives currency in an amount over $10,000 in a single transaction or in two or more related transactions file a report with the Internal Revenue Service.]

ANNOTATIONS AND COMMENTS

    18 USC 1956(a)(1) provides:

    Whoever, knowing that the property involved in a financial transaction represents the proceeds of some form of unlawful activity, conducts or attempts to conduct such a financial transaction which in fact involves the proceeds of specified unlawful activity - - 

    (B) knowing that the transaction is designed in whole or in part - -

    (i) to conceal or disguise the nature, the location, the source, the ownership, or the control of the proceeds of specified unlawful activity; or 

    (ii) to avoid a transaction reporting requirement under State or Federal law [shall be guilty of an offense against the United States].

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

    In United States v. Cancelliere, 69 F.3d 1116 (11th Cir. 1995), the Court held that although proof of willfulness is not a statutory element of money laundering, where the indictment expressly charged willfulness, the District Court erred in not giving the usual instruction on willfulness (Basic Instruction 9.1).

[For 1997 Version of this instruction, see below]

18 USC 1956(a)(1) provides:

Whoever, knowing that the property involved in a financial transaction represents the proceeds of some form of unlawful activity, conducts or attempts to conduct such a financial transaction which in fact involves the proceeds of specified unlawful activity --

(B) knowing that the transaction is designed in whole or in part --

(i) to conceal or disguise the nature, the location, the source, the ownership, or the control of the proceeds of specified unlawful activity; or

(ii) to avoid a transaction reporting requirement under State or Federal law [shall be guilty of an offense against the United States].

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

In United States v. Cancelliere, 69 F.3d 1116 (11th Cir. 1995), the Court held that although proof of willfulness is not a statutory element of money laundering, where the indictment expressly charged willfulness, the District Court erred in not giving the usual instruction on willfulness (Basic Instruction 9.1).

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

    Title 18, United States Code, Section 1956(a)(2)(A), makes it a Federal crime or offense for anyone to knowingly engage in certain kinds of financial transactions commonly known as money laundering.

    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 [transported] [transmitted] [transferred] a monetary instrument or funds [from a place in the United States to or through a place outside the United States] [to a place in the United States from or through a place outside the United States] [or attempted to do so]; and

    Second: That the Defendant engaged in the [attempted] [transportation] [transmission] [transfer] with the intent to promote the carrying on of “specified unlawful activity.”

    The term “transports, transmits, or transfers” includes all means of carrying, sending, mailing, shipping or moving funds. Thus, it includes the electronic transfer of funds by wire or computer or other means including any physical means of transporting or transferring funds.

    It makes no difference whether the monetary instrument or funds [attempted to be] transported, transmitted, or transferred is derived from criminal activity or not. It could be legitimately earned income [even money provided by a government agent in the course of an undercover operation].

    The term "monetary instrument" includes the coin or currency of any country, travelers or personal checks, bank checks or money orders, or investment securities or negotiable instruments in such form that title passes upon delivery.

    The term "specified unlawful activity" means [describe the specified unlawful activity listed in subsection (c)(7) of the statute and alleged in the indictment].

    The term “with the intent to promote the carrying on of specified unlawful activity” means that the Defendant must have [conducted] [attempted to conduct] the financial transaction for the purpose of facilitating or making easier or helping to bring about the “specified unlawful activity” as just defined.

    [To “attempt” an act simply means to intentionally take some substantial step toward the accomplishment of the act so that, except for interruption or frustration, the act would have occurred.]

ANNOTATIONS AND COMMENTS

    18 USC 1956(a)(2) provides:

    Whoever transports, transmits, or transfers, or attempts to transport, transmit, or transfer a monetary instrument or funds from a place in the United States to or through a place outside the United States or to a place in the United States from or through a place outside the United States - -

    (A) with the intent to promote the carrying on of specified unlawful activity [shall be guilty of an offense against the United States].

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

    In United States v. Cancelliere, 69 F.3d 1116 (11th Cir. 1995), the Court held that although proof of willfulness is not a statutory element of money laundering, where the indictment expressly charged willfulness, the District Court erred in not giving the usual instruction on willfulness (Basic Instruction 9.1).

[For 1997 Version of this instruction, see below]

18 USC 1956(a)(2) provides:

Whoever transports, transmits, or transfers, or attempts to transport, transmit, or transfer a monetary instrument or funds from a place in the United States to or through a place outside the United States or to a place in the United States from or through a place outside the United States --

(A) with the intent to promote the carrying on of specified unlawful activity [shall be guilty of an offense against the United States].

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

In United States v. Cancelliere, 69 F.3d 1116 (11th Cir. 1995), the Court held that although proof of willfulness is not a statutory element of money laundering, where the indictment expressly charged willfulness, the District Court erred in not giving the usual instruction on willfulness (Basic Instruction 9.1).

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003