PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003
Go to Federal Model Instructions Table of Contents - Go to 11th Circuit Table of Contents

Offenses (OI 71.1 - OI 104)

        OI 71.1  RICO - Substantive Offense (18 USC 1962(c))
        OI 71.2  RICO - Conspiracy Offense (18 USC 1962(d))
        OI 72.1  Bank Robbery (Subsection (a) Only) (18 USC 2113(a))
        OI 72.2  Bank Robbery (Subsections (a) And (d) Alleged In Separate Counts) (18 USC 2113(a) And (d))
        OI 72.3  Bank Robbery (Subsections (a) And (d) Alleged In The Same Count) (18 USC 2113)(a) And (d))
        OI 72.4  Bank Robbery (Subsection (e) Only - - Alleged In Separate Count) (18 USC 2113(e))
        OI 73     Motor Vehicles "Carjacking" (18 USC 2119)
        OI 74     Aggravated Sexual Abuse (By Force Or Threat) (18 USC 2241(a))
        OI 75.1  Transporting Or Shipping Material Involving Sexual Exploitation Of Minors (18 USC 2252(a)(1))
        OI 75.2  Receiving And Distributing Material Involving Sexual Exploitation Of Minors (18 USC 2252(a)(2))
        OI 75.3  Child Pornography Transporting Or Shipping (18 USC 2252A(a)(1))
        OI 75.4  Child Pornography Receiving, Possessing, Distributing (18 USC 2252A(a)(2)(A) and (5)(B))
        OI 76     Interstate Transportation Of A Stolen Motor Vehicle (18 USC 2312)
        OI 77     Sale Or Receipt Of A Stolen Motor Vehicle (18 USC 2313)
        OI 78.1  Interstate Transportation Of Stolen Property (18 USC 2314)
        OI 78.2  Causing Interstate Travel In Execution Of A Scheme To Defraud (18 USC 2314)
        OI 79     Sale Or Receipt Of Stolen Property (18 USC 2315)
        OI 80     Coercion And Enticement Of A Minor To Engage In Sexual Activity (18 USC 2422(b))
        OI 81     Failure To Appear (Bail Jumping) (18 USC 3146)
        OI 82     Unlawful Possession Of Food Stamps (7 USC 2024(b))
        OI 83.1  Bringing In Aliens (8 USC 1324(a)(1)(A)(i))
        OI 83.2  Unlawfully Transporting Aliens (8 USC 1324(a)(1)(A)(ii))
        OI 83.3  Concealing Or Harboring Aliens (8 USC 1324(a)(1)(A)(iii))
        OI 84     Illegal Entry By Deported Alien (8 USC 1326)
        OI 85     Controlled Substances (Possession With Intent To Distribute) (21 USC 841(a)(1))
        OI 86     Controlled Substances (Unlawful Use Of Communications Facility) (21 USC 843(b))
        OI 87     Controlled Substances (Conspiracy) (21 USC 846, 955c And/Or 963)
        OI 88.1  Controlled Substances (Continuing Criminal Enterprise) (21 USC 848)
        OI 88.2  Controlled Substances (Continuing Criminal Enterprise - - Murder) (21 USC 848(e))
        OI 88.3  Controlled Substances (Death Penalty - Supplemental Instructions) (21 USC 848(e) et seq.)
Preliminary Instruction
        OI 88.4  Controlled Substances (Death Penalty - Supplemental Instructions) Substantive Instruction
        OI 89     Possession Of Controlled Substance Near Schools Or Public Housing (21 USC 860)        
        OI 90     Controlled Substances Importation (21 USC 952(a))
        OI 91     Possession Or Transfer Of Non-Tax-Paid Distilled Spirits (26 USC 5604(a)(1) And 5301(d))
        OI 92.1  Possession Of Unregistered Firearm (26 USC 5861(d))
        OI 92.2  Possession Of Firearm Having Altered Or Obliterated Serial Number (26 USC 5861(h))
        OI 93.1  Tax Evasion (General Charge) (26 USC 7201)
        OI 93.2  Net Worth Method
        OI 93.3  Bank Deposits Method
        OI 93.4  Cash Expenditures Method
        OI 94     Failure To File Tax Return (26 USC 7203)
        OI 95     Aiding And Abetting Filing False Return (26 USC 7206(2))
        OI 96     False Tax Return (26 USC 7207)
        OI 97     Impeding Internal Revenue Service (26 USC 7212(a))
        OI 98     Evading Currency Transaction Reporting Requirement (While Violating Another Law) By Structuring Transaction (31 USC 5322(b) and 5324(3))
        OI 99     Fraudulent Receipt Of V. A. Benefits (38 USC 6102(b))
        OI 100   Falsely Representing Social Security Number (42 USC 408(a)(7)(B))
        OI 101   Forceful Intimidation Because Of Race (Occupancy Of Dwelling - - No Bodily Injury) (42 USC 3631)
        OI 102   Controlled Substances (Possession On United States Vessel) (46 USC 1903(a))
        OI 103   Assaulting Or Intimidating Flight Crew Of Aircraft In United States (Without Dangerous Weapon) (49 USC 46504)
        OI 104   Attempting To Board Air Craft With Concealed Weapon Or Explosive Device (49 USC 46505(b))

        Former OI 61.3  RICO - Supplemental Instruction On Forfeiture Issues (After Verdict Of Guilty) (18 USC 1963(a)) [Deleted in 2003 Edition]
        Former OI 77   Forfeiture (21 USC 853) [Deleted in 2003 Edition]

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

    Count _____ of the indictment charges that from on or about _____ , and continuously thereafter up to and including the date of the filing of the indictment on _____ , the Defendants were persons associated with an "enterprise" engaged in, or the activities of which affected, interstate commerce, and that they knowingly and willfully participated in the conduct of the enterprise's affairs "through a pattern of racketeering activity," in violation of Title 18, United States Code, Section 1961 and 1962(c).

    The term "enterprise" includes any partnership, corporation, association or other legal entity, and any union or group of individuals associated in fact although not a legal entity.

    The term "racketeering activity" includes any act in violation of [e.g., Title 18 of the United States Code relating to mail fraud (section 1341) and wire fraud (Section 1343)].

    The term "pattern of racketeering activity" requires at least two acts of "racketeering activity," sometimes called predicate offenses, which must have been committed within ten years of each other, one of which must have occurred after October 15, 1970.

    So, in order to establish that the Defendants named in Count _____ of the indictment, or any of them, committed the offense charged in that Count, there are five specific facts which must be proved beyond a reasonable doubt:

    First: That the Defendant was associated with an "enterprise" as defined in these instructions;

    Second: That the Defendant knowingly and willfully committed, or knowingly and willfully aided and abetted the commission of at least two of the predicate offenses hereinafter specified;

    Third: That the two predicate offenses allegedly committed by the Defendant were connected with each other by some common scheme, plan or motive so as to be a pattern of criminal activity and not merely a series of separate, isolated or disconnected acts;

    Fourth: That through the commission of two or more connected offenses, the Defendant conducted or participated in the conduct of the "enterprise's" affairs; and

    Fifth: That the enterprise was engaged in, or that its activities affected, interstate commerce.

    With respect to the first specific fact stated above, in order for you to find that the Defendant was "associated" with the enterprise, the Government need only prove beyond a reasonable doubt that the Defendant was aware of the general existence of the enterprise described in the indictment.

    With respect to the second specific fact stated above, the Government must prove beyond a reasonable doubt that the Defendant under consideration knowingly and willfully committed, or aided and abetted the commission of any two of the predicate offenses specifically alleged and described in the indictment [under the headings "Racketeering Act One and "Racketeering Act Two."] [in Counts _____ through _____ , respectively.]

    You are further instructed, however, that you must unanimously agree concerning each Defendant under consideration as to which of the two predicate offenses the Defendant is alleged to have committed, or aided and abetted in committing. It would not be sufficient if some of the jurors should find that a Defendant committed two of the predicate offenses while the remaining jurors found that such Defendant committed two different offenses; you must all agree upon the same two predicate offenses in order to find the Defendant guilty of Count _____ .

    With respect to the fourth specific fact stated above - - that the Defendant conducted or participated in the conduct of the affairs of the enterprise - - the Government must prove beyond a reasonable doubt that the Defendant was something more than an outsider lending aid to the enterprise. It must be proved that the Defendant had some part in either the management or the operation of the affairs of the enterprise itself. Thus, it need not be proved that the Defendant had primary responsibility or even a managerial position; it is enough if the Defendant was involved in conducting the operation of the affairs of the enterprise as a lower level participant.

    With respect to the fifth specific fact - - the requirement that the "enterprise" was engaged in, or that its activities affected, interstate commerce - - the Government contends that in conducting the affairs of the enterprise the Defendants [e.g. utilized interstate communications facilities by engaging in long distance telephone conversations; by traveling in interstate commerce from one state to another; and by causing the transmission of funds by mail or by wire in interstate commerce from one state to another.] You are instructed that if you find beyond a reasonable doubt that these transactions or events occurred, and that they occurred in, or as a direct result of, the conduct of the affairs of the alleged enterprise, the required affect upon interstate commerce has been established. If you do not so find, the required effect upon interstate commerce has not been established.

ANNOTATIONS AND COMMENTS

    18 USC § 1962(c) provides:

    It shall be unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise's affairs through a pattern of racketeering activity . . . ."

    Maximum Penalty: Twenty (20) years imprisonment and applicable fine. Life imprisonment if the violation is based on racketeering activity for which the maximum penalty includes life imprisonment. (The jury must find that defendant committed such a predicate act beyond a reasonable doubt. See United States v. Nguyen, 255 F.3d 1335 (11th Cir. 2001) (applying Apprendi v. New Jersey, 530 U.S. 466 (2000)).

    In United States v. Kotvas, 941 F.2d 1141 (11th Cir. 1991), the Eleventh Circuit held that this pattern instruction properly instructed the jury on the continuity requirement discussed by the United States Supreme Court in H. J., Inc., v. Northwestern Bell Telephone Co., 492 U.S. 229 (1989).

    In Reves v. Ernst & Young, 507 U.S. 170, 113 S.Ct. 1163, 122 L.Ed.2d 525 (1993), the Supreme Court held that a Defendant participates in the conduct of an enterprise's affairs by participating in the "operation or management" of the enterprise. The Eleventh Circuit has held that Reves, a civil RICO action, applies to criminal proceedings as well. See United States v. Starrett, 55 F.3d 1525 (11th Cir. 1995). Starrett nevertheless upheld the district court's refusal to give a proposed instruction that the Defendant must have occupied a "leadership" position in the enterprise.

    If the indictment seeks a forfeiture of property under § 1963(a), see Trial Instruction No. 8.

[For 1997 Version of this instruction, see below]

18 USC 1962(c) provides:

It shall be unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise's affairs through a pattern of racketeering activity . . . ."

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

In United States v. Kotvas, 941 F.2d 1141 (11th Cir. 1991), the Eleventh Circuit held that this pattern instruction properly instructed the jury on the continuity requirement discussed by the United States Supreme Court in H. J., Inc., v. Northwestern Bell Telephone Co., 492 U.S. 229 (1989).

In Reves v. Ernst & Young, 507 U.S. 170, 113 S.Ct. 1163, 122 L.Ed.2d 525 (1993), the Supreme Court held that a Defendant participates in the conduct of an enterprise's affairs by participating in the "operation or management" of the enterprise. The Eleventh Circuit has held that Reves, a civil RICO action, applies to criminal proceedings as well. See United States v. Starrett, 55 F.3d 1525 (11th Cir. 1995). Starrett nevertheless upheld the district court's refusal to give a proposed instruction that the Defendant must have occupied a "leadership" position in the enterprise.

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

    Title 18, United States Code, Section 1962(c), makes it a Federal crime or offense for anyone who is associated with an "enterprise" engaged in, or the activities of which affect, interstate commerce, to participate in conducting the affairs of the enterprise through a "pattern of racketeering activity."

    The meaning of these terms and an explanation of what must be proved in order to establish that offense, is discussed in that part of the instructions covering Count _____ of the indictment.

    However, the Defendants named in Count _____ of the indictment - - the conspiracy count - - are not charged in that Count with violating Section 1962(c); rather, they are charged with knowingly and willfully conspiring to violate that law, the alleged conspiracy itself being a separate crime or offense in violation of Section 1962(d).

    So, under that law a "conspiracy" is a combination or agreement of two or more persons to join together to attempt to accomplish an offense that would be in violation of Section 1962(c) as elsewhere defined in these instructions. It is a kind of "partnership in criminal purposes" in which each member becomes the agent of every other member.

    The evidence in the case need not show that the alleged members of the conspiracy entered into any express or formal agreement; or that they directly discussed between themselves the details of the scheme and its purpose, or the precise ways in which the purpose was to be accomplished. Neither must it be proved that all of the persons charged to have been members of the conspiracy were such, nor that the alleged conspirators actually succeeded in accomplishing their unlawful objectives. 

    What the evidence in the case must show beyond a reasonable doubt is:

    First: That two or more persons, in some way or manner, came to a mutual understanding to try to accomplish a common and unlawful plan, namely, to engage in a "pattern of racketeering activity" as charged in the indictment; and

    Second: That the Defendant knowingly and willfully became a member of such conspiracy; and 

    Third: That at the time the Defendant knowingly and willfully agreed to join in such conspiracy, the Defendant did so with the specific intent either to personally participate in the commission of two "predicate offenses," as elsewhere defined in these instructions, or that the Defendant specifically intended to otherwise participate in the affairs of the "enterprise" with the knowledge and intent that other members of the conspiracy would commit two or more "predicate offenses" as a part of a "pattern of racketeering activity."

     A person may become a member of a conspiracy without full knowledge of all of the details of the unlawful scheme or the names and identities of all of the other alleged conspirators. So, if a Defendant has an understanding of the unlawful nature of a plan and knowingly and willfully joins in that plan on one occasion, that is sufficient to convict for conspiracy even though the Defendant did not participate before, and even though the Defendant played only a minor part.

    Of course, mere presence at the scene of a transaction or event, or the mere fact that certain persons may have associated with each other, and may have assembled together and discussed common aims and interests, does not, standing alone, establish proof of the existence of a conspiracy. Also, a person who has no knowledge of a conspiracy, but who happens to act in a way which advances some purpose of a conspiracy, does not thereby become a conspirator.

ANNOTATIONS AND COMMENTS

    18 USC § 1962(d) provides:

    It shall be unlawful for any person to conspire to violate any of the provisions of subsections (a), (b) or (c) of this section.

    Maximum Penalty: Twenty (20) years imprisonment and applicable fine. Life imprisonment if the violation is based on racketeering activity for which the maximum penalty includes life imprisonment. (The jury must find that defendant committed such a predicate act beyond a reasonable doubt. See United States v. Nguyen, 255 F.3d 1335 (11th Cir. 2001) (applying Apprendi v. New Jersey, 530 U.S. 466 (2000)).

[For 1997 Version of this instruction, see below]

18 USC 1962(d) provides:

It shall be unlawful for any person to conspire to violate any of the provisions of subsections (a), (b) or (c) of this section.

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

United States v. Beale, 921 F.2d 1412 (11th Cir. 1991) discusses the alternate methods of proving a RICO conspiracy.

United States v. Starrett, 55 F.3d 1525 (11th Cir. 1995) observes that no overt act is required under 1962(d).

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

    Title 18, United States Code, Section 2113(a), makes it a Federal crime or offense for anyone to take [or to attempt to take] from the person or presence of someone else [by force and violence] [by intimidation] any property or money in the possession of a federally [insured bank] [insured credit union] [insured savings and loan association].

    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 from the person or the presence of the person described in the indictment, money or property then in the possession of a federally insured [bank] [credit union] [savings and loan association] as charged; and

    Second: That the Defendant did so [by means of force or violence] [by means of intimidation].

    [A "federally insured bank" means any bank the deposits of which  are insured by the Federal Deposit Insurance Corporation.] [A "federally insured credit union" means any Federal credit union and any State chartered credit union the accounts of which are insured by the National Credit Union Administration Board or any credit union chartered under the laws of a state of the United States, the District of Columbia, or any commonwealth, territory, or possession of the United States.] [A "federally insured savings and loan association" means any savings and loan association the deposits of which are insured by the Federal Savings and Loan Insurance Corporation.] 

    [To take "by means of intimidation" is to say or do something in such a way that a person of ordinary sensibilities would be fearful of bodily harm; it is not necessary to prove that the alleged victim was actually frightened, and neither is it necessary to show that the behavior of the Defendant was so violent that it was likely to cause terror, panic or hysteria. The essence of the offense is the taking of money or property aided and accompanied by intentionally intimidating behavior on the part of the Defendant.]

ANNOTATIONS AND COMMENTS

    18 USC § 2113(a) provides:

    Whoever, by force and violence, or by intimidation, takes, or attempts to take, from the person or presence of another . . . any property or money . . . belonging to . . . or in the possession of, any bank, credit union, or any savings and loan association [shall be guilty of an offense against the United States]. 

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

    The statute creates various modes of committing the offense (force and violence or intimidation) (assault or use of a dangerous weapon) and care must be taken in adapting the instruction to the allegations of the indictment. See United States v. Bizzard, 615 F.2d 1080 (5th Cir. 1980).

    In Carter v. United States, 530 U.S. 255, 120 S.Ct. 2159 (2000), the court held that the bank larceny provision of § 2113(b) is not a lesser included offense of § 2113(a).

    In United States v. King, 178 F.3d 1376 (11th Cir. 1999), the court held, in a prosecution under § 2113(b), that money being transferred in a contractor’s armored vehicle from a bank to the Federal Reserve was money still “in the care, custody, control, management or possession” of the bank because the bank retained legal title to the funds.

    In United States v. Mitchell, 146 F.3d 1338 (11th Cir. 1998), the court upheld arguably inconsistent verdicts finding the Defendant guilty under §2113(d) (armed bank robbery), but acquitting him under § 924(c) (carrying a firearm during a crime
of violence). 

[For 1997 Version of this instruction, see below]

18 USC 2113(a) provides:

Whoever, by force and violence, or by intimidation, takes, or attempts to take, from the person or presence of another . . . any property or money . . . belonging to . . . or in the possession of, any bank, credit union, or any savings and loan association [shall be guilty of an offense against the United States].

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

The statute creates various modes of committing the offense (force and violence or intimidation) (assault or use of a dangerous weapon) and care must be taken in adapting the instruction to the allegations of the indictment. See United States v. Bizzard, 615 F.2d 1080 (5th Cir. 1980).

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

    Title 18, United States Code, Section 2113(a), makes it a Federal crime or offense for anyone to take [or to attempt to take] from the person or presence of someone else [by force and violence] [by intimidation] any property or money in the possession of a federally [insured bank] [insured credit union] [insured savings and loan association].

    The Defendant can be found guilty of that offense as charged in Count ____ of the indictment, only if all of the following facts are proved beyond a reasonable doubt:

    First: That the Defendant knowingly took [or attempted to take] from the person or the presence of the person described in the indictment, money or property then in the possession of a federally insured [bank] [credit union] [savings and loan association] as charged; and 

    Second: That the Defendant did so [by means of force or violence] [by means of intimidation; 

    [A "federally insured bank" means any bank the deposits of which are insured by the Federal Deposit Insurance Corporation.] [A "federally insured credit union" means any Federal credit union and any State chartered credit union the accounts of which are insured by the National Credit Union Administration Board.] [A "federally insured savings and loan association" means any savings and loan association the deposits of which are insured by the Federal Savings and Loan Insurance Corporation.]

    [To take "by means of intimidation" is to say or do something in such a way that a person of ordinary sensibilities would be fearful of bodily harm; it is not necessary to prove that the alleged victim was actually frightened, and neither is it necessary to show that the behavior of the Defendant was so violent that it was likely to cause terror, panic or hysteria. The essence of the offense is the taking of money or property aided and accompanied by intentionally intimidating behavior on the part of the Defendant.] 

    Title 18, United States Code, Section 2113(d) makes it a more serious offense for anyone, while in the process of violating subsection (a) of the statute, [to assault] [to put in jeopardy the life of any person by the use of a dangerous weapon or device]. 

    In order to establish that offense as charged in Count _____ of the indictment, the Government must prove beyond a reasonable doubt each of the two specific facts I mentioned a moment ago in discussing Count _____ , and must also prove, beyond a reasonable doubt, a third specific fact, namely:

    That the Defendant knowingly [assaulted] [put in jeopardy the life of a person by the use of a dangerous weapon or device] while engaged in stealing property or money from [the bank] [credit union] [savings and loan association] as charged.

    [An "assault" may be committed without actually striking or injuring another person. So, an assault occurs whenever one person makes an intentional attempt or threat to injure someone else, and also has an apparent, present ability to carry out the threat, such as by flourishing or pointing a dangerous weapon or device.]

    [A "dangerous weapon or device" includes anything capable of being readily operated or wielded by one person to inflict severe bodily harm or injury upon another person.

    To "put in jeopardy the life of any person by the use of a dangerous weapon or device" means, then, to expose someone else to a risk of death by the use of such dangerous weapon or device.]

ANNOTATIONS AND COMMENTS

    18 USC § 2113(a) and (d) provide:

    (a) Whoever, by force and violence, or by intimidation, takes, or attempts to take, from the person or presence of another, . . . any property or money . . . belonging to . . . or in the possession of any bank, credit union, or any savings and loan association [shall be guilty of an offense against the United States].

    (d) Whoever, in committing, or attempting to commit, any offense defined in subsection (a) . . . of this section, assaults any person, or puts in jeopardy the life of any person by the use of a dangerous weapon or device [shall be punished as provided by law.

    Maximum Penalty: Twenty (20) years imprisonment and applicable fine as to subsection (a); and Twenty-five (25) years imprisonment and applicable fine as to subsection (d).

    The statute creates various modes of committing the offense (force and violence or intimidation) (assault or use of a dangerous weapon) and care must be taken in adapting the instruction to the allegations of the indictment. See United States v. Blizzard, 615 F.2d 1080 (5th Cir. 1980).

    In McLaughlin v. United States, 476 U.S. 16, 19, 106 S.Ct. 1677, 1678, 90 L.Ed.2d 15 (1986) the Supreme Court held that an unloaded gun is a dangerous weapon. One of the three reasons given for this conclusion, each of which the Court characterized as "independently sufficient," was that the display of a gun instills fear in the average citizen and creates an immediate danger of a violent response. Id.

    Citing to McLaughlin v. United States, the Eleventh Circuit held that a toy gun should be considered a dangerous weapon under § 2113(d). United States v. Garrett, 3 F.3d 390, 391 (11th Cir. 1993).

    In United States v. King, 178 F.3d 1376 (11th Cir. 1999), the court held, in a prosecution under § 2113(b), that money being transferred in a contractor’s armored vehicle from a bank to the Federal Reserve was money still “in the care, custody,
control, management or possession” of the bank because the bank retained legal title to the funds.

    In United States v. Mitchell, 146 F.3d 1338 (11th Cir. 1998), the court upheld arguably inconsistent verdicts finding the Defendant guilty under §2113(d) (armed bank robbery), but acquitting him under § 924(c) (carrying a firearm during a crime
of violence).

[For 1997 Version of this instruction, see below]

18 USC 2113(a) and (d) provide:

(a) Whoever, by force and violence, or by intimidation, takes, or attempts to take, from the person or presence of another, . . . any property or money . . . belonging to . . . or in the possession of any bank, credit union, or any savings and loan association [shall be guilty of an offense against the United States].

(d) Whoever, in committing, or attempting to commit, any offense defined in subsection (a) . . . of this section, assaults any person, or puts in jeopardy the life of any person by the use of a dangerous weapon or device [shall be punished as provided by law.

Maximum Penalty: Twenty (20) years imprisonment and applicable fine as to subsection (a); and Twenty-five (25) years imprisonment and applicable fine as to subsection (d).

The statute creates various modes of committing the offense (force and violence or intimidation) (assault or use of a dangerous weapon) and care must be taken in adapting the instruction to the allegations of the indictment. See United States v. Blizzard, 615 F.2d 1080 (5th Cir. 1980).

In McLaughlin v. United States, 476 U.S. 16, 19, 106 S.Ct. 1677, 1678, 90 L.Ed.2d 15 (1986) the Supreme Court held that an unloaded gun is a dangerous weapon. One of the three reasons given for this conclusion, each of which the Court characterized as "independently sufficient," was that the display of a gun instills fear in the average citizen and creates an immediate danger of a violent response. Id.

Citing to McLaughlin v. United States, the Eleventh Circuit held that a toy gun should be considered a dangerous weapon under 2113(d). United States v. Garrett, 3 F.3d 390, 391 (11th Cir. 1993).

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

    Title 18, United States Code, Sections 2113(a) and (d), makes it a Federal crime or offense for anyone to take from the person or presence of someone else [by force and violence] [by intimidation] any property or money in the possession of a federally [insured bank] [insured saving and loan association], and in the process of so doing to [assault any person] [put in jeopardy the life of any person by the use of a dangerous weapon or device].

    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 from the person or the presence of the person described in the indictment, money or property then in the possession of a federally [insured bank] [credit union] [insured savings and loan association], as charged;

    Second: That the Defendant did so [by means of force or violence] [by means of intimidation]; 

    Third: That the Defendant [assaulted] [put in jeopardy the life of some person by the use of a dangerous weapon or device] while engaged in taking the property or money, as charged.

    [A "federally insured bank" means any bank the deposits of which are insured by the Federal Deposit Insurance Corporation.] [A "federally insured credit union" means any Federal credit union and any State chartered credit union the accounts of which are insured by the National Credit Union Administration Board.] [A "federally insured savings and loan association" means any savings and loan association the deposits of which are insured by the Federal Savings and Loan Insurance Corporation.]

    [To take "by means of intimidation" is to say or do something in such a way that a person of ordinary sensibilities would be fearful of bodily harm; it is not necessary to prove that the alleged victim was actually frightened, and neither is it necessary to show that the behavior of the Defendant was so violent that it was likely to cause terror, panic or hysteria. The essence of the offense is the taking of money or property aided and accompanied by intentionally intimidating behavior on the part of the Defendant.]

    [An "assault" may be committed without actually striking or injuring another person. So, an assault occurs whenever one person makes an intentional attempt or threat to injure someone else, and also has an apparent, present ability to carry out the threat such as by flourishing or pointing a dangerous weapon or device at the other.]

    [A "dangerous weapon or device" includes anything capable of being readily operated or wielded by one person to inflict severe bodily harm or injury upon another person. 

    To "put in jeopardy the life of any person by the use of a dangerous weapon or device" means, then, to expose someone else to a risk of death by the use of such dangerous weapon or device.]

    In some cases the law which a Defendant is charged with breaking actually covers two separate crimes - - one is more serious than the second, and the second is generally called a "lesser included offense."

    So, in this case, if you should unanimously find the Defendant "Not Guilty" of the crime charged in the indictment, you must then proceed to determine the guilt or innocence of the Defendant as to a lesser included offense.

    The crime of robbing a bank, accompanied by [an assault] [the putting in jeopardy of the life of another person by the use of a dangerous weapon or device] as charged in the indictment, necessarily includes the lesser offense of robbery of a bank, without [an assault] [putting in jeopardy the life of another by the use of a dangerous weapon or device.]

    With respect to the offense charged in the indictment, then, if you should find the Defendant not guilty as charged, you must then proceed to determine whether the Defendant is guilty or not guilty of the lesser included offense of robbery of a bank without [committing an assault] [putting in jeopardy the life of another by the use of a dangerous weapon or device.]

ANNOTATIONS AND COMMENTS

    18 USC § 2113(a) and (d) provide:

    (a) Whoever, by force and violence, or by intimidation, takes, or attempts to take, from the person or presence of another, . . . any property or money . . . belonging to . . . or in the possession of any bank, credit union, or any savings and loan association [shall be guilty of an offense against the United States].

    (d) Whoever, in committing, or attempting to commit, any offense defined in subsection (a) . . . of this section, assaults any person, or puts in jeopardy the life of any person by the use of a dangerous weapon or device [shall be punished as provided by law].

    Maximum Penalty: Twenty (20) years imprisonment and applicable fine as to subsection (a); and Twenty-five (25) years imprisonment and applicable fine as to subsection (d).

    The statute creates various modes of committing the offense (force and violence or intimidation) (assault or use of a dangerous weapon) and care must be taken in adapting the instruction to the allegations of the indictment. See United States v. Blizzard, 615 F.2d 1080 (5th Cir. 1980).

    In McLaughlin v. United States, 476 U.S. 16, 19, 106 S.Ct. 1677, 1678, 90 L.Ed.2d 15 (1986), the Supreme Court held that an unloaded gun is a dangerous weapon. One of the three reasons given for this conclusion, each of which the Court characterized as "independently sufficient," was that the display of a gun instills fear in the average citizen and creates an immediate danger of a violent response. Id.

    Citing to McLaughlin v. United States, the Eleventh Circuit held that a toy gun should be considered a dangerous weapon under § 2113(d). United States v. Garrett, 3 F.3d 390, 391 (11th Cir. 1993).

    In United States v. King, 178 F.3d 1376 (11th Cir. 1999), the court held, in a prosecution under § 2113(b), that money being transferred in a contractor’s armored vehicle from a bank to the Federal Reserve was money still “in the care, custody, control, management or possession” of the bank because the bank retained legal title to the funds.

    In United States v. Mitchell, 146 F.3d 1338 (11th Cir. 1998), the court upheld arguably inconsistent verdicts finding the Defendant guilty under §2113(d) (armed bank robbery), but acquitting him under § 924(c) (carrying a firearm during a crime of violence).

[For 1997 Version of this instruction, see below]

18 USC 2113(a) and (d) provide:

(a) Whoever, by force and violence, or by intimidation, takes, or attempts to take, from the person or presence of another, . . . any property or money . . . belonging to . . . or in the possession of any bank, credit union, or any savings and loan association [shall be guilty of an offense against the United States].

(d) Whoever, in committing, or attempting to commit, any offense defined in subsection (a) . . . of this section, assaults any person, or puts in jeopardy the life of any person by the use of a dangerous weapon or device [shall be punished as provided by law].

Maximum Penalty: Twenty (20) years imprisonment and applicable fine as to subsection (a); and Twenty-five (25) years imprisonment and applicable fine as to subsection (d).

The statute creates various modes of committing the offense (force and violence or intimidation) (assault or use of a dangerous weapon) and care must be taken in adapting the instruction to the allegations of the indictment. See United States v. Blizzard, 615 F.2d 1080 (5th Cir. 1980).

In McLaughlin v. United States, 476 U.S. 16, 19, 106 S.Ct. 1677, 1678, 90 L.Ed.2d 15 (1986), the Supreme Court held that an unloaded gun is a dangerous weapon. One of the three reasons given for this conclusion, each of which the Court characterized as "independently sufficient," was that the display of a gun instills fear in the average citizen and creates an immediate danger of a violent response. Id.

Citing to McLaughlin v. United States, the Eleventh Circuit held that a toy gun should be considered a dangerous weapon under 2113(d). United States v. Garrett, 3 F.3d 390, 391 (11th Cir. 1993).

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

    Title 18, United States Code, Section 2113(e), makes it a separate Federal crime or offense for anyone who, [while committing the offense described in Count ____ of the indictment] [in avoiding or attempting to avoid apprehension for the commission of the offense described in Count _____ of the indictment] forces any person to accompany [him/her] without the consent of such person. Count _____ alleges that [in committing] [in avoiding or attempting to avoid apprehension for] the bank robbery offense charged in Count _____ , the Defendant forced a person to accompany the Defendant without the consent of such person. So, if you first find beyond a reasonable doubt that the Defendant committed the bank robbery offense as charged in Count _____ , then the Defendant can be found guilty of this additional offense only if all of the following facts are proved beyond a reasonable doubt:

    First: That while [committing such bank robbery offense] [attempting to avoid apprehension for the commission of a bank robbery offense], the Defendant forced another person or persons to accompany the Defendant, as charged; and

    Second: That such other person or persons did not voluntarily consent to accompany the Defendant.

    To force another person to do something without "voluntary consent" is to compel the person to act against his or her will through the use of intimidation or threats of harm.

    To require someone else to "accompany" a person means that the victim must have been forced to move with the Defendant from one place to another (rather than being forced to move alone or with someone other than the Defendant). It is not necessary, however, for the Government to prove that the forced movement in the company of the Defendant involved leaving the premises of the bank, or that such movement traversed a particular number of feet, or lasted a particular length of time, or produced any particular level of fear or apprehension on the part of the victim. What must be proved beyond a reasonable doubt is that the forced movement in the company of the Defendant was a movement of some substance or significance as distinguished from a wholly insubstantial, trivial or insignificant movement.

ANNOTATIONS AND COMMENTS

    18 USC § 2113 (e) provides:

    (e) Whoever, in committing any offense defined in this section, or in avoiding or attempting to avoid apprehension for the commission of such offense, or in freeing himself from arrest or confinement for such offense . . . forces any person to accompany him [or her] without the consent of such person [shall be guilty of an offense against the United States].

    Maximum Penalty: Mandatory minimum of ten (10) years imprisonment. If death results, then the maximum penalty is death.

    The definition of "accompany," including the enumeration of things that need not be proved, is derived from United States v. Bauer, 956 F.2d 239 (11th Cir. 1992), cert. denied 506 U.S. 976, 113 S.Ct. 469, 121 L.Ed.2d 376 (1992).

[For 1997 Version of this instruction, see below]

18 USC 2113 (e) provides:

(e) Whoever, in committing any offense defined in this section, or in avoiding or attempting to avoid apprehension for the commission of such offense, or in freeing himself from arrest or confinement for such offense . . . forces any person to accompany him [or her] without the consent of such person [shall be guilty of an offense against the United States].

Maximum Penalty: Mandatory minimum of ten (10) years imprisonment. If death results, then the maximum penalty is death.

The definition of "accompany," including the enumeration of things that need not be proved, is derived from United States v. Bauer, 956 F.2d 239 (11th Cir. 1992), cert. denied 506 U.S. 976, 113 S.Ct. 469, 121 L.Ed.2d 376 (1992).

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

    Title 18, United Sates Code, Section 2119, makes it a Federal crime or offense for anyone to take or attempt to take a motor vehicle that has been transported, shipped or received in interstate or foreign commerce from the person or presence of another, [by force and violence] [by intimidation] with the intent to cause death or serious bodily harm.

    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 [took] [attempted to take] a motor vehicle from the person or presence of another; 

    Second: That the Defendant did so [by force and violence] [by intimidation];

    Third: That the motor vehicle previously had been transported, shipped, or received in interstate or foreign commerce; and

    Fourth: That the Defendant intended to cause death or serious bodily harm when the Defendant took the motor vehicle[; and]

    [Fifth: That [death] [serious bodily injury] resulted from the commission of the offense.]

    The term "by force and violence" means the use of actual physical strength or actual physical violence.

    The term "by intimidation" means the commission of some act or the making of some statement that would put a reasonable person of ordinary sensibilities in fear of bodily harm. It is not necessary for the Government to prove that the alleged victim was actually placed in fear.

    The phrase "transported, shipped or received in interstate or foreign commerce" means the movement of a motor vehicle between any place in one state and any place in another state or another country. It is not necessary for the Government to prove that the Defendant knew that the motor vehicle had moved in interstate or foreign commerce. The Government need only prove that the motor vehicle had moved in interstate or foreign commerce.

    Whether the Defendant "intended to cause death or serious bodily harm" is to be judged objectively from the conduct of the Defendant as disclosed by the evidence and from what one in the position of the alleged victim might reasonably conclude. [In this case the Government contends that the Defendant intended to cause death or serious bodily harm if the alleged victim had refused to turn over the car. If you find beyond a reasonable doubt that the Defendant had such an intent, the Government has satisfied this element of the offense.]

    [The term “serious bodily injury” means bodily injury which involves [a substantial risk of death] [extreme physical pain] [protracted and obvious disfigurement] [protracted loss or impairment of the function of a bodily member, organ, or mental faculty]. [The term “serious bodily injury” also includes [knowingly causing another person to engage in a sexual act by using force against that other person] [or describe the other mode of sexual abuse in violation of §§ 2241 or 2242 as alleged in the indictment.] 

ANNOTATIONS AND COMMENTS

    18 USC § 2119 provides:

    Whoever, with the intent to cause death or serious bodily harm takes a motor vehicle that has been transported, shipped, or received in interstate or foreign commerce from the person or presence of another by force and violence or by intimidation, or attempts to do so, shall [violate this section].

    Maximum Penalty varies depending on injury to victim.

    1) When no serious bodily injury or death results, the maximum penalty is imprisonment for not more than 15 years and applicable fine. 

    2) When serious bodily injury results, the maximum penalty is imprisonment for not more than 25 years and applicable fine.

    3) When death results, the maximum penalty is death and applicable fine.

    In the context of a violation of 18 USC § 113(c) - - assault with a dangerous weapon with intent to do bodily harm - - "[t]he intent of the defendant `is not to be measured by the secret motive of the actor, or some undisclosed purpose merely to frighten, not to hurt,' but rather `is to be judged objectively from the visible conduct of the actor and what one in the position of the victim might reasonably conclude.'" United States v. Guilbert, 692 F.2d 1340, 1344 (11th Cir. 1982), cert. denied, 103 S.Ct. 1260 (1983) (quoting Shaffer v. United States, 308 F.2d 654, 655 (5th Cir. 1962) (per curiam)). See United States v. Gibson, 896 F.2d 206, (6th Cir. 1990) (citing United States v. Guilbert and explaining that "[a] defendant's state of mind is a question of fact, often determined by objective evaluation of all the surrounding facts and circumstances").

    Holloway v. United States, 526 U.S. 1, 119 S.Ct. 966 (1999) (conditional intent to “cause death or serious bodily harm” only if the victim offers resistance is sufficient to meet the state of mind requirement of the statute.) accord United States v. Fulford, 267 F.3d 1241 (11th Cir. 2001).

    United States v. Lumley, 135 F.3d 758 (11th Cir. 1998). “We decline to interpret section 2119 to require a perpetrator to have ‘the intent to cause death or serious bodily harm’ only as to the person from whom the perpetrator takes the motor vehicle.” (The Defendant shot at an armed guard while fleeing a robbery, then ordered a victim out of her truck and drove off in the vehicle.) 

    The Fifth element should be included under the principle of Apprendi if the indictment triggers the enhanced maximum sentences provided by the statute in cases resulting in serious bodily injury or death.

[For 1997 Version of this instruction, see below]

18 USC 2119 provides:

Whoever, with the intent to cause death or serious bodily harm takes a motor vehicle that has been transported, shipped, or received in interstate or foreign commerce from the person or presence of another by force and violence or by intimidation, or attempts to do so, shall [violate this section].

Maximum Penalty varies depending on injury to victim.

1) When no serious bodily injury or death results, the maximum penalty is imprisonment for not more than 15 years and applicable fine.

2) When serious bodily injury results, the maximum penalty is imprisonment for not more than 25 years and applicable fine.

3) When death results, the maximum penalty is death and applicable fine.

In the context of a violation of 18 USC 113(c) - - assault with a dangerous weapon with intent to do bodily harm - - "[t]he intent of the defendant `is not to be measured by the secret motive of the actor, or some undisclosed purpose merely to frighten, not to hurt,' but rather `is to be judged objectively from the visible conduct of the actor and what one in the position of the victim might reasonably conclude.'" United States v. Guilbert, 692 F.2d 1340, 1344 (11th Cir. 1982), cert. denied, 103 S.Ct. 1260 (1983) (quoting Shaffer v. United States, 308 F.2d 654, 655 (5th Cir. 1962) (per curiam)). See United States v. Gibson, 896 F.2d 206, (6th Cir. 1990) (citing United States v. Guilbert and explaining that "[a] defendant's state of mind is a question of fact, often determined by objective evaluation of all the surrounding facts and circumstances").

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

    Title 18, United States Code, Section 2241(a), makes it a Federal crime or offense for anyone in [the special maritime or territorial jurisdiction of the United States] [a Federal Prison] to sexually abuse another person by using force or threats.

    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 caused the person named in the indictment to engage in a sexual act; 

    Second: That the Defendant did so by using force against the person or by threatening or placing the person in fear that such person, or any other person, would be subjected to death, serious bodily injury, or kidnapping;

    Third: That the Defendant did such acts knowingly; and

    Fourth: That the acts occurred within [the special maritime jurisdiction of the United States] [the territorial jurisdiction of the United States] [a Federal prison].

    The term "sexual act" means:

    (a) contact between the penis and the vulva or the penis and the anus, and, for purposes of this subparagraph, contact involving the penis occurs upon penetration however slight; or, 

    (b) contact between the mouth and the penis, the mouth and the vulva, or the mouth and the anus; or

    (c) the penetration, however slight, of the anal or genital opening of another by a hand or finger or by any object, with an intent to abuse, humiliate, harass, degrade the person named in the indictment, or to arouse or gratify the sexual desire of the Defendant or any other person.

    [(d) the intentional touching, not through the clothing, of the genitalia of another person who has not attained the age of 16 years with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person.]

    The term "serious bodily injury" means bodily injury that involves a substantial risk of death, unconsciousness, extreme physical pain, protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily member, organ, or mental faculty.

    [You are instructed that the location of the alleged offense, as described in the indictment, if you find beyond a reasonable doubt that such offense occurred there, would be within the [special maritime] [territorial] jurisdiction of the United States.]

ANNOTATIONS AND COMMENTS

    18 USC § 2241(a) provides:

    Whoever, in the special maritime and territorial jurisdiction of the United States or in a Federal prison, knowingly causes another person to engage in a sexual act - -

    (1) by using force against that other person; or 

    (2) by threatening or placing that other person in fear that any person will be subjected to death, serious bodily injury, or kidnapping; or attempts to do so, shall be fined under this title, imprisoned for any term of years or life, or both.

    Maximum Penalty: Life in prison and applicable fine.

[For 1997 Version of this instruction, see below]

18 USC 2241(a) provides:

Whoever, in the special maritime and territorial jurisdiction of the United States or in a Federal prison, knowingly causes another person to engage in a sexual act - -

(1) by using force against that other person; or

(2) by threatening or placing that other person in fear that any person will be subjected to death, serious bodily injury, or kidnapping;

or attempts to do so, shall be fined under this title, imprisoned for any term of years or life, or both.

Maximum Penalty: Life in prison and applicable fine.

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

    Title 18, United States Code, Section 2252(a)(1), makes it a Federal crime or offense for any person to knowingly [transport] [ship] [mail] any visual depiction in interstate or foreign commerce by any means [including by computer] if the production of such visual depiction involved the use of a minor engaging in sexually explicit conduct and the visual depiction is of such conduct. 

    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] [shipped] [mailed] a visual depiction in interstate or foreign commerce by any means [including by computer];

    Second: That the production of such visual depiction involved the use of a minor engaging in sexually explicit conduct;

    Third: That such visual depiction is of a minor engaged in sexually explicit conduct; and

    Fourth: That the Defendant knew that at least one of the performers in such visual depiction was a minor and knew that the visual depiction was of such minor engaged in sexually explicit conduct.

    The term "interstate or foreign commerce" means the movement of property from one state to another state or from one state to another country. The term "State" includes a State of the United States, the District of Columbia, and any commonwealth, territory, or possession of the United States.

    [The term "computer" means an electronic, magnetic, optical, electrochemical, or other high speed data processing device performing logical, arithmetic, or storage functions, and includes any data storage facility or communications facility directly related to or operating in conjunction with such device, but such term does not include an automated typewriter or typesetter, a portable hand-held calculator, or other similar device.]

    The term "sexually explicit conduct" means actual or simulated:

    (a) sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal contact, whether between persons of the same or opposite sex;

    (b) bestiality;

    (c) masturbation;

    (d) sadistic or masochistic abuse; or 

    (e) lascivious exhibition of the genitals or pubic area of any person.

    Regarding the last type of sexually explicit conduct - - "lascivious exhibition" - - not every exposure of the genitals or pubic area constitutes a lascivious exhibition. In determining whether a visual depiction constitutes a lascivious exhibition, you should consider the context and setting in which the genitalia or pubic area is being displayed. You may consider the overall content of the material. You may also consider such factors as whether the focal point of the visual depiction is on the minor's genitalia or pubic area, or whether there is some other focal point. You may consider whether the setting of the depiction is such as to make it appear to be sexually inviting or suggestive; for example, in a location or in a pose associated with sexual activity. In addition, you may consider whether the minor appears to be displayed in an unnatural pose or in inappropriate attire. You may also consider whether the minor is partially clothed or nude. You may consider whether the depiction appears to convey sexual coyness or an apparent willingness to engage in sexual activity, and whether the depiction appears to have been designed to elicit a sexual response in the viewer. Of course, a visual depiction need not involve all of these factors to be a lascivious exhibition. 

    [The term "visual depiction" includes undeveloped film and videotape, and data stored on computer disc or by electronic means which is capable of conversion into a visual image.]

    The term "minor" means any person under the age of eighteen years.

ANNOTATIONS AND COMMENTS

    18 USC § 2252(a)(1) provides:

    Any person who - -

    knowingly transports or ships in interstate or foreign commerce by any means including by computer . . . any visual depiction, if - -

    (A) the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct; and

    (B) such visual depiction is of such conduct; shall be punished as provided in subsection (b) of this section.

    Maximum Penalty: Fifteen (15) years and applicable fine when Defendant has no prior conviction. Not less than five (5) nor more than thirty (30) years and applicable fine when Defendant has prior conviction.

    Definition of the relevant terms is taken from 18 USC § 2256.

    See United States v. X-citement Video, Inc., 513 U.S. 64, 115 S.Ct. 464, 471-72 (1994), setting out the scienter requirement.

    The explanation of the term "lascivious exhibition" is derived from United States v. Dost, 636 F.Supp. 828, 832 (S.D. Ca. 1986), a decision that has been cited with approval by three circuits and many other district courts.

[For 1997 Version of this instruction, see below]

18 USC 2252(a)(1) provides:

Any person who --

knowingly transports or ships in interstate or foreign commerce by any means including by computer . . . any visual depiction, if --

(i) the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct; and

(ii) such visual depiction is of such conduct; shall be punished as provided in subsection (b) of this section.

Maximum Penalty: Fifteen (15) years and applicable fine when Defendant has prior conviction under this chapter or chapter 109A.

Ten (10) years and applicable fine when Defendant has no prior conviction.

See United States v. X-citement Video, Inc., U.S. , 115 S.Ct. 464, 471-72 (1994).

The explanation of the term "lascivious exhibition" is derived from United States v. Dost, 636 F.Supp. 828, 832 (S.D. Ca. 1986), a decision that has been cited with approval by three circuits and many other district courts.

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

    Title 18, United States Code, Section 2252(a)(2), makes it a Federal crime or offense for any person to knowingly [receive] [distribute] any visual depiction [that has been mailed] [that has been shipped or transported in interstate or foreign commerce by any means] [including by computer], if the production of such visual depiction involved the use of a minor engaging in sexually explicit conduct and the visual depiction is of such conduct.

    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 [received] [distributed] a visual depiction;

    Second: That such visual depiction [was mailed] [was shipped or transported in interstate or foreign commerce by any means] [including computer];

    Third: That the production of such visual depiction involved the use of a minor engaging in sexually explicit conduct;

    Fourth: That such visual depiction is of a minor engaged in sexually explicit conduct; and

    Fifth: That the Defendant knew that at least one of the performers in such visual depiction was a minor and knew that the visual depiction was of such minor engaged in sexually explicit conduct.

    [The term "visual depiction" includes undeveloped film and videotape, and data stored on computer disc or by electronic means which is capable of conversion into a visual image.]

    The term "minor" means any person under the age of eighteen years.

    The term "interstate or foreign commerce" means the movement of property from one state to another state or from one state to another country. The term "State" includes a State of the United States, the District of Columbia, and any commonwealth, territory, or possession of the United States.

    [The term "computer" means an electronic, magnetic, optical, electrochemical, or other high speed data processing device performing logical, arithmetic, or storage functions, and includes any data storage facility or communications facility directly related to or operating in conjunction with such device, but such term does not include an automated typewriter or typesetter, a portable hand-held calculator, or other similar device.]

    The term "sexually explicit conduct" means actual or simulated:

    (a) sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal contact, whether between persons of the same or opposite sex; 

    (b) bestiality;

    (c) masturbation;

    (d) sadistic or masochistic abuse; or

    (e) lascivious exhibition of the genitals or pubic area of any person.

    Regarding the last type of sexually explicit conduct - - "lascivious exhibition" - - not every exposure of the genitals or pubic area constitutes a lascivious exhibition. In determining whether a visual depiction constitutes a lascivious exhibition, you should consider the context and setting in which the genitalia or pubic area is being displayed. You may consider the overall content of the material. You may also consider such factors as whether the focal point of the visual depiction is on the minor's genitalia or pubic area, or whether there is some other focal point. You may consider whether the setting of the depiction is such as to make it appear to be sexually inviting or suggestive; for example, in a location or in a pose associated with sexual activity. In addition, you may consider whether the minor appears to be displayed in an unnatural pose or in inappropriate attire. You may also consider whether the minor is partially clothed or nude. You may consider whether the depiction appears to convey sexual coyness or an apparent willingness to engage in sexual activity, and whether the depiction appears to have been designed to elicit a sexual response in the viewer. Of course, a visual depiction need not involve all of these factors to be a lascivious exhibition.

ANNOTATIONS AND COMMENTS

18 USC § 2252(a)(2) provides:

    Any person who - -

    knowingly receives, or distributes, any visual depiction that has been mailed, or has been shipped or transported in interstate or foreign commerce, or which contains materials which have been mailed or so shipped or transported, by any means including by computer, . . . if - -

    (A) the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct; and 

    (B) such visual depiction is of such conduct; shall be punished as provided in subsection (b) of this section.

    Maximum Penalty: Fifteen (15) years and applicable fine when Defendant has prior conviction under this chapter or chapter 109A. 

    Ten (10) years and applicable fine when Defendant has no prior conviction under this chapter or chapter 109A.

    Definition of the relevant terms is taken from 18 USC § 2256.

    See United States v. X-citement Video, Inc., 513 U.S. 64, 115 S.Ct. 464, 471-72 (1994).

    The explanation of the term "lascivious exhibition" is derived from United States v. Dost, 636 F.Supp. 828, 832 (S.D. Ca. 1986), a decision that has been cited with approval by three circuits and many other district courts.

[For 1997 Version of this instruction, see below]

18 USC 2252(a)(2) provides:

Any person who --

knowingly receives, or distributes, any visual depiction that has been mailed, or has been shipped or transported in interstate or foreign commerce, or which contains materials which have been mailed or so shipped or transported, by any means including by computer, . . . if --

(i) the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct; and

(ii) such visual depiction is of such conduct; shall be punished as provided in subsection (b) of this section.

Maximum Penalty: Fifteen (15) years and applicable fine when Defendant has prior conviction under this chapter or chapter 109A.

Ten (10) years and applicable fine when Defendant has no prior conviction under this chapter or chapter 109A.

See United States v. X-citement Video, Inc., U.S. , 115 S.Ct. 464, 471-72 (1994).

The explanation of the term "lascivious exhibition" is derived from United States v. Dost, 636 F.Supp. 828, 832 (S.D. Ca. 1986), a decision that has been cited with approval by three circuits and many other district courts.

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

OI 75.3
Child Pornography
Transporting Or Shipping
(18 USC 2252A(a)(1))

    Title 18, United States Code, Section 2252A(a)(1), makes it a Federal crime or offense for any person to knowingly [transport] [ship] [mail] any child pornography in interstate or foreign commerce [including by computer].

    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] [shipped] [mailed] [by computer] in interstate or foreign commerce an item or items of “child pornography,” as charged; and

    Second: That at the time of such [transportation] [shipment] [mailing] [by computer] the Defendant believed that such item[s] constituted or contained “child pornography” as hereafter defined.

    The term “interstate or foreign commerce” means the movement of property from one state to another state or from one state to another country. The term “State” includes a State of the United States, the District of Columbia, and any commonwealth, territory, or possession of the United States.

    [The term “computer” means an electronic, magnetic, optical, electrochemical, or other high speed data processing device performing logical, arithmetic, or storage functions, and includes any data storage facility or communications facility directly related to or operating in conjunction with such device, but such term does not include an automated typewriter or typesetter, a portable hand-held calculator, or other similar device.]

    The term “child pornography” means any visual depiction including any photograph, film, video, picture, or computer or computer generated image or picture, whether made or produced by electronic, mechanical, or other means, of sexually explicit conduct where [the production of such visual depiction involves the use of a minor engaging in sexually explicit conduct] [such visual depiction has been created, adapted, or modified to appear that an identifiable minor is engaging in sexually explicit conduct].

    The term “minor” means any person under the age of eighteen (18) years.

    [The term “identifiable minor” means a person [who was a minor at the time the visual depiction was created, adapted, or modified] [whose image as a minor was used in creating, adapting or modifying the visual depiction] and who is recognizable as an actual person by the person’s face, likeness, or other distinguishing characteristic, such as a unique birthmark or other recognizable feature; provided that the Government is not required to prove the actual identity of the identifiable minor.]

    The term “visual depiction” includes undeveloped film and videotape, and data stored on computer disk or by electronic means which is capable of conversion into a visual image.

    The term “sexually explicit conduct” means actual or simulated:

    (a) sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal contact, whether between persons of the same or opposite sex;

    (b) bestiality;

    (c) masturbation;

    (d) sadistic or masochistic abuse; or

    (e) lascivious exhibition of the genitals or public area of any person.

    Regarding the last type of sexually explicit conduct - - “lascivious exhibition” - - not every exposure of the genitals or pubic area constitutes a lascivious exhibition. In determining whether a visual depiction constitutes a lascivious exhibition, you should consider the context and setting in which the genitalia or pubic area is being displayed. You may consider the overall content of the material. You may also consider such factors as whether the focal point of the visual depiction is on the minor’s genitalia or pubic area, or whether there is some other focal point. You may consider whether the setting of the depiction is such as to make it appear to be sexually inviting or suggestive; for example, in a location or in a pose associated with sexual activity. In addition you may consider whether the minor appears to be displayed in an unnatural pose or in inappropriate attire. You may also consider whether the minor is partially clothed or nude. You may consider whether the depiction appears to convey sexual coyness or an apparent willingness to engage in sexual activity, and whether the depiction appears to have been designed to elicit a sexual response in the viewer. Of course, a visual depiction need not involve all of these factors to be a lascivious exhibition.

ANNOTATIONS AND COMMENTS

    18 USC § 2252A(a)(1) provides:

    (a) any person who - - (1) knowingly mails, or transports or ships in interstate or foreign commerce by any means, including computer any child pornography [shall be guilty of an offense against the United States].

    Maximum Penalty: Fifteen (15) years and applicable fine when Defendant has no prior conviction; not less than five (5) nor more than thirty (30) years and applicable fine when Defendant has prior conviction.

    Definition of the relevant terms is taken from 18 USC § 2256. However, the key term “child pornography” is limited to the definitions given in 18 USC § 2256(8)(A) and (C). Subsections (B) and (D) of that section were declared to be “overbroad
and unconstitutional” in Ashcroft v. The Free Speech Coalition, ____ U.S. ____ , 122 S.Ct. 1389 (2002).

    Note that 1998 amendment to § 2252A added subsections (c) and (d) allowing certain affirmative defenses.

    United States v. X-Citement Video, Inc., 513 U.S. 64, 111 S.Ct. 464 (1992) held that 18 USC § 2252(a)(1) and (2) requires proof of scienter as to the age of the performer. While the structure of § 2252A(a)(1) and (2) is different (using “child pornography” instead of “visual depiction involving the use of a minor”), § 2252A(a)(1) and (2) also contains as an element scienter the age of the performer. See United States v. Acheson, 195 F.3d 645, 653 (11th Cir. 1999) (the government must show not only that the individual received or distributed the material, but that he did so believing that the material was sexually explicit in nature and that it depicted a person who appeared to him to be, or that he anticipated would be,
under 18 years of age.) 

    The explanation of the term “lascivious exhibition” is derived from United States v. Dost, 636 F.Supp. 828, 832 (S.D. Ca. 1986), a decision that has been cited with approval by three circuits and many other district courts.

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

OI 75.4
Child Pornography
Receiving, Possessing, Distributing
(18 USC § 2252A(a)(2)(A) and (5)(B))

    Title 18, United States Code, makes it a Federal crime or offense for any person to knowingly [receive] [possess] [distribute] any child pornography that has been [transported] [shipped] [mailed] in interstate or foreign commerce [including by computer].

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

    First: That