PATTERN JURY INSTRUCTIONS - ELEVENTH CIRCUIT - 2003
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Special Instructions (SI 1.1 - SI 18)

        SI 1.1    Accomplice – Informer – Immunity
        SI 1.2    Accomplice – Codefendant – Plea Agreement
        SI 1.3    Accomplice – Addictive Drugs – Immunity
        SI 2.1    Confession – Statement (Single Defendant)
        SI 2.2    Confession – Statement (Multiple Defendants)
        SI 3       Identification Testimony
        SI 4       Similar Acts Evidence (Rule 404(B), FRE)
        SI 5       Notetaking
        SI 6       Possession
        SI 7       Aiding And Abetting (Agency) (18 USC 2)
        SI 8       Deliberate Ignorance (As Proof Of Knowledge)
        SI 9       Intentional Violation Of A Known Legal Duty (As Proof Of Willfulness Under The Internal Revenue Code)
        SI 10     Lesser Included Offense(s) And Sentence Enhancers
        SI 11     Attempt(s)
        SI 12     Character Evidence
        SI 13.1  Entrapment
        SI 13.2  Entrapment Evaluating Conduct Of Government Agents
        SI 14     Alibi
        SI 15     Insanity
        SI 16     Duress And Coercion (Justification Or Necessity)
        SI 17     Good Faith Defense To Charge Of Intent To Defraud
        SI 18     Good Faith Reliance Upon Advice Of Counsel
        NOTE   Re: Defense Theory Instructions

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

NCJIC Materials Related To This Instruction:

25.6 Accomplices: Cautionary Instructions

25.6.2 Accomplice, Informer, Immunity: Testimony From Such Witness Should Be Considered With Greater Caution

25.7 Witness Or Informant Receiving Benefit From Prosecution

    The testimony of some witnesses must be considered with more caution than the testimony of other witnesses.

    For example, a paid informer, or a witness who has been promised that he or she will not be charged or prosecuted, or a witness who hopes to gain more favorable treatment in his or her own case, may have a reason to make a false statement because the witness wants to strike a good bargain with the Government.

    So, while a witness of that kind may be entirely truthful when testifying, you should consider that testimony with more caution than the testimony of other witnesses.

ANNOTATIONS AND COMMENTS

    United States v. Shearer, 794 F.2d 1545, 1551 (11th Cir. 1986) approved similar instruction. See also United States v. Solomon, 856 F.2d 1572 (11th Cir. 1988), cert. denied, 489 U.S. 1070, 109 S.Ct. 1352, 103 L.Ed.2d 820 (1989) (holding that, as a general rule, a cautionary instruction regarding the credibility of accomplices should be given).

[For 1997 Version of this instruction, see below]

1997 Version:

United States v. Shearer, 794 F.2d 1545, 1551 (11th Cir. 1986) approved similar instruction. See also United States v. Solomon, 856 F.2d 1572 (11th Cir. 1988), cert. denied, 489 U.S. 1070, 109 S.Ct. 1352, 103 L.Ed.2d 820 (1989) (holding that, as a general rule, a cautionary instruction regarding the credibility of accomplices should be given).

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

NCJIC Materials Related To This Instruction:

16.18 Disposition Of Charges Against Codefendant

    The testimony of some witnesses must be considered with more caution than the testimony of other witnesses.

    In this case the Government called as one of its witnesses a person named as a co-Defendant in the indictment, with whom the Government has entered into a plea agreement providing for the possibility of a lesser sentence than the witness would otherwise be exposed to. Such plea bargaining, as it's called, has been approved as lawful and proper, and is expressly provided for in the rules of this Court. However, a witness who hopes to gain more favorable treatment may have a reason to make a false statement because the witness wants to strike a good bargain with the Government. So, while a witness of that kind may be entirely truthful when testifying, you should consider such testimony with more caution than the testimony of other witnesses. 

    And, of course, the fact that a witness has plead guilty to the crime charged in the indictment is not evidence, in and of itself, of the guilt of any other person.

ANNOTATIONS AND COMMENTS

    United States v. Solomon, 856 F.2d 1572, 1578-79 (11th Cir. 1988), cert. denied, 489 U.S. 1070, 109 S.Ct. 1352, 103 L.Ed.2d 820 (1989) approved similar instruction.

[For 1997 Version of this instruction, see below]

1997 Version:

United States v. Solomon, 856 F.2d 1572, 1578-79 (11th Cir. 1988), cert. denied, 489 U.S. 1070, 109 S.Ct. 1352, 103 L.Ed.2d 820 (1989) approved similar instruction.

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

NCJIC Materials Related To This Instruction:

25.5 Witness Immunity

    The testimony of some witnesses must be considered with more caution than the testimony of other witnesses.

    For example, a witness who was using addictive drugs during the time he or she testified about may have an impaired memory
concerning the events that occurred during that time. Also, a witness who has been promised that he or she will not be charged or prosecuted, or a witness who hopes to gain more favorable treatment in his or her own case, may have a reason to make a false statement because the witness wants to strike a good bargain with the Government.

    So, while a witness of that kind may be entirely truthful when testifying, you should consider that testimony with more caution than the testimony of other witnesses.

ANNOTATIONS AND COMMENTS

    United States v. Fajardo, 787 F.2d 1523, 1527 (11th Cir. 1986) approved this instruction. See also United States v. Solomon, 856 F.2d 1572 (11th Cir. 1988), cert. denied, 489 U.S. 1070, 109 S.Ct. 1352, 103 L.Ed.2d 820 (1989) (holding that, as a general rule, a cautionary instruction regarding the credibility of accomplices should be given).

[For 1997 Version of this instruction, see below]

1997 Version:

United States v. Fajardo, 787 F.2d 1523, 1527 (11th Cir. 1986) approved this instruction. See also United States v. Solomon, 856 F.2d 1572 (11th Cir. 1988), cert. denied, 489 U.S. 1070, 109 s.Ct. 1352, 103 L.Ed.2d 820 (1989) (holding that, as a general rule, a cautionary instruction regarding the credibility of accomplices should be given).

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

NCJIC Materials Related To This Instruction:

Chapter 28 Out Of Court Statements By Defendant

    When the Government offers testimony or evidence that a Defendant made a statement or admission to someone, after being arrested or detained, the jury should consider the evidence concerning such a statement with caution and great care.

    It is for you to decide (1) whether the Defendant made the statement and (2) if so, how much weight to give to it. In making these decisions you should consider all of the evidence about the statement, including the circumstances under which the Defendant may have made it.

ANNOTATIONS AND COMMENTS

    United States v. Clemons, 32 F.3d 1504, 1510 (11th Cir. 1994), cert. denied, 115 S.Ct. 1801, 131 L.Ed.2d 728 (1995) approved similar instruction.

[For 1997 Version of this instruction, see below]

1997 Version:

United States v. Clemons, 32 F.3d 1504, 1510 (11th Cir. 1994), cert. denied, 115 S.Ct. 1801, 131 L.Ed.2d 728 (1995) approved similar instruction.

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

NCJIC Materials Related To This Instruction:

Chapter 28 Out Of Court Statements By Defendant

    When the Government offers testimony or evidence that a Defendant made a statement or admission to someone, after being arrested or detained, the jury should consider the evidence concerning such a statement with caution and great care.

    It is for you to decide (1) whether the Defendant made the statement and (2) if so, how much weight to give to it. In making these decisions you should consider all of the evidence about the statement, including the circumstances under which the Defendant may have made it. 

    Of course, any such statement should not be considered in any way whatever as evidence with respect to any other Defendant on trial.

[For 1997 Version of this instruction, see below]

1997 Version:

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

NCJIC Materials Related To This Instruction:

Chapter 31: Identification: Eyewitness (Mistaken Identity)

    In any criminal case the Government must prove, of course, the identity of the Defendant as the person who committed the alleged crime.

    When a witness points out and identifies a Defendant as the person who committed a crime, you must first decide, as with any other witness, whether that witness is telling the truth. Then, if you believe the witness was truthful, you must still decide how accurate the identification was. Again, I suggest that you ask yourself a number of questions: Did the witness have an adequate opportunity at the time of the crime to observe the person in question? What length of time did the witness have to observe the person? What were the prevailing conditions at that time in terms of visibility or distance and the like? Had the witness known or observed the person at earlier times?

    You may also consider the circumstances surrounding the later identification itself including, for example, the manner in which the Defendant was presented to the witness for identification, and the length of time that elapsed between the incident in question and the witness' identification of the Defendant.

    After examining all of the testimony and evidence in the case, if you have a reasonable doubt as to the identity of the Defendant as the perpetrator of the offense charged, you must find the Defendant not guilty.

ANNOTATIONS AND COMMENTS

    United States v. Martinez, 763 F.2d 1297, 1304 (11th Cir. 1985) approved this instruction.

[For 1997 Version of this instruction, see below]

1997 Version:

United States v. Martinez, 763 F.2d 1297, 1304 (11th Cir. 1985) approved this instruction.

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

NCJIC Materials Related To This Instruction:

26.5 Uncharged Acts To Prove Issues Other Than Propensity

    During the course of the trial, as you know from the instructions I gave you then, you heard evidence of acts of the Defendant which may be similar to those charged in the indictment, but which were committed on other occasions. You must not consider any of this evidence in deciding if the Defendant committed the acts charged in the indictment. However, you may consider this evidence for other, very limited, purposes. 

    If you find beyond a reasonable doubt from other evidence in this case that the Defendant did commit the acts charged in the indictment, then you may consider evidence of the similar acts allegedly committed on other occasions to determine

 [whether the Defendant had the state of mind or intent necessary to commit the crime charged in the indictment]

or

[whether the Defendant acted according to a plan or in preparation for commission of a crime]

or

[whether the Defendant committed the acts for which the Defendant is on trial by accident or mistake].

ANNOTATIONS AND COMMENTS

    Rule 404. [FRE] Character Evidence Not Admissible To Prove Conduct; Exceptions; Other Crimes

* * * * *

(b) Other crimes, wrongs, or acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial. 

    United States v. Beechum, 582 F.2d 898 (5th Cir. 1978) (en banc) cert. denied, 440 U.S. 920, 99 S.Ct. 1244, 59 L.Ed.2d 472 (1979), discusses at length the tests to be applied in admitting or excluding evidence under Rule 404(b); and, more specifically, the different standards that apply depending upon the purpose of the evidence, i.e., to show intent versus identity, for example. See note 15 at pages 911-912. Beechum also approves a limiting instruction similar to this one. See note 23 at pages 917-918.

    Both the Supreme Court and the Eleventh Circuit have expressly endorsed the Beechum test. Huddleston v. United States, 485 U.S. 681, 108 S.Ct. 1496, 99 L.Ed.2d 771 (1988); United States v. Miller, 959 F.2d 1535 (11th Cir. 1992) (en banc), cert. denied, 506 U.S. 942, 113 S.Ct. 382, 121 L.Ed.2d 292 (1992).

[For 1997 Version of this instruction, see below]

1997 Version:

Rule 404. [F.R.E.] Character Evidence Not Admissible To Prove Conduct; Exceptions; Other Crimes

* * * * *

(b) Other crimes, wrongs, or acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial.

United States v. Beechum, 582 F.2d 898 (5th Cir. 1978) (en banc) cert. denied, 440 U.S. 920, 99 S.Ct. 1244, 59 L.Ed.2d 472 (1979), discusses at length the tests to be applied in admitting or excluding evidence under Rule 404(b); and, more specifically, the different standards that apply depending upon the purpose of the evidence, i.e., to show intent versus identity, for example. See note 15 at pages 911-912. Beechum also approves a limiting instruction similar to this one. See note 23 at pages 917-918.

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

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16.8 Juror Notetaking

    In this case you have been permitted to take notes during the course of the trial, and most of you - - perhaps all of you - - have taken advantage of that opportunity and have made notes from time to time.

    You will have your notes available to you during your deliberations, but you should make use of them only as an aid to your
memory. In other words, you should not give your notes any precedence over your independent recollection of the evidence or the lack of evidence; and neither should you be unduly influenced by the notes of other jurors.

    I emphasize that notes are not entitled to any greater weight than the memory or impression of each juror as to what the testimony may have been.

[For 1997 Version of this instruction, see below]

1997 Version:

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

NCJIC Materials Related To This Instruction:

Chapter 56: Possession

    The law recognizes several kinds of possession. A person may have actual possession or constructive possession. A person may also have sole possession or joint possession.

    A person who knowingly has direct physical control of something is then in actual possession of it.

    A person who is not in actual possession, but who has both the power and the intention to later take control over something either alone or together with someone else, is in constructive possession of it.

    If one person alone has possession of something, that possession is sole. If two or more persons share possession, such possession is joint.

    Whenever the word "possession" has been used in these instructions it includes constructive as well as actual possession, and also joint as well as sole possession.

ANNOTATIONS AND COMMENTS

    United States v. Hastamorir, 881 F.2d 1551 (11th Cir. 1989) approved this instruction.

[For 1997 Version of this instruction, see below]

1997 Version:

United States v. Hastamorir, 881 F.2d 1551 (11th Cir. 1989) approved this instruction.

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

NCJIC Materials Related To This Instruction:

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

    The guilt of a Defendant in a criminal case may be proved without evidence that the Defendant personally did every act involved in the commission of the crime charged. The law recognizes that, ordinarily, anything a person can do for one's self may also be accomplished through direction of another person as an agent, or by acting together with, or under the direction of, another person or persons in a joint effort.

    So, if the acts or conduct of an agent, employee or other associate of the Defendant are willfully directed or authorized by the Defendant, or if the Defendant aids and abets another person by willfully joining together with that person in the commission of a crime, then the law holds the Defendant responsible for the conduct of that other person just as though the Defendant had personally engaged in such conduct.

    However, before any Defendant can be held criminally responsible for the conduct of others it is necessary that the Defendant willfully associate in some way with the crime, and willfully participate in it. Mere presence at the scene of a crime and even knowledge that a crime is being committed are not sufficient to establish that a Defendant either directed or aided and abetted the crime. You must find beyond a reasonable doubt that the Defendant was a willful participant and not merely a knowing spectator.

ANNOTATIONS AND COMMENTS

    United States v. Broadwell, 870 F.2d 594, 607 (11th Cir. 1989), cert. denied, 493 U.S. 840, 110 S.Ct. 125, 107 L.Ed.2d 85 (1989) approved this instruction. See also United States v. Walker, 621 F.2d 163 (5th Cir. 1980), cert. denied, 450 U.S. 1000, 101 S.Ct. 1707, 68 L.Ed.2d 202 (1981).

[For 1997 Version of this instruction, see below]

1997 Version:

United States v. Broadwell, 870 F.2d 594, 607 (11th Cir. 1989), cert. denied, 493 U.S. 840, 110 S.Ct. 125, 107 L.Ed.2d 85 (1989) approved this instruction. See also United States v. Walker, 621 F.2d 163 (5th Cir. 1980), cert. denied, 450 U.S. 1000, 101 S.Ct. 1707, 68 L.Ed.2d 202 (1981).

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

NCJIC Materials Related To This Instruction:

47.4 Deliberate Ignorance/Willful Blindness

    When knowledge of the existence of a particular fact is an essential part of an offense, such knowledge may be established if the Defendant is aware of a high probability of its existence, unless the Defendant actually believes that it does not exist.

    So, with respect to the issue of the Defendant's knowledge in this case, if you find from all the evidence beyond a reasonable doubt that the Defendant believed that [he] [she] possessed ___________ , a controlled substance, and deliberately and consciously tried to avoid learning that there was _____________ in the package so possessed in order to be able to say, if apprehended, that [he] [she] did not know the contents of the package, you may treat such deliberate avoidance of positive knowledge as the equivalent of knowledge.

    In other words, you may find that a Defendant acted "knowingly" if you find beyond a reasonable doubt either: (1) that the Defendant actually knew that [he] [she] possessed __________ ; or (2) that [he] [she] deliberately closed [his] [her] eyes to what [he] [she] had every reason to believe was the fact. I must emphasize, however, that the requisite proof of knowledge on the part of the Defendant cannot be established by merely demonstrating that the Defendant was negligent, careless or foolish.

ANNOTATIONS AND COMMENTS

    United States v. Stone, 9 F.3d 934, 937 (11th Cir. 1993), cert. denied, 115 S.Ct. 111, 130 L.Ed.2d 58 (1994), "deliberate ignorance" instruction appropriate only when evidence in the record shows that the Defendant purposely contrived to avoid learning the truth.

    United States v. Aleman, 728 F.2d 492, 494 (11th Cir. 1984), this instruction should be given only if there are facts that suggest the Defendant consciously avoided knowledge, not when the Defendant has actual knowledge; see also United States v. Rivera, 944 F.2d 1563, 1570-72 (11th Cir. 1991) (describing circumstances in which deliberate ignorance instruction is appropriate) and United States v. Perez-Tosta, 36 F.3d 1552 (11th Cir. 1994) (approving a similar instruction).

    See also Basic Instruction 9.1.

[For 1997 Version of this instruction, see below]

1997 Version:

United States v. Stone, 9 F.3d 934, 937 (11th Cir. 1993), cert. denied, 115 S.Ct. 111, 130 L.Ed.2d 58 (1994), "deliberate ignorance" instruction appropriate only when evidence in the record shows that the Defendant purposely contrived to avoid learning the truth.

United States v. Aleman, 728 F.2d 492, 494 (11th Cir. 1984), this instruction should only be given if there are facts that suggest the Defendant consciously avoided knowledge, not when the Defendant has actual knowledge; see also United States v. Rivera, 944 F.2d 1563, 1570-72 (11th Cir. 1991) (describing circumstances in which deliberate ignorance instruction is appropriate).

See also Basic Instruction 9.1.

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

NCJIC Materials Related To This Instruction:

Chapter 46: Willfulness

    Intent and motive should not be confused. Motive is what prompts a person to act, while intent refers to the state of mind with which the act is done.

    So, if you find beyond a reasonable doubt that the acts constituting the crime charged were committed by the Defendant voluntarily as an intentional violation of a known legal duty - - that is, with specific intent to do something the law forbids - - then the element of "willfulness" as defined in these instructions has been satisfied even though the Defendant may have believed that the conduct was [religiously, politically or morally] required, or that ultimate good would result from such conduct.

    On the other hand, if you have a reasonable doubt as to whether the Defendant acted in good faith, sincerely believing [himself] [herself] to be exempt by the law [from the withholding of income taxes], then the Defendant did not intentionally violate a known legal duty - - that is, the Defendant did not act "willfully" - - and that essential part of the offense would not be established.

ANNOTATIONS AND COMMENTS

    United States v. Anderson, 872 F.2d 1508, 1518 (11th Cir. 1989), cert. denied, 493 U.S. 1004, 110 S.Ct. 566, 107 L.Ed.2d 540 (1989) approved this instruction and stated that it may be given when appropriate as a supplement to Basic Instruction 9.1 defining "willfully" in the usual way.

[For 1997 Version of this instruction, see below]

1997 Version:

United States v. Anderson, 872 F.2d 1508, 1518 (11th Cir. 1989), cert. denied, 493 U.S. 1004, 110 S.Ct. 566, 107 L.Ed.2d 540 (1989) approved this instruction and stated that it may be given when appropriate as a supplement to Basic Instruction 9.1 defining "willfully" in the usual way.

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

NCJIC Materials Related To This Instruction:

Volume 12: Lesser Offenses (Ch. 265-269)

    In some cases the law which a Defendant is charged with breaking actually covers two [or more] separate crimes - - one is more serious than the [second] [others] - - and the [second crime is] [other crimes are] generally called [a] "lesser included offense[s]." 

    So, in this case, with regard to the offense charged in Count ________ , if you should find the Defendant "not guilty" of that crime as defined in these instructions, you should then proceed to decide whether the Defendant is guilty or not guilty of the [first] lesser included offense of [give generic description of the lesser included offense]. The [first] lesser included offense would consist of proof beyond a reasonable doubt of all of the facts stated before as necessary to a conviction under Count ________ , except __________ .

    [If you find the Defendant “not guilty” of the crime as charged in Count ________ , and also find the Defendant “not guilty” of the first lesser included offense just discussed, you should then proceed to decide whether the Defendant is guilty or not guilty of a second lesser included offense of [give generic description of the second lesser included offense]. The second lesser included offense would consist of proof beyond a reasonable doubt of all of the facts stated before as necessary to a conviction under Count ___________ , except ____________ .]

ANNOTATIONS AND COMMENTS

    United States v. Alvarez, 755 F.2d 830 (11th Cir. 1985), cert. denied, 474 U.S. 905, 106 S.Ct. 274, 88 L.Ed.2d 235 (1985) and cert. denied, 482 U.S. 908, 107 S.Ct. 2489, 96 L.Ed.2d 380 (1987) approved use of lesser included offense instruction. 

    The Committee recognizes - - and cautions - - that sentence enhancing factors subject to the principle of Apprendi are not necessarily “elements” creating separate offenses for purposes of analysis in a variety of contexts. See United States v. Sanchez, 269 F.3d 1250, 1277 fn. 51 (11th Cir. 2001) en banc, cert. denied U.S. , 122 S.Ct. 1327 (2002). Even so, the lesser included offense model is an appropriate and convenient procedural mechanism for purposes of submitting sentence enhancers to a jury when required by the principle of Apprendi.

    The following is one form of verdict that may be used in cases in which the offense charged in the indictment embraces a lesser included offense or offenses in the traditional sense, or involves sentencing enhancers subject to Apprendi. Alternatively, especially in drug cases involving multiple Defendants and/or multiple forms of controlled substances, it may be preferable to use a form of special verdict for each Defendant (preceded by appropriate instructions concerning the reasons for, and the use of, such verdict forms). See infra, Offense Instructions 85 and 87.

Verdict

    1.     We, the Jury, find the Defendant [name of Defendant] _________ of the offense charged in Count [One] of the indictment.

[Note: Proceed to the remainder of the verdict form only if you find the Defendant not guilty of the offense as charged.]

    2.     We, the Jury, having found the Defendant [name of Defendant] not guilty of the offense as charged in Count [One] of the indictment, now find the Defendant ________ of the [first] lesser included offense in Count [One] of [give generic description of lesser included offense, i.e., conspiring to distribute less than 50 grams but not less than 5 grams of cocaine base].

[Note: Proceed to the remainder of the verdict form only if you find the Defendant not guilty of the first lesser included offense.]

3. We, the Jury, having found the Defendant [name of Defendant] not guilty of the first lesser included offense within Count [One] now find the Defendant _________ of the second lesser included offense in Count [One] of [give generic description of second lesser included offense, i.e., conspiring to distribute less than 5 grams of cocaine base].

    So Say We All.

Date: ______________        Foreperson ______________

[For 1997 Version of this instruction, see below]

1997 Version:

United States v. Alvarez, 755 F.2d 830 (11th Cir. 1985), cert. denied, 474 U.S. 905, 106 S.Ct. 274, 88 L.Ed.2d 235 (1985) and cert. denied, 482 U.S. 908, 107 S.Ct. 2489, 96 L.Ed.2d 380 (1987) approved use of lesser included offense instruction.

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

SI 11  Attempt(s)

    In some cases it is a crime for anyone to attempt the commission of an offense even though the attempt fails and the intended offense is not actually carried out or fully committed. So, in this instance theDefendant is charged with attempting to commit the offense of _________ [as alleged in Count __________ .]

    [The specific facts the Government must prove beyond a reasonable doubt to establish the offense of [give generic description of substantive offense involved] are: [give required elements unless they are already included elsewhere in the charge].]

    The Defendant can be found guilty of an attempt to commit that offense only if both of the following facts are proved beyond a reasonable doubt:

    First: That the Defendant knowingly and willfully intended to commit the offense of _________, as charged; and

    Second: That the Defendant engaged in conduct which constituted a substantial step toward the commission of the crime and which strongly corroborates the Defendant’s criminal intent.

    A “substantial step” means some important action leading to the commission of a crime as distinguished from some inconsequential or unimportant act. It must be something beyond mere preparation; it must be an act which, unless frustrated by some condition or event, would have resulted, in the ordinary and likely course of things, in the commission of the crime being attempted.

ANNOTATIONS AND COMMENTS

    Instruction taken from United States v. McDowell, 250 F.3d 1354, 1365 (11th Cir. 2001).

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

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251.4 Good Character Of Defendant

    The Defendant has offered evidence of the Defendant's traits of character, and such evidence may give rise to a reasonable doubt. 

    Where a Defendant has offered testimony that the Defendant is an honest and law-abiding citizen, the jury should consider that testimony, along with all the other evidence, in deciding whether the Government has proved beyond a reasonable doubt that the Defendant committed the crime charged.

ANNOTATIONS AND COMMENTS

    Rule 404. [FRE] Character Evidence Not Admissible To Prove Conduct; Exceptions; Other Crimes

    (a) Character evidence generally. Evidence of a person's character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except:

    (1) Character of accused. Evidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the same;. . .

United States v. Broadwell, 870 F.2d 594, 609 (11th Cir. 1989), cert. denied, 493 U.S. 840, 110 S.Ct. 125, 107 L.Ed.2d 85 (1989), approved this instruction. 

    United States v. Darland, 626 F.2d 1235 (5th Cir. 1980) held that it can be plain error to refuse this instruction when the Defendant offers evidence of good character; and, further, the admission of such evidence may not be conditioned on the Defendant testifying as a witness. Character evidence may be excluded, however, when the proffered witness has an inadequate basis for expressing an opinion as to the Defendant’s character. United States v. Gil, 204 F.3d 1347 (11th Cir. 2000). A distinction must be drawn between evidence of a pertinent trait of the Defendant's character, offered under FRE 404(a)(1), and evidence of the character of a witness for truthfulness (including the Defendant as a witness) offered under FRE 608(a). This instruction should be given when the evidence has been admitted under Rule 404. Basic Instruction 6.7 should be given when evidence has been admitted under Rule 608.

    In either case - - whether character evidence is admitted under Rule 404 or Rule 608 - -Rule 405(a) provides that such "proof may be made by testimony as to reputation or by testimony in the form of an opinion."

[For 1997 Version of this instruction, see below]

1997 Version:

FRE 404 Character Evidence Not Admissible To Prove Conduct; Exceptions; Other Crimes

(a) Character evidence generally. Evidence of a person's character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except:

(1) Character of accused. Evidence of a pertinent trait of character offered by an accused, or by the prosection to rebut the same; . . .

United States v. Broadwell, 870 F.2d 594, 609 (11th Cir. 1989), cert. denied, 493 U.S. 840, 110 S.Ct. 125, 107 L.Ed.2d 85 (1989), approved this instruction.

United States v. Darland, 626 F.2d 1235 (5th Cir. 1980) held that it can be plain error to refuse this instruction when the Defendant offers evidence of good character; and, further, the admission of such evidence may not be conditioned on the Defendant testifying as a witness. A distinction must be drawn between evidence of a pertinent trait of the Defendant's character, offered under FRE 404(a)(1), and evidence of the character of a witness for truthfulness (including the Defendant as a witness) offered under FRE 608(a). This instruction should be given when the evidence has been admitted under Rule 404. Basic Instruction 6.7 should be given when evidence has been admitted under FRE 608.

In either case -- whether character evidence is admitted under FRE 404 or FRE 608 -- FRE 405(a) provides that such "proof may be made by testimony as to reputation or by testimony in the form of an opinion."

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

NCJIC Materials Related To This Instruction:

257.3 Entrapment

    The Defendant asserts "entrapment" concerning the offense charged in the indictment. A Defendant is "entrapped" when law enforcement officers [or cooperating individuals under their direction] induce or persuade a Defendant to commit a crime that the Defendant had no previous intent to commit; and the law as a matter of policy forbids a conviction in such a case.

    However, there is no entrapment where a Defendant is ready and willing to break the law and the Government merely provides what appears to be a favorable opportunity for the Defendant to commit the crime. For example, it is not entrapment for a Government agent to pretend to be someone else and to offer, either directly or through an informer or other decoy, to engage in an unlawful transaction with the Defendant. So, a Defendant would not be a victim of entrapment if you should find, beyond a reasonable doubt, that the Defendant, before contact with Government officers [or cooperating individuals], was ready, willing and able to commit the crime charged in the indictment whenever opportunity was afforded and that the Government did no more than offer an opportunity. 

    On the other hand, if the evidence in the case leaves you with a reasonable doubt whether the Defendant had any intent to commit the crime except for inducement or persuasion on the part of some Government officer [or cooperating individual], then it is your duty to find the Defendant not guilty.

ANNOTATIONS AND COMMENTS

    The former version of this instruction (Special Instruction 9, Pattern Jury Instructions, Criminal Cases, Eleventh Circuit 1985) was expressly approved in United States v. Davis, 799 F.2d 1490, 1493-94 (11th Cir. 1986). See also United States v. King, 73 F.3d 1564, 1569-71 (11th Cir. 1996), cert. denied, 519 U.S. 886, 117 S.Ct. 220, 136 L.Ed.2d 153 (1996).

    However, in Jacobson v. United States, 503 U.S. 540, 112 S.Ct. 1535, 118 L.Ed.2d 174 (1992), the Supreme Court held that the necessary predisposition of the Defendant must have existed before the Defendant was approached by Government agents or cooperating informants, and in United States v. Brown, 43 F.3d 618, 628 at n.8 (11th Cir. 1995), cert. denied, 516 U.S. 917, 116 S.Ct. 309, 133 L.Ed.2d 212 (1995), the Court of Appeals upheld the sufficiency and correctness of the former instruction but implied that clarification might be appropriate in the light of Jacobson. The present reformulation of the instruction on entrapment makes that clarification.

[For 1997 Version of this instruction, see below]

1997 Version:

The former version of this instruction (Special Instruction 9, Pattern Jury Instructions, Criminal Cases, Eleventh Circuit 1985) was expressly approved in United States v. Davis, 799 F.2d 1490, 1493-94 (11th Cir. 1986). See also United States v. King, 73 F.3d 1564, 1569-71 (11th Cir. 1997).

However, in Jacobson v. United States, 503 U.S. 540, 112 S.Ct. 1535, 118 L.Ed.2d 174 (1992), the Supreme Court held that the necessary predisposition of the Defendant must have existed before the Defendant was approached by Government agents or cooperating informants, and in United States v. Brown, 43 F.2d 618, 628 at n.8 (11th Cir. 1995), cert. denied, U.S. , 116 S.Ct. 309, 133 L.Ed.2d 212 (1995), the Court of Appeals upheld the sufficiency and correctness of the former instruction but implied that clarification might be appropriate in the light of Jacobson. The present reformulation of the instruction on entrapment makes that clarification.

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

NCJIC Materials Related To This Instruction:

257.3.5 Entrapment: Who May Entrap

    The Defendant asserts "entrapment" concerning the offense charged in the indictment. A Defendant is "entrapped" when law enforcement officers [or cooperating individuals under their direction] induce or persuade a Defendant to commit a crime that the Defendant had no previous intent to commit; and the law as a matter of policy forbids a conviction in such a case.

    However, there is no entrapment where a Defendant is ready and willing to break the law and the Government merely provides what appears to be a favorable opportunity for the Defendant to commit the crime. For example, it is not entrapment for a Government agent to pretend to be someone else and to offer, either directly or through an informer or other decoy, to engage in an unlawful transaction with the Defendant, and it is not for you to evaluate the conduct of law enforcement officials, or the conduct of persons acting for or at the request of law enforcement officials, including informers and cooperating witnesses, to determine if you approve or disapprove of that conduct, or to determine if you think that conduct was moral or immoral, except to the extent that such conduct may bear on the central issue of whether a Defendant was ready and willing to break the law and the Government merely provided the Defendant with what appeared to be a favorable opportunity.

    So, a Defendant would not be a victim of entrapment if you should find, beyond a reasonable doubt, that the Defendant, before contact with Government officers [or cooperating individuals], was ready, willing and able to commit the crime charged in the indictment whenever opportunity was afforded and that the Government did no more than offer an opportunity.

    On the other hand, if the evidence in the case leaves you with a reasonable doubt whether the Defendant had any intent to commit the crime except for inducement or persuasion on the part of some Government officer [or cooperating individuals], then it is your duty to find the Defendant not guilty.

ANNOTATIONS AND COMMENTS

    The former version of this instruction (Special Instruction 9, Pattern Jury Instructions, Criminal Cases, Eleventh Circuit 1985) was expressly approved in United States v. Davis, 799 F.2d 1490, 1493-94 (11th Cir. 1986). See also United States v. King, 73 F.3d 1564, 1569-71 (11th Cir. 1996), cert. denied, 519 U.S. 886, 117 S.Ct. 220, 136 L.Ed.2d 153 (1996).

    However, in Jacobson v. United States, 503 U.S. 540, 112 S.Ct. 1535, 118 L.Ed.2d 174 (1992), the Supreme Court held that the necessary predisposition of the Defendant must have existed before the Defendant was approached by Government agents or cooperating informants, and in United States v. Brown, 43 F.3d 618, 628 at n.8 (11th Cir. 1995), cert. denied, 516 U.S. 917, 116 S.Ct. 309, 133 L.Ed.2d 212 (1995), the Court of Appeals upheld the sufficiency and correctness of the former instruction but implied that clarification might be appropriate in the light of Jacobson. The present reformulation of the instruction on entrapment makes that clarification.

[For 1997 Version of this instruction, see below]

1997 Version:

The former version of this instruction (Special Instruction 9, Pattern Jury Instructions, Criminal Cases, Eleventh Circuit 1985) was expressly approved in United States v. Davis, 799 F.2d 1490, 1493-94 (11th Cir. 1986). See also United States v. King, 73 F.3d 1564, 1569-71 (11th Cir. 1997).

However, in Jacobson v. United States, 503 U.S. 540, 112 S.Ct. 1535, 118 L.Ed.2d 174 (1992), the Supreme Court held that the necessary predisposition of the Defendant must have existed before the Defendant was approached by Government agents or cooperating informants, and in United States v. Brown, 43 F.2d 618, 628 at n.8 (11th Cir. 1995), cert. denied, U.S. , 116 S.Ct. 309, 133 L.Ed.2d 212 (1995), the Court of Appeals upheld the sufficiency and correctness of the former instruction but implied that clarification might be appropriate in the light of Jacobson. The present reformulation of the instruction on entrapment makes that clarification.

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

NCJIC Materials Related To This Instruction:

251.2 Alibi

    Evidence has been introduced tending to establish an alibi - - that the Defendant was not present at the time when, or at the place where, the Defendant is alleged to have committed the offense charged in the indictment. 

    It is, of course, the Government's burden to establish beyond a reasonable doubt each of the essential elements of the offense, including the involvement of the Defendant; and if, after consideration of all the evidence in the case, you have a reasonable doubt as to whether the Defendant was present at the time and place as alleged in the indictment, you must find the Defendant not guilty.

ANNOTATIONS AND COMMENTS

    United States v. Rhodes, 569 F.2d 384 (5th Cir. 1978), cert. denied, 439 U.S. 844, 99 S.Ct. 138, 58 L.Ed.2d 143 (1978) approved instruction in substantially same form.

[For 1997 Version of this instruction, see below]

1997 Version:

United States v. Rhodes, 569 F.2d 384 (5th Cir. 1978), cert. denied, 439 U.S. 844, 99 S.Ct. 138, 58 L.Ed.2d 143 (1978) approved instruction in substantially same form.

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

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256.4 Insanity

    There is an issue in this case concerning the sanity of the Defendant at the time of the events alleged in the indictment. If you
conclude that the Government has proved beyond a reasonable doubt that the Defendant committed the crime as charged, you must then consider whether the Defendant should be found "not guilty only by reason of insanity."

    The Defendant was insane as the law defines that term only if, as a result of a severe mental disease or defect, the Defendant was unable to appreciate the nature and quality or the wrongfulness of the Defendant's acts. Mental disease or defect does not otherwise constitute a defense.

    On the issue of insanity, it is the Defendant who must prove insanity by clear and convincing evidence. You should render a verdict of "not guilty only by reason of insanity" if you are persuaded by clear and convincing evidence that the Defendant was insane when the crime was committed.

    Remember, then, that there are three possible verdicts in this case: guilty, not guilty, and not guilty only by reason of insanity.

ANNOTATIONS AND COMMENTS

    18 USC 17 provides:

    (a) Affirmative defense.--It is an affirmative defense to a prosecution under any Federal statute that, at the time of the commission of the acts constituting the offense, the defendant, as a result of a severe mental disease or defect, was unable to appreciate the nature and quality or the wrongfulness of his acts. Mental disease or defect does not otherwise constitute a defense.

    (b) Burden of proof.--The defendant has the burden of proving the defense of insanity by clear and convincing evidence.

    See Also 18 USC 4242:

    4242. Determination of the existence of insanity at the time of the offense.

* * * * * *

    (b) Special verdict.--If the issue of insanity is raised by notice as provided in Rule 12.2 of the Federal Rules of Criminal Procedure on motion of the defendant or of the attorney for the Government, or on the court's own motion, the jury shall be instructed to find, or, in the event of a non jury trial, the court shall find the defendant--

(1) guilty;
(2) not guilty; or
(3) not guilty only by reason of insanity.

See United States v. Owens, 854 F.2d 432 (11th Cir. 1988) (describing the circumstances in which the insanity instruction should be given).

[For 1997 Version of this instruction, see below]

1997 Version:

18 USC 17 provides:

(a) Affirmative defense.--It is an affirmative defense to a prosecution under any Federal statute that, at the time of the commission of the acts constituting the offense, the defendant, as a result of a severe mental disease or defect, was unable to appreciate the nature and quality or the wrongfulness of his acts. Mental disease or defect does not otherwise constitute a defense.

(b) Burden of proof.--The defendant has the burden of proving the defense of insanity by clear and convincing evidence.

See Also 18 USC 4242:

4242. Determination of the existence of insanity at the time of the offense.

* * * * * *

(b) Special verdict.-- If the issue of insanity is raised by notice as provided in Rule 12.2 of the FRCRP on motion of the defendant or of the attorney for the Government, or on the court's own motion, the jury shall be instructed to find, or, in the event of a non jury trial, the court shall find the defendant--

(1) guilty;

(2) not guilty; or

(3) not guilty only by reason of insanity.

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

NCJIC Materials Related To This Instruction:

254.1 Duress/Coercion

    It is the theory of the defense in this case that although the Defendant may have committed the acts charged in the indictment, the Defendant did not do so [voluntarily] [willfully] but only because of duress or coercion in the form of intimidation and force, or threats of force and serious bodily harm to the Defendant [or to someone else].

    In order to excuse an act that would otherwise be criminal, however, it must appear from the evidence:

    First: That the Defendant was under unlawful and present, imminent, and impending threat of death or serious bodily injury [to himself] [to someone else];

    Second: That the Defendant did not negligently or recklessly place [himself] [herself] in a situation where [he] [she] would be forced to engage in criminal conduct;

    Third: That the Defendant had no reasonable legal alternative to violating the law; and

    Fourth: That there was a direct causal relationship between the criminal action and the avoidance of the threatened harm.

    [If your consideration of the evidence in the case concerning each of these factors leaves you with a reasonable doubt that the Defendant acted willfully as charged, then it is your duty to find the Defendant not guilty.]

    [It is the responsibility of the Defendant to prove every essential part of [his] [her] claim of [duress and coercion] [justification or necessity] by a preponderance of the evidence. This is sometimes called the burden of proof or burden of persuasion. A preponderance of the evidence simply means an amount of evidence which is enough to persuade you that the Defendant’s claim is more likely true than not true.]

ANNOTATIONS AND COMMENTS

    This instruction is taken from United States v. Deleveaux, 205 F.3d 1292 (11th Cir. 2000), cert. denied, 530 U.S. 1264, 120 S.Ct. 2724 (2000). See also United States v. Lee, 694 F.2d 649 (11th Cir. 1983), cert. denied, 460 U.S. 1086, 103 S.Ct. 1779 (1983), and United States v. Herrera-Britto, 739 F.2d 551 (11th Cir. 1984).

    In Deleveaux the Court of Appeals cautioned that this defense is available in only “extraordinary circumstances” (205 F.3d at 1297), and the holding of the Court was expressly limited to prosecutions under 18 USC 922(g)(1) - - felon in possession of a firearm. See Offense Instruction 33.6, infra. The Deleveaux Court also held that because 922(g)(1) does not contain a mens rea element - - so that the defense does not negate an element of the offense but is offered as an affirmative defense to the charge - - the Defendant must sustain the burden of proof by a preponderance of the evidence. See also United States v. Bailey, 444 U.S. 394, 100 S.Ct. 624 (1980).

    This instruction has been prepared to cover both situations - - cases in which the theory of defense negates mens rea such that the Government retains the ultimate burden of proof, and cases in which the defense is an affirmative defense as to which the Defendant takes on the burden of proof. See Ninth Circuit Manual of Model Jury Instructions (Criminal, 2000), Instruction Nos. 6.5 and 6.6.

    United States v. Bailey, supra, discusses the common law distinction between coercion/duress and necessity/justification, and notes that “[m]odern cases have tended to blur the distinction . . . “ (44 U.S. at 409-410, 100 S.Ct. at 634).

    With respect to coercion directed toward persons other than the Defendant, see United States v. Haney, F.3d (10th Cir. 2002), WL 652253.

[For 1997 Version of this instruction, see below]

1997 Version:

United States v. Lee, 694 F.2d 649 (11th Cir. 1983), cert. denied, 460 U.S. 1086, 103 S.Ct. 1779, 76 L.Ed.2d 350 (1983) articulates the general rule that this instruction is appropriate only when there is evidence that the Defendant acted under threat of imminent physical harm without opportunity to escape or summon the authorities.

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

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252.10.2 Good Faith

    Good faith is a complete defense to the charges in the indictment since good faith on the part of the Defendant is inconsistent with intent to defraud or willfulness which is an essential part of the charges. The burden of proof is not on the Defendant to prove good faith, of course, since the Defendant has no burden to prove anything. The Government must establish beyond a reasonable doubt that the Defendant acted with specific intent to defraud as charged in the indictment.

    One who expresses an honestly held opinion, or an honestly formed belief, is not chargeable with fraudulent intent even though the opinion is erroneous or the belief is mistaken; and, similarly, evidence which establishes only that a person made a mistake in judgment or an error in management, or was careless, does not establish fraudulent intent.

    On the other hand, an honest belief on the part of the Defendant that a particular business venture was sound and would ultimately succeed would not, in and of itself, constitute "good faith" as that term is used in these instructions if, in carrying out that venture, the Defendant knowingly made false or fraudulent representations to others with the specific intent to deceive them.

ANNOTATIONS AND COMMENTS

    United States v. Goss, 650 F.2d 1336 (5th Cir. 1981), failure to give this instruction as a theory-of-defense charge, when requested to do so, is error if there is any evidentiary foundation to support the Defendant's claim. Note, however, that there must be some evidentiary basis for the request. If the usual instructions are given defining willfulness and intent to defraud, that will ordinarily suffice in the absence of evidence of good faith. United States v. Boswell, 565 F.2d 1338 (5th Cir. 1978), reh'g denied, 568 F.2d 1367 (11th Cir. 1978), cert. denied, 439 U.S. 819, 99 S.Ct. 81, 58 L.Ed.2d 110 (1978); United States v. England, 480 F.2d 1266 (5th Cir. 1973), cert. denied, 414 U.S. 1041, 94 S.CT. 543, 38 L.Ed.2d 332 (1973); United States v. Williams, 728 F.2d 1402 (11th Cir. 1984).

[For 1997 Version of this instruction, see below]

1997 Version:

United States v. Goss, 650 F.2d 1336 (5th Cir. 1981), failure to give this instruction as a theory-of-defense charge, when requested to do so, is error if there is any evidentiary foundation to support the Defendant's claim. Note, however, that there must be some evidentiary basis for the request. If the usual instructions are given defining willfulness and intent to defraud, that will ordinarily suffice in the absence of evidence of good faith. United States v. Boswell, 565 F.2d 1338 (5th Cir. 1978), reh'g denied, 568 F.2d 1367 (11th Cir. 1978), cert. denied, 439 U.S. 819, 99 S.Ct. 81, 58 L.Ed.2d 110 (1978); United States v. England, 480 F.2d 1266 (5th Cir. 1973), cert. denied, 414 U.S. 1041, 94 S.Ct. 543, 38 L.Ed.2d 332 (1973); United States v. Williams, 728 F.2d 1402 (11th Cir. 1984).

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

NCJIC Materials Related To This Instruction:

252.10.2.2 Defenses: Good Faith Reliance Upon Attorney Or Other Professional Advice

    Good faith is a complete defense to the charge in the indictment since good faith on the part of the Defendant is inconsistent with the existence of willfulness which is an essential part of the charge. The burden of proof is not on the Defendant to prove good faith, of course, since the Defendant has no burden to prove anything. The Government must establish beyond a reasonable doubt that the Defendant acted willfully as charged in the indictment.

    So, a Defendant would not be "willfully" doing wrong if, before taking any action with regard to the alleged offense, the Defendant consulted in good faith an attorney whom the Defendant considered competent, made a full and accurate report to that attorney of all material facts of which the Defendant had the means of knowledge, and then acted strictly in accordance with the advice given by that attorney. 

    Whether the Defendant acted in good faith for the purpose of seeking advice concerning questions about which the Defendant was in doubt, and whether the Defendant made a full and complete report to the attorney, and whether the Defendant acted strictly in accordance with the advice received, are all questions for you to determine.

ANNOTATIONS AND COMMENTS

    United States v. Eisenstein, 731 F.2d 1540, 1544 (11th Cir. 1984) approved similar instruction.

    See also United States v. Condon, 132 F.3d 653 (11th Cir. 1998) (describing the circumstances in which a good faith reliance upon advice of counsel instruction is appropriate).

[For 1997 Version of this instruction, see below]

1997 Version:

United States v. Eisenstein, 731 F.2d 1540, 1544 (11th Cir. 1984) approved similar instruction.

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003