4.01     Attempt
    4.02     Aid and Abet, 18 USC 2
    4.03     Conspiracy, 18 USC 371; 21 USC 846
    4.04     Escape from Custody, 18 USC 751
    4.05     Assisting Escape, 18 USC 752
    4.06     Possession of a Firearm or Ammunition in or Affecting Commerce by a Convicted Felon, 18 USC 922(g)
    4.07     Using or Carrying a Firearm During and in Relation to Drug Trafficking or Crime of Violence, 18 USC 924(c)
    4.08     Making a False Statement to a Federal Agency, 18 USC 1001
    4.09     Making a False Statement or Report, 18 USC 1014
    4.10     Access Device or Credit Card Fraud, 18 USC 1029(a)(2)
    4.11     Harboring or Concealing an Escaped Prisoner, 18 USC 1072
    4.12     Mail Fraud, 18 USC 1341
    4.13     Wire Fraud, 18 USC 1343
    4.14     Bank Fraud, 18 USC 1344(1) & (2)
    4.15     False Statement in Document Required by Immigration Law, 18 USC 1546(a)
    4.16     Interference with Commerce by Robbery or Extortion (Hobbs Act), 18 USC 1951
    4.17     Money Laundering—Illegal Structuring, 18 USC 1956
    4.18     Unarmed Bank Robbery, 18 USC 2113(a)
    4.19     Armed or Aggravated Bank Robbery, 18 USC 2113(a), (d)
    4.20     Interstate Transportation of Stolen Money or Property, 18 USC 2314

    4.21     Immigration Through Fraudulent Marriage, 8 USC 1325(c)
    4.22     Possession with Intent to Distribute a Controlled Substance, 21 USC 841(a)(1)
    4.23     Distribution of a Controlled Substance, 21 USC 841(a)(1)
    4.24     Manufacture of a Controlled Substance, 21 USC 841(a)(1), 802(15)
    4.25     Income Tax Evasion, 26 USC 7201
    4.26     Failure to File a Tax Return, 26 USC 7203
    4.27     False Statements on Income Tax Return, 26 USC 7206(1)
    4.28     Money Laundering—Illegal Structuring, 31 USC 5322, 5324

PATTERN CRIMINAL JURY INSTRUCTIONS FOR THE DISTRICT COURTS OF THE FIRST CIRCUIT – 1998

In order to carry its burden of proof for the crime of attempt to [______] as charged in Count [___] of the indictment, the government must prove the following two things beyond a reasonable doubt:

First, that [defendant] intended to commit the crime of [______]; and

Second, that [defendant] engaged in a purposeful act that, under the circumstances as he/she believed them to be, amounted to a substantial step toward the commission of that crime and strongly corroborated his/her criminal intent.

A “substantial step” is an act in furtherance of the criminal scheme. A “substantial step” must be something more than mere preparation, but less than the last act necessary before the substantive crime is completed.

The “substantial step” may itself prove the intent to commit the crime, but only if it unequivocally demonstrates such an intent.

(1) “There is no general federal statute which proscribes the attempt to commit a criminal offense. Thus, attempt is actionable only where a specific criminal statute outlaws both its actual as well as its attempted violation.” United States v. Rivera-Sola, 713 F.2d 866, 869 (1st Cir. 1983). An attempt offense may be  incorporated into a particular statute, e.g., 18 USC 2113(a) (bank robbery), or set forth in a separate statute, e.g., 21 USC 846 (attempted drug possession).

(2) Although “[t]here is no statutory definition of attempt anywhere in the federal law,” the First Circuit has adopted the Model Penal Code standard. United States v. Dworken, 855 F.2d 12, 16-17 (1st Cir. 1988) (applying Model Penal Code § 5.01(1)(c) to attempt under federal drug law, 21 USC 846.

(4) Under the Model Penal Code, a defendant commits an attempt if he/she performs an act that, “under the circumstances as he[/she] believes them to be,” constitutes a substantial step toward commission of a crime. Model Penal Code § 5.01(1)(c); see also Dworken, 855 F.2d at 19. Factual impossibility is not a defense to the charge of attempt. See United States v. Medina-Garcia, 918 F.2d 4, 8 (1st Cir. 1990).

(5) “If the substantial steps are themselves the sole proof of the criminal intent, then those steps unequivocally must evidence such an intent; that is, it must be clear that there was a criminal design and that the intent was not to commit some noncriminal act.” Dworken, 855 F.2d at 17. See also United States v. Levy-Cordero, 67 F.3d 1002, 1019 (1st Cir. 1995) (discussing the substantial step requirement), cert. denied, 116 S. Ct. 1558 (1996); Rivera-Sola, 713 F.2d at 869-70 (same). On the other hand, if there is “separate evidence of criminal intent independent from that provided by the substantial steps (e.g., a confessed admission of a design to commit a crime), then substantial steps . . . must merely corroborate that intent.” Dworken, 855 F.2d at 17 n.3 (emphasis supplied).

PATTERN CRIMINAL JURY INSTRUCTIONS FOR THE DISTRICT COURTS OF THE FIRST CIRCUIT – 1998

To “aid and abet” means intentionally to help someone else commit a crime. To establish aiding and abetting, the government must prove beyond a reasonable doubt that (1) someone else committed the charged crime and (2) [defendant] [willfully] associated himself/herself in some way with the crime and [willfully] participated in it as he/she would in something he/she wished to bring about. This means that the government must prove that [defendant] consciously shared the other person’s knowledge of the underlying criminal act and intended to help him/her. [Defendant] need not perform the underlying criminal act, be present when it is performed, or be aware of the details of its execution to be guilty of aiding and abetting. But a general suspicion that an unlawful act may occur or that something criminal is happening is not enough. Mere presence at the scene of a crime and knowledge that a crime is being committed are also not sufficient to establish aiding and abetting. 

[An act is done “willfully” if done voluntarily and intentionally with the intent that something the law forbids be done—that is to say with bad purpose, either to disobey or disregard the law.]

(1) This instruction is based on United States v. Spinney, 65 F.3d 231, 234-35 (1st Cir. 1995), and United States v. Loder, 23 F.3d 586, 590-91 (1st Cir. 1994).

(2) The Committee was evenly divided on whether to include the term “willfully” and the bracketed definition. Title 18 USC 2 has two subsections, only the first of which, subsection (a), deals specifically with aiding and abetting. Subsection (a) does not require that an aider and abettor act “willfully.” Subsection (b), dealing with one who causes an act to be done which, if performed directly by the accused or another, would be a crime, does require proof of willfulness. Subsection (b), however, did not appear until 1948 and willfulness was not added as a requirement in subsection (b) until 1951. For a good discussion of the legislative history of subsection (b) see United States v. Ruffin, 613 F.2d 408 (2d Cir. 1979), and of subsection (a) see Standefer v. United States, 447 U.S. 10 (1980). First Circuit caselaw has not consistently recognized a difference between the two subsections, treating them both generically as “aid and abet,” and at least some First Circuit cases use the term “willfully” when dealing specifically with subsection (a). See, e.g., United States v. O’Campo, 973 F.2d 1015, 1020 (1st Cir. 1992). Complicating matters further, “willfully” is a term subject to a variety of definitions, see Ratzlaf v. United States, 510 U.S. 135, 141 (1994), and it is unclear whether the First Circuit meant to require specific intent (to violate the law) in subsection (a) cases by using the term. Many statutes penalize conduct simply because the defendant undertakes it, regardless of whether the defendant knows that the conduct amounts to a crime (e.g., felon in possession of a firearm, 18 USC 922(g)); it is unclear why an aider and abettor should be held to a more demanding intent. In fact, there is language in First Circuit cases supporting the contrary conclusion. In Loder, the court said that “the defendant [must] consciously share the principal’s knowledge of the underlying criminal act,” 23 F.3d at 591, and quoted approvingly the statement in United States v. Valencia, 907 F.2d 671 (7th Cir. 1990): “The state of mind required for conviction as an aider and abettor is the same state of mind as required for the principal offense.” Id. At 680. Finally, the First Circuit at times has recognized that subsection (b) is different from subsection (a), see United States v. Strauss, 443 F.2d 986, 988 (1st Cir. 1971), and has recently held that “[a] defendant may be convicted under this section [b] even though the individual who did in fact commit the substantive act lacked the necessary criminal intent.” United States v. Dodd, 43 F.3d 759, 762 (1st Cir. 1995). If the two subsections are treated as interchangeable, Dodd would be inconsistent with Loder’s holding that culpability under (a) requires a shared knowledge of the underlying criminal act between or among the actors. But if (b) is treated separately from (a) as Dodd suggests, the willfulness element of (b) becomes a sensible additional requirement of specific intent for culpability of a defendant charged with causing an innocent person to act. Following the logic of Loder, where the underlying criminal act is not a specific intent crime, it may be defensible to leave out “willfully” and its definition in a subsection (a) prosecution.

PATTERN CRIMINAL JURY INSTRUCTIONS FOR THE DISTRICT COURTS OF THE FIRST CIRCUIT – 1998

4.03 Conspiracy, 18 USC 371; 21 USC 846

[Defendant] is accused of conspiring to commit a federal crime—specifically, the crime of [insert crime]. It is against federal law to conspire with someone to commit this crime.

For you to find [defendant] guilty of conspiracy, you must be convinced that the government has proven each of the following things beyond a reasonable doubt:

First, that the agreement specified in the indictment, and not some other agreement or agreements, existed between at least two people to [substantive crime]; and

Second, that [defendant] willfully joined in that agreement; [and

Third, that one of the conspirators committed an overt act in an effort to further the purpose of the conspiracy.]

A conspiracy is an agreement, spoken or unspoken. The conspiracy does not have to be a formal agreement or plan in which everyone involved sat down together and worked out all the details. But the government must prove beyond a reasonable doubt that those who were involved shared a general understanding about the crime. Mere similarity of conduct among various people, or the fact that they may have associated with each other or discussed common aims and interests does not necessarily establish proof of the existence of a conspiracy, but you may consider such factors.

To act "willfully" means to act voluntarily and intelligently and with the specific intent that the underlying crime be committed—that is to say, with bad purpose, either to disobey or disregard the law—not to act by ignorance, accident or mistake. The government must prove two types of intent beyond a reasonable doubt before [defendant] can be said to have willfully joined the conspiracy: an intent to agree and an intent, whether reasonable or not, that the underlying crime be committed. Mere presence at the scene of a crime is not alone enough, but you may consider it among other factors. Intent may be inferred from the surrounding circumstances.

Proof that [defendant] willfully joined in the agreement must be based upon evidence of his/her own words and/or actions. You need not find that [defendant] agreed specifically to or knew about all the details of the crime, or knew every other coconspirator or that he/she participated in each act of the agreement or played a major role, but the government must prove beyond a reasonable doubt that he/she knew the essential features and general aims of the venture. Even if [defendant] was not part of the agreement at the very start, he/she can be found guilty of conspiracy if the government proves that he/she willfully joined the agreement later. On the other hand, a person who has no knowledge of a conspiracy, but simply happens to act in a way that furthers some object or purpose of the conspiracy, does not thereby become a conspirator.

[An overt act is any act knowingly committed by one or more of the conspirators in an effort to accomplish some purpose of the conspiracy. Only one overt act has to be proven. The government is not required to prove that [defendant] personally committed or knew about the overt act. It is sufficient if one conspirator committed one overt act at some time during the period of the conspiracy.]

The government does not have to prove that the conspiracy succeeded or was achieved. The crime of conspiracy is complete upon the agreement to commit the underlying crime [and the commission of one overt act].

(1) This charge is based largely upon United States v. Rivera-Santiago, 872 F.2d 1073, 1078-80 (1st Cir.), cert. denied, 492 U.S. 910 (1989), as modified by United States v. Piper, 35 F.3d 611, 614-15 (1st Cir. 1994), cert. denied, ___ U.S. ___, 115 S. Ct. 1118 (1995). See also United States v. Boylan, 898 F.2d 230, 241-43 (1st Cir.), cert. denied, 498 U.S. 849 (1990); Blumenthal v. United States, 332 U.S. 539, 557 (1947).

(2) The third element (overt act) is not required in a drug conspiracy under 21 USC 846. See United States v. Shabani, ___ U.S. ___, 115 S. Ct. 382, 383 (1994). For discussion of overt acts see United States v. Flaherty, 668 F.2d 566, 580 n.4 (1st Cir. 1981).

(3) The Government does not have to prove that the defendant intended to commit the underlying offense himself/herself. See Piper, 35 F.3d at 614-15. There must be proof, however, that a second conspirator with criminal intent existed. See United States v. Alzanki, 54 F.3d 994, 1003 (1st Cir. 1995), cert. denied, 116 S. Ct. 909 (1996).

(4) "Whether there is a single conspiracy, multiple conspiracies, or no conspiracy at all is ordinarily a factual matter for the jury to determine." United States v. Mena- Robles, 4 F.3d 1026, 1033 (1st Cir. 1993), cert. denied, 511 U.S. 1035 (1994). A multiple conspiracy instruction should be provided if "‘on the evidence adduced at trial, a reasonable jury could find more than one such illicit agreement, or could find an agreement different from the one charged.’" United States v. Brandon, 17 F.3d 409, 449 (1st Cir.) (quoting Boylan, 898 F.2d at 243), cert. denied, 513 U.S. 820 (1994).

(5) The definition of "willfully" comes from United States v. Monteiro, 871 F.2d 204, 208-09 (1st Cir.), cert. denied, 493 U.S. 833 (1989). For alternate definitions see United States v. Porter, 764 F.2d 1, 17 (1st Cir. 1985), cert. denied, 481 U.S. 1048 (1987), and United States v. Drape, 668 F.2d 22, 26 (1st Cir. 1992). Specific intent is preferred. See United States v. Yefsky, 994 F.2d 885, 899 (1st Cir. 1993).

(6) Impossibility is not a defense. See United States v. Giry, 818 F.2d 120, 126 (1st Cir.), cert. denied, 484 U.S. 855 (1987).

(7) A conspiracy to defraud the IRS may present unique problems of "purpose" or "knowledge." United States v. Goldberg, 105 F.3d 770, 774 (1st Cir. 1997).

(8) Note that some substantive offenses contain their own conspiracy prohibitions. See, e.g., 18 USC 1201(c) (kidnapping) (overt act required); 18 USC 1951(a) (Hobbs Act) (no overt act required).

(9) Withdrawal is not an affirmative defense if the conspiratorial agreement has already been made. See United States v. Rogers, 102 F.3d 641, 644 (1st Cir. 1996).

PATTERN CRIMINAL JURY INSTRUCTIONS FOR THE DISTRICT COURTS OF THE FIRST CIRCUIT – 1998

4.04 Escape from Custody, 18 USC 751

[Defendant] is accused of escaping [attempting to escape] from the [facility] while he/she was in federal custody. It is against federal law to [attempt to] escape from federal custody. For you to find [defendant] guilty of this crime, you must be convinced that the government has proven each of these things beyond a reasonable doubt:

First, that on [date], [defendant] was in federal custody at [facility];

Second, that he/she was in custody because he/she had been [e.g., arrested for a felony charge; arrested for a misdemeanor charge; convicted of a crime];

Third, that he/she left [attempted to leave] the [facility] without permission; and 

Fourth, that he/she knew that he/she did not have permission to leave.

(1) The nature of the custody must be proven specifically, since the statute provides for dual penalties: escape is a felony if custody was by reason of any conviction or a felony arrest, but only a misdemeanor if custody was by reason of a misdemeanor arrest or for extradition or expulsion. See United States v. Vanover, 888 F.2d 1117, 1121 (6th Cir. 1989), cert. denied, 495 U.S. 934 (1990); United States v. Green, 797 F.2d 855, 858 n.4 (10th Cir. 1986); United States v. Edrington, 726 F.2d 1029, 1031 (5th Cir. 1984); United States v. Richardson, 687 F.2d 952, 958 (7th Cir. 1982); see also United States v. Bailey, 444 U.S. 394, 407 (1980) (stating in dictum that prosecution must prove nature of custody to convict under section 751(a)). The determination of whether an offense underlying an arrest is a felony or misdemeanor is a question of law for the court, but the determination that the defendant was being held by reason of conviction or arrest for a particular crime is a question of fact for the jury. See Richardson, 687 F.2d at 958.

(2) Custody need not involve physical restraint; the failure to comply with an order that restrains the defendant’s freedom may be an escape. See Bailey, 444 U.S. at 413 (holding that failure to return to custody is an "escape" in violation of section 751); United States v. Puzzanghera, 820 F.2d 25, 26 n.1 (1st Cir.), cert. denied, 484 U.S. 900 (1987) (same); see also 18 USC 4082(a) ("The willful failure of a prisoner to remain within the extended limits of his confinement, or to return within the time prescribed . . . shall be deemed an escape [under 18 USC 751-757].").

(3) The defense of necessity or duress may be an issue. On this matter, see Bailey, 444 U.S. at 409-13.

PATTERN CRIMINAL JURY INSTRUCTIONS FOR THE DISTRICT COURTS OF THE FIRST CIRCUIT – 1998

4.05 Assisting Escape, 18 USC 752

[Defendant] is accused of aiding or assisting [prisoner]’s escape from [facility] while he/she was in federal custody. It is against federal law to aid or assist someone else in escaping [attempting to escape] from federal custody. For you to find [defendant] guilty of this crime, you must be convinced that the government has proven each of these things beyond a reasonable doubt:

First, that on [date], [prisoner] was in federal custody at [facility];

Second, that [prisoner] was in custody because he/she had been [e.g., arrested for a felony charge, convicted of a crime];

Third, that [prisoner] left [attempted to leave] the [facility] without permission;

Fourth, that [prisoner] knew that he/she did not have permission to leave; and

Fifth, that [defendant] knew that [prisoner] was escaping [attempting to escape] and intentionally helped him/her to do so.

(1) See generally Notes to First Circuit Pattern Instruction 4.04 for Escape, 18 USC 751.

(2) Section 752 also makes it an offense to instigate an escape. If the facts so warrant, the word "instigate" should be added or substituted for "aid or assist" with appropriate grammatical changes.

(3) The crime of aiding or assisting an escape cannot occur after the escapee reaches temporary safety or a point beyond immediate active pursuit. See United States v. DeStefano, 59 F.3d 1, 4-5 n.6 (1st Cir. 1995). At that point, any further assistance can at most constitute harboring or concealing under 18 USC 1072. See id. at 4.

(4) The government need not prove that the defendant was aware of the federal status of the escaped prisoner. See United States v. Aragon, 983 F.2d 1306, 1310 (4th Cir. 1993); United States v. Hobson, 519 F.2d 765, 769-70 (9th Cir.), cert. denied, 423 U.S. 931 (1975). Cf. United States v. Feola, 420 U.S. 671, 685 (1975) ("The concept of criminal intent does not extend so far as to require that the actor understand not only the nature of his act but also its consequence for the choice of a judicial forum.").

PATTERN CRIMINAL JURY INSTRUCTIONS FOR THE DISTRICT COURTS OF THE FIRST CIRCUIT – 1998

4.06 Possession of a Firearm or Ammunition In or Affecting Commerce by a Convicted Felon, 18 USC 922(g)

[Defendant] is charged with possessing a firearm [ammunition] in or affecting commerce after having been convicted of a crime punishable by imprisonment for more than one year. For you to find [defendant] guilty of this crime, you must be satisfied that the government has proven each of the following things beyond a reasonable doubt:

First, that [defendant] has been convicted in any court of [at least one] crime punishable by imprisonment for a term exceeding one year. I instruct you that the crime of [______] is such a crime. [Alternative: The parties have stipulated that [defendant] has been convicted of a crime which is punishable by imprisonment for a term exceeding one year. You are to take that fact as proven.]

Second, that [defendant] knowingly possessed the firearm [ammunition] described in the indictment. [The term "firearm" means any weapon which will or is designed or may readily be converted to expel a projectile by the action of an explosive. The term "firearm" also includes the frame or receiver of any such weapon.]

Third, that the firearm was connected with interstate [foreign] commerce. This means that the firearm [ammunition], at any time after it was manufactured, moved from one state to another [or from a foreign country into the United States]. The travel need not have been connected to the charge in the indictment and need not have been in furtherance of any unlawful activity.

The word "knowingly" means that the act was done voluntarily and intentionally, not because of mistake or accident.

The term "possess" means to exercise authority, dominion or control over something. It is not necessarily the same as legal ownership. The law recognizes different kinds of possession.

[Possession includes both actual and constructive possession. A person who has direct physical control of something on or around his person 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 exercise control over something is in constructive possession of it. Whenever I use the term "possession" in these instructions, I mean actual as well as constructive possession.]

[Possession [also] includes both sole and joint possession. If one person alone has actual or constructive possession, possession is sole. If two or more persons share actual or constructive possession, possession is joint. Whenever I have used the word "possession" in these instructions, I mean joint as well as sole possession.]

(1) The charge is based on United States v. Bartelho, 71 F.3d 436, 439 (1st Cir. 1995).

(2) The definition of "knowingly" is based on United States v. Tracy, 36 F.3d 187, 194-95 (1st Cir. 1994), cert. denied, ___ U.S. ___, 115 S. Ct. 1717 (1995).

(3) United States v. Rogers, 41 F.3d 25, 29 (1st Cir. 1994), cert. denied, ___ U.S. ___, 115 S. Ct. 2287 (1995), discusses dominion, control, possession and ownership. United States v. Booth, 111 F.3d 1, 2 (1st Cir. 1997), counsels against defining constructive possession in terms of dominion and control "over the area in which the object is located" and thereby limits United States v. Wight, 968 F.2d 1393, 1398 (1st Cir. 1992). However, the jury may be told in appropriate circumstances that knowledge could be inferred from control of the area. See Booth, 111 F.3d at 2.

(4) The First Circuit has not addressed how to deal with multiple firearms and/or ammunition charges. The difficult issue is whether the facts indicate separate possessions, because possession is the proscribed conduct. Ten circuits (Second through Eleventh) have held that receipt or possession of multiple firearms and/or ammunition constitutes a single offense under 18 USC 922(g) [Footnote 1] unless there is a showing that the firearms and/or ammunition were stored or acquired at different times or places. See United States v. Pelusio, 725 F.2d 161, 168-69 (2d Cir. 1983); United States v. Frankenberry, 696 F.2d 239, 244-46 (3d Cir. 1982), cert. denied, 463 U.S. 1210 (1983); United States v. Mullins, 698 F.2d 686, 687 (4th Cir.), cert. denied, 460 U.S. 1073 (1983); United States v. Bullock, 615 F.2d 1082, 1086 (5th Cir.), cert. denied, 449 U.S. 957 (1980); United States v. Throneburg, 921 F.2d 654, 657 (6th Cir. 1990); United States v. Oliver, 683 F.2d 224, 232-33 (7th Cir. 1982); United States v. Powers, 572 F.2d 146, 150-52 (8th Cir. 1978); United States v. Szalkiewicz, 944 F.2d 653, 653-54 (9th Cir. 1991); United States v. Valentine, 706 F.2d 282, 292-94 (10th Cir. 1983); United States v. Bonavia, 927 F.2d 565, 569 (11th Cir. 1991). Separate acquisition or storage of the firearms or ammunition are the commonly-cited indicia, but there could be other indicia in a given case. Because possession of multiple weapons is a single offense unless there are separate possessions, the trial judge faced with multiple possession counts must decide whether to (1) require the government to elect or combine counts before trial; (2) allow multiple counts but require a specific jury finding of separate possessions; or (3) allow multiple counts with no special jury instruction, but make a post-verdict "correction" by not entering judgment of conviction on any multiplicitous counts. Three circuits have made it clear that the jury, not the trial or appellate judges, must find separate possession as a critical element of a multi-count weapons possession conviction. See Frankenberry, 696 F.2d at 245 (3rd Cir.); Szalkiewicz, 944 F.2d at 654 (9th Cir.); Valentine, 706 F.2d at 294 (10th Cir.). The Eleventh Circuit has held that it was not plain error for the trial judge to fail to give a separate possession instruction, and upheld conviction on multiple counts because sufficient evidence of separate possession was presented at trial, even though there was no jury finding to that effect. See Bonavia, 927 F.2d at 569-71. The Sixth Circuit in Throneburg explained that the trial judge should exercise his/her discretion to vacate any multiplicitous guilty verdicts; the government in its discretion can decide how many counts to bring, and no jury instruction or finding is required as to separate possessions. See 921 F.2d at 657. A possible instruction is as follows:

If you have found the defendant guilty on Count I, you may not find him guilty on Count II unless you also find that the government has proven beyond a reasonable doubt that the firearm and ammunition were acquired at different times or that they were stored in different places.

(5) United States v. Acosta, 67 F.3d 334, 340 (1st Cir. 1995), cert. denied, ___ U.S. ___, 116 S. Ct. 965 (1996), supports the broad definition of "commerce." See also United States v. Gillies, 851 F.2d 492, 493-95 (1st Cir.) (finding that "affecting commerce" includes possession of a gun that traveled interstate before the felon possessed it), cert. denied, 488 U.S. 857 (1988).

(6) The trial judge determines as a matter of law whether a previous conviction qualifies under 18 USC 922(g). See Bartelho, 71 F.3d at 440. The fact of conviction, however, is for the jury unless it is stipulated, and so too is any factual issue on the restoration of civil rights. Id. at 440-41. It should be noted that, although the court in Bartelho found the approach of United States v. Flower, 29 F.3d 530 (10th Cir. 1994), cert. denied, ___ U.S. ___, 115 S. Ct. 939 (1995), persuasive, see 71 F.3d at 440, Flower seems to be in conflict with Bartelho to the extent that it treats a factual dispute concerning restoration of civil rights as a preliminary matter to be resolved by the court prior to admitting the conviction into evidence. See 29 F.2d at 535-36.

(7) An aiding and abetting charge under the statute requires the court to instruct the jury that the aiding and abetting defendant must know or have cause to believe the firearm possessor’s status as a convicted felon. See United States v. Xavier, 2 F.3d 1281, 1286-87 (3rd Cir. 1993).

Footnote 1:  The current felon in possession statute, 18 USC 922(g), is a combination of former 18 USC 922(h) and 18 USC 1202(a). The cited cases are all decided under one of those provisions; there is no distinction among the provisions that is relevant to the multiplicity issue.

PATTERN CRIMINAL JURY INSTRUCTIONS FOR THE DISTRICT COURTS OF THE FIRST CIRCUIT – 1998

4.07 Using or Carrying a Firearm During and in Relation to Drug Trafficking or Crime of Violence, 18 USC 924(c)

[Defendant] is accused of using or carrying a firearm during and in relation to [_____]. For you to find [defendant] guilty of this crime, you must be satisfied that the government has proven each of the following things:

First, [defendant] committed the crime of [_____, described in Count ___]; and

Second, during and in relation to the commission of that crime, [defendant] knowingly used or carried a firearm.

The word "knowingly" means that an act was done voluntarily and intentionally, not because of mistake or accident.

To "carry" a firearm during and in relation to a crime means to move or transport the firearm on one’s person or in a vehicle or container during and in relation to the crime. It need not be immediately accessible. To "use" a firearm during and in relation to a crime means to employ the firearm actively, such as to brandish, display, barter, strike with, fire or attempt to fire it, or even to refer to it in a way calculated to affect the underlying crime. The firearm must have played a role in the crime or must have been intended by the defendant to play a role in the crime. That need not have been its sole purpose, however.

(1) If the predicate crime of violence or drug trafficking is not charged in the same indictment, the jury must be instructed as to the elements of that crime and that the government must prove each element beyond a reasonable doubt. The First Circuit has cautioned against "generic references to ‘a drug trafficking crime’ when referring to the particular predicate offense." United States v. Manning, 79 F.3d 212, 221 n.9 (1st Cir.), cert. denied, 117 S. Ct. 147 (1996). It is a question of law for the court, however, whether the crime, if proven, qualifies as a crime of violence or drug trafficking. See United States v. Weston, 960 F.2d 212, 217 (1st Cir. 1992), overruled on other grounds by Stinson v. United States, 508 U.S. 36 (1993). But see Eleventh Circuit Instruction 28 (instructing jury to determine whether or not the predicate offense is a "crime of violence"), criticized by 1A Sand, et al., Modern Federal Jury Instructions ¶ 35.08 at 35-112. "Drug trafficking crime" and "crime of violence" are defined at 18 USC 924(c)(2) & (3).

(2) The definition of "knowingly" is based upon United States v. Tracy, 36 F.3d 187, 194-95 (1st Cir. 1994), cert. denied, ___ U.S. ___, 115 S. Ct. 1717 (1995).

(3) The definition of "use" comes from United States v. Valle, 72 F.3d 210, 217 (1st Cir. 1995), and Bailey v. United States, 116 S. Ct. 501, 505-09 (1995). Earlier cases must be treated with great care. The definition of "carry" comes from United States v. Cleveland, 106 F.3d 1056, 1065-67 (1st Cir. 1997) (a firearm can be "carried" in a car’s trunk), petition for cert. filed, (U.S. Apr. 30, 1997) (No. 96-8837); United States v. Ramirez-Ferrer, 82 F.3d 1149, 1153-54 (1st Cir. 1996) (a firearm can be "carried" by having it in a boat), cert. denied, 117 S. Ct. 405 (1996); Manning, 79 F.3d at 212.

It seems best not to define "use or carry" separately from "during and in relation to." Possession alone without proof of a relationship to the underlying crime is insufficient, see United States v. Plummer, 964 F.2d 1251, 1254-55 (1st Cir.), cert. denied, 506 U.S. 926 (1992), but facilitating the predicate crime need not be the sole purpose. See United States v. Payero, 888 F.2d 928, 929 (1st Cir. 1989).

Use or availability of the firearm for offensive or defensive purposes is not required. See Smith v. United States, 508 U.S. 223, 236-39 (1993) (holding that 18 USC 924(c)(1) applies where the defendant merely bartered weapons for drugs).

(4) For definition of "firearm," see 18 USC 921(a)(3).

(5) An aiding or abetting instruction may be appropriate for either or both of the two elements of the crime, but the jury should be instructed that the "shared knowledge" requirement see Instruction 4.02 (Aid and Abet), requires that the defendant have a "practical certainty" the firearm will be used. See United States v. Spinney, 65 F.3d 231, 238 (1st Cir. 1995).

PATTERN CRIMINAL JURY INSTRUCTIONS FOR THE DISTRICT COURTS OF THE FIRST CIRCUIT – 1998

4.08 Making a False Statement to a Federal Agency, 18 USC 1001

[Defendant] is charged with making a false statement in a matter within the jurisdiction of a government agency. For you to find the defendant guilty of this crime you must be convinced that the government has proven each of these things beyond a reasonable doubt:

First, that [defendant] knowingly made a material false statement;

Second, that [defendant] made the statement voluntarily and intentionally; and

Third, that [defendant] made the statement in a [e.g., U.S. Customs declaration].

A false statement is made "knowingly" if [defendant] knew that it was false or demonstrated a reckless disregard for the truth with a conscious purpose to avoid learning the truth.

A statement is "material" if it has a natural tendency to influence or to be capable of influencing the decision of the decisionmaker to which it was addressed.

A statement is "false" if it was untrue when made.

(1) The charge refers only to false statements. Section 1001, the False Statements Accountability Act of 1996, is much broader, and in a given case the instruction will need to be modified to deal with the other potential violations. See 18 USC 1001(a)(1)-(3) (punishing one who "knowingly and willfully (1) falsifies, conceals, or covers up by any trick, scheme, or device a material fact; (2) makes any false, fictitious, or fraudulent statement or representation; or (3) makes or uses any false writing or document knowing the same to contain any materially false, fictitious or fraudulent statement or entry") (as amended by PL 104-292, Oct. 11, 1996).

(2) In United States v. London, 66 F.3d 1227, 1241-42 (1st Cir. 1995), cert. denied, 116 S. Ct. 1542 (1996), the First Circuit stated that "[i]n the context of the False Statements Act, 18 USC 1001, a false statement is made knowingly if defendant demonstrated a reckless disregard of the truth, with a conscious purpose to avoid learning the truth." The First Circuit also has approved instructing the jury on good faith and referring to advice of counsel in that respect. See United States v. Arcadipane, 41 F.3d 1, 8 (1st Cir. 1994); see also United States v. Dockray, 943 F.2d 152, 155 (1st Cir. 1991) ("[G]ood faith is an absolute defense to a charge of mail or wire fraud. . . .").

(3) In United States v. Gaudin, ___ U.S. ___, 115 S. Ct. 2310, 2320 (1995), the Supreme Court held that the issue of materiality is for the jury. According to the concurrence by Chief Justice Rehnquist, Justice O’Connor and Justice Breyer, the majority opinion did not resolve a conflict among the circuits "over whether materiality is an element of the offense created by the second clause of section 1001." Id. at 2320-21. (The second clause covers a defendant who "makes any false, fictitious, or fraudulent statement or representation." 35 USC 1001(a)(2).) That may be an overstatement by the concurrence. What the majority opinion actually said was: "It is uncontested that conviction under this provision requires that the statements be ‘material’ to the Government inquiry, and that ‘materiality’ is an element of the offense that the Government must prove." Id. at 2313. The most conservative route for a trial court to take seems to be to include the materiality requirement under all the provisions of section 1001.

(4) The definition of materiality is based upon the court’s description of what the parties agreed to as a definition in Gaudin. Accord Arcadipane, 41 F.3d at 7 ("[M]ateriality requires only that the fraud in question have a natural tendency to influence, or be capable of affecting or influencing, a governmental function. The alleged concealment or misrepresentation need not have influenced the actions of the Government agency, and the Government agents need not have been actually deceived.") (quoting United States v. Corsino, 812 F.2d 26, 30 (1st Cir. 1986)).

(5) The statute deals only with false statements "within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States." 18 USC 1001(a). It seems best to specify in the instruction the document or other context in which the false statement was allegedly made. Whether it was made there is a jury issue. It should be a separate question for the judge whether that document or context brings it within the "jurisdiction of the executive, legislative, or judicial branch of the Government of the United States."

(6) The government is not required to prove that the defendant had a purpose to mislead a federal agency. See United States v. Yermian, 468 U.S. 63, 68-75 (1984).

PATTERN CRIMINAL JURY INSTRUCTIONS FOR THE DISTRICT COURTS OF THE FIRST CIRCUIT – 1998

4.09 Making a False Statement or Report, 18 USC 1014

[Defendant] is charged with making a false statement or report for the purpose of influencing the action of [appropriate governmental agency or entity listed in statute] upon his/her [application, commitment, loan, etc.]. For you to find the defendant guilty of this crime you must be convinced that the government has proven each of these things beyond a reasonable doubt:

First, that [defendant] made or caused to be made a false statement or report to [appropriate governmental agency or entity listed in statute] upon [an application, commitment, loan, etc.];

Second, that [defendant] acted knowingly; and

Third, that [defendant] made the false statement or report for the purpose of influencing in any way the action of [appropriate governmental agency/ financial institution] on the [application, commitment, loan, etc.].

A false statement is made "knowingly" if [defendant] knew that it was false or demonstrated a reckless disregard for the truth with a conscious purpose to avoid learning the truth.

A statement is "false" if it was untrue when made.

(1) This charged is based largely upon United States v. Concemi, 957 F.2d 942, 951 (1st Cir. 1992).

(2) Materiality is not required. See United States v. Wells, ___ U.S. ___, 117 S. Ct. 921, 926-31 (1997).

(3) Section 1014 also includes "willful overvalu[ation]." This charge refers only to false statements or reports, but can be modified accordingly.

(4) Section 1014 lists the governmental agencies and related entities covered by the statute as well as the kinds of actions that are covered.

PATTERN CRIMINAL JURY INSTRUCTIONS FOR THE DISTRICT COURTS OF THE FIRST CIRCUIT – 1998

4.10 Access Device or Credit Card Fraud, 18 USC 1029(a)(2)

[Defendant] is charged with knowingly and fraudulently using [an] unauthorized access device[s] between [date] and [date]. It is against federal law to knowingly and fraudulently use access devices without authorization.

For you to find [defendant] guilty of this crime, you must be convinced that the government has proven each of the following things beyond a reasonable doubt:

First, that [defendant] used [an] access device[s];

Second, that [defendant] used it without authorization and thereby obtained something of value aggregating at least $1,000 during the one-year period from [date] to [date];

Third, that [defendant] acted knowingly, willfully and with the intent to defraud;

Fourth, that [defendant]’s conduct affected interstate or foreign commerce.

The term "access device" [means any card, plate, code, account number or other means of account access that can be used alone or in conjunction with another access device to obtain money, goods, services or any other thing of value, or that can be used to initiate a transfer of funds other than a transfer originated solely by paper instrument. It] includes credit cards.

The term "unauthorized access device" includes any access device or credit card that is lost, stolen, expired, revoked, canceled or obtained with intent to defraud.

[Defendant] acted "knowingly" if he/she was conscious and aware of his/her actions, realized what he/she was doing or what was happening around him/her, and did not act because of ignorance, mistake or accident.

To act with "intent to defraud" means to act with the intent to deceive or cheat someone. Good faith on the part of [defendant] is a complete defense to a charge of credit card fraud. If [defendant] actually believed in good faith that he/she was acting properly, even if he/she was mistaken in that belief, and even if others were injured by his/her conduct, there would be no crime. An honest mistake in judgment does not rise to the level of criminal conduct. A defendant does not act in good faith if, even though he/she honestly holds a certain opinion or belief, he/she also acted with the purpose of deceiving others. While the term good faith has no precise definition, it means among other things a belief or opinion honestly held, an absence of malice or ill will, and an intention to avoid taking unfair advantage of another. The burden is on the government to prove fraudulent intent and consequent lack of good faith beyond a reasonable doubt. The defendant is under no obligation to prove good faith.

Conduct "affects" interstate or foreign commerce if the conduct has a demonstrated connection or link with such commerce. It is not necessary for the government to prove that [defendant] knew or intended that his/her conduct would affect commerce; it is only necessary that the natural consequences of her conduct affected commerce in some way.

The definition of good faith used here was cited approvingly in the context of credit card fraud in United States v. Goodchild, 25 F.3d 55, 59-60 (1st Cir. 1994).

PATTERN CRIMINAL JURY INSTRUCTIONS FOR THE DISTRICT COURTS OF THE FIRST CIRCUIT – 1998

4.11 Harboring or Concealing an Escaped Prisoner, 18 USC 1072

[Defendant] is accused of harboring or concealing an escaped prisoner, [prisoner]. It is against federal law to harbor or conceal an escaped prisoner. For you to find [defendant] guilty of this crime, you must be convinced that the government has proven each of these things beyond a reasonable doubt:

First, that [prisoner] escaped from [the custody of the Attorney General] [federal penal or correctional institution];

Second, that [defendant] did some physical act to help to allow [prisoner] to avoid detection or apprehension;

Third, that [defendant] acted knowingly and willfully.

To act "knowingly and willfully" means to act with the knowledge that [prisoner] has escaped from custody and with the purpose and intent to help or allow him to avoid detection or apprehension.

(1) If the Attorney General has designated a nonfederal facility as the place of incarceration, escape from that facility is an escape from "the custody of the Attorney General" under this section. United States v. Eaglin, 571 F.2d 1069, 1073 (9th Cir. 1977), cert. denied, 435 U.S. 906 (1978).

(2) Several circuits have held that "[t]he words ‘harbor’ and ‘conceal’ refer to any physical act of providing assistance, including food, shelter, and other assistance to aid the prisoner in avoiding detection and apprehension." United States v. Kutas, 542 F.2d 527, 528 (9th Cir. 1976), cert. denied, 429 U.S. 1073 (1977); see also Laaman v. United States, 973 F.2d 107, 114 (2d Cir. 1992) (construing same terms as in section 1071, which proscribes concealing fugitives from arrest rather than escaped prisoners), cert. denied, 507 U.S. 954 (1993); United States v. Yarbrough, 852 F.2d 1522, 1543 (9th Cir.) (same), cert. denied, 488 U.S. 866 (1988); United States v. Silva, 745 F.2d 840, 849 (4th Cir. 1984) (same), cert. denied, 470 U.S. 1031 (1985); United States v. Foy, 416 F.2d 940, 941 (7th Cir. 1969) (same).

(3) Section 1072 requires proof that the defendant "willfully" harbored or concealed the escaped prisoner. This element has been read to require that the defendant had knowledge that the person whom he aided had escaped from custody. See Eaglin, 571 F.2d at 1074; United States v. Deaton, 468 F.2d 541, 543 (5th Cir. 1972), cert. denied, 410 U.S. 934 (1973). It is not necessary that the government prove that the defendant was aware of the federal status of the escaped prisoner. Eaglin, 571 F.2d at 1074 n.4; cf. United States v. Aragon, 983 F.2d 1306, 1310 (4th Cir. 1994) (knowledge of federal status not an element of assisting escape under 18 USC 752); United States v. Feola, 420 U.S. 671, 684-85 (1975) (knowledge of federal status not an element of assaulting a federal officer under 18 USC 111).

PATTERN CRIMINAL JURY INSTRUCTIONS FOR THE DISTRICT COURTS OF THE FIRST CIRCUIT – 1998

4.12 Mail Fraud, 18 USC 1341

[Defendant] is charged with violating the federal statute making mail fraud illegal.

For you to find [defendant] guilty of mail fraud, you must be convinced that the government has proven each of the following things beyond a reasonable doubt:

First, a scheme, substantially as charged in the indictment, to defraud [or to obtain money or property by means of false or fraudulent pretenses];

Second, [defendant’s] knowing and willful participation in this scheme with the intent to defraud [or to obtain money or property by means of false or fraudulent pretenses]; and

Third, the use of the United States mail, on or about the date charged, in furtherance of this scheme.

A scheme includes any plan, pattern or course of action. The term "defraud" means to deprive another of something of value by means of deception or cheating. A scheme to defraud is ordinarily accompanied by a desire or purpose to bring about some gain or benefit to oneself or some other person or by a desire or purpose to cause some loss to some person. It includes a scheme to deprive another of the intangible right of honest services.

[The term "false or fraudulent pretenses" means any false statements or assertions that concern a material aspect of the matter in question, that were either known to be untrue when made or made with reckless indifference to their truth and that were made with the intent to defraud. They include actual, direct false statements as well as half-truths and the knowing concealment of facts.]

[A "material" fact or matter is one that has a natural tendency to influence or be capable of influencing the decisionmaker to whom it was addressed.]

[Defendant] acted "knowingly" if he/she was conscious and aware of his/her actions, realized what he/she was doing or what was happening around him/her, and did not act because of ignorance, mistake or accident.

An act or failure to act is "willful" if done voluntarily and intentionally, and with the specific intent to do something the law forbids, or with specific intent to fail to do something the law requires to be done; that is to say, with bad purpose either to disobey or to disregard the law. Thus, if [defendant] acted in good faith, he/she cannot be guilty of the crime. The burden to prove intent, as with all other elements of the crime, rests with the government.

To act with "intent to defraud" means to act willfully and with the specific intent to deceive or cheat for the purpose of either causing some financial loss to another or bringing about some financial gain to oneself. Thus, if [defendant] acted in good faith, he/she cannot be guilty of the crime. The burden to prove intent, as with all other elements of the crime, rests with the government.

Intent or knowledge may not ordinarily be proven directly because there is no way of directly scrutinizing the workings of the human mind. In determining what [defendant] knew or intended at a particular time, you may consider any statements made or acts done or omitted by [defendant] and all other facts and circumstances received in evidence that may aid in your determination of [defendant]’s knowledge or intent. You may infer, but you certainly are not required to infer, that a person intends the natural and probable consequences of acts knowingly done or knowingly omitted. It is entirely up to you, however, to decide what facts are proven by the evidence received during this trial.

It is not necessary that the government prove all of the details alleged in the indictment concerning the precise nature and purpose of the scheme or that the material transmitted by mail was itself false or fraudulent or that the alleged scheme actually succeeded in defrauding anyone or that the use of the mail was intended as the specific or exclusive means of accomplishing the alleged fraud.

What must be proven beyond a reasonable doubt is that [defendant] knowingly devised or intended to devise a scheme to defraud that was substantially the same as the one alleged in the indictment, and that the use of the mail on or about the date alleged was closely related to the scheme because [defendant] either received something in the mail or caused it to be mailed in an attempt to execute or carry out the scheme. To "cause" the mail to be used is to do an act with knowledge that the use of the mail will follow in the ordinary course of business or where such use can reasonably be foreseen.

(1) This instruction is based on United States v. Cassiere, 4 F.3d 1006, 1011 (1st Cir. 1993). We have dropped the statutory term "artifice" as archaic. It adds nothing to "scheme," a term more understandable to most jurors.

(2) Cassiere and its predecessors, United States v. Serrano, 870 F.2d 1, 6 (1st Cir. 1989), and United States v. Brien, 617 F.2d 299, 307 (1st Cir.), cert. denied, 446 U.S. 919 (1980), collapsed the statutory language into Cassiere’s "scheme to defraud by means of false pretenses." 4 F.3d at 1101. No explanation was given for doing so and in light of the clear statutory language to the contrary, it was probably unintentional. Almost all of the other circuits have addressed the issue, and they are in unanimous agreement that the first clause of section 1341, "scheme or artifice to defraud," should be read independently of the second, "obtaining money or property by means of false or fraudulent pretenses." See United States v. Margiotta, 688 F.2d 108, 121 (2d Cir. 1982) (mail fraud), cert. denied, 461 U.S. 913 (1983); United States v. Frankel, 721 F.2d 917, 919-21 (3d Cir. 1983) (mail fraud); Landry v. Air Line Pilots Ass’n Int’l, 901 F.2d 404, 428 (5th Cir.) (mail fraud), cert. denied, 498 U.S. 895 (1990); United States v. Stone, 954 F.2d 1187, 1190 & n.4 (6th Cir. 1992) (mail and wire fraud); United States v. Doherty, 969 F.2d 425, 429 (7th Cir.) (mail, wire and bank fraud), cert. denied, 506 U.S. 1002 (1992); United States v. Clausen, 792 F.2d 102, 104 (8th Cir.) (wire fraud), cert. denied, 479 U.S. 858 (1986); United States v. Halbert, 640 F.2d 1000, 1007 (9th Cir. 1981) (mail fraud); United States v. Cronic, 900 F.2d 1511, 1513 (10th Cir. 1990) (mail and wire fraud); United States v. Scott, 701 F.2d 1340, 1343 (11th Cir.) (mail fraud), cert. denied, 464 U.S. 856 (1983). This instruction, therefore, follows the statute.

(3) Schemes to deprive others of the intangible right of honest services are included by virtue of 18 USC 1346. For a lengthy discussion of the scope of this phrase, see United States v. Sawyer, 85 F.3d 713, 723-25 (1st Cir. 1996).

(4) Materiality logically should not be relevant to a "scheme to defraud," but only to a scheme to obtain money or property by "false or fraudulent pretenses." See Comment 6 to Instruction 4.14 (Bank Fraud). United States v. Faulhaber, 929 F.2d 16, 18 (1st Cir. 1991), found no materiality requirement. It may be open to question, however. See United States v. Lopez, 71 F.3d 954, 962 (1st Cir. 1995), cert. denied, 116 S. Ct. 2529 (1996).

(5) "It is not necessary to establish that the intended victim was actually defrauded." United States v. Allard, 926 F.2d 1237, 1242 (1st Cir. 1991). Mail fraud does "not require that the victims be pure of heart." United States v. Camuti, 78 F.3d 738, 742 (1st Cir. 1996).

(6) Although good faith is included in this charge, "[a] separate instruction on good faith is not required in this circuit where the court adequately instructs on intent to defraud." Camuti, 78 F.3d at 744 (citing United States v. Dockray, 943 F.2d 152, 155 (1st Cir. 1991)).

PATTERN CRIMINAL JURY INSTRUCTIONS FOR THE DISTRICT COURTS OF THE FIRST CIRCUIT – 1998

4.13 Wire Fraud, 18 USC 1343

[Defendant] is charged with violating the federal statute making wire fraud illegal.

For you to find [defendant] guilty of wire fraud, you must be convinced that the government has proven each of the following things beyond a reasonable doubt:

First, a scheme, substantially as charged in the indictment, to defraud [or to obtain money or property by means of false or fraudulent pretenses];

Second, [defendant]’s knowing and willful participation in this scheme with the intent to defraud; and

Third, the use of interstate [or foreign] wire communications, on or about the date alleged, in furtherance of this scheme.

"Interstate [or foreign] wire communications" include telephone communications from one state to another [or between the United States and a foreign country.] [The term also includes a wire transfer of funds between financial institutions.]

A scheme includes any plan, pattern or course of action. The term "defraud" means to deprive another of something of value by means of deception or cheating. A scheme to defraud is ordinarily accompanied by a desire or purpose to bring about some gain or benefit to oneself or some other person or by a desire or purpose to cause some loss to some person. It includes a scheme to deprive another of the intangible right of honest services.

[The term "false or fraudulent pretenses" means any false statements or assertions that concern a material aspect of the matter in question, that were either known to be untrue when made or made with reckless indifference to their truth and that were made with the intent to defraud. They include actual, direct false statements as well as half-truths and the knowing concealment of facts.]

[A "material" fact or matter is one that has a natural tendency to influence or be capable of influencing the decisionmaker to whom it was addressed.]

[Defendant] acted "knowingly" if he/she was conscious and aware of his/her actions, realized what he/she was doing or what was happening around him/her, and did not act because of ignorance, mistake or accident.

An act or failure to act is "willful" if done voluntarily and intentionally, and with the specific intent to do something the law forbids, or with specific intent to fail to do something the law requires to be done; that is to say, with bad purpose either to disobey or to disregard the law.

To act with "intent to defraud" means to act willfully and with the specific intent to deceive or cheat for the purpose of either causing some financial loss to another or bringing about some financial gain to oneself. Thus, if [defendant] acted in good faith, he/she cannot be guilty of the crime. The burden to prove intent, as with all other elements of the crime, rests with the government.

Intent or knowledge may not ordinarily be proven directly because there is no way of directly scrutinizing the workings of the human mind. In determining what [defendant] knew or intended at a particular time, you may consider any statements made or acts done or omitted by [defendant] and all other facts and circumstances received in evidence that may aid in your determination of [defendant]’s knowledge or intent. You may infer, but you certainly are not required to infer, that a person intends the natural and probable consequences of acts knowingly done or knowingly omitted. It is entirely up to you, however, to decide what facts are proven by the evidence received during this trial.

Phone calls designed to lull a victim into a false sense of security, postpone injuries or complaints, or make the transaction less suspect are phone calls in furtherance of a scheme to defraud.

It is not necessary that the government prove all of the details alleged in the indictment concerning the precise nature and purpose of the scheme or that the material transmitted by wire was itself false or fraudulent or that the alleged scheme actually succeeded in defrauding anyone or that the use of wire communications facilities in interstate commerce was intended as the specific or exclusive means of accomplishing the alleged fraud.

What must be proven beyond a reasonable doubt is that [defendant] knowingly devised or intended to devise a scheme to defraud that was substantially the same as the one alleged in the indictment; and that the use of the wire communications facilities in interstate [or foreign] commerce on or about the date alleged was closely related to the scheme because [defendant] either made or caused an interstate [or foreign] telephone call to be made in an attempt to execute or carry out the scheme. To "cause" an interstate [or foreign] telephone call to be made is to do an act with knowledge that an interstate [or foreign] telephone call will follow in the ordinary course of business or where such a call can reasonably be foreseen.

(1) Schemes to deprive others of the intangible right of honest services are included by virtue of 18 USC 1346. For a lengthy discussion of the scope of this phrase, see United States v. Sawyer, 85 F.3d 713, 723-25 (1st Cir. 1996).

(2) On "scheme to defraud [or to obtain money or property by means of false or fraudulent pretenses]," see Comment 2 to Instruction 4.12 (Mail Fraud). On materiality, see Comment 4 to Instruction 4.12 (Mail Fraud). "The mail and wire fraud statutes share the same language in relevant part" and are therefore subject to the same analysis. Carpenter v. United States, 484 U.S. 19, 25 n.6 (1987); accord McEvoy Travel Bureau, Inc. v. Heritage Travel, Inc., 904 F.2d 786, 791 n.8 (1st Cir.) (same), cert. denied, 498 U.S. 992 (1990). "Accordingly, . . . caselaw construing § 1341 is instructive for purposes of § 1343." United States v. Fermin Castillo, 829 F.2d 1194, 1198 (1st Cir. 1987).

(3) "[U]se of the wires must be ‘incident to an essential part of the scheme.’" United States v. Lopez, 71 F.3d 954, 961 (1st Cir. 1995), (quoting Pereira v. United States, 347 U.S. 1, 8 (1954)), cert. denied, 116 S. Ct. 2529 (1996). That concept is construed broadly, however, and includes use of the wires to "‘lull victims into a sense of false security, [and] postpone their ultimate complaint to the authorities.’" Id. (quoting United States v. Lane, 474 U.S. 438, 451-52 (1986)).

PATTERN CRIMINAL JURY INSTRUCTIONS FOR THE DISTRICT COURTS OF THE FIRST CIRCUIT – 1998

4.14 Bank Fraud, 18 USC 1344(1), (2)

[Defendant] is charged with bank fraud. It is against federal law to engage in such conduct against certain financial institutions. For you to find [defendant] guilty of this crime you must be convinced that the government has proven each of these things beyond a reasonable doubt:

First, the financial institution was federally insured or was a federal reserve bank or a member of the federal reserve system;

Second, [defendant] engaged in a scheme, substantially as charged in the indictment, to defraud or made false statements or misrepresentations to obtain money from that institution;

Third, [defendant] acted knowingly.

"Knowingly" means that the act was done voluntarily and intentionally and not because of mistake or accident.

A scheme includes any plan, pattern or course of action. The term "defraud" means to deprive another of something of value by means of deception or cheating. A scheme to defraud is ordinarily accompanied by a desire or purpose to bring about some gain or benefit to oneself or some other person or by a desire or purpose to cause some loss to some person. It includes a scheme to deprive another of the intangible right of honest services.

[The term "false or fraudulent pretenses" means any false statements or assertions that concern a material aspect of the matter in question, that were either known to be untrue when made or made with reckless indifference to their truth and that were made with the intent to defraud. They include actual, direct false statements as well as half- truths and the knowing concealment of facts.]

[A "material" fact or matter is one that has a natural tendency to influence or be capable of influencing the decisionmaker to whom it was addressed.]

[Defendant] acted "knowingly" if he/she was conscious and aware of his/her actions, realized what he/she was doing or what was happening around him/her, and did not act because of ignorance, mistake or accident.

An act or failure to act is "willful" if done voluntarily and intentionally, and with the specific intent to do something the law forbids, or with specific intent to fail to do something the law requires to be done; that is to say, with bad purpose either to disobey or to disregard the law.

To act with "intent to defraud" means to act willfully and with the specific intent to deceive or cheat for the purpose of either causing some financial loss to another or bringing about some financial gain to oneself. Thus, if [defendant] acted in good faith, he/she cannot be guilty of the crime. The burden to prove intent, as with all other elements of the crime, rests with the government.

Intent or knowledge may not ordinarily be proven directly because there is no way of directly scrutinizing the workings of the human mind. In determining what [defendant] knew or intended at a particular time, you may consider any statements made or acts done or omitted by [defendant] and all other facts and circumstances received in evidence that may aid in your determination of [defendant]’s knowledge or intent. You may infer, but you certainly are not required to infer, that a person intends the natural and probable consequences of acts knowingly done or knowingly omitted. It is entirely up to you, however, to decide what facts are proven by the evidence received during this trial.

The government need not prove that the scheme was successful, that the financial institutions suffered a financial loss, that the defendant knew that the victim of the scheme was a federally insured financial institution [federal reserve bank; member of the federal reserve system] or that the defendant secured a financial gain.

(1) This instruction is based largely on United States v. Brandon, 17 F.3d 409, 424-28 (1st Cir.), cert. denied, 513 U.S. 820 (1994).

(2) Schemes to deprive others of the intangible right of honest services are included by virtue of 18 USC 1346. For a lengthy discussion of the scope of this phrase, see United States v. Sawyer, 85 F.3d 713, 723-25 (1st Cir. 1996).

(3) We have dropped the statutory term "artifice" as archaic. It adds nothing to "scheme," a term more understandable to most jurors. Note that the statute speaks of a "scheme . . . to defraud . . . or to obtain . . . moneys . . . by means of false or fraudulent pretenses, representations, or promises." Brandon, however, collapses this to the formulation in the instruction. 17 F.3d at 424.

(4) If more than one scheme is charged in a particular count, the jury should be instructed that it has to make a unanimous finding with respect to a particular scheme. See United States v. Puerta, 38 F.3d 34, 40-41 (1st Cir. 1994), cert. denied, ___ U.S. ___, 115 S. Ct. 1797 (1995).

(5) The First Circuit has approved the following instruction in a duty to disclose case:

A failure to disclose a material fact may also constitute a false or fraudulent misrepresentation if, one, the person was under a general professional or specific contractual duty to make such a disclosure; and, two, the person actually knew such disclosure ought to be made; and, three, the person failed to make such disclosure with the specific intent to defraud.

. . . .

The Government has to prove as to each count considered separately, that the alleged misrepresentation as charged in the indictment was made with the intent to defraud, that is, to advance the scheme or artifice to defraud. Such a scheme in each case has to be reasonably calculated to deceive a lender of ordinary prudence, ordinary care and comprehension.

. . . .

[I]t is not a crime simply to be careless or sloppy in discharging your duties a[s] an appraiser. That may be malpractice, but it’s not a crime.

United States v. Cassiere, 4 F.3d 1006, 1022 (1st Cir. 1993) (alterations in original).

(6) Materiality is required if the charge is under section 1344(2) (scheme to obtain monies or property by false or fraudulent pretenses, representations, or promises). United States v. Smith, 46 F.3d 1223, 1235-36 (1st Cir.), cert. denied, 116 S. Ct. 176 (1995). Materiality is not required if the charge is under section 1344(1) (scheme to defraud). See United States v. Fontana, 948 F.2d 796, 802 (1st Cir. 1991), reiterated in Smith, 46 F.3d at 1236 n.7 (1st Cir. 1995). Materiality is a question for the jury. See United States v. Gaudin, ___ U.S. __, 115 S. Ct. 2310, 2320 (1995) (a false statement case under 18 USC 1001). Gaudin necessarily overrules United States v. Arcadipane, 41 F.3d 1, 7 (1st Cir. 1994). The definition of "materiality" is one the Supreme Court described—apparently approvingly —as agreed upon by the parties in Gaudin. 115 S. Ct. at 2313. It seems consistent with United States v. Brien, 617 F.2d 299, 311 (1st Cir.), cert. denied, 446 U.S. 919 (1980) ("[I]t makes no difference whether the persons the schemers intended to defraud are gullible or skeptical, dull or bright. . . . The only issue is whether there is a plan, scheme or artifice intended to defraud.").

(7) Good faith is an absolute defense. See United States v. Dockray, 943 F.2d 152, 155 (1st Cir. 1991). A separate instruction is not required, see id., but seems advisable.

(8) The prosecution need not prove that the defendant knew the financial institution’s status; it is sufficient for the prosecutor to prove the objective fact that the institution was insured. See Brandon, 17 F.3d at 425.

PATTERN CRIMINAL JURY INSTRUCTIONS FOR THE DISTRICT COURTS OF THE FIRST CIRCUIT – 1998

4.15 False Statements in Document Required by Immigration Law, 18 USC 1546(a)

[Defendant] is charged with making a false statement under oath in a document required by federal immigration laws. For you to find [defendant] guilty of this crime, you must be convinced that the government has proven each of these things beyond a reasonable doubt:

First, that [defendant] knowingly made a material false statement under oath;

Second, that [defendant] made the statement voluntarily and intentionally; and

Third, that defendant made the statement in an immigration form [identify number and title of document]

A false statement is made "knowingly" if [defendant] knew that it was false or demonstrated a reckless disregard for the truth with a conscious purpose to avoid learning the truth.

The statement is "material" if it has a natural tendency to influence or to be capable of influencing the decision of the decisionmaker to which it was addressed.

A statement is "false" if it is untrue when made.

PATTERN CRIMINAL JURY INSTRUCTIONS FOR THE DISTRICT COURTS OF THE FIRST CIRCUIT – 1998

4.16 Interference with Commerce by Robbery or Extortion (Hobbs Act), 18 USC 1951

[Defendant] is accused of obstructing, delaying and affecting commerce by committing robbery [extortion]. It is against federal law to obstruct, delay or affect commerce by committing robbery [extortion]. For you to find [defendant] guilty of this crime, you must be convinced that the government has proven each of the following things beyond a reasonable doubt:

First, that [defendant] knowingly and willfully obtained property from [person or corporation robbed/extorted];

Second, that [defendant] did so by means of robbery [extortion];

Third, that [defendant] knew that [person or corporation robbed/ extorted] or its employees parted with the property because of the robbery [extortion]; and

Fourth, that the robbery [extortion] affected commerce.

It is not necessary for you to find that [defendant] knew or intended that his actions would affect commerce. It is only necessary that the natural consequences of the acts committed by [defendant] as charged in the indictment would affect commerce in any way or degree. The term "commerce" means commerce between any point in a state and any point outside the state.

"Robbery" means the unlawful taking or obtaining of personal property from the person or the presence of another, against his/her will, by means of actual or threatened force, or violence, or fear of injury to his/her person or property, or property in his/her custody or possession, or of anyone in his/her company at the time.

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

(1) In a color-of-official-right extortion case, the government must prove that the payee accepted the money knowing it was designed to influence his/her actions, but does not have to prove an affirmative act of inducement by the official. See Evans v. United States, 504 U.S. 255, 268 (1992) ("[F]ulfillment of the quid pro quo is not an element of the offense."). In the case of political or campaign contributions to elected public officials, however, the government must prove that "the payments are made in return for an explicit promise or understanding by the official to perform or not to perform an official act." McCormick v. United States, 500 U.S. 257, 273 (1991).

(2) The "fear" element of extortion can include fear of economic loss. See United States v. Sturm, 870 F.2d 769, 771-72 (1st Cir. 1989) (addressing creditor’s fear of non-repayment). For an instruction on that issue, see United States v. Capo, 817 F.2d 947, 951 (2d Cir. 1987). If the extortion is economic fear, the term "wrongful" must be defined to require that the government prove that the defendant did not have a claim of right to the property, see Sturm, 870 F.2d at 772-73, and that the defendant knew that he/she was not legally entitled to the property obtained. See id. at 774-75. See also United States v. Tormos-Vega, 959 F.2d 1103, 1109-10 (1st Cir.), cert. denied, 506 U.S. 866 (1992).

(3) Section 1951 has its own conspiracy provision and does not require an overt act. See Tormos-Vega, 959 F.2d at 1115.

(4) For elaboration on what it means to affect commerce, see Tormos-Vega, 959 F.2d at 1112-13. The definition of "commerce" should be modified according to the facts of the case within the range provided under 18 USC 1951(b)(3). United States v. McKenna, 889 F.2d 1168, 1171 (1st Cir. 1989), states:

The district court must determine if, as a matter of law, interstate commerce could be affected. If the court determines it could be, the question is turned over to the jury to determine if, as a matter of fact, interstate commerce was affected as the district court charged it could have been.

PATTERN CRIMINAL JURY INSTRUCTIONS FOR THE DISTRICT COURTS OF THE FIRST CIRCUIT – 1998

4.17 Money Laundering—Illegal Structuring, 18 USC 1956

[Defendant] is charged with violating that portion of the federal money laundering statute that prohibits structuring transactions to avoid reporting requirements. For [defendant] to be convicted of this crime, you must be convinced that the government has proven each of the following things beyond a reasonable doubt:

First, that [defendant] entered into a financial transaction or transactions, on or about the date alleged, with a financial institution engaged in interstate commerce, involving the use of proceeds of unlawful activities, specifically, proceeds of the [_________];

Second, that [defendant] knew that these were the proceeds of unlawful activity;

Third, that [defendant] knew that the transaction or transactions were structured or designed in whole or in part so as to avoid transaction reporting requirements under federal law.

A withdrawal [deposit, transfer, etc.] of funds from a bank is a financial transaction.

Federal law requires that withdrawal [deposit, transfer, etc.] of a sum of more than $10,000 cash from [into] a bank account in a single business day be reported by the bank to the Internal Revenue Service.

Knowledge may not ordinarily be proven directly because there is no way of directly scrutinizing the workings of the human mind. In determining what [defendant] knew or intended at a particular time, you may consider any statements made or acts done or omitted by [defendant] and all other facts and circumstances received in evidence that may aid in your determination of [defendant]’s knowledge or intent. You may infer, but you are certainly not required to infer, that a person intends the natural and probable consequences of acts knowingly done or knowingly omitted. It is entirely up to you, however, to decide what facts are proven by the evidence received during this trial.

(1) "‘[T]he defendant need not know exactly what crime generated the funds involved in a transaction, only that the funds are the proceeds of some kind of crime that is a felony under Federal or State law.’" United States v. Isabel, 945 F.2d 1193, 1201 n.13 (1st Cir. 1991) (quoting S. Rep. No. 433, 99th Cong., 2d Sess. 12 (1986)) (alteration in original).

(2) The requirements for withdrawal/deposit transaction reporting are set forth at 31 USC 5313; 31 C.F.R. § 103.22 (1997).

PATTERN CRIMINAL JURY INSTRUCTIONS FOR THE DISTRICT COURTS OF THE FIRST CIRCUIT – 1998

4.18 Unarmed Bank Robbery, 18 USC 2113(a)

The defendant is accused of robbing the [bank, savings and loan association or credit union]. It is against federal law to rob a federally insured [bank, savings and loan association or credit union]. For you to find the defendant guilty of this crime, you must be convinced that the Government has proven each of these things beyond a reasonable doubt:

First, that the defendant intentionally took money belonging to the [bank, savings and loan association or credit union], from a [bank, savings and loan association or credit union] employee or from the [bank, savings and loan association or credit union] while a [bank, savings and loan association or credit union] employee was present;

Second, that the defendant used intimidation or force and violence when he did so; and

Third, that at that time, the deposits of the [bank, savings and loan association or credit union] were insured by the [_______]. [The parties have so stipulated].

"Intimidation" is actions or words used for the purpose of making someone else fear bodily harm if he or she resists. The actual courage or timidity of the victim is irrelevant. The actions or words must be such as to intimidate an ordinary, reasonable person.

(1) Subjective intent to steal (i.e., knowledge by the defendant that he/she has no claim to the money) is not a required element under 18 USC 2113(a). See United States v. DeLeo, 422 F.2d 487, 490-91 (1st Cir.), cert. denied, 397 U.S. 1037 (1970).

(2) See Comment to Instruction 4.19 (Armed or Aggravated Bank Robbery).

PATTERN CRIMINAL JURY INSTRUCTIONS FOR THE DISTRICT COURTS OF THE FIRST CIRCUIT – 1998

4.19 Armed or Aggravated Bank Robbery, 18 USC 2113(a) & (d)

[Defendant] is accused of robbing the [bank, savings and loan association or credit union]. It is against federal law to rob a federally insured [bank, savings and loan association or credit union]. For you to find [defendant] guilty of this crime, you must be convinced that the government has proven each of these things beyond a reasonable doubt:

First, that [defendant] intentionally took money belonging to the [bank, savings and loan association or credit union] from a [bank, savings and loan association or credit union] employee or from the [bank, savings and loan association or credit union] while a [bank, savings and loan association or credit union] employee was present;

Second, that [defendant] used intimidation or force and violence when he/she did so;

Third, that at that time, the deposits of the [bank, savings and loan association or credit union] were insured by the [_______]. [The parties have so stipulated]; and

Fourth, that [defendant], by using a dangerous weapon or device, assaulted someone or put someone’s life in jeopardy.

"Intimidation" is actions or words used for the purpose of making someone else fear bodily harm if he or she resists. The actual courage or timidity of the victim is irrelevant. The actions or words must be such as to intimidate an ordinary, reasonable person.

"Assault" means to threaten bodily harm with an apparent present ability to succeed, where the threat is intended to and does generate a reasonable apprehension of such harm in a victim. The threat does not have to be carried out.

If you find [defendant] not guilty of this charge, you must proceed to consider whether the defendant is guilty of the lesser offense of robbing a [bank, savings and loan association or credit union] without either an assault or jeopardizing someone’s life with a dangerous weapon. The lesser offense requires the government to prove beyond a reasonable doubt the first, second and third, but not the fourth, things I have described. In other words, the government must prove everything except using a dangerous weapon to assault someone or jeopardize someone’s life.

(1) Subjective intent to steal (i.e., knowledge by the defendant that he/she has no claim to the money) is not a required element under 18 USC 2113(a) & (d). See United States v. DeLeo, 422 F.2d 487, 490-91 (1st Cir.), cert. denied, 397 U.S. 1037 (1970).

(2) In some cases it may be appropriate to charge that possession of recently stolen property may support an inference of participation in the theft of the property. See United States v. Rose, 104 F.3d 1408, 1413 (1st Cir. 1997), cert. denied, ___ U.S. ___, ___ S. Ct. ___, No. 96-8861, 1997 WL 251219 (U.S. June 2, 1997). The inference is permissible, not mandatory or permissible, but is not a presumption. See id.

(3) "[B]y using a dangerous weapon or device" modifies both the "assaulted" and "put someone’s life in jeopardy" language of § 2113(d). Simpson v. United States, 435 U.S. 6, 13 n.6 (1978). This part of Simpson is not affected by the Comprehensive Crime Control Act of 1984, 18 USC 924(c)(1).

(4) An unloaded gun is a dangerous weapon. See McLaughlin v. United States, 476 U.S. 16, 17-18 (1986). Whether some other weapon or device is dangerous is generally a question of fact for the jury. See Federal Judicial Center Instruction 105, commentary at 146; Eighth Circuit Instruction 6.18.2113B, commentary at 375 n.4; United States v. Benson, 918 F.2d 1, 2-4 (1st Cir. 1990) (upholding bench trial decision that movement of hand inside a pocket, revealing a metallic object that a teller could reasonably believe to be a gun (actually a knife) and telling the teller that it was a gun, amounts to use of a dangerous weapon or device); United States v. Cannon, 903 F.2d 849, 854 (1st Cir.) (approving instruction that toy gun "may be dangerous if it instills fear in the average citizen, creating an immediate danger that a violent response will follow"), cert. denied, 498 U.S. 1014 (1990).

(5) The instruction on the lesser offense of unarmed bank robbery should be given if there is a factual dispute over use of a weapon and a jury finding of the lesserincluded offense would not be irrational. See United States v. Ferreira, 625 F.2d 1030, 1031-33 (1st Cir. 1980). The defendant, however, can waive the right to a lesser-included offense charge. See United States v. Lopez Andino, 831 F.2d 1164, 1171 (1st Cir. 1987) (criminal civil rights charges), cert. denied, 486 U.S. 1034 (1988).

(6) If an aiding and abetting charge is given for armed bank robbery, the jury should be instructed that the shared knowledge requirement, see Instruction 4.02 (Aid and Abet), extends to both the robbery and the understanding that a weapon would be used. Knowledge includes notice of the "likelihood" of a weapon’s use—apparently something more than simple constructive knowledge, but less than actual knowledge. See United States v. Spinney, 65 F.3d 231, 236-37 (1st Cir. 1995). "[A]n enhanced showing of constructive knowledge will suffice." Id. at 237.

PATTERN CRIMINAL JURY INSTRUCTIONS FOR THE DISTRICT COURTS OF THE FIRST CIRCUIT – 1998

4.20 Interstate Transportation of Stolen Money or Property, 18 USC 2314

[Defendant] is accused of taking stolen money [property], from [state] to [state], on or about [date]. It is against federal law to transport money [property] from one state to another knowing that the money [property] is stolen. For you to find [defendant] guilty of this crime, you must be convinced that the government has proven each of these things beyond a reasonable doubt;

First, that the money [property] was stolen;

Second, that [defendant] took the money [property] from [state] to [state], or arranged for it to be taken;

Third, that, when [defendant] took the money [property] from [state] to [state], or arranged for it to be taken, he/she knew that it was stolen;

Fourth, that the money [property] totaled [was worth] $5,000 or more.

It does not matter whether [defendant] stole the money [property] or someone else did. However, for you to find [defendant] guilty of this crime, it must be proven beyond a reasonable doubt that he/she took at least $5,000 [worth of property] or arranged for at least $5,000 [ worth of property] to be taken from [state] to [state] knowing it was stolen.

(1) The government must prove that a defendant caused stolen money or property to be transported; it is not necessary to prove that he/she actually transmitted or transported the money or property himself/herself. See United States v. Doane, 975 F.2d 8, 11 (1st Cir. 1992).

(2) Unexplained possession of recently stolen money or property may be used to support an inference that the possessor knew it was stolen in the light of surrounding circumstances shown by evidence in the case so long as the jury is instructed that the inference is permissible, not mandatory. See United States v. Thuna, 786 F.2d 437, 444-45 (1st Cir.), cert. denied, 479 U.S. 825 (1986); see also United States v. Lavoie, 721 F.2d 407, 409-10 (1st Cir. 1983) (same in context of 18 USC 2313), cert. denied, 465 U.S. 1069 (1984). Cf. Freije v. United States, 386 F.2d 408, 410-11 (1st Cir. 1967) (defendants who come forward with an explanation for possession of stolen vehicles are entitled to an instruction that the explanation, if believed, negates any inference knowledge arising from mere fact of possession), cert. denied, 396 U.S. 859 (1969). Such possession also may support an inference regarding interstate transportation. See Thuna, 786 F.2d at 444-45 (possession in one state of property recently stolen in another state, if not satisfactorily explained, is a circumstance from which a jury may infer that the person knew the property to be stolen and caused it to be transported in interstate commerce).

(3) This instruction can be modified for the transportation, transmission or transfer of stolen money or property in foreign commerce or for items converted or taken by fraud. 18 USC 2314.

(4) This instruction also can be adapted for cases concerning the transportation of stolen vehicles. 18 USC 2312.

PATTERN CRIMINAL JURY INSTRUCTIONS FOR THE DISTRICT COURTS OF THE FIRST CIRCUIT – 1998

4.21 Immigration Through Fraudulent Marriage, 8 USC 1325(c)

[Defendant] is charged with knowingly entering into marriage for the purpose of evading the immigration laws. For you to find [defendant] guilty of this crime, you must be convinced that the government has proven each of these things beyond a reasonable doubt:

First, that [defendant] knowingly married a United States citizen; and

Second, that he/she knowingly entered into the marriage for the purpose of evading a provision of the United States immigration laws.

The word "knowingly" means that the act was done voluntarily and intentionally and not because of mistake or accident.

To evade a provision of law means to escape complying with the law by means of trickery or deceit.

The validity of the marriage is immaterial. See Lutwak v. United States, 344 U.S. 604, 611 (1953).

PATTERN CRIMINAL JURY INSTRUCTIONS FOR THE DISTRICT COURTS OF THE FIRST CIRCUIT – 1998

4.22 Possession With Intent to Distribute a Controlled Substance, 21 USC 841 (a) (1)

[Defendant] is accused of possessing [controlled substance] on or about [date] intending to distribute it to someone else. It is against federal law to have [controlled substance] in your possession with the intention of distributing it to someone else. For you to find [defendant] guilty of this crime you must be convinced that the government has proven each of these things beyond a reasonable doubt:

First, that [defendant] on that date possessed [controlled substance], either actually or constructively;

Second, that he/she did so with a specific intent to distribute the [controlled substance] over which he/she had actual or constructive possession; and

Third, that he/she did so knowingly and intentionally.

It is not necessary for you to be convinced that [defendant] actually delivered the [controlled substance] to someone else, or that he/she made any money out of the transaction. It is enough for the government to prove, beyond a reasonable doubt, that he/she had in his/her possession what he/she knew was [controlled substance] and that he/she intended to transfer it or some of it to someone else.

[A person’s intent may be inferred from the surrounding circumstances. Intent to distribute may, for example, be inferred from a quantity of drugs larger than that needed for personal use. In other words, if you find that the defendant possessed a quantity of [controlled substance]—more than that which would be needed for personal use—then you may infer that the defendant intended to distribute [controlled substance]. The law does not require you to draw such an inference, but you may draw it.]

The term "possess" means to exercise authority, dominion or control over something. The law recognizes different kinds of possession.

["Possession" includes both actual and constructive possession. A person who has direct physical control of something on or around his/her person 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 exercise control over something is in constructive possession of it. Whenever I use the term "possession" in these instructions, I mean actual as well as constructive possession.]

["Possession" [also] includes both sole possession and joint possession. If one person alone has actual or constructive possession, possession is sole. If two or more persons share actual or constructive possession, possession is joint. Whenever I have used the word "possession" in these instructions, I mean joint as well as sole possession.]

(1) The enumeration of the elements of this crime is based upon United States v. Latham, 874 F.2d 852, 863 (1st Cir. 1989); see also United States v. Akinola, 985 F.2d 1105, 1109 (1st Cir. 1993).

(2) Quantity, see United States v. Ocampo-Guarin, 968 F.2d 1406, 1410 (1st Cir. 1992), or quantity and purity can support an inference of intent to distribute. See United States v. Bergodere, 40 F.3d 512, 518 (1st Cir. 1994), cert. denied, ___ U.S. ___, 115 S. Ct. 1439 (1995). One ounce of cocaine, however, is not sufficient to support the inference. See Latham, 874 F.2d at 862-63. Other indicia of intent to distribute are scales, firearms and large amounts of cash. See United States v. Ford, 22 F.3d 374, 382-83 (1st Cir.), cert. denied, 513 U.S. 900 (1994).

(3) The defendant’s intent to distribute must relate specifically to the controlled substance in his/her possession, not to "some unspecified amount of [controlled substance], that he[/she] did not currently possess, at some unspecified time in the future." Latham, 874 F.2d at 861. However, the government need not prove that the defendant knew which particular controlled substance was involved. See United States v. Kairouz, 751 F.2d 467, 468-69 (1st Cir. 1985) (affirming the instruction: "if defendant . . . ‘intend[ed] to distribute a controlled substance, it does not matter that . . . [he has] made a mistake about what controlled substance it happen[ed] to be’") (alteration in original). See also United States v. Garcia-Rosa, 876 F.2d 209, 216 (1st Cir. 1989), cert. denied, 493 U.S. 1030 (1990); United States v. Cheung, 836 F.2d 729, 731 (1st Cir. 1988).

(4) For a discussion on the issue of "possession," see Akinola, 985 F.2d at 1109, Ocampo-Guarin, 968 F.2d at 1409-10, and United States v. Almonte, 952 F.2d 20, 23- 24 (1st Cir. 1991), cert. denied, 503 U.S. 1010 (1992).

PATTERN CRIMINAL JURY INSTRUCTIONS FOR THE DISTRICT COURTS OF THE FIRST CIRCUIT – 1998

4.23 Distribution of a Controlled Substance, 21 USC 841(a)(1)

[Defendant] is accused of distributing [controlled substance] on or about [date]. It is against federal law to distribute, that is, to transfer [controlled substance] to another person. For you to find [defendant] guilty of this crime, you must be convinced that the government has proven each of the following things beyond a reasonable doubt:

First, that [defendant] on the date alleged transferred [controlled substance] to another person;

Second, that he/she knew that the substance was [controlled substance]; and

Third, that [defendant] acted intentionally, that is, that it was his/her conscious object to transfer the controlled substance to another person. It is not necessary that [defendant] have benefitted in any way from the transfer.

(1) The statute defines "distribute" as meaning "to deliver," 21 USC 802(11), which in turn is defined as meaning "the actual constructive or attempted transfer of a controlled substance, whether or not there exists an agency relationship." § 802(8) (emphasis added). However, the court may refuse to instruct on the meaning of the term "distribute" "because it is within the common understanding of jurors." United States v. Acevedo, 842 F.2d 502, 506-07 (1st Cir. 1988).

(2) "[D]eliver[y] or transfer [of] possession of a controlled substance to another person" constitutes distribution regardless of whether the transferor has "any financial interest in the transaction." United States v. Morales-Cartagena, 987 F.2d 849, 852 (1st Cir. 1993). Thus, courts are in broad agreement that the mere sharing of narcotics can support a distribution charge. See, e.g., United States v. Corral-Corral, 899 F.2d 927, 936 n.7 (10th Cir. 1990); United States v. Ramirez, 608 F.2d 1261, 1264 (9th Cir. 1979). Distribution, however, does not include "‘the passing of a drug between joint possessors who simultaneously acquired possession at the outset for their own use.’" United States v. Rush, 738 F.2d 497, 514 (1st Cir. 1984) (quoting United States v. Swiderski, 548 F.2d 445, 450-51 (2d Cir. 1977)) (overturning distribution conviction of husband and wife who jointly purchased and shared 4 grams of cocaine), cert. denied, 470 U.S. 1004 (1985).

PATTERN CRIMINAL JURY INSTRUCTIONS FOR THE DISTRICT COURTS OF THE FIRST CIRCUIT – 1998

4.24 Manufacture of a Controlled Substance, 21 USC§ 841(a)(1), 802(15)

[Defendant] is accused of manufacturing [controlled substance] on or about [date]. It is against federal law to manufacture, that is to produce or prepare, [controlled substance]. For you to find [defendant] guilty of this crime, you must be convinced that the government has proven each of the following things beyond a reasonable doubt:

First, that [defendant] manufactured [controlled substance];

Second, that he/she knew that the substance he/she was manufacturing was [controlled substance]; and

Third, that [defendant] acted intentionally, that is, that it was his/her conscious object to manufacture the controlled substance.

The term "manufacture" as it relates to this case means the production, preparation, propagation, compounding or processing of a controlled substance, either directly or indirectly or by extraction from substances of natural origin. The term "manufacture" includes the act of growing.

(1) The definition of manufacture includes other processes in addition to those listed above, e.g., "independently by means of chemical synthesis or by a combination of extraction and chemical synthesis." 21 USC 802(15).

(2) Marijuana grown for personal use falls within the definition of "manufacture." See United States v. One Parcel of Real Property (Great Harbor Neck), 960 F.2d 200, 205 (1st Cir. 1992). See also 21 USC 802(22) ("‘[P]roduction’ includes the manufacture, planting, cultivation, growing, or harvesting of a controlled substance.").

PATTERN CRIMINAL JURY INSTRUCTIONS FOR THE DISTRICT COURTS OF THE FIRST CIRCUIT – 1998

4.25 Income Tax Evasion, 26 USC 7201

[Defendant] is charged with income tax evasion. For you to find [defendant] guilty of this crime, the government must prove the following things beyond a reasonable doubt.

First, that [defendant] owed substantially more federal income tax for the year[s] [__________] than was indicated as due on his/her income tax return;

Second, that [defendant] intended to evade or defeat the assessment or payment of this tax; and

Third, that [defendant] willfully committed an affirmative act in furtherance of this intent.

[Fourth, that [defendant] did not have a good-faith belief that he/she was complying with the provisions of [specific provision]. A belief may be in good faith even if it is unreasonable.]

A person may not be convicted of federal tax evasion on the basis of a willful omission alone; he/she also must have undertaken an affirmative act of evasion. The affirmative act requirement can be met by [the filing of a false or fraudulent tax return that substantially understates taxable income or by other affirmative acts of concealment of taxable income such as keeping a double set of books, making false entries or invoices or documents, concealing assets, handling affairs so as to avoid keeping records, and so forth].

[Defendant] acted "willfully" if the law imposed a duty on him/her, he/she knew of the duty, and he/she voluntarily and intentionally violated that duty. Thus, if [defendant] acted in good faith, he/she cannot be guilty of this crime. The burden to prove intent, as with all other elements of the crime, rests with the government. This is a subjective standard: what did [defendant] honestly believe, not what a reasonable person should have believed. Negligence, even gross negligence, is not enough to meet the "willful" requirement.

(1) This instruction covers two distinct felony crimes under § 7201. A defendant may be charged with a "willful attempt to evade or defeat" either "the ‘assessment’ of a tax" or "the ‘payment’ of a tax." United States v. Hogan, 861 F.2d 312, 315 (1st Cir. 1988) (citing Sansone v. United States, 380 U.S. 343, 354 (1965)). "The elements of both crimes are the same." Id.

(2) The felony of tax evasion under § 7201 is distinguishable from the misdemeanor of failing to file a tax return under § 7203 in that it requires an affirmative "attempt to evade or defeat taxes." Sansone, 380 U.S. at 351; see also United States v Waldeck, 909 F.2d 555, 557, 559 (1st Cir. 1990). "A mere willful failure to pay a tax" is not sufficient. Sansone, 380 U.S. at 351.

(3) Although § 7201 does not contain an explicit "substantiality" requirement, most circuits require the government to prove that the amount of tax evaded was substantial. See, e.g., United States v Gonzales, 58 F.3d 506, 509 (10th Cir. 1995); United States v. Romano, 938 F.2d 1569, 1571 (2d Cir. 1991); United States v. Goodyear, 649 F.2d 226, 227 (4th Cir. 1981); United States v. Burkhart, 501 F.2d 993, 995 (6th Cir. 1974), cert. denied, 420 U.S. 946 (1975); McKenna v. United States, 232 F.2d 431, 436 (8th Cir. 1956). But see United States v. Marashi, 913 F.2d 724, 735 (9th Cir. 1990). The First Circuit appears to follow this majority approach. See United States v. Sorrentino, 726 F.2d 876, 879, 880 n.1 (1st Cir. 1984) (showing of substantiality required under net-worth method of proof) (citing United States v. Nunan, 236 F.2d 576 (2d Cir. 1956) (showing that a substantial tax was evaded required generally in § 7201 cases), cert. denied, 353 U.S. 912 (1957)); United States v. Morse, 491 F.2d 149, 153 n.3 (1st Cir. 1974) (showing of a substantial discrepancy required under bank-deposits method of proof);

(4) "Willfulness" is an element of any crime under 26 USC 7201-7207. That term has been defined in the context of criminal tax cases as "requir[ing] the Government to prove that the law imposed a duty on the defendant, that the defendant knew of this duty, and that he voluntarily and intentionally violated that duty." Cheek v United States, 498 U.S. 192, 201 (1991). Mistake, negligence and gross negligence are not sufficient to meet the willfulness requirement of these tax crimes. See Hogan, 861 F.2d at 316; United States v. Aitken, 755 F.2d 188, 191-93 (1st Cir. 1985).

(5) Cheek also held that the government has the burden of "negating a defendant’s claim of ignorance of the law or a claim that because of a misunderstanding of the law, he had a good-faith belief that he was not violating any of the provisions of the tax laws." 498 U.S. at 202. A defendant has a valid good-faith defense "whether or not the claimed belief or misunderstanding is objectively reasonable." Id.; see also Aitken, 755 F.2d at 190-92. However, a belief that the tax statutes are unconstitutional is "irrelevant to the issue of willfulness." Cheek, 498 U.S. at 206.

(6) The court may add an instruction on conscious avoidance "if a defendant claims a lack of knowledge, the facts suggest a conscious course of deliberate ignorance, and the instruction, taken as a whole, cannot be misunderstood as mandating an inference of knowledge." United States v. Littlefield, 840 F.2d 143, 147 (1st Cir.), cert. denied, 488 U.S. 860 (1988). Such an instruction does not impermissibly lessen the government’s burden of proof because "it goes to knowledge and not to willfulness." Hogan, 861 F.2d at 316 (emphasis added).

PATTERN CRIMINAL JURY INSTRUCTIONS FOR THE DISTRICT COURTS OF THE FIRST CIRCUIT – 1998

4.26 Failure to File a Tax Return, 26 USC 7203

The indictment charges [defendant] with willful failure to file a tax return for the year[s] [_______]. For you to find [defendant] guilty of this charge, the government must prove each of the following three things beyond a reasonable doubt:

First, that [defendant] was required to file an income tax return for the year[s] [______];

Second, that [defendant] failed to file an income tax return for the year[s] in question; and

Third, that [defendant] acted willfully.

To act "willfully" means to violate voluntarily and intentionally a known legal duty to file, not to act as a result of accident or negligence.

(1) Failure to file a tax return under § 7203 is a misdemeanor. In the appropriate circumstances, the charge can be used as a lesser included offense for the crime of willful tax evasion under § 7201. See Spies v. United States, 317 U.S. 492, 497-99 (1943). "Willful but passive neglect of the statutory duty may constitute the lesser offense, but to combine with it a willful and positive attempt to evade tax in any manner or to defeat it by any means lifts the offense to the degree of felony." Id. at 499.

(2) See Comment to Instruction 4.25 (Income Tax Evasion) for a discussion of willfulness, good faith and deliberate ignorance in the context of tax crimes. See also United States v. Turano, 802 F.2d 10, 11 (1st Cir. 1986) (stating that trial court’s instruction on good-faith defense did not "improperly inject[ ] an objective element into the subjective willfulness inquiry."); United States v. Sempos, 772 F.2d 1, 2 (1st Cir. 1985) ("Financial or domestic problems . . . do not rule out willfulness. . . .").

PATTERN CRIMINAL JURY INSTRUCTIONS FOR THE DISTRICT COURTS OF THE FIRST CIRCUIT – 1998

4.27 False Statements on Income Tax Return, 26 USC 7206(1)

[Defendant] is charged with willfully filing a false federal income tax return. For you to find [defendant] guilty of this charge, the government must prove each of the following things beyond a reasonable doubt:

First, that [defendant] signed a federal income tax return containing a written declaration that it was being signed under the penalties of perjury;

Second, that [defendant] did not believe that every material matter in the return was true and correct; and

Third, that [defendant] willfully made the false statement with the intent of violating his/her duty under the tax laws and not as a result of accident, negligence or inadvertence.

A "material" matter is one that is likely to affect the calculation of tax due and payable, or to affect or influence the IRS in carrying out the functions committed to it by law, such as monitoring and verifying tax liability. A return that omits material items necessary to the computation of taxable income is not true and correct.

(1) Materiality is a question for the jury, and the definition of materiality here comes largely from United States v. DiRico, 78 F.3d 732, 735-36 (1st Cir. 1996). The standard is objective. See United States v. Romanow, 509 F.2d 26, 28 (1st Cir. 1975).

(2) See Comment to Instruction 4.25 (Income Tax Evasion) for a discussion of willfulness, good faith and deliberate ignorance in the context of tax crimes. See also United States v. Pomponio, 429 U.S. 10, 11-13 (1976); United States v. Bishop, 412 U.S. 346, 360 (1973); United States v. Drape, 668 F.2d 22, 26 (1st Cir. 1982) ("Intent may be established where a taxpayer ‘chooses to keep himself uninformed as to the full extent that [the return] is insufficient.’") (quoting Katz v. United States, 321 F.2d 7, 10 (1st Cir. 1963)) (alteration in original).

(3) The defendant’s signature on the tax return is sufficient to support a finding by the jury that he/she read the return and knew its contents. See United States v. Olbres, 61 F.3d 967, 971 (1st Cir.), cert. denied, ___ U.S. ___, 116 S. Ct. 522 (1995); Drape, 668 F.2d at 26; Romanow, 509 F.2d at 27.

(4) The instruction can be modified to apply to a willful omission of material facts on a tax return. See Siravo v. United States, 377 F.2d 469, 472 (1st Cir. 1967) ("[A] return that omits material items necessary to the computation of income is not ‘true and correct’ within the meaning of section 7206.").

PATTERN CRIMINAL JURY INSTRUCTIONS FOR THE DISTRICT COURTS OF THE FIRST CIRCUIT – 1998