PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT
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II. Substantive Offense Instructions (7 USC 2024(b)) - (18 USC 1001) (2.01 - 2.50)

        2.01     Food Stamp Crimes (7 USC 2024(b))
        2.02     Bringing In Aliens (8 USC 1324(a)(1)(A)(i))
        2.03     Unlawfully Transporting Aliens (8 USC 1324(a)(1)(A)(ii))
        2.04     Concealing Or Harboring Aliens (8 USC 1324(a)(1)(A)(iii))
        2.05     Illegal Reentry Following Deportation (8 USC 1326(a))
        2.06     Aiding And Abetting (Agency) (18 USC 2)
        2.07     Accessory After The Fact (18 USC 3)
        2.08     Misprision Of A Felony (18 USC 4)
        2.09     Assaulting A Federal Officer (18 USC 111)
        2.10     Bankruptcy: Concealment Of Assets (Bankruptcy Proceeding Pending) (18 USC 152)
        2.11     Bankruptcy: Presenting Or Using A False Claim (Bankruptcy Proceeding Pending) (18 USC 152)
        2.12     Bribery Of Public Official (18 USC 201(b)(1))
        2.13     Receiving Bribe By Public Official (18 USC 201(b)(2))
        2.14     Illegal Gratuity To A Public Official (18 USC 201(c)(1)(A))
        2.15     Receiving Illegal Gratuity By Public Official (18 USC 201(c)(1)(B))
        2.16     Bribery Or Reward Of A Bank Officer (18 USC 215(a)(1))
        2.17     Conspiracy To Deprive Person Of Civil Rights (18 USC 241)
        2.18     Deprivation Of Civil Rights (18 USC 242)
        2.19     False Claims Against The Government (18 USC 287)
        2.20     Conspiracy (18 USC 371)
        2.21     Multiple Conspiracies
        2.22     Conspirator's Liability For Substantive Count
        2.23     Withdrawal Instruction
        2.24     Counterfeiting (18 USC 471)
        2.25     Passing Counterfeit Securities Or Obligations (18 USC 472)
        2.26     Forgery Against The United States (18 USC 495)
        2.27     Uttering A Forged Writing To Defraud The United States (18 USC 495)
        2.28     Forging Endorsement On A Treasury Check, Bond, Or Security Of The United States (18 USC 510(a)(1))
        2.29     Uttering A Forged Treasury Check, Bond, Or Security Of The United States (18 USC 510(a)(2))
        2.30     Smuggling (18 USC 545)
        2.31     Illegal Importation (18 USC 545)
        2.32     Exportation Of Stolen Vehicles (18 USC 553)
        2.33     Theft Of Government Money Or Property (18 USC 641)
        2.34     Theft Or Embezzlement By Bank Officer Or Employee (18 USC 656)
        2.35     Theft From Lending, Credit, And Insurance Institutions (18 USC 657)
        2.36     Theft From Interstate Shipment (18 USC 659)
        2.37     Buying Or Receiving Goods Stolen From Interstate Shipment (18 USC 659)
        2.38     Escape (18 USC 751(a))
        2.39     Threats Against The President (18 USC 871)
        2.39     Aiding An Escape (18 USC 752(a)) (1997)
        2.40     Interstate Transmission Of Extortionate Communication (18 USC 875(b))
        2.41     Mailing Threatening Communications (18 USC 876)
        2.42     Misrepresentation Of Citizenship (18 USC 911)
        2.43     False Impersonation Of Federal Officer Or Employee—Demanding Or Obtaining Anything Of Value (18 USC 912)
        2.44     Dealing In Firearms Without License (18 USC 922(a)(1)(A))
        2.45     False Statement To Firearms Dealer (18 USC 922(a)(6))
        2.46     Unlawful Sale Or Disposition Of Firearm (18 USC 922(d))
        2.47     Possession Of A Firearm By A Convicted Felon (18 USC 922(g)(1))
        2.48     Using/Carrying A Firearm During Commission Of A Drug Trafficking Crime Or Crime Of Violence (18 USC 924(c)(1))
        2.49     False Statements To Federal Agencies And Agents (18 USC 1001)
        2.50     False Statements In Bank Records (18 USC 1005)

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 2001

2.01 Food Stamp Crimes

Title 7, United States Code, Section 2024(b), makes it a crime for anyone knowingly to use [transfer] [acquire] [possess] United States Department of Agriculture food stamp coupons, authorization cards, or access devices in any manner not authorized by law or by Department regulations, where the food stamp coupons, cards, or devices have a value of $100 or more.

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

First: That the defendant used [transferred] [acquired] [altered] [possessed] food stamp coupons [authorization cards] [access devices] in a manner not authorized by law or by Department of Agriculture regulations, as charged;

Second: That the defendant knew he was acting unlawfully and intended to violate the law; and

Third: That the food stamp coupons [authorization cards] [access devices] had a value of $100 [$5,000] [$___] or more.

You are instructed that there is no law or departmental regulation which authorizes anyone to sell or purchase food stamp coupons, cards or access devices for cash [to use, transfer, or acquire food stamp coupons, authorization cards or access devices for clothes, drugs, cigarettes, or liquor].

For the purpose of determining the value of food stamp coupons, authorization cards or access devices, you should place a value on them equal to their face value.

The third element, prompted by the Apprendi doctrine, is required when the indictment alleges a value that would result in an enhanced penalty.

If a disputed issue is whether the food stamp coupons had a value of $5,000 or more, the Court should consider giving a lesser included offense instruction.

See Liparota v. United States, 105 S.Ct. 2084 (1985) (explaining mens rea requirement);United States v. Barnes, 117 F.3d 328, 333 (7^th Cir. 1997); United States v. Abdelkoui, 19 F.3d. 1178 (7th Cir. 1994); United States v. Brown, 897 F.2d 162, 163 (5th Cir. 1990) (same). See also United States v. Bryan, 118 S.Ct. 1939 (1998), a firearms case discussing the meaning of "knowing" in 7 U.S.C. § 2024(b) and (c).

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1997 Version:

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 1997

2.01 Food Stamp Crimes

Title 7, United States Code, Section 2024(b), makes it a crime for anyone to knowingly transfer [acquire] [possess] United States Department of Agriculture food stamp coupons, authorization cards, or access devices in any manner not authorized by law or by Department regulations, where the food stamp coupons, cards, or devices have a value of $100 or more.

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

First: That the defendant transferred [acquired] [possessed] the food stamp coupons, cards, or devices in a manner not authorized by law or by Department of Agriculture regulations, as charged;

Second: That the defendant knew he was acting unlawfully and intended to violate the law; and

Third: That the food stamp coupons, cards or devices had a value of $100 or more.

You are instructed that there is no law or departmental regulation which authorizes anyone to sell or purchase food stamp coupons, cards or devices for cash [to transfer or acquire food stamp coupons, cards or devices for clothes, drugs, cigarettes, or liquor].

For the purpose of determining the value of food stamp coupons, cards or devices, you should place a value on them equal to their face value.

Note

See Liparota v. United States, 471 US 419, 105 S.Ct. 2084, 85 L.Ed.2d 434 (1985) (explaining mens rea requirement); United States v. Brown, 897 F2d 162, 163 (5th Cir.1990) (same); United States v. Abdelkoui, 19 F3d 1178 (7th Cir.1994).

A felony is proven when evidence establishes the value of the coupons is $100.00 or more. If the value is $5,000.00 or more, maximum punishment increases from five to twenty years.

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 2001

2.02 Bringing in Aliens

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1997 Version:

Instruction unchanged.

There are no reported Fifth Circuit cases that would require the fourth element. It is included based on two cases from other circuits. See United States v. Zayas-Morales, 685 F2d 1272, 1275 (11th Cir.1982); United States v. Nguyen, 73 F3d 887, 894 (9^th Cir. 1995).

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 2001

2.03 Unlawfully Transporting Aliens

Title 8, United States Code, Section 1324(a)(1)(A)(ii) makes it a crime for anyone to transport an alien within the United States, knowing or in reckless disregard of the fact that the alien s here illegally, and in furtherance of the alien's violation of the law.

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

First: That an alien had entered or remained in the United States in violation of the law;

Second: That the defendant transported the alien within the United States with intent to further the alien's unlawful presence; and

Third: That the defendant knew or recklessly disregarded the fact that the alien was in the United States in violation of the law.

A person acts with "reckless disregard" when he is aware of, but consciously disregards, facts and circumstances indicating that the person transported was an alien who had entered or remained in the United States in violation of the law.

An alien is any person who is not a natural-born or naturalized citizen, or a national of the United States. The term "national of the United States" includes not only a citizen, but also a person who, though not a citizen of the United States, owes permanent allegiance to the United States.

In order for transportation to be in furtherance of the alien's unlawful presence, there must be a direct and substantial relationship between the defendant's act of transportation and its furtherance of the alien's presence in the United States. In other words, the act of transportation must not be merely incidental to a furtherance of the alien's violation of the law.

Note

The statute does not contain the term "willfully." Nevertheless, a series of recent Fifth Circuit decisions, while reciting the elements of this offense, state that the Defendant must have acted "willfully in furtherance of the alien's violation of law." United States v. Romero-Cruz, 201 F.3d 374, 378 (5^th Cir. 2000); United States v. Williams, 132 F.3d 1055, 1059 (5^th Cir. 1999); United States v. Diaz, 936 F.2d 786, 788 (5^th Cir. 1991); United States v. Morales-Rosales, 838 F.2d 1359, 1361 (5^th Cir. 1988). However, in United States v. Rivera, 879 F.2d 1247, 1251 (5^th Cir. 1989), cert. denied, 110 S.Ct. 554 (1989), the court specifically rejected an argument that "willful transportation" was an element of this crime, explaining that the essential element was whether there is a "direct and substantial relationship between the transportation and its furtherance of the alien's presence in the United States." Moreover, the Williams opinion, despite reciting "willfully" as an element, approved a jury instruction "substantially the same" as the 1997 Fifth Circuit Pattern Jury Instruction, and which did not use the term "willfully" as part of the elements of the offense. 132 F.3d at 1061-62.

The statute describes aggravating factors raising the statutory maximum penalty, which must be submitted as additional elements if charged in the indictment. These include: whether the offense was done for the purpose of commercial advantage or private gain, 8 U.S.C. § 1324(a) (1) (B) (i); whether the defendant caused serious bodily injury, 8 U.S.C. § 1324(a) (1) (B) (iii); or whether death resulted, 8 U.S.C. § 1324(a) (1) (B) (iv). Apprendi v. New Jersey, 120 S.Ct. 2348 (2000).

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1997 Version:

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 1997

2.03 Unlawfully Transporting Aliens

Title 8, United States Code, Section 1324(a)(1)(A)(ii) makes it a crime for anyone to transport an alien within the United States, knowing or in reckless disregard of the fact that the alien s here illegally, and in furtherance of the alien's violation of the law.

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

First: That an alien had entered or remained in the United States in violation of the law;

Second: That the defendant transported the alien within the United States with intent to further the alien's unlawful presence; and

Third: That the defendant knew or recklessly disregarded the fact that the alien was in the United States in violation of the law.

A person acts with "reckless disregard" when he is aware of, but consciously disregards, facts and circumstances indicating that the person transported was an alien who had entered or remained in the United States in violation of the law.

An alien is any person who is not a natural-born or naturalized citizen, or a national of the United States. The term "national of the United States" includes not only a citizen, but also a person who, though not a citizen of the United States, owes permanent allegiance to the United States.

In order for transportation to be in furtherance of the alien's unlawful presence, there must be a direct and substantial relationship between the defendant's act of transportation and its furtherance of the alien's presence in the United States. In other words, the act of transportation must not be merely incidental to a furtherance of the alien's violation of the law.

Note

Although the statute has been amended since the Fifth Circuit's Opinion in United States v. Merkt, 764 F2d 266 (5th Cir. 1985), it remains an essential element of the offense that the defendant willfully and specifically intend his act of transportation to further the alien's unlawful Presence. United States v. Diaz, 936 F2d 786, 788 (5th Cir.1991); United States v. Rivera, 879 F2d 1247 (5th Cir.1989), cert. denied, 493 US 998, 110 S.Ct. 554, 107 L.Ed.2d 550 (1989); United States v. Parmelee, 42 F3d 387, 391 (7th Cir.1994), cert. denied, ____US___, 116 S.Ct. 63, 133 L.Ed.2d 25 (1995).

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 2001

See note under Instruction No. 2.03, 8 U.S.C. § 1324(a)(1)(A)(ii), for the submission of required additional elements when aggravating factors are charged in the indictment. Apprendi v. New Jersey, 120 S.Ct. 2348 (2000).

See United States v. Rubio-Gonzalez, 674 F.2d 1067 (5^th Cir. 1982); United States v. Varkonyi, 645 F.2d 453 (5^th Cir. 1981); United States v. Cantu, 557 F.2d 1173 (5^th Cir. 1977); andUnited States v. Kim, 193 F.3d 567 (2^d Cir. 1999), for the fourth element.

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1997 Version:

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 1997

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 2001

2.05 Illegal Reentry Following Deportation

Title 8, United States Code, Section 1326(a), makes it a crime for an alien to enter [to be found within] the United States without consent of the Attorney General to apply for readmission after being deported.

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

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

Second: That the defendant had previously been denied admission [excluded] [removed] [deported] from the United States;

Third: That thereafter the defendant knowingly entered [was found in] the United States; and

Fourth: That the defendant had not received the consent of the Attorney General of the United States to apply for readmission to the United States since the time of the defendant's previous deportation.

Note

As of April 1, 1997, arrest is no longer an element of the crime. P.L. 104-208, § 308(d) (4)(J)(i), (ii); United States v. Ramirez-Gamez, 171 F.3d 236 (5^th Cir. 1999); per curiam United States v. Cabrera-Teran, 168 F.3d 141 (5^th Cir. 1999). The remaining elements of proof are described in United States v. Benitez-Villafuente, 186 F.3d 651 (5^th Cir. 1999), and United States v. Flores-Peraza, 58 F.3d 164, 166 (5^th Cir. 1995), cert. denied, 116 S.Ct. 782 (1996).

Specific intent is not an element of this crime; it is a general intent crime. United States v. Berrios-Centeno, 250 F.3d 294, 297-98 (5^th Cir. 2001); United States v. Guzman-Ocampo, 236 F.3d 233 (5^th Cir. 2000). The government must show that the defendant had the general intent to reenter, i.e., he is here voluntarily. Id.; United States v. Ortegon-Uvalde, 179 F.3d 956 (5^th Cir. 1999);United States v. Trevino-Martinez, 86 F.3d 65 (5^th Cir. 1996), cert. denied, 117 S.Ct. 1109. SeeUnited States v. Tovias-Marroquin, 218 F.3d 455 (5^th Cir. 2000).

An alien within the United States is not "found in" the United States if he approaches a recognized port of entry and produces his identity seeking admission. United States v. Angeles-Mascote, 206 F.3d 529 (5^th Cir. 2000).

The Supreme Court has held in Almendarez-Torres v. United States, 118 S.Ct. 1219 (1998), that proof of the defendant's commission of an aggravated felony prior to deportation is not an element of the offense but is a punishment provision in addressing recidivism. The decision is further discussed but not overruled by Apprendi v. New Jersey, 120 S.Ct. 2348 (2000). UntilAlmendarez-Torres is overruled, the Fifth Circuit has held that it has the duty to follow it as United States Supreme Court precedent. United States v. Nava-Perez, 242 F.3d 277 (5^th Cir. 2001); United States v. Dabeit, 231 F.3d 979, 984 (5^th Cir. 2000). The Committee has not recommended an additional element of proof that the felony committed was an aggravated felony.

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1997 Version:

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 1997

2.05 Illegal Reentry Following Deportation

Title 8, United States Code, Section 1326(a), makes it a crime for an alien to enter [to be found within] the United States after being arrested and deported at some earlier time.

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

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

Second: That the defendant had previously been arrested and deported from the United States;

Third: That thereafter the defendant entered [was found in] the United States; and

Fourth: That the defendant had not received the consent of the Attorney General of the United States to apply for readmission to the United States since the time of the defendant's previous deportation.

Note

The failure of the defendant to receive the consent of the Attorney General to apply for readmission to the United States has traditionally been considered an element of the offense. Recent Fifth Circuit decisions confirm this view. United States v. Flores-Peraza, 58 F3d 164, 166 (5th Cir.1995), cert. denied, ____ US ____, 116 S.Ct. 782, 133 L.Ed.2d 733 (1996); United States v. Vasquez-Olvera, 999 F2d 943, 945 (5th Cir.1993), cert. denied, 510 US 1076, 114 S.Ct. 889, 127 L.Ed.2d 82 (1994); United States v. Cardenas-Alvarez, 987 F2d 1129, 1131-32 (5th Cir.1993).

The double jeopardy clause does not bar a defendant's successive prosecutions for improper entry under 8 USC 1325(a) and reentry of a deported alien under 8 USC 1326. United States v. Flores-Peraza, 58 F3d 164, 167 (5th Cir.1995), cert. denied, ____US ____, 116 S.Ct. 782, 133 L.Ed.2d 733 (1996).

"Congress did not impose a requirement of specific intent anywhere in [8 USC 1326(a)] nor did it provide that an alien's reasonable belief that he was legally entitled to reenter the United States is a defense to criminal liability." United States v. Trevino-Martinez, 86 F3d 65, 68 (5th Cir.1996).

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 2001

FORECITE National™ Materials Related To This Instruction:

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

2.06 Aiding and Abetting (Agency)

The guilt of a defendant in a criminal case may be established without proof that the defendant personally did every act constituting the offense alleged. The law recognizes that, ordinarily, anything a person can do for himself may also be accomplished by him through the direction of another person as his or her agent, or by acting in concert with, or under the direction of, another person or persons in a joint effort or enterprise.

If another person is acting under the direction of the defendant or if the defendant joins another person and performs acts with the intent to commit a crime, then the law holds the defendant responsible for the acts and conduct of such other persons just as though the defendant had committed the acts or engaged in such conduct.

Before any defendant may be held criminally responsible for the acts of others it is necessary that the accused deliberately associate himself in some way with the crime and participate in it with the intent to bring about the crime.

Of course, mere presence at the scene of a crime and knowledge that a crime is being committed are not sufficient to establish that a defendant either directed or aided and abetted the crime unless you find beyond a reasonable doubt that the defendant was a participant and not merely a knowing spectator.

In other words, you may not find any defendant guilty unless you find beyond a reasonable doubt that every element of the offense as defined in these instructions was committed by some person or persons, and that the defendant voluntarily participated in its commission with the intent to violate the law.

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

First: That the offense of ________ was committed by some person;

Second: That the defendant associated with the criminal venture;

Third: That the defendant purposefully participated in the criminal venture; and

Fourth: That the defendant sought by action to make that venture successful.

"To associate with the criminal venture" means that the defendant shared the criminal intent of the principal. This element cannot be established if the defendant had no knowledge of the principal's criminal venture.

"To participate in the criminal venture" means that the defendant engaged in some affirmative conduct designed to aid the venture or assisted the principal of the crime.

Note

Absent a showing of unfair surprise, this instruction can be given whether or not the indictment charges aiding and abetting. United States v. Neal, 951 F.2d 630 (5^th Cir. 1992); United States v. Botello, 991 F.2d 189 (5^th Cir. 1993), cert. denied, 114 S.Ct. 886 (1994); United States v. Casilla, 20 F.3d 600 (5^th Cir. 1994), cert. denied, 115 S.Ct. 240 (1994); United States v. Lombardi,138 F.3d 559 (5^th Cir. 1998); United States v. Sorrells, 145 F.3d 744 (5^th Cir. 1998).

The elements of this offense are set forth in United States v. Garcia, 242 F.3d 593, 596 (5^thCir. 2001); United States v. Montgomery, 210 F.3d 446 (5^th Cir. 2000.); United States v. De Le Rosa, 171 F.3d 215 (5^th Cir. 1999); United States v. Reliford, 210 F.3d 282 (5^th Cir. 2000); United States v. Meshack, 225 F.3d 556 (5^th Cir. 2000), cert. denied, 121 S.Ct. 834 (2001), amended on reh'g in part 244 F.3d 367 (5^th Cir. 2001), petition for cert. filed, (U.S. June 25, 2001) (No. 00-10499); andUnited States v. Stewart, 145 F.3d 273 (5^th Cir. 1998). The 1997 version of this instruction was quoted with approval in United States v. Neal, supra.

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1997 Version:

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 1997

2.06 Aiding and Abetting (Agency)

The guilt of a defendant in a criminal case may be established without proof that the defendant personally did every act constituting the offense alleged. The law recognizes that, ordinarily, anything a person can do for himself may also be accomplished by that person through the direction of another person as his or her agent, or by acting in concert with, or under the direction of, another person or persons in a joint effort or enterprise.

If another person is acting under the direction of the defendant or if the defendant joins another person and performs acts with the intent to commit a crime, then the law holds the defendant responsible for the acts and conduct of such other persons just as though the defendant had committed the acts or engaged in such conduct.

Before any defendant may be held criminally responsible for the acts of others it is necessary that the accused deliberately associate himself in some way with the crime and participate in it with the intent to bring about the crime.

Of course, mere presence at the scene of a crime and knowledge that a crime is being committed are not sufficient to establish that a defendant either directed or aided and abetted the crime unless you find beyond a reasonable doubt that the defendant was a participant and not merely a knowing spectator.

In other words, you may not find any defendant guilty unless you find beyond a reasonable doubt that every element of the offense as defined in these instructions was committed by some person or persons, and that the defendant voluntarily participated in its commission with the intent to violate the law.

Note

Absent a showing of unfair surprise, this charge can be given whether or not the indictment charges aiding and abetting. United States v. Neal, 951 F2d 630 (5th Cir.1992); United States v. Botello, 991 F2d 189 (5th Cir.1993), cert. denied, 510 US 1074, 114 S.Ct. 886, 127 L.Ed.2d 80 (1994); United States v. Casilla, 20 F3d 600 (5th Cir.1994), cert. denied, 513 US 892, 115 S.Ct. 240, 130 L.Ed.2d 163 (1994).

This charge was quoted with approval in United States v. Neal, supra.

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 2001

2.07 Accessory After the Fact

FORECITE National™ Materials Related To This Instruction:

Chapter 68: Accessory After The Fact

The court must charge on the underlying offense if it is not set forth in another count.

The statute requires only commission of offense against the United States, not that offense be prosecuted or prosecutable. United States v. Balano, 618 F.2d 624 (10^th Cir. 1979).

The elements of this offense are set forth in United States v. De La Rosa, 171 F.3d 215 (5^thCir. 1999), and United States v. Harris, 104 F.3d 1465 (5^th Cir. 1997).

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1997 Version:

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 1997

2.07 Accessory After the Fact

The court must charge on the underlying offense if it is not set forth in another count.

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 2001

2.08 Misprision of a Felony

FORECITE National™ Materials Related To This Instruction:

251.6.3 No Legal Duty To Prevent Another From Committing A Crime (Misprison Not An Offense)

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1997 Version:

Instruction unchanged.

See for the elements of the offense: United States v. Adams, 961 F2d 505 (5th Cir.1992); United States v. Salinas, 956 F2d 80 (5th Cir.1992).

The court must charge on the underlying offense if it is not set forth in another count.

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 2001

2.09 Assaulting a Federal Officer

FORECITE National™ Materials Related To This Instruction:

77.4 Assault On Law Enforcement Officer, Custodial Officer Or Firefighter

Title 18, United States Code, Section 111, makes it a crime for anyone to forcibly assault a federal officer while the officer is engaged in the performance of his official duties.

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

First: That the defendant forcibly assaulted the person described in the indictment;

Second: That the person assaulted was a federal officer as described below, who was then engaged in the performance of his official duty, as charged; and

Third: That the defendant did such acts intentionally.

[Fourth: That in doing such acts the defendant used a deadly or dangerous weapon or inflicted bodily injury.]

The term "forcible assault" means any intentional attempt or threat to inflict injury upon someone else, when coupled with an apparent present ability to do so, and includes any intentional display of force that would give a reasonable person cause to expect immediate bodily harm, whether or not the threat or attempt is actually carried out or the victim is injured.

[The term "deadly or dangerous weapon" includes any object capable of inflicting death or serious bodily injury. For such a weapon to have been "used," it must be proved that the defendant not only possessed the weapon but that the defendant intentionally displayed it in some manner while carrying out the forcible assault. The term "bodily injury" means an injury that is painful and obvious, or is of a type for which medical attention ordinarily would be sought.]

You are instructed that a _______ [e.g., Special Agent of the Federal Bureau of Investigation] is one of the federal officers referred to in that law, and that it is a part of the official duty of such an officer to [e.g., execute arrest warrants issued by a judge or magistrate of this court].

It is not necessary to show that the defendant knew the person being forcibly assaulted was, at that time, a federal officer carrying out an official duty so long as it is established beyond a reasonable doubt that the victim was, in fact, a federal officer acting in the course of his duty and that the defendant intentionally committed a forcible assault upon that officer.

On the other hand, the defendant would not be guilty of an assault if the evidence leaves you with a reasonable doubt concerning whether the defendant knew the victim to be a federal officer and only committed such act because of a reasonable, good faith belief that the defendant needed to defend himself against an assault by a private citizen.

Note

This statute has been interpreted as creating three separate offenses. United States v. Ramirez, 233 F.3d 318 (5^th Cir. 2000). The Fourth element above, and the accompanying bracketed definitions, constitute a felony offense carrying a maximum penalty of ten years' confinement. Without that element, the above instruction defines the misdemeanor crime of "simple assault". The third crime is under the category of "all other cases," and carries a maximum penalty of three years' imprisonment. This third crime does not require use of a deadly weapon, nor bodily harm, nor the creation of apprehension in the victim. It does, however, require forcible physical contact. Ramirez,233 F.3d at 322 (holding that hurling a cup at the victim, striking him and spilling its contents on him, fell in the intermediate category of "all other cases"). The instruction above would have to be modified accordingly to fit this category.

In United States v. Nunez, 180 F.3d 227 (5^th Cir. 1999), the indictment charged an assault "by means and use of a dangerous weapon." The jury was instructed that it could also find the defendant guilty of forcible assault without a dangerous weapon. The Nunez court found reversible error, rejecting the Government's claim that the jury found a lesser included offense. It held that the instruction impermissibly broadened the indictment from "a specific and narrow accusation" to one "far more general and broad." 180 F.3d at 233. An earlier decision, United States v. Williamson, 482 F.2d 508, 513 (5^th Cir. 1973), apparently reached a contrary result but was not cited in Nunez.

The last paragraph of the instruction is appropriate only when self-defense, or other justifiable action, is raised by the evidence. United States v. Feola, 95 S.Ct. 1255 (1975); United States v. Ochoa, 526 F.2d 1278 (5^th Cir. 1976).

A state officer "acting in cooperation with and under control of federal officers" ... is considered a federal agent under U.S.C. § 111 and 1114. United States v. Hooker, 997 F.2d 67 (5^thCir. 1993). In that case, the third from the last paragraph would have to be changed accordingly.

There is no requirement that the defendant knew of the official status of the victim. United States v. Feola, supra; United States v. Moore, 958 F.2d 646 (5^th Cir. 1992).

The definitions of "deadly or dangerous weapon" and "bodily injury," are taken from Sec. 1B1.1, Application Note 1(b) and (d). Virtually any object can be a dangerous weapon depending on the manner in which it is used. For illustrations of objects that have been used in a manner that would render them "deadly or dangerous," e.g., desk, garden rack, and wine bottle, see United States v. Murphy, 35 F.3d 143 (4^th Cir. 1994), and cases cited therein.

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1997 Version:

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 1997

2.09 Assaulting a Federal Officer

Title 18, United States Code, Section 111, makes it a crime for anyone to forcibly assault a federal officer while the officer is engaged in the performance of his official duties.

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

First: That the defendant forcibly assaulted the person described in the indictment;

Second: That the person assaulted was a federal officer as described below, who was then engaged in the performance of his official duty, as charged; and

Third: That the defendant did such acts intentionally.

[Fourth: That in doing such acts the defendant used a deadly or dangerous weapon].

The term "forcible assault" means any intentional attempt or threat to inflict injury upon someone else, when coupled with an apparent present ability to do so, and includes any intentional display of force that would give a reasonable person cause to expect immediate bodily harm, whether or not the threat or attempt is actually carried out or the victim is injured.

[The term "deadly or dangerous weapon" includes any object capable of being readily used by one person to inflict severe bodily injury upon another person. For such a weapon to have been "used," it must be proved that the defendant not only possessed the weapon but that the defendant intentionally displayed it in some manner while carrying out the forcible assault.]

You are instructed that a _______ [e.g., Special Agent of the Federal Bureau of Investigation] is one of the federal officers referred to in that law, and that it is a part of the official duty of such an officer to [e.g., execute arrest warrants issued by a judge or magistrate of this court].

It is not necessary to show that the defendant knew the person being forcibly assaulted was, at that time, a federal officer carrying out an official duty so long as it is established beyond a reasonable doubt that the victim was, in fact, a federal officer acting in the course of his duty and that the defendant intentionally committed a forcible assault upon that officer.

On the other hand, the defendant would not be guilty of an assault if the evidence leaves you with a reasonable doubt concerning whether the defendant knew the victim to be a federal officer and only committed such act because of a reasonable, good faith belief that the defendant needed to defend himself against an assault by a private citizen.

Note

The fourth element is necessary only when a defendant is charged with the use of a deadly or dangerous weapon.

The last paragraph of the instruction is appropriate only when self-defense, or other justifiable action, is raised by the evidence. United States v. Feola, 420 US 671, 95 S.Ct. 1255, 43 L.Ed.2d 541 (1975); United States v. Ochoa, 526 F2d 1278 (5th Cir.1976).

A state officer "acting in cooperation with and under control of federal officers" . . . is considered a federal agent under USC§ 111 and 1114. United States v. Hooker, 997 F2d 67 (5th Cir.1993). In that case, the third from the last paragraph would have to be changed accordingly.

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 2001

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1997 Version:

Instruction unchanged.

The committee omitted jury charges as to some paragraphs of 18 USC 152 as infrequently used. The definitions of "conceal" and "fraudulently" would typically apply to prosecution under the other paragraphs of § 152.

With respect to jury instructions for prosecutions under the seventh paragraph of 18 USC 152, see United States v. West, 22 F3d 586 (5th Cir.1994), cert. denied, 513 US 1020, 115 S.Ct. 584, 130 L.Ed.2d 498 (1994); United States v. Moody, 923 F2d 341 (5th Cir.1991) cert. denied, 502 US 821, 112 S.Ct. 80, 116 L.Ed.2d 54 (1991).

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 2001

2.11 Bankruptcy: Presenting or Using a False Claim

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 2001

2.12 Bribery of Public Official

18 USC 201(b)(1))

FORECITE National™ Materials Related To This Instruction:

103.9 Bribery

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1997 Version:

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 1997

2.12 Bribery of Public Official

Title 18, United States Code, Section 201(b)(1), makes it a crime for anyone to bribe a public official.

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

First: That the defendant directly or indirectly gave [offered, promised] something of value to _______ [a public official]; and

Second: That the defendant did so corruptly with intent to influence an official act by the public official [persuade the public official to omit an act] [persuade the public official to do an act in violation of his lawful duty].

An act is "corruptly" done if it is done intentionally with an unlawful purpose.

Note

"Public official" and "official act" are defined by 18 USC 201(a)(1-3).

See United States v. Tomblin, 46 F3d 1369, 1379-80 and n. 16 (5th Cir.1995) (approving the use of this instruction and encouraging the use of the Fifth Circuit Pattern Jury Instructions).

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 2001

2.13 Receiving Bribe by Public Official

FORECITE National™ Materials Related To This Instruction:

103.9 Bribery

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1997 Version:

Instruction unchanged.

"Public official" and "official act" are defined by 18 USC 201(a)(1-3).

"To find bribery, the jury is required to find that a public official accepted a thing of value in return for being influenced in the performance of an official act." United States v. Bustamante, 45 F3d 933, 938 (5th Cir.1995), cert. denied, ____ US____, 116 S.Ct. 473, 133 L.Ed.2d 402 (1995) (finding the evidence sufficient to support the conviction).

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 2001

2.14 Illegal Gratuity to a Public Official

FORECITE National™ Materials Related To This Instruction:

103.9 Bribery

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1997 Version:

Instruction unchanged.

The term "corruptly" is not used here because, unlike the crimes covered by 18 USC 201(b), those covered by 18 USC 201(c) do not include "corruptly" as an element. For the intent element required for crimes covered by § 201(c), see United States v. Evans, 572 F2d 455, 479-81 (5th Cir. 1978), cert. denied, 439 US 870, 99 S.Ct. 200, 58 L.Ed.2d 182 (1978). See also United v. Bustamante, 45 F3d 933, 939-41 (5th Cir.1995), cert. denied, ____ U-S____, 116 S.Ct. 473, 133 L.Ed.2d 402 (1995).

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 2001

2.15 Receiving Illegal Gratuity by Public Official

FORECITE National™ Materials Related To This Instruction:

103.9 Bribery

Title 18, United States Code, Section 201(c)(1)(B), makes it a crime for a public official to [demand] [seek] [receive] [accept] [agree to receive or accept] anything of value personally for [because of] an official act performed [to be performed] by that official.

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

First: That the defendant was a public official;

Second: That the defendant directly or indirectly demanded [sought] [received] [accepted] [agreed to receive or accept] something of value personally; and

Third: That the defendant did so for [because of] an official act performed [to be performed] by the defendant.

Note

See note under Instruction No. 2.14, 18 U.S.C. § 201(c)(1)(A).

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1997 Version:

Instruction unchanged.

See note under instruction for 18 USC§ 201(c)(1)(A).

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 2001

FORECITE National™ Materials Related To This Instruction:

103.9 Bribery

Title 18, United States Code, Section 215(a)(1), makes it a crime for anyone to corruptly give [offer] [promise] anything of value to any person with intent to influence [reward] an officer [director] [employee] [agent] [attorney] of a financial institution in connection with any business [transaction] of such institution.

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

First: That the defendant gave [offered] [promised] something of value in excess of $1,000 to _______; and

Second: That the defendant did so corruptly with the intent to influence [reward] _______, an officer [director] [employee] [agent] [attorney] of the financial institution, in connection with any business [transaction] of that institution.

An act is "corruptly" done if it is done intentionally with an unlawful purpose.

A _______ [refer to particular type of institution listed in § 215(b) as charged in the indictment] is a financial institution.

Note

See United States v. Brunson, 882 F.2d 151 (5^th Cir. 1989), for a discussion of the meaning of "corruptly."

If the prosecution seeks a felony conviction, the jury must determine that the value exceeds $1,000. If there is an issue as to whether the value exceeds $1,000, a lesser included offense instruction may have to be given.

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1997 Version:

Instruction unchanged.

Note

United States v. Brunson, 882 F2d 151 (5th Cir.1989). The Economic Espionage Act, Pub. L. No. 104-294, § 606(a), 110 Stat. 3488 (Oct. 11, 1996), established that more than $1,000 must be proven as an element of this offense if a felony conviction is sought. Prior to the effective date of the EEA, the dollar threshold for proof of a felony crime was more than $100.

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 2001

2.17 Conspiracy to Deprive Person of Civil Rights

FORECITE National™ Materials Related To This Instruction:

77.15.1.1 Hate Crimes:  Cross References And Research Notes

77.15.2.3 Hate Crimes: Mens Rea

This instruction must be accompanied by an instruction on conspiracy, using the standard conspiracy instruction, 18 U.S.C. § 371, including the requirement that a conspirator commit at least one overt act. See Instruction No. 2.20, Conspiracy; United States v. Greer, 939 F.2d 1076, 1099 (5th Cir. 1991), opinion reinstated, 968 F.2d 433 (5th Cir. 1992), cert. denied, 113 S.Ct. 1390 (1993); United States v. McKenzie, 768 F.2d 602, 605 (5th Cir. 1985).

Certain constitutional rights, e.g., those under the Fourteenth Amendment, protect an individual only against state action, not against wrongs by individuals. If these rights are the subject of the § 241 case, the instruction must also require the jury to find that the defendant acted "under color of law." See definition under Instruction No. 2.18, Deprivation of Civil Rights, 18 U.S.C. § 242. See United States v. Guest, 86 S.Ct. 1170 (1966) (state action required for equal protection violation but not for violation of right to travel); Wilkins v. United States, 376 F.2d 552, 561 (5th Cir. 1967), cert. denied, 88 S.Ct. 342 (1967) (interfering with assembly to protest denial of voting rights violates § 241 even absent state action).

See also United States v. Hayes, 589 F.2d 811 (5th Cir. 1979), cert. denied, 100 S.Ct. 93 (1979) (intent-death); United States v. Barker, 546 F.2d 940 (D.C.Cir. 1976) (specific intent).

The statute provides for enhancement of punishment if a death results from the acts committed or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill. If the indictment alleges any enhancement element, it should be submitted to the jury. See 18 U.S.C. § 241.

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1997 Version:

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 1997

2.17 Conspiracy to Deprive Person of Civil Rights

This charge should borrow a definition of conspiracy in the standard conspiracy charge, 18 USC 371, including the requirement that a conspirator commit at least one overt act. United States v. Greer, 939 F2d 1076, 1099 (5th Cir.1991), opinion reinstated, 968 F2d 433 (5th Cir.1992), cert. denied, 507 US 962, 113 S.Ct. 1390, 122 L.Ed.2d 764 (1993); United States v. McKenzie, 768 F2d 602, 605 (5th Cir.1985).

Certain constitutional rights, e.g., those under the Fourteenth Amendment, protect an individual only against state action, not against wrongs by individuals. If these rights are the subject of the § 241 case, the charge must also require the jury to find that the defendant acted "under color of law." See definition under the pattern jury instruction for "Deprivation of Civil Rights," 18 USC 242. See United States v. Guest, 383 US 745, 86 S.Ct. 1170, 16 L.Ed.2d 239 (1966) (state action required for equal protection violation but not for violation of right to travel); Wilkins v. United States, 376 F2d 552, 561 (5th Cir.1967), cert. denied, 389 US 964, 88 S.Ct. 342, 19 L.Ed.2d 379 (1967) (interfering with assembly to protest denial of voting rights violates § 241 even absent state action).

See also United States v. Hayes, 589 F2d 811 (5th Cir.1979), cert. denied, 444 US 847, 100 S.Ct. 93, 62 L.Ed.2d 60 (1979) (intent-death); United States v. Barker, 546 F2d 940 (D.C.Cir. 1976) (specific intent).

The statute provides for enhancement of punishment if a death results from the acts committed or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill. If the indictment alleges any enhancement element, it should be submitted to the jury.

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 2001

2.18 Deprivation of Civil Rights

FORECITE National™ Materials Related To This Instruction:

77.15.1.1 Hate Crimes:  Cross References And Research Notes

77.15.2.3 Hate Crimes: Mens Rea

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1997 Version:

Instruction unchanged.

The test for determining which rights are encompassed by this statute is the same as the test for qualified immunity in civil cases, namely, whether the contours of the right are sufficiently clear that a reasonable official would understand that his or her conduct violates the right. See United States v. Price, 383 US 787, 86 S.Ct. 1152, 16 L.Ed.2d 267 (1966); Screws v. United States, 325 US 91, 65 S.Ct. 1031, 89 L.Ed. 1495 (1945); United States v. Dean, 722 F2d 92 (5th Cir.1983); United States v. Kerley, 643 F2d 299 (5th Cir.1981); United States v. Stokes, 506 F2d 771 (5th Cir. 1975), for examples of rights covered by this section. See also note to Conspiracy to Deprive a Person of Civil Rights, 18 USC 241.

In United States v. Hunt, 794 F2d 1095 (5th Cir.1986), a slightly different definition of "willfully" was acceptable.

The statute provides for enhancement of punishment if bodily injury or death results from the acts committed, or if such acts include the use, attempted use or threatened use of a dangerous weapon, explosives or fire, or kidnapping or attempted kidnapping, aggravated sexual abuse, or an attempt to kill. If the indictment alleges any enhancement element, it should be submitted to the jury.

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 2001

2.19 False Claims Against the Government

Title 18, United States Code, Section 287, makes it a crime to knowingly make a false or fraudulent claim against any department or agency of the United States.

The _______ (name of agency) is a department or agency of the United States within the meaning of that law.

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

First: That the defendant knowingly presented to an agency of the United States a false or fraudulent claim against the United States;

Second: That the defendant knew that the claim was false or fraudulent; and

Third: That the false or fraudulent claim was material.

A claim is "material" if it has a natural tendency to influence, or is capable of influencing, the agency to which it was addressed. It is not necessary to show, however, that the government agency was in fact deceived or misled.

To make a claim, the defendant need not directly submit the claim to an employee or agency of the United States. It is sufficient if the defendant submits the claim to a third party knowing that the third party will submit the claim or seek reimbursement from the United States or a department or agency thereof.

Note

The elements of this offense are set forth in United States v. Burns, 162 F.3d 840, 850 (5th Cir. 1998).

This circuit has held that materiality is not an element of this offense. See United States v. Upton, 91 F.3d 677 (5th Cir. 1996). The continued vitality of that holding, however, is called into question by Neder v. United States, 119 S.Ct. 1827, 1841 (1999). Accordingly, this circuit recently recommended, in dicta, that a materiality instruction be included in the jury charge. See United States v. Foster, 229 F.3d 1196, 1196 n.2 (5th Cir. 2000). The committee adopts this recommendation and includes materiality as an element of the offense to be submitted to the jury.

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1997 Version:

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 1997

2.19 False Claims Against the Government

Title 18, United States Code, Section 287, makes it a crime knowingly to make a false or fraudulent claim against any department or agency of the United States. The _______ [name of agency] is a department or agency of the United States within the meaning of that law.

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

First: That the defendant knowingly presented to an agency of the United States a false or fraudulent claim against the United States; and

Second: That the defendant knew that the claim was false or fraudulent.

It is not necessary to show, however, that the government agency was in fact deceived or misled.

To make a claim, the defendant need not directly submit the claim to an employee or agency of the United States. It is sufficient if the defendant submits the claim to a third party knowing that the third party will submit the claim or seek reimbursement from the United States (or a department or agency thereof).

Note

The elements of this offense are set forth in United States v. Okoronkwo, 46 F3d 426 (5th Cir.1995).

In this circuit, materiality is not an element of this offense. United States v. Upton, 91 F3d 677 (5th Cir.1996), petition for cert. filed, 65 USL.W. 3310 (1996).

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 2001

2.20 Conspiracy

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Conspiracy: Essential Elements (18 USC 371)

See FORECITE National™ Federal Models By Offense: Conspiracy To Defraud United States (18 USC 371 (Second Clause))

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1997 Version:

Instruction unchanged.

See United States v. Krenning, 93 F3d 1257 (5th Cir.1996), for elements of offense.

The third element should be deleted for alleged conspiracies not requiring proof of overt acts. See the pattern jury instruction for Title 21 Conspiracy, 21 USC 846.

Conspiracy to commit a particular substantive offense requires at least the degree of criminal intent necessary to commit the substantive offense itself. United States v. Bordelon, 871 F2d 491 (5th Cir.1989), cert. denied, 493 US 838, 110 S.Ct. 121, 107 L.Ed.2d 82 (1989); United States v. Massey, 827 F2d 995, 1001 (5th Cir.1987). Because "[t]he two states of mind are almost always one, or tend to collapse into one," United States v. Chagra, 807 F2d 398, 401 (5th Cir.1986), cert. denied, 484 US 832, 108 S.Ct. 106, 98 L.Ed.2d 66 (1987), the proposed instruction will adequately cover the vast majority of cases. The proposed instruction also adequately addresses the requirement of a specific intent to violate the law. United States v. Quiroz-Hernandez, 48 F3d 858, 866 (5th Cir.1995). If the substantive offense requires "a special state of mind (such as malice aforethought or premeditation)," further instruction on intent would be necessary. United States v. Thomas, 768 F2d 611, 618 n. 5 (5th Cir.1985); United States v. Harrelson, 754 F2d 1153, 1171-74 (5th Cir.1985), rehearing denied, 766 F2d 186 (5th Cir.1985), cert. denied, 474 U. S. 908, 106 S.Ct. 277, 88 L.Ed.2d 241 (1985).

Failure to instruct on the "object" crime of a conspiracy is at least "serious" error, if not plain error. See United States v. Smithers, 27 F3d 142, 144-45 (5th Cir.1994). If that crime is charged in another count of the indictment, the instruction can be by reference to that portion of the charge. Otherwise, the court must charge on the elements of the object crime along with the conspiracy charge.

For Multiple conspiracies and conspirators liability for substantive count, see pattern jury instructions on following pages.

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 2001

2.21 Multiple Conspiracies

FORECITE National™ Materials Related To This Instruction:

274.2.10 Multiple Conspiracies

274.2.11 Use Of Multiple Weapons In Single Crime

You must determine whether the conspiracy charged in the indictment existed, and, if it did, whether the defendant was a member of it. If you find that the conspiracy charged did not exist, then you must return a not guilty verdict, even though you find that some other conspiracy existed. If you find that a defendant was not a member of the conspiracy charged in the indictment, then you must find that defendant not guilty, even though that defendant may have been a member of some other conspiracy.

Note

A multiple conspiracy instruction is generally required where the indictment charges several defendants with one overall conspiracy, but the proof at trial indicates that some of the defendants were only involved in separate conspiracies unrelated to the overall conspiracy charged in the indictment. See United States v. Neal, 27 F.3d 1035, 1052 (5^th Cir. 1994), cert. denied, 115 S.Ct. 1165 (1995); United States v. Castaneda-Cantu, 20 F.3d 1325, 1333 (5^th Cir. 1994). When evidence arguably raises a question of multiple conspiracies, a defendant, upon request, is entitled to an instruction on that theory. See United States v. Cavin, 39 F.3d 1299, 1310 (5^th Cir. 1994); United States v. Stowell, 947 F.2d 1251, 1258 (5^th Cir. 1991), cert. denied, 112 S.Ct. 1269 (1992); see alsoUnited States v. Cyprian, 197 F.3d 736, 741 (5^th Cir. 1999), cert. denied, 121 S.Ct. 65 (2000) (stating that because the defendant made no request, the absence of a multiple conspiracies jury instruction is not "plain error"); Castaneda-Cantu, 20 F.3d at 1334 (reviewing under an abuse of discretion standard when defendant timely makes the request, but it is denied).

For a discussion of the primary factors in determining whether a single conspiracy or multiple conspiracy has been proven, see United States v. Gallardo-Trapero, 185 F.3d 307, 315-317 (5^th Cir. 1999); United States v. Morgan, 117 F.3d 849, 858-59 (5^th Cir. 1997); United States v. Fields, 72 F.3d 1200, 1210-11 (5^th Cir. 1996); United States v. Morris, 46 F.3d 410, 415-17 (5^th Cir. 1995).

In United States v. Castillo, 77 F.3d 1480, 1491-92 (5^th Cir. 1996), this Fifth Circuit Pattern Jury Instruction was held to have adequately shielded the defendant from the risk of prejudice resulting from an alleged variance between the indictment and the evidence. Also, it is quoted with approval in United States v. Thomas, 12 F3d 1350, 1357 n.4 (5^th Cir. 1994). A similar but longer jury charge on multiple conspiracies is quoted with approval in United States v. Pena-Rodriguez, 110 F.3d 1120, 1128-29 & 1129 n.9 (5^th Cir. 1997), and United States v. Puig-Infante, 19 F.3d 929, 936-37 (5^th Cir. 1994).

In view of the trial court's multiple conspiracy charge, it was not error to refuse a requested instruction that the jury must unanimously agree that the defendant participated in one particular conspiracy out of several. See United States v. Royal, 972 F.2d 643, 648 (5^th Cir. 1992).

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1997 Version:

Instruction unchanged.

When evidence arguably raises a question of multiple conspiracies, a defendant, upon request, is entitled to an instruction on that theory. United States v. Erwin, 793 F2d 656, 662 (5th Cir.1986), cert. denied, 479 US 991, 107 S.Ct. 589, 93 L.Ed.2d 590 (1986).

See United States v. Neal, 27 F3d 1035, 1052 (5th Cir.1994), cert. denied, ____ US ____, 115 S.Ct. 1165, 130 L.Ed.2d 1120 (1995); United States v. Castaneda-Cantu, 20 F3d 1325, 1333-35 (5th Cir.1994); United States v. Stowell, 947 F2d 1251, 1258-59 (5th Cir.1991), cert. denied, 506 US 902, 113 S.Ct. 292, 121 L.Ed.2d 217 (1992).

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 2001

FORECITE National™ Materials Related To This Instruction:

Chapter 63: Liability For Acts Of Coconspirators (Pinkerton)

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1997 Version:

Instruction unchanged.

Note

Proof of a conspiracy will not support a conviction on substantive counts in absence of a Pinkerton instruction informing the jury that the defendant could be deemed guilty of substantive counts committed by a coconspirator in furtherance of a conspiracy in which the defendant participated. United States v. Polk, 56 F3d 613, 619 (5th Cir.1995).

This instruction charges the jury on the Pinkerton principle. Pinkerton v. United States, 328 US 640, 647, 66 S.Ct. 1180, 1184, 90 L.Ed. 1489 (1946). It is derived from instructions quoted with approval in United States v. Basey, 816 F2d 980, 998-999 n.. 35-36 (5th Cir.1987). See also United States v. Quiroz-Hernandez, 48 F3d 858, 868 (5th Cir.1995); United States v. Jensen, 41 F3d 946, 955-56 (5th Cir.1994), cert. denied, ____US____, 115 S.Ct. 1835, 131 L.Ed.2d 754 (1995).

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 2001

FORECITE National™ Materials Related To This Instruction:

83.3.11 Conspiracy: Withdrawal As Defense Theory

The Defendant has raised the affirmative defense of withdrawal from the conspiracy.

A member of a conspiracy remains in the conspiracy unless he can show that at some point he completely withdrew from the conspiracy. A partial or temporary withdrawal is not sufficient. The defense of withdrawal requires the defendant to make a substantial showing that he took some affirmative step to terminate or abandon his participation in the conspiracy. In other words, the defendant must demonstrate some type of affirmative action which disavowed or defeated the purpose of the conspiracy. This would include, for example, voluntarily going to the police or other law enforcement officials and telling them about the plan; telling the other conspirators that he did not want to have anything more to do with it; or any other affirmative acts that were inconsistent with the object of the conspiracy and communicated in a way reasonably likely to reach the other members. Merely doing nothing or just avoiding contact with other members would not be enough.

The defendant has the burden of proving withdrawal from the conspiracy by a preponderance of evidence. To prove something by a preponderance of the evidence means to prove that it is more likely so than not so. This is a lesser burden of proof than to prove something beyond a reasonable doubt. "Preponderance of evidence" is determined by considering all the evidence and deciding which evidence is more convincing. You should consider the relevant testimony of all witnesses, regardless of who may have called them, and all the relevant exhibits received in evidence, regardless of who may have produced them. If the evidence appears to be equally balanced, or if you cannot say upon which side it weighs heavier, you must resolve this question against the defendant.

The fact that the defendant has raised this defense does not relieve the government of its initial burden of proving beyond a reasonable doubt that there was an unlawful agreement and that the defendant knowingly and voluntarily joined it.

Note

Withdrawal is typically raised in one of the following situations: (1) as a defense to Pinkertonliability, when the defendant claims he withdrew from the conspiracy prior to the commission of substantive offenses by other conspirators; (2) as a defense based on the statute of limitations, when the defendant claims that his involvement in the conspiracy ended beyond the limitations period; or (3) as a defense to the conspiracy charge itself, when the defendant claims withdrawal prior to the commission of any overt act and the charged conspiracy requires an overt act. The third situation would not apply to conspiracies charged under 21 U.S.C. §§ 846 and 963, which do not require proof of an overt act. The judge might wish to add language to the opening paragraph explaining which situation applies in the case.

The components of withdrawal are stated in the following cases. See United States v. Schorovsky, 202 F.3d 727, 729 (5^th Cir. 2000); United States v. Mann, 161 F.3d 840, 859-60 (5^th Cir. 1998); United States v. Torres, 114 F.3d 520, 525 (5^th Cir. 1997).

A defendant's incarceration, by itself, does not constitute withdrawal or abandonment. United States v. Puig-Infante, 19 F.3d 929, 945 (5th Cir.) (discussing that the defendant is presumed to continue as conspirator unless he makes a "substantial affirmative showing of withdrawal") (citation omitted), cert. denied, 115 S.Ct. 180 (1994).

The defendant has the burden of proof on this affirmative defense. See United States v. MMR Corp., 907 F.2d 489, 499-500 (5th Cir. 1990), cert. denied, 111 S.Ct. 1388 (1991); United States v. Jimenez, 622 F.2d 753, 755-57 (5th Cir. 1980). As with any affirmative defense, the trial court may refuse to give the withdrawal instruction if the defendant fails to submit sufficient evidence to warrant a reasonable juror finding that the defendant withdrew. See United States v. Pettigrew, 77 F.3d 1500, 1514-15 (5^th Cir. 1996); MMR Corp., 907 F.2d at 500.

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1997 Version:

Instruction unchanged.

Withdrawal is typically raised in one of the following situations: (1) as a defense to Pinkerton liability, when the defendant claims he withdrew from the conspiracy prior to the commission of substantive offenses by other conspirators; (2) as a defense based on the statute of limitations, when the defendant claims that his involvement in the conspiracy ended beyond the limitations period; or (3) as a defense to the conspiracy charge itself, when the defendant claims withdrawal prior to the commission of any overt act and the charged conspiracy requires an overt act. The third situation would not apply to conspiracies charged under 21 USC§ 846 and 963, which do not require proof of an overt act. See United States v. Shabani, 513 US 10, ____, 115 S.Ct. 382, 383, 130 L.Ed.2d 225 (1994). These instructions would have to be adjusted according to the theory of defense.

A defendant's incarceration, by itself, does not constitute withdrawal or abandonment. United States v. Puig-Infante, 19 F3d 929, 945 (5th Cir. 1994) (defendant presumed to continue as conspirator unless he makes a "substantial affirmative showing of withdrawal") (citation omitted), cert. denied, 513 US 864, 115 S.Ct. 180, 130 L.Ed.2d 115 (1994).

In the Fifth Circuit, withdrawal is an affirmative defense with the burden on the defendant. United States v. MMR Corp., 907 F2d 489, 499-500 (5th Cir.1990), cert. denied, 499 US 936, 111 S.Ct. 1388, 113 L.Ed.2d 445 (1991); United States v. Jimenez, 622 F2d 753, 755-57 (5th Cir.1980). As with any affirmative defense, the trial court may refuse to give the withdrawal instruction if the defendant fails to submit sufficient evidence to warrant a reasonable juror finding that the defendant withdrew. MMR Corp., 907 F2d at 500 (defendants not entitled to instruction when issue was not sufficiently raised at trial).

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 2001

2.24 Counterfeiting

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 2001

2.25 Passing Counterfeit Securities or Obligations

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1997 Version:

Instruction unchanged.

United States v. Acosta, 972 F.2d 86 (5th Cir.1992), describes the elements.

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 2001

2.26 Forgery Against the United States

FORECITE National™ Materials Related To This Instruction:

86.1 Forgery

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1997 Version:

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 1997

2.26 Forgery Against the United States

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 2001

2.27 Uttering a Forged Writing to Defraud
the United States

FORECITE National™ Materials Related To This Instruction:

86.1 Forgery

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1997 Version:

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 1997

2.27 Uttering a Forged Writing to Defraud
the United States

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 2001

FORECITE National™ Materials Related To This Instruction:

86.1 Forgery

Title 18, United States Code, Section 510(a)(1), makes it a crime for anyone to make or forge any false endorsement or signature on a Treasury check, bond, or security of the United States.

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

First: That the defendant _______________ [describe conduct, e.g., wrote the signature of another on the Treasury check[s] without permission];

Second: That the defendant did so with intent to defraud, that is, intending to cheat someone. The evidence does not have to show that anyone actually received any thing of value as a result of the forged signature; and

Third: That the face value of the check [or aggregate face value of the checks if more than one] was more than $1,000.00.

Note

If a disputed issue under subsection (c) of the statute is whether the face value of the check(s) exceeds a sum of $1,000, the Court should consider giving a lesser included offense instruction.

See United States v. Taylor, 869 F.2d 812 (5th Cir. 1989), cert. denied, 110 S.Ct. 171 (1989), on aggregation of face value.

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1997 Version:

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 1997

Title 18, United States Code, Section 510(a)(1), makes it a crime for anyone to make or forge any false endorsement or signature on a Treasury check, bond, or security of the United States.

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

First: That the defendant _______ [describe conduct, e.g., wrote the signature of another on the Treasury check(s) without permission];

Second: That the defendant did so with intent to defraud, that is, intending to cheat someone. The evidence does not have to show that anyone actually received any money as a result of the forged signature; and

Third: That the face value of the check [or aggregate face value of the checks if more than one] was more than $1,000.00.

Note

If there is an issue under subsection (c) of the statute as to whether the face value of the check(s) is under $1,000, a lesser included offense charge may have to be given.

See United States v. Taylor, 869 F2d 812 (5th Cir.1989), cert. denied, 493 US 860, 110 S.Ct. 171, 107 L.Ed.2d 128 (1989), on aggregation of face value.

The Economic Espionage Act, Pub. L. No. 104-294, § 606(b), 110 Stat. 3488 (Oct. 11, 1996), established that more than $1,000 must be proven as an element of this offense if a felony conviction is sought. Prior to the effective date of the EEA, the dollar threshold for proof of a felony crime was more than $500.

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 2001

2.29 Uttering a Forged Treasury Check, Bond,
or Security of the United States

FORECITE National™ Materials Related To This Instruction:

86.1 Forgery

Title 18, United States Code, Section 510(a)(2), makes it a crime for anyone to pass, utter, or publish any Treasury check, bond, or security of the United States bearing a falsely made or forged endorsement or signature.

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

First: That the defendant _______ [e.g., cashed a forgeSd United States Treasury check];

Second: That the defendant knew at the time that the check was forged. A forged endorsement or signature is one placed on a check by someone other than the payee without the payee's permission or authority;

Third: That the defendant _______ [e.g., cashed a forged United States Treasury check] with intent to defraud, that is, intending to cheat someone. The evidence does not have to show that anyone actually received any money as a result of _______ [e.g., the cashing of the forged United States Treasury check]; and

Fourth: That the face value of the check was more than $1,000.

Note

See note to Instruction No. 2.28, Forging Endorsement on a Treasury Check, 18 U.S.C. § 510(a)(1).

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1997 Version:

Instruction unchanged.

See note to Forging Endorsement on a Treasury Check, 18 USC 510(a)(1).

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 2001

2.30 Smuggling

The fourth paragraph of § 545 establishes a presumption of guilt from the unexplained possession of undeclared imported goods. The presumption has not been included here. This presumption has been held unconstitutional. United States v. Kenaan, 496 F.2d 181, 184 (1st Cir. 1974). The Fifth Circuit has held it is not plain error to instruct on the presumption in 18 U.S.C. § 545. United States v. Bentley, 875 F.2d 1114 (5th Cir. 1989). Nevertheless, relying upon United States Supreme Court jurisprudence critical of these types of presumptions, the Committee recommends that it not be charged. See Leary v. United States, 89 S.Ct. 1532 (1969); Turner v. United States, 90 S.Ct. 642 (1970); Carella v. California, 109 S.Ct. 2419 (1989).

With respect to whether it must be shown that a tax or duty was owed on the merchandise, the Second Circuit, the Fourth Circuit, the Seventh Circuit and the Ninth Circuit have expressly held that 18 U.S.C. § 545 does not require as an element of the crime that the defendant specifically intended to deprive the government of revenue. United States v. Borello, 766 F.2d 46 (2d Cir. 1985);United States v. McKee, 220 F.2d 266 (2d Cir. 1955); United States v. Ahmad, 213 F.3d 805 (4^th Cir. 2000); United States v. Kurfess, 426 F.2d 1017 (7th Cir. 1970); United States v. Robinson, 147 F.3d 851 (9^th Cir. 1998). The Third Circuit, in United States v. Menon, 24 F.3d 550 (3rd Cir. 1994), disagreed and concluded that an intent to deprive the government of revenue is an essential element and the failure to charge the jury in this manner is plain error. The Fifth Circuit has not met the issue directly. In United States v. One 1976 Mercedes 450 SLC, however, the Fifth Circuit spoke of § 545 as prohibiting the smuggling of goods "that ought to have been declared or invoiced." 667 F.2d 1171, 1175 (5th Cir. 1982).

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1997 Version:

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 1997

2.30 Smuggling

Title 18, United States Code, Section 545, makes it a crime for anyone to knowingly and willfully smuggle [attempt to smuggle] merchandise into the United States in violation of the customs laws and regulations of the United States.

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

First: That the defendant brought [attempted to bring g] _______ [describe merchandise] into the United States;

Second: That the defendant knew that the _______ [describe merchandise] should have been reported to customs authorities as required by law; and

Third: That intending to avoid the United States customs laws, the defendant did not report the _______ [describe merchandise] to the customs authorities. [It is not necessary, however, to prove that any tax or duty was owed on the merchandise].

Note

The fourth paragraph of § 545 establishes a presumption of guilt from the unexplained possession of undeclared imported goods. The presumption has not been included here. This presumption has been held unconstitutional. United States v. Kenaan, 496 F2d 181, 184 (1st Cir.1974); see also Turner v. United States, 396 US 398, 90 S.Ct. 642, 24 L.Ed.2d 610 (1970) (dealing with 21 USC 174). The Fifth Circuit has held it is not plain error to instruct on the presumption in 18 USC 545. United States v. Bentley, 875 F2d 1114 (5th Cir.1989). But see Carella v. California, 491 US 263, 109 S.Ct. 2419, 105 L.Ed.2d 218 (1989).

With respect to whether it must be shown that a tax or duty was owed on the merchandise, the Second Circuit and the Seventh Circuit have expressly held that 18 USC 545 does not require as an element of the crime that the defendant specifically intended to deprive the government of revenue. United States v. Borello, 766 F2d 46 (2d Cir.1985); United States v. McKee, 220 F2d 266 (2d Cir.1955); United States v. Kurfess, 426 F2d 1017 (7th Cir.197.0). The Third Circuit, in United States v. Menon, 24 F3d 550 (3d Cir.1994), disagreed and concluded that an intent to deprive the government of revenue is an essential element and the failure to charge the jury in this manner is plain error. The Fifth Circuit has not met the issue directly. In United States v. One 1976 Mercedes 450 SLC, however, the Fifth Circuit spoke of § 545 as prohibiting the smuggling of goods "that ought to have been declared or invoiced." 667 F2d 1171, 1175 (5th Cir.1982).

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 2001

2.31 Illegal Importation

Title 18, United States Code, Section 545, makes it a crime for anyone knowingly [fraudulently] to import [bring] merchandise into the United States contrary to law.

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

First: That the defendant imported _______ [describe merchandise] into the United States;

Second: That the defendant's importation was contrary to _______ [describe law(s) in detail]; and

Third: That the defendant knew the importation was contrary to law.

Note

See Babb v. United States, 252 F.2d 702, 707 (5th Cir. 1958) (holding that failure to follow cattle reporting requirement in 19 U.S.C. § 1484(a) subjected defendant to liability under 18 U.S.C. § 545 even where underlying cattle regulation itself contained no penalty for its violation), cert. denied, 78 S.Ct. 1137 (1958); United States v. Mitchell, 39 F.3d 465, 470-71 (4th Cir. 1994) (holding that importation of animal hides and horns contrary to reporting regulations of the Fish and Wildlife Service and Department of Agriculture subjected defendant to criminal liability under 18 U.S.C.§ 545), cert. denied, 115 S.Ct. 2578 (1995).

The term "law" includes not only statutes, but substantive agency regulations having the force and effect of law. United States v. Mitchell, 39 F.3d 465, 468-69 (4th Cir. 1995), cert. denied, 115 S.Ct. 2578 (1995). In instructing the jury on the "contrary to law" element, the court should specify which law or laws the defendant's act of importation is alleged to have violated. See e.g., Babb v. United States, 218 F.2d 538, 540 (5th Cir. 1955).

With respect to the knowledge element, it is not necessary for the defendant to have known the specific statute violated. It is enough if he acts knowing that his conduct is illegal in some respect. Babb v. United States, 252 F.2d 702, 708 (5th Cir. 1958).

Congress has written the second paragraph of § 545 in the disjunctive. Accordingly, the instruction should be modified to conform to the mental state alleged in the indictment.

With respect to the fourth paragraph of § 545, regarding the presumption of guilt from the unexplained possession of undeclared imported goods, see the discussion under Instruction No. 2.30, Smuggling.

If the indictment alleges either use of fraudulent documents or transportation, concealment, or sale of goods after their illegal importation into the United States, the jury charge should be changed accordingly.

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1997 Version:

Instruction unchanged.

See Babb v. United States, 252 F2d 702, 707 (5th Cir.1958) (holding that failure to follow cattle reporting requirement in 19 USC 1484(a) subjected defendant to liability under 18 USC 545 even where underlying cattle regulation itself contained no penalty for its violation), cert. denied, 356 US 974, 78 S.Ct. 1137, 2 L.Ed.2d 1147 (1958); United States v. Mitchell, 39 F3d 465, 470-71 (4th Cir.1994) (holding that importation of animal hides and horns contrary to reporting regulations of the Fish and Wildlife Service and Department of Agriculture subjected defendant to criminal liability under 18 USC § 545), cert. denied, ____ US ____, 115 S.Ct. 2578, 132 L.Ed.2d 828 (1995).

The term "law" includes not only statutes, but substantive agency regulations having the force and effect of law. United States v. Mitchell, 39 F3d 465, 468-69 (4th Cir.1994), cert. denied, ____ US____, 115 S.Ct. 2578, 132 L.Ed.2d 828 (1995). In instructing the jury on the "contrary to law" element, the court should specify which law or laws the defendant's act of importation is alleged to have violated. See e.g., Babb v. United States, 218 F2d 538, 540 (5th Cir.1955).

Congress has written the second paragraph of Section 545 in the disjunctive. Accordingly, the instruction should be modified to conform to the mental state alleged in the indictment. The offense encompassed by the second paragraph of Section 545, unlike the offense contained in the first paragraph of the statute, does not require a willful violation-i.e., the defendant does not have to know the provisions of the specific law his importation is alleged to have violated. Babb v. United States, 252 F2d 702, 708 (5th Cir.1958). The defendant need only act knowing that his conduct is illegal in some respect.

The fourth paragraph of § 545 establishes a presumption of guilt from the unexplained possession of unlawfully imported goods. The presumption has not been included here. This presumption has been held unconstitutional. United States v. Kenaan, 496 F2d 181, 184 (1st Cir.1974); see also Turner v. United States, 396 US 398, 90 S.Ct. 642, 24 L.Ed.2d 610 (1970) (dealing with 21 USC 174). The Fifth Circuit has held it is not plain error to instruct on the presumption in 18 USC 545. United States v. Bentley, 875 F2d 1114 (5th Cir.1989). But see Carella v. California, 491 US 263, 109 S.Ct. 2419, 105 L.Ed.2d 218 (1989).

If the indictment alleges either use of fraudulent documents or transportation, concealment, or sale of goods after their illegal importation into the United States, the jury charge should be changed accordingly.

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 2001

2.32 Exportation of Stolen Vehicles

Title 18, United States Code, Section 553, makes it a crime for anyone knowingly to export [import] any motorized vehicle knowing that the vehicle had been stolen.

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

First: That the defendant knowingly exported [imported] a motor vehicle [off-highway mobile equipment] [vessel] [aircraft] as described in the indictment; and

Second: That the defendant knew the vehicle had been stolen.

To "export" ["import"] means to send or carry from one country to another.

To "steal" means the wrongful taking of property belonging to another with the intent to deprive the owner of its use and benefit either temporarily or permanently.

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1997 Version:

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 1997

2.32 Exportation of Stolen Vehicles

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 2001

2.33 Theft of Government Money or Property

FORECITE National™ Materials Related To This Instruction:

Chapter 103: Theft/Larceny Based Crimes

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1997 Version:

Instruction unchanged.

See United States v. Aguilar, 967 F2d 111 (5th Cir.1992),quoting portions of the pattern instruction. For a discussion of whether federal funds given to state programs retain their federal character, see United States v. Long, 996 F2d 731 (5th Cir.1993).

See United States v. Sanders, 793 F2d 107 (5th Cir.1986) (clothing that employee of Army and Air Force Exchange Service sought to remove from exchange premises without paying for it constituted a "thing of value of the United States within the meaning of the statute"); United States v. Barnes, 761 F2d 1026 (5th Cir.1985) (government does not have to prove that it suffered actual property loss in a § 641 prosecution, declining to follow United States v. Evans, 572 F2d 455 (5th Cir.1978), cert. denied, 439 US 870, 99 S.Ct. 200, 58 L.Ed.2d 182 (1978)).

The Economic Espionage Act, Pub. L. No. 104-294, § 606(a), 110 Stat. 3488 (Oct. 11, 1996), established that more than $1,000 must be proven as an element of this offense if a felony conviction is sought. Prior to the effective date of the EEA, the dollar threshold for proof of a felony crime was more than $100.

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 2001

2.34 Theft or Embezzlement by Bank Officer or Employee

FORECITE National™ Materials Related To This Instruction:

Chapter 103: Theft/Larceny Based Crimes

Title 18, United States Code, Section 656, makes it a crime for an employee of a federally insured bank to embezzle [misapply] the money, funds, or credits of the bank.

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

First: That the defendant was an officer [director] [agent] [employee] of [someone connected in any capacity with] the bank described in the indictment;

Second: That the bank was a national bank [federally insured bank] at the time alleged;

Third: That the defendant knowingly embezzled [willfully misapplied] funds [credits] belonging to [entrusted to the care of] the bank;

Fourth: That the defendant acted with intent to injure or defraud the bank; and

Fifth: That the amount of money taken was more than $1,000.

"National bank" means a bank organized under the national banking law. "Insured bank" means any bank, state or national, the deposits of which are insured by the Federal Deposit Insurance Corporation.

To "embezzle" means the wrongful, intentional taking of money or property of another after the money or property has lawfully come within the possession or control of the person taking it. No particular type of moving or carrying away is required.

[To "willfully misapply" a bank's money or property means an intentional conversion of such money or property for one's own use and benefit, or for the use and benefit of another, knowing that one had no right to do so.]

To act with "intent to defraud" means to act with intent to deceive or cheat someone.

Note

This instruction deals with the two most common § 656 cases: embezzlement by a bank employee and misapplication by someone connected with the bank.

The Fifth Circuit has held repeatedly that "intent to injure or defraud" is a necessary element of the offense. United States v. McCord, 33 F.3d 1434, 1448 (5th Cir. 1994), cert. denied, 115 S.Ct. 2558 (1995); United States v. Saks, 964 F.2d 1514, 1519 (5th Cir. 1992); United States v. Shaid, 937 F.2d 228 (5th Cir. 1991), cert. denied, 112 S.Ct. 978 (1992). In United States v. Adamson, 700 F.2d 953 (5^th Cir. 1983), the en banc Fifth Circuit rejected as improper a § 656 jury instruction that equated a "reckless disregard of the interest of the bank" with an intent to injure or defraud the bank. The Fifth Circuit viewed this as an improper lowering of the standard of intent/knowledge required for conviction. Other circuits disagree. See, e.g., Willis v. United States, 87 F.3d 1004 (8^th Cir. 1996); United States v. Crabtree, 979 F.2d 1261 (7^th Cir. 1992); United States v. Hoffman, 918 F.2d 44 (6^th Cir. 1990). In United States v. Kington, 875 F.2d 1091 (5^th Cir. 1989), the Fifth Circuit stated it was "undesirable" for a judge to instruct the jury that intent to injure/defraud exists "if the defendant acts knowingly and if the natural consequences of his conduct is or may be to injure the bank." 875 F.2d at 1097. The court cited Adamson, noting that the jury could make such inferences from the evidence, just as the jury could infer intent to defraud from reckless disregard. But the instruction, if taken out of context, "may appear to mean that the defendant need only know that he is voluntarily engaging in transactions for his own benefit, rather than, as Adamson requires, that the defendant knew he was participating in a deceptive or fraudulent transaction."

In United States v. Meeks, 69 F.3d 742 (5th Cir. 1995), cert. denied, 116 S.Ct. 1337 (1996), the Fifth Circuit discussed the meaning of "connected in any capacity" with a bank and concluded that the government does not need to prove that the defendant occupied a position of trust. See alsoUnited States v. Hogue, 132 F. 3d 1087 (5^th Cir. 1998), regarding whether an independent contractor hired to do work at a bank may be "connected" with the bank for purposes of this statute.

If the charge involved is misapplication of funds, as opposed to embezzlement or theft, some causal connection is required between the defendant's actions as an officer, director, agent or employee of the institution and the misapplication, such as a loan. For example, misapplication requires that the defendant made, or influenced in a significant way, as an officer of the institution, the decision to extend the loan. United States v. McCright, 821 F.2d. 226 (5th Cir. 1987), cert. denied, 108 S.Ct. 697 (1988); United States v. Parks, 68 F.3d. 860 (5th Cir. 1995), cert. denied, 116 S.Ct. 825 (1996); United States v. Rochester, 898 F. 2d 971 (5th Cir. 1990), reh'g denied, 903 F.2d 826 (5th Cir. 1990).

If the indictment charges more than one defendant and alleges aiding and abetting, then it is not necessary to prove that each defendant had such a causal connection, as long as one did. United States v. Parks, 68 F.3d. 860 (5th Cir. 1995), cert. denied, 116 S.Ct. 825 (1996).

The causation standard for § 656 and § 657 is the same. United States v. Parks, 68 F.3d. 860, 863 (5th Cir. 1995), cert. denied, 116 S.Ct. 825 (1996).

If a disputed issue is whether the property stolen had a value of more than $1,000, the court should consider giving a lesser included offense instruction.

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1997 Version:

Instruction unchanged.

See United States v. Aguilar, 967 F2d 111 (5th Cir.1992),quoting portions of the pattern instruction. For a discussion of whether federal funds given to state programs retain their federal character, see United States v. Long, 996 F2d 731 (5th Cir.1993).

See United States v. Sanders, 793 F2d 107 (5th Cir.1986) (clothing that employee of Army and Air Force Exchange Service sought to remove from exchange premises without paying for it constituted a "thing of value of the United States within the meaning of the statute"); United States v. Barnes, 761 F2d 1026 (5th Cir.1985) (government does not have to prove that it suffered actual property loss in a § 641 prosecution, declining to follow United States v. Evans, 572 F2d 455 (5th Cir.1978), cert. denied, 439 US 870, 99 S.Ct. 200, 58 L.Ed.2d 182 (1978)).

The Economic Espionage Act, Pub. L. No. 104-294, § 606(a), 110 Stat. 3488 (Oct. 11, 1996), established that more than $1,000 must be proven as an element of this offense if a felony conviction is sought. Prior to the effective date of the EEA, the dollar threshold for proof of a felony crime was more than $100.

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 2001

2.35 Theft from Lending, Credit, and Insurance Institutions

FORECITE National™ Materials Related To This Instruction:

Chapter 103: Theft/Larceny Based Crimes

Title 18, United States Code, Section 657, makes it a crime for a person connected with a federally insured lending [credit] [insurance] institution to embezzle [misapply] money [funds] [securities] [things of value] belonging to that institution.

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

First: That the defendant was an officer [agent] [employee] of [someone connected in any capacity with] the specified lending [credit] [insurance] institution;

Second: That the accounts of the lending [credit] [insurance] institution were federally insured at the time alleged;

Third: That the defendant knowingly embezzled [willfully misapplied] funds [monies] [securities] [credits] [other things of value] belonging to [entrusted to the care of] such institution;

Fourth: That the defendant acted with intent to injure or defraud the institution; and

Fifth: That the amount of money taken was more than $1,000.

To "embezzle" means the wrongful, intentional taking of money or property of another after the money or property has lawfully come within the possession or control of the person taking it. No particular type of moving or carrying away is required.

[To "willfully misapply" money or property of the lending, credit, or insurance institution means an intentional conversion of such money or property to one's own use and benefit, or to the use and benefit of another, knowing that one had no right to do so.]

To act with "intent to defraud" means to act with intent to deceive or cheat someone.

Note

The elements of the offense are set forth in United States v. Parks, 68 F.3d 860, 863 (5^th Cir. 1995; United States v. Tullos, 868 F.2d 689, 693 (5^th Cir.) cert. denied, 109 S.Ct. 3171 (1989), including the requirement of an intent to injure or defraud the institution. See the note following § 656, Instruction No. 2.34, regarding the intent requirement.

If the charge involved is misapplication of funds, as opposed to embezzlement or theft, some causal connection is required between the defendant's actions as an officer, director, agent or employee of the institution and the misapplication, such as a loan. For example, misapplication requires that the defendant made, or influenced in a significant way, as an officer of the institution, the decision to extend the loan. United States v. McCright, 821 F.2d. 226 (5th Cir. 1987), cert. denied, 108 S.Ct. 697 (1988); United States v. Parks, 68 F.3d. 860 (5th Cir. 1995), cert. denied, 116 S.Ct. 825 (1996); United States v. Rochester, 898 F. 2d 971 (5th Cir. 1990), reh'g denied, 903 F.2d 826 (5th Cir. 1990).

If the indictment charges more than one defendant and alleges aiding and abetting, then it is not necessary to prove that each defendant had such a causal connection, as long as one did. United States v. Parks, 68 F.3d. 860 (5th Cir. 1995), cert. denied, 116 S.Ct. 825 (1996).

The causation standard for §656 and §657 is the same. United States v. Parks, 68 F.3d. 860, 863 (5th Cir. 1995), cert. denied, 116 S.Ct. 825 (1996).

For a discussion of the distinction between before-the-fact authorization, which is a defense to the charge, and after-the-fact ratification, which is not, see United States v. Mmahat, 106 F.3d 89 (5^th Cir. 1997).

If a disputed issue is whether the property stolen had a value of more than $1,000, the court should consider giving a lesser included offense instruction.

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1997 Version:

Instruction unchanged.

Intent to injure or defraud is required for a violation of Section 657. United States v. Tullos, 868 F2d 689 (5th Cir.1989) cert. denied, 490 US 1112, 109 S.Ct. 3171, 104 L.Ed.2d 1033 (1989); United States v. Stovall, 825 F2d 817 (5th Cir.1987), amended on other grounds, 833 F2d 526 (5th Cir.1987).

If the charge involved is misapplication of funds, as opposed to embezzlement or theft, some causal connection is required between the defendant's actions as an officer, director, agent or employee of the bank and the misapplication, such as a loan. For example, misapplication requires that the defendant made, or influenced in a significant way, as an officer of the bank, the decision to extend the loan. United States v. McCright, 821 F2d 226 (5th Cir.1987), cert. denied, 484 US 1005, 108 S.Ct. 697, 98 L.Ed.2d 649 (1988); United States v. Parks, 68 F3d 860 (5th Cir.1995), cert. denied, ____US____, 116 S.Ct. 825, 133 L.Ed.2d 768 (1996); United States v. Rochester, 898 F2d 971 (5th Cir.1990), rehearing denied, 903 F2d 826 (5th Cir.1990).

The Economic Espionage Act, Pub. L. No. 104-294, § 606(a), 110 Stat. 3488 (Oct. 11, 1996), established that more than $1,000 must be proven as an element of this offense if a felony conviction is sought. Prior to the effective date of the EEA, the dollar threshold for proof of a felony crime was more than $100.

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 2001

2.36 Theft from Interstate Shipment

FORECITE National™ Materials Related To This Instruction:

Chapter 103: Theft/Larceny Based Crimes

Title 18, United States Code, Section 659, makes it a crime for anyone to steal [embezzle] [unlawfully take] [carry away] [conceal through fraud or deception] goods that are being shipped from one state to another state or to a foreign country.

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

First: That the defendant stole [embezzled] [unlawfully took] [carried away] [concealed through fraud or deception] the property described in the indictment from a _______ [here describe location, e.g., railroad car, aircraft, motor truck] as alleged in the indictment;

Second: That at the time alleged such property was then moving as [was a part of] an interstate [a foreign] shipment of freight;

Third: That the defendant knew the property was not his and had the intent to deprive the owner of the use and benefit of the property; and

Fourth: That such property then had a value in excess of $1,000.

The word "value" means the face, par, or market value, or cost price, either wholesale or retail, whichever is greater.

[To "embezzle" means the wrongful, intentional taking of money or property of another after the money or property has lawfully come within the possession or control of the person taking it.]

[To "steal" or "convert" means the wrongful taking of money or property, belonging to another with intent to deprive the owner of its use or benefit either temporarily or permanently. Any appreciable change of the location of the property with the intent to deprive constitutes a stealing whether or not there is actual removal of it from the owner's premises.]

An "interstate or foreign shipment" means goods or property which are moving as a part of interstate or foreign commerce.

The interstate or foreign character of a shipment begins when the property is first identified and set aside for the shipment and comes into the possession of those who commence its movement in the course of its interstate or foreign transportation; and the interstate or foreign character of the shipment continues until the shipment arrives at its destination and is there delivered.

While the interstate or foreign character of the shipment must be proved, it is not necessary to show that the defendant knew that the goods constituted a part of such a shipment at the time of the alleged theft, only that the defendant stole [embezzled] them.

Note

The eighth paragraph of the statute provides that waybills or other shipping documents "shall be prima facie evidence of the place from which and to which such shipment was made." The United States Supreme Court allows permissive presumptions when the presumed fact flows more likely than not from the proved fact on which it depends. See County Court of Ulster County v. Allen, 99 S.Ct. 2213, 2224 (1979); Leary v. United States, 89 S.Ct. 1532 (1969).

A suggested instruction on this issue is:

"Prima facie evidence" means sufficient evidence. In other words, waybills, or bills of lading, or other shipping document such as invoices, if proved beyond a reasonable doubt, are sufficient for you to find the interstate or foreign nature of the shipment, but you need not so find.

Definitions of "interstate commerce," "foreign commerce," and "commerce" are in the general instructions at Nos. 1.39, 1.40, and 1.41.

If a disputed issue is whether the property stolen had a value of more than $1,000, the Court should consider giving a lesser included offense instruction.

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1997 Version:

Instruction unchanged.

The statute provides that waybills or other shipping documents shall be prima facie evidence of the place from which and to which such shipment was made." Since this creates a presumption regarding an essential element of the offense, courts should use caution in instructing on it and should include a definition of prima facie as well, such as: "'Prima facie evidence' means sufficient evidence, unless outweighed by the other evidence in the case. In other words, waybills, or bills of lading, or other shipping documents such as invoices, if proved, are sufficient to show the interstate nature of the shipment in the absence of other evidence in the case which leads the jury to a different. conclusion."

Definitions of "interstate commerce," "foreign commerce," and "commerce" are in the general instructions.

The Economic Espionage Act, Pub. L. No. 104-294, § 606(a), 110 Stat. 3488 (Oct. 11, 1996), established that more than $1,000 must be proven as an element of this offense if a felony conviction is sought. Prior to the effective date of the EEA, the dollar threshold for proof of a felony crime was more than $100.

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 2001

2.37 Buying or Receiving Goods Stolen from Interstate Shipment

FORECITE National™ Materials Related To This Instruction:

Chapter 97: Receiving Or Possession Of Stolen Property

Title 18, United States Code, Section 659, makes it a crime for anyone knowingly to buy [receive] stolen goods that have been shipped from one state to another or to a foreign country.

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

First: That someone stole [embezzled] the property described in the indictment from a _______ [here describe location, e.g., railroad car, aircraft, motor truck], as alleged in the indictment, while such property was moving as [was a part of] an interstate shipment of freight;

Second: That the defendant thereafter bought [received] [possessed] such property knowing that it had been stolen [embezzled] as charged; and

Third: That such property then had a value in excess of $1,000.

The word "value" means the face, par, or market value, or cost price, either wholesale or retail, whichever is greater.

An "interstate shipment" means goods or property which are moving as [was a part of] interstate commerce.

The interstate nature of a shipment begins when the property is first identified and set aside for the shipment, and comes into the possession of those who start its movement in the course of its interstate transportation. The interstate nature of the shipment then continues until the shipment arrives at its destination and is there delivered.

While the interstate nature of the shipment must be proved, it is not necessary to show that either the person who stole the property or the defendant knew that the goods were a part of such a shipment at the time they were stolen. But it is necessary for the government to prove that the defendant knew the property was stolen property at the time the defendant bought, received, or possessed it.

[To "embezzle" means the wrongful, intentional taking of money or property of another after the money or property has lawfully come within the possession or control of the person taking it.]

[To "steal" or "convert" means the wrongful taking of money or property belonging to another with intent to deprive the owner of its use and benefit either temporarily or permanently. Any appreciable change of the location of the property with the intent to deprive constitutes a stealing whether or not there is an actual removal of it from the owner's premises.]

Note

United States v. Daniel, 957 F.2d 162 (5th Cir. 1992), cites the elements of the offense.

With respect to the eighth paragraph of § 659 regarding "prima facie evidence," see the discussion in the Note at Instruction No. 2.36, Theft From Interstate Shipment.

Definitions of "interstate commerce," "foreign commerce," and "commerce" are in the general instructions at Nos. 1.39, 1.40, and 1.41.

If a disputed issue is whether the property stolen had a value of more than $1,000, the court should consider giving a lesser included offense instruction.

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1997 Version:

Instruction unchanged.

United States v. Daniel, 957 F2d 162 (5th Cir.1992), cites the elements of the offense.

The statute provides that waybills or other shipping documents shall be prima facie evidence of the place from which and to which such shipment was made." Since this creates a presumption regarding an essential element of the offense, courts should use caution in instructing on it and should include a definition of prima facie as well, such as:

"Prima facie evidence" means sufficient evidence, unless outweighed by the other evidence in the case. In other words, waybills, or bills of lading, or other shipping documents such as invoices, if proved, are sufficient to show the interstate nature of the shipment in the absence of other evidence in the case which leads the jury to a different conclusion.

If the indictment charges multiple means, refer to the pattern jury charge on Unanimity of Theory and consider. the following:

The indictment charges that the defendant bought, received, and possessed the stolen goods or property. The law specifies those three different ways in which the offense can be committed, and it is not necessary for the government to prove that the defendant did all three. It is sufficient if the government proves beyond a reasonable doubt that the defendant either bought, received, or possessed the stolen goods; but, in order to return a verdict of guilty, you must agree unanimously upon which way the offense was committed.

Definitions of "interstate commerce," "foreign commerce," and "commerce" are in the general instructions.

The Economic Espionage Act, Pub. L. No. 104-294, § 606(a), 110 Stat. 3488 (Oct. 11, 1996), established that more than $1,000 must be proven as an element of this offense if a felony conviction is sought. Prior to the effective date of the EEA, the dollar threshold for proof of a felony crime was more than $100.

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 2001

2.38 Escape

FORECITE National™ Materials Related To This Instruction:

Chapter 91: Escape

Title 18, United States Code, Section 751(a), makes it a crime for anyone to escape from federal custody.

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

First: That the defendant was in federal custody;

Second: That the defendant was in federal custody pursuant to a lawful arrest on a felony charge [at an institution or facility where the defendant was confined by direction of the Attorney General for conviction of an offense];

Third: That the defendant departed without permission; and

Fourth: That the defendant knew he did not have permission to leave federal custody.

"Custody" means the detention of an individual by virtue of lawful process or authority.

Note

The nature of the custody must be specifically proved since the statute provides for dual penalties. See United States v. Edrington, 726 F.2d 1029 (5^th Cir. 1984). Accordingly, where a felony is charged, the second element must additionally state that the defendant was in custody by virtue of a lawful arrest on a charge of felony or confined after conviction of any offense. This instruction includes these matters.

An indictment for escape does not need to identify the specific federal offense for which the defendant was in custody at the time of the escape. United States v. Harper, 901 F.2d 471, 474 (1990).

A frequent issue in cases under § 751(a) is the defense of necessity. On this matter, seeUnited States v. Bailey, 100 S.Ct. 624 (1980).

For a case that sets forth the elements, see United States v. Taylor, 933 F.2d 307, 309-10 (5^thCir. 1991), cert. denied, 112 S.Ct. 235 (1991).

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1997 Version:

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 1997

2.38 Escape

Title 18, United States Code, Section 751(a), makes it a crime for anyone to escape from federal custody.

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

First: That the defendant was in federal custody;

Second: That the defendant was in federal custody [pursuant to a lawful arrest on a felony charge] [at an institution or facility where the defendant was confined by direction of the Attorney General for conviction of an offense];

Third: That the defendant departed without permission; and

Fourth: That the defendant knew he did not have permission to leave federal custody.

"Custody" means the detention of an individual by virtue of lawful process or authority.

Note

The nature of the custody must be specifically proved since the statute provides for dual penalties. See United States v. Edrington, 726 F2d 1029 (5th Cir.1984). Accordingly, where a felony is charged, the second element must additionally state that the defendant was in custody by virtue of a lawful arrest on a charge of felony or confined after conviction of any offense. This instruction includes these matters.

A frequent issue in cases under § 751(a) is the defense of necessity. On this matter, see United States v. Bailey, 444 US 394, 100 S.Ct. 624, 62 L.Ed.2d 575 (1980).

For a case that sets forth the elements, see United States v. Taylor, 933 F2d 307, 309-10 (5th Cir.1991), cert. denied, 502 US 883, 112 S.Ct. 235, 116 L.Ed.2d 191 (1991).

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 2001

2.39 Threats Against the President

FORECITE National™ Materials Related To This Instruction:

77.14 Terrorist Threats

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1997 Version:

Formerly 2.40 Threats Against the President.

Instruction unchanged.

Note

On the meaning of "threat," see United States v. Carvin, 555 F2d 1303 (5th Cir.1977), cert. denied, 434 US 971, 98 S.Ct. 523, 54 L.Ed.2d 461 (1977); United States v. Bozeman, 495 F2d 508 (5th Cir.1974), cert. denied, 422 US 1044, 95 S.Ct. 2660, 45 L.Ed.2d 696 (1975).

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 2001

2.39 Aiding an Escape

NOTE:  As of 2001, Instruction 2.39 (Aiding an Escape) was deleted.  The 1997 version of the instruction is included below:

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 1997

Title 18, United States Code, Section 752(a), makes it a crime for anyone to instigate, aid, or assist in the escape of any person who is in federal custody.

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

First: That _______ [escapee's name] was in federal custody;

Second: That _______ [escapee's name] was in federal custody [pursuant to a lawful arrest on a felony charge, or for exclusion or expulsion proceedings under the immigration laws, or extradition, or at an institution or facility where the escapee was confined by direction of the Attorney General for conviction of an offense];

Third: That _______ [escapee's name] departed without permission;

Fourth: That _______ [escapee's name] knew he did not have permission to leave federal custody; and

Fifth: The defendant instigated, aided, or assisted in the escape of _______ [escapee's name].

The crime of aiding an escape terminates once the escapee has reached temporary safety. When physical control over the escapee has ended by flight beyond immediate active pursuit, the escape is complete. Thereafter, aid to the fugitive is no longer aiding the escape.

Note

As with the pattern jury charge for Escape, 18 USC 751(a) the nature of the custody must be specifically proved. See United States V. Edrington, 726 F2d 1029 (5th Cir.1984). On the distinction between when aiding an escape ends and when harboring a fugitive begins, see United States v. Smithers, 27 F3d 142 (5th Cir. 1994).

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 2001

2.40 Interstate Transmission of Extortionate Communication

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1997 Version:

Note

See United States v. Fagan, 821 F2d 1002 1015 n. 9 (5th Cir.1987), cert. denied, 484 US 1005, 108 S.Ct. 697, 98 L.Ed.2d 649 (1988) (discusses breadth of "thing of value").

See United States v. Daughenbaugh, 49 F3d 171, 173 n. 2 (5th Cir.1995) (approving the Fifth Circuit's pattern jury charge on the definition of threat with respect to 18 USC 876), cert. denied, ____ US____, 116 S.Ct. 258, 133 L.Ed.2d 182 (1995); United States v. Turner, 960 F2d 461, 464 & n. 3 (5th Cir.1992) (same).

See also notes to pattern instructions on 18 USC 871 and 18 USC 876.

See note to pattern instruction on 18 USC 1201(a) for the definition of "kidnap."

Definitions of "interstate commerce," "foreign commerce," and "commerce" are in the general instructions.

The transmittal of a threat in interstate commerce is an integral part of the crime. United States v. Pascucci, 943 F2d 1032 (9th Cir.1991).

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 2001

FORECITE National™ Materials Related To This Instruction:

77.14 Terrorist Threats

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

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

First: That the defendant knowingly deposited [caused to be deposited] in the mail, for delivery by the Postal Service, a communication containing a threat, as charged;

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

Third: That the defendant made the threat with the intent to extort money [something of value].

A "threat" is a serious statement expressing an intention to injure [kidnap] any person, which under the circumstances would cause apprehension in a reasonable person, as distinguished from idle or careless talk, exaggeration, or something said in a joking manner.

To "extort" means to wrongfully induce someone else to pay money or something of value by threatening a kidnapping or injury if such payment is not made.

The term "thing of value" is used in the everyday, ordinary meaning and is not limited to money or tangible things with an identifiable price tag.

It is not necessary to prove that any money or other thing of value was actually paid or that the defendant actually intended to carry out the threat made.

It is not necessary to prove that the defendant actually wrote the communication. What the government must prove beyond a reasonable doubt is that the defendant mailed or caused to be mailed a communication containing a "threat" as defined in these instructions.

Note

See United States v. Stotts, 792 F.2d 1318, 1323 (5th Cir. 1986) (proof that defendant wrote communication is not element of the offense); United States v. Fagan, 821 F.2d 1002, 1015 n.9 (5th Cir. 1987) (discusses breadth of "thing of value"), cert. denied, 108 S.Ct. 697 (1988); United States v. DeShazo, 565 F.2d 893 (5th Cir. 1978) (present intent to actually do injury is not required), cert. denied, 98 S.Ct. 1583 (1978).

See also notes to Instructions No. 2.39 and 2.40 on 18 U.S.C. § 871 and 18 U.S.C. § 875(b).

See United States v. Daughenbaugh, 49 F.3d 171, 173 n.2 (5th Cir.) (approving this instruction on the definition of threat), cert. denied, 116 S.Ct. 258 (1995); United States v. Turner, 960 F.2d 461, 464 & n.3 (5th Cir. 1992) (same).

See note to instruction on 18 U.S.C. § 1201(a) for the definition of "kidnap," No. 2.58.

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1997 Version:

Note

See United States v. Stotts, 792 F2d 1318, 1323 (5th Cir.1986) (proof that defendant wrote communication is not element of the offense); United States v. Fagan, 821 F2d 1002, 1015 n. 9 (5th Cir.1987) (discusses breadth of "thing of value"), cert. denied, 484 US 1005, 108 S.Ct. 697, 98 L.Ed.2d 649 (1988); United States v. DeShazo, 565 F2d 893 (5th Cir.1978) (present intent to actually do injury is not required), cert. denied, 435 US 953, 98 S.Ct. 1583, 55 L.Ed.2d 804 (1978).

See also notes to pattern instructions on 18 USC 871 and 18 USC 875(b).

See United States v. Daughenbaugh, 49 F3d 171, 173 n 2 (5th Cir.1995) (approving the Fifth Circuit's pattern jury charge on the definition of threat), cert. denied, ____ US____, 116 S.Ct. 258, 133 L.Ed.2d 182 (1995); United States v. Turner, 960 F2d 461, 464 & n 3 (5th Cir.1992) (same).

See note to pattern instruction on 18 USC 1201(a) for the definition of "kidnap."

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 2001

Title 18, United States Code, Section 911, makes it a crime for anyone to falsely and willfully represent oneself to be a citizen of the United States.

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

First: That the defendant stated that he was a citizen of the United States;

Second: That the defendant was not a citizen of the United States at that time; and

Third: That the defendant knew he was not a citizen and deliberately made this false statement with intent to disobey or disregard the law.

Note

See United States v. Harrell, 894 F.2d 120 (5th Cir.), cert. denied, 111 S.Ct. 101 (1990), for elements. The statute requires that the false representation be willful. The Ninth Circuit requires that the statement be made to someone with good reason to inquire. United States v. Romero-Avila, 210 F.3d 1017 (9^th Cir. 2000).

The definition of citizen is contained in the Fourteenth Amendment and in 8 U.S.C. § 1401. If the defense is that the defendant is a natural-born or naturalized citizen of the United States, a more detailed definition of "citizen" would be appropriate.

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1997 Version:

Formerly 2.43 Misrepresentation of Citizenship.

Instruction unchanged.

See United States v. Harrell, 894 F2d 120 (5th Cir.1990), cert. denied, 498 US 834, 111 S.Ct. 101, 112 L.Ed.2d 72 (1990), for elements.

The definition of citizen is contained in the Fourteenth Amendment and in 8 USC 1401. If the defense is that the defendant is a natural-born or naturalized citizen of the United States, a more detailed definition of "citizen" would be appropriate.

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 2001

FORECITE National™ Materials Related To This Instruction:

103.8 False Impersonation/False Identification

Title 18, United States Code, Section 912, makes it a crime for anyone to demand money [something of value] while falsely assuming [pretending] to be an officer or employee of the United States.

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

First: That the defendant falsely assumed [pretended] to be an officer [employee] acting under the authority of the United States;

Second: That while acting in such assumed [pretended] character, the defendant demanded [obtained] money [something of value]; and

Third: That the defendant did so knowingly with intent to defraud.

To act "with intent to defraud" means to act with intent to wrongfully deprive another of property.

Note

This statute encompasses two separate offenses. This instruction pertains only to one of them, namely demanding or obtaining property through a pretended character. See United States v. Lepowitch, 63 S. Ct. 914 (1943). The Fifth Circuit requires allegation and proof of an intent to defraud. United States v. Cortes, 600 F.2d 1054 (5th Cir. 1977); United States v. Pollard, 491 F.2d 1387 (5th Cir.), cert. denied, 95 S.Ct. 92 (1974).

The other offense is merely to act in a pretended character. See Honea v. United States, 344 F.2d 798 (5th Cir. 1965). It requires an intent to deceive. United States v. Randolph, 460 F.2d 367 (5^th Cir.1972). The Eleventh Circuit, noting a split of authority, no longer follows Honea andRandoph. United States v. Gayle, 967 F.2d 483 (11^th Cir.1992) (en banc), cert.denied, 113 S.Ct. 1402 (1993).

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1997 Version:

Formerly 2.44 False Impersonation of Federal Officer or Employee— Demanding or Obtaining Anything of Value.

Instruction unchanged.

Note

This statute encompasses two separate offenses. The foregoing instruction pertains only to one of them, namely demanding or obtaining property through a pretended character. The other offense is merely to act in a pretended character. See United States v. Lepowitch, 318 US 702, 63 S.Ct. 914, 87 L.Ed. 1091 (1943); Honea v. United States, 344 F2d 798 (5th Cir.1965). The Fifth Circuit requires allegation and proof of an intent to defraud in the offense set forth above. United States v. Cortes, 600 F2d 1054 (5th Cir.1977); United States v. Pollard, 491 F2d 1387 (5th Cir.1974), cert. denied, 419 US 851, 95 S.Ct. 92, 42 L.Ed.2d 82 (1974). A different intent is involved in the other offense encompassed by § 912. See Honea, supra.

See United States v. Gayle, 967 F2d 483 (11th Cir.1992) (en banc), cert. denied, 507 US 967, 113 S.Ct. 1402, 122 L.Ed.2d 775 (1993), for a discussion of the history of the statute as well as a discussion of some conflict among the circuits.

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 2001

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1997 Version:

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 1997

Title 18, United States Code, Sections 922(a)(1)(A) and 924(a)(1)(D), make it a crime to be in the business of dealing in firearms without a federal license.

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

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

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

Third: That the defendant did so willfully, that is, that the defendant acted with knowledge of the obligation to obtain a license and intended to violate the law.

The term "firearm" means any weapon which will or is designed to 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, or any firearm muffler or firearm silencer, or destructive device.

The term "dealer" means any person engaged in the business of selling firearms at wholesale or retail.

A person is "engaged in the business of selling firearms at wholesale or retail," if that person devotes time, attention, and labor to dealing in firearms as a regular course of trade or business with the principal objective of livelihood and profit through the repetitive purchase and resale of firearms.

Such term does not include a person who makes occasional sales, exchanges, or purchases of firearms for the enhancement of a personal collection or for a hobby, or who sells all or part of that person's personal collection of firearms.

The term "with the principal objective of livelihood and profit" means that the intent underlying the sale or disposition of firearms is predominantly one of obtaining livelihood and pecuniary gain, as opposed to other intents, such as improving or liquidating a personal firearms collection.

Note

"Engaged in the business" is defined at 18 USC 921(a)(21). This statutory definition revised prior Fifth Circuit case law definition of United States v. Berry, 644 F2d 1034, 1037 (5th Cir.1981), United States v. Wilmoth, 636 F2d 123, 125 (5th Cir.1981), and United States v. Shirling, 572 F2d 532, 534 (5th Cir.1978), which held that it is enough for one to have guns on hand or be ready and able to procure them for the purpose of selling them from time to time to such persons as might be accepted as customers. For a discussion on the adequacy of a "hobby defense" instruction, see United States v. Palmieri, 21 F3d 1265 (3d Cir.1994).

The Fifth Circuit had rejected the notion that a profit motive is essential to the finding of a firearms "business." United States v. Shirling, 572 F2d 532 (5th Cir.1978). The Firearm Owners' Protection Act, Pub. L. 99-308, § 101, 100 Stat. 449, 450 (1986) (effective November 15, 1986), added § 921(a)(21), which defines "engaged in the business" to include "the principal objective of livelihood and profit." Proof of profit is not required as to a person who engages in the regular and repetitive purchase and disposition of firearms for criminal purposes or terrorism.18 USC.§ 921(a)(22).

Willfulness is an element of this offense.18 USC.§ 924(a)(1)(D).

Compare United States v. Hayden, 64 F3d 126, 130 (3d Cir.1995) (holding that "willfully" in § 924(a)(1)(D) means the defendant must have acted with knowledge that his conduct was unlawful) and United States v. Obiechie, 38 F3d 309, 315 (7th Cir.1994) (finding that "willfully" requires knowledge of the law) with United States v. Collins, 957 F2d 72, 76 (2d Cir.) (reading the element of willfulness broadly to require "only that the government prove that the defendant's conduct was knowing and purposeful and that the defendant intended to commit an act which the law forbids"), cert. denied, 504 US 944, 112 S.Ct. 2285, 119 L.Ed.2d 210 (1992). There are no Fifth Circuit cases on this issue.

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 2001

2.45 False Statement to Firearms Dealer

Title 18, United States Code, Sections 922(a)(6) and 924(a)(2), make it a crime for anyone to make a false statement to a firearms dealer in order to buy a firearm.

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

First: That the defendant made a false statement while acquiring a firearm from a licensed dealer;

Second: That the defendant knew the statement was false; and

Third: That the statement was intended or was likely to deceive about a material fact, i.e., one which would affect the legality of the sale to the defendant.

The term "firearm" means any weapon that will or is designed to 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, or any firearm muffler or firearm silencer, or destructive device.

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

A false statement is "likely to deceive" if the nature of the statement, considering all of the surrounding circumstances at the time it is made, is such that a reasonable person of ordinary prudence would have been actually deceived or misled.

Note

In response to United States v. Gaudin, 115 S.Ct. 2310 (1995), which requires the Court to submit the issue of materiality to the jury when materiality is an element of an offense, the Committee has added language to the third element. But see United States v. Klais, 68 F.3d 1282, 1283 (11th Cir. 1995) (holding that Gaudin is not applicable to prosecutions under 18 U.S.C. § 922(a)(6)). There are no Fifth Circuit cases directly on this point, but see United States v. Harvard, 103 F.3d 412, 419 (5^th Cir. 1997). To the extent not overruled by Gaudin, however, the instruction is based upon United States v. Ortiz-Loya, 777 F.2d 973, 979 (5th Cir. 1985), and United States v. Harrelson, 705 F.2d 733, 736 (5th Cir. 1983). See also United States v. Chapman, 7 F.3d 66, 67 (5th Cir. 1993), cert. denied, 114 S.Ct. 2713 (1994); United States v. Williams, 860 F. Supp. 1155 (M.D. La. 1994).

United States v. Guerrero, 234 F.3d 259 (5^th Cir. 2000), holds that this statute does not intend to distinguish between acquisition and attempted acquisition and creates only one offense- the making of a false statement with respect to the eligibility of a person to obtain a firearm from a licensed dealer.

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 2001

2.46 Unlawful Sale or Disposition of Firearm

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1997 Version:

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 1997

2.47 Unlawful Sale or Disposition of Firearm

Title 18, United States Code, Sections 922(d) and 924(d), make it a crime for a person knowingly to sell or otherwise dispose of a firearm to [a person in the prohibited category, i.e., a convicted felon] when the seller knows or has reasonable cause to believe that such a person is [a member of a prohibited category, i.e., a convicted felon].

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

First: That the defendant knowingly sold a firearm to ______________ ; and,

Second: At the time of the sale, that the defendant knew or had reasonable cause to believe that _______________ was [a member of a prohibited category, i.e., a convicted felon].

The term "firearm" means any weapon that will or is designed to 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, or any firearm muffler or firearm silencer, or destructive device.

Note

See United States v. Murray, 988 F2d 518, 521 (5th Cir.1993) for discussion of evidence necessary to sustain conviction under 18 USC 922(d) regarding the quantum of proof regarding defendant's knowledge of purchaser's status as a felon.

The mens rea requirement is set forth at 18 USC 924(a)(2).

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 2001

FORECITE National™ Materials Related To This Instruction:

Chapter 107: Weapons Or Firearms: Exfelon In Possession Of Firearm

2.47 Possession of a Firearm by a Convicted Felon

Title 18, United States Code, Sections 922(g)(1) and 924(a)(2), make it a crime for a convicted felon to possess a firearm.

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

First: That the defendant knowingly possessed a firearm, as charged;

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

Third: That the possession of the firearm was in [affecting] commerce; that is, that before the defendant possessed the firearm, it had traveled at some time from one state to another.

The term "firearm" means any weapon that will or is designed to 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, or any firearm muffler or firearm silencer, or destructive device.

Note

See United States v. Ferguson, 211 F.3d 878 (5^th Cir. 2000); United States v. Ybarra, 70 F.3d 362, 365 (5th Cir. 1995) (setting forth elements); United States v. Speer, 30 F.3d 605, 612 (5th Cir. 1994), cert. denied, 115 S.Ct. 603 (1995); United States v. Wright, 24 F.3d 732, 734 (5th Cir. 1994).

Willfulness is not an element of this offense. 18 U.S.C. § 924(a)(2). Moreover, the government need not prove that the defendant knew the firearm was in or affected interstate commerce. United States v. Privett, 68 F.3d 101, 104 (5th Cir. 1995), cert. denied, 116 S.Ct. 1862 (1996).

"Any conviction which has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored shall not be considered a conviction for purposes of this chapter, unless such pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms." 18 U.S.C. § 921(a)(20), overruling Dickerson v. New Banner Institute, Inc., 103 S.Ct. 986 (1983) (expunction of state conviction does not void the conviction for purposes of federal firearms disability), and United States v. Crochet, 788 F.2d 1061, 1063 (5th Cir. 1986) (set aside and expunction of state conviction). A state's restoration of a federally convicted felon's civil rights does not remove the firearms possession disability imposed by federal law. Beecham v. United States, 114 S.Ct. 1669 (1994). United States v. Dupaquier, 74 F.3d 615 (5th Cir. 1996), describes the Fifth Circuit's test to determine if the defendant's civil rights have been restored. If the conviction is a state conviction, state statutes restoring civil rights may relieve a convicted person of the disability to possess a firearm, but not if the state pardon expressly provides such person may not possess a firearm. United States v. Richardson, 168 F.3d 836 (5^th Cir. 1999).

For possession, see Instruction No. 1.31 and United States v. DeLeon, 170 F.3d 495 (5^th Cir. 1999), cert. denied, 120 S.Ct. 156 (1999).

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1997 Version:

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 1997

2.48 Possession of a Firearm by a Convicted Felon

Title 18, United States Code, Sections 922(g)(1) and 924(a)(2), make it a crime for a convicted felon to possess a firearm.

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

First: That the defendant knowingly possessed a firearm, as charged. The term "firearm" means any weapon that will or is designed to 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, or any firearm muffler or firearm silencer, or destructive device;

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

Third: That the possession of the firearm was in [affecting] commerce; that is, that before the defendant possessed the firearm, it had traveled at some time from one state to another.

Note

See United States v. Ybarra, 70 F3d 362, 365 (5th Cir.1995) (setting forth elements); United States v. Speer, 30 F3d 695, 612 (5th Cir.1994), cert. denied, 513 US 1028, 115 S.Ct. 603, 130 L.Ed.2d 514 (1994); United States v. Wright, 24 F3d 732, 734 (5th Cir. 1994).

Willfulness is not an element of this offense. 18 USC 924(a)(2). Moreover, the government need not prove that the defendant knew the firearm was in or affected interstate commerce. United States v. Privett, 68 F3d 101, 104 (5th Cir.1995), cert. denied, ____ US ____, 116 S.Ct. 1862, 134 L.Ed.2d 960 (1996).

Any conviction which has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored shall not be considered a conviction for purposes of this chapter, unless such pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms." 18 USC 921(a)(20), overruling Dickerson v. New Banner Institute, Inc., 460 US 103, 103 S.Ct. 986, 74 L.Ed.2d 845 (1983) (expunction of state conviction does not void the conviction for purposes of federal firearms disability), and United States v. Crochet, 788 F2d 1061, 1063 (5th Cir.1986) (set aside and expunction of state conviction). A state's restoration of a federally convicted felon's civil rights does not remove the firearms possession disability imposed by federal law. Beecham v. United States, 511 US 368, 114 S.Ct. 1669, 128 L.Ed.2d 383 (1994). United States v. Dupaquier, 74 F3d 615 (5th Cir.1996) describes the Fifth Circuit's test to determine if the defendant's civil rights have been restored.

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 2001

2.48 Using/Carrying a Firearm During Commission of a Drug
Trafficking Crime or Crime of Violence

FORECITE National™ Materials Related To This Instruction:

Chapter 106: Weapons Or Firearms: Possession, Transportation, Etc.

See FORECITE National™ 117.2.1 [Federal Firearm Enhancement: Failure To Include Type Of Firearm In Indictment Is Jurisdictional Defect (18 USC 924(c))].  

See also FORECITE National™ 117.3.1 [Use Or Carrying Of A Weapon Or Firearm: Defense Theory That Mere Possession Of The Weapon Was Not "Active Employment"].

Title 18, United States Code, Section 924(c)(1), makes it a crime for anyone to use or carry a firearm during and in relation to a drug trafficking crime [crime of violence] or to possess a firearm in furtherance of such a crime.

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

First: That the defendant committed the crime alleged in Count . I instruct you that is a drug trafficking crime [crime of violence]; and

Second: That the defendant knowingly used [carried] a firearm during and in relation to [knowingly possessed a firearm in furtherance of] the defendant's alleged commission of the crime charged in Count .

To prove the defendant "used" a firearm in relation to a drug trafficking crime [crime of violence], the government must prove that the defendant actively employed the firearm in the commission of Count , such as a use that is intended to or brings about a change in the circumstances of the commission of Count . "Active employment" may include brandishing, displaying, referring to, bartering, striking with, firing, or attempting to fire the firearm. Use is more than mere possession of a firearm or having it available during the drug trafficking crime [crime of violence].

[To prove the defendant "carried" a firearm, the government must prove that the defendant carried the firearm in the ordinary meaning of the word "carry," such as by transporting a firearm on the person or in a vehicle. The defendant's carrying of the firearm cannot be merely coincidental or unrelated to the drug trafficking crime [crime of violence].

[To prove the defendant possessed a firearm "in furtherance," the government must prove that the defendant possessed a firearm that furthers, advances, or helps forward the drug trafficking crime [crime of violence].

"In relation to" means that the firearm must have some purpose, role, or effect with respect to the drug trafficking crime [crime of violence].

Note

In response to the decision of the United States Supreme Court in Bailey v. United States, 116 S.Ct. 501 (1995), Congress broadened the scope of 18 U.S.C. § 924(c)(1) to prohibit possession of a firearm in furtherance of a drug trafficking crime. 18 U.S.C. § 924(c)(1) was amended by the Criminal Use of Guns Act, Pub.L. No. 105-386, § 1(a)(1), 112 Stat. 3469 (1998), effective November 13, 1998. Section 924(c)(1) now applies to "any person who, during and in relation to any crime of violence or drug trafficking crime ... uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm."

In Furtherance Of. United States v. Ceballos-Torres, 218 F.3d 409 (5^th Cir. 2000), analyzes the meaning of "in furtherance" at length and decides that "using the dictionary definition ... is the appropriate way to construe the statutes ...." Id. at 415. Thus, firearm possession that furthers, advances or helps forward the drug trafficking offense violates the statute. Id.

Use. Bailey v. United States, 116 S.Ct. 501 (1995); United States v. Jones, 172 F.3d 381 (5^thCir. 1999); and United States v. Brown, 161 F.3d 256 (5^th Cir. 1998), describe that active employment is necessary to prove use. See United States v. Chavez, 119 F.3d 342 (5^th Cir. 1997),cert. denied, 118 S.Ct. 615 (1997), for an approved instruction on the difference between "use" and "carrying."

Carry. Muscarello v. United States, 118 S.Ct. 1911 (1998), and United States v. Brown, 161 F.3d 256 (5^th Cir. 1998), hold that "carry" includes carry on the person as well as in the trunk or glove box of an automobile. The term "carry" contemplates movement. See United States v. Sanders, 157 F.3d 302 (5^th Cir. 1998).

During and in relation to. Muscarello v. United States, 118 S.Ct. 1911, 1918 (1998), notes that "Congress added these words in part to prevent prosecution where guns 'played' no part in the crime."

This instruction presumes that the predicate drug offense is charged in another count of the indictment. If the predicate drug offense is not charged, this instruction must be amended to list the elements of the uncharged drug trafficking crime. See United States v. Mendoza, 11 F.3d 126 (9^thCir. 1993). A drug trafficking crime is "any felony punishable under the Controlled Substances Act (21 U.S.C. § 801 et seq.), or the Maritime Drug Law Enforcement Act (46 U.S.C. App. 1901 et seq.)." 18 U.S.C. § 924 (c)(2).

What constitutes a "crime of violence" is a matter of statutory interpretation for the court. United States v. Jennings, 195 F.3d 795 (5^th Cir.1999), cert. denied, 120 S.Ct. 2694 (2000); United States v. Credit, 95 F.3d 362 (5^th Cir.1996), reh'g denied, (Oct. 10, 1996). Apprendi v. New Jerseywas decided seven days after certiorari was denied by the Supreme Court in Jennings. The District Judge is cautioned that Apprendi may alter this holding. The underlying offense must have elements of violence. 18 U.S.C. § 924(c)(3); United States v. Credit, 95 F.3d 362 (5th Cir. 1996), reh'g denied, (Oct. 10, 1996).

The statute provides a minimum, consecutive sentence of 5 years, with various factors increasing the minimum, e.g., 7-year minimum if the firearm is brandished, 18 U.S.C. § 924(c)(1)(A)(ii); 10-year minimum if the firearm is discharged, 18 U.S.C. § 924(c)(1)(A)(iii); or 30-year minimum if the firearm is a machine gun, 18 U.S.C. § 924 (c)(1)(B)(ii).

The United States Supreme Court has held that "Congress intended the firearm type-related words it used in § 924(c)(1) to refer to an element of a separate, aggravated crime." Castillo v. United States, 120 S.Ct. 2090, 2096 (2000). However, that case interpreted the statute before it was amended in 1998. In United States v. Barton, 2001 WL 765829 (5^th Cir. 2001), the Fifth Circuit held that subsections (i), (ii), and (iii) of § 924(c)(1)(A) are sentencing factors and not separate elements of different offenses. Thus, § 924(c)(1)(A) does not raise an Apprendi issue. Although it is not stated in Barton, the Fifth Circuit previously has held that the maximum sentence under this statute is life imprisonment. See United States v. Sias, 227 F.3d 244, 247 (5^th Cir. 2000) (stating that "by implication, Congress left open the ceiling of sentences imposed under § 924(c)").

Only two circuits have addressed whether or not the provisions under § 924(c)(1)(B) are sentencing factors or elements of a crime. In United States v. Sandoval, 241 F.3d 549 (7^th Cir. 2001), the court held "that the classification of weapon used in a § 924 (c)[(B)] prosecution is a sentencing factor." On the other hand, in United States v. Bandy, 239 F.3d 802 (6^th Cir. 2001), that court held the § 924(c)(1)(B)(i) is an element of a crime. In Barton, the Fifth Circuit left open the question of whether or not the "type of weapon" in § 924(c)(1)(B) constitutes a sentencing factor or an element of a crime.

For the definition of possession, see Instruction No. 1.31.

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1997 Version:

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 1997

2.49 Using/Carrying a Firearm During Commission of a Drug
Trafficking Crime or Crime of Violence

Title 18, United States Code, Section 924(c)(1), makes it a crime for anyone to use [carry] a firearm during and in relation to a drug trafficking crime [crime of violence].

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

First: That the defendant committed the crime alleged in Count ___. I instruct you that _______ is a drug trafficking crime [crime of violence]; and

Second: That the defendant knowingly used [carried] a firearm during and in relation to the defendant's alleged commission of the crime charged in Count ___.

To prove the defendant "used" a firearm in relation to a drug trafficking crime, the government must prove that the defendant actively employed the firearm in the commission of Count ___, such as a use that is intended to or brings about a change in the circumstances of the commission of Count ___. "Active employment" may include brandishing, displaying, referring to, bartering, striking with, firing, or attempting to fire the firearm. Use is more than mere possession of a firearm or having it available during the drug trafficking crime.

[To prove the defendant "carried" a firearm, the government must prove that the defendant carried the firearm in the ordinary meaning of the word "carry," such as by transporting a firearm on the person or in a vehicle. The defendant's carrying of the firearm cannot be merely coincidental or unrelated to the drug trafficking crime.]

"In relation to" means that the firearm must have some purpose, role, or effect with respect to the drug trafficking crime.

Note

This instruction presumes that the predicate drug offense is charged in another count of the indictment. If the predicate drug offense is not charged, this instruction must be amended to list the elements of the uncharged drug trafficking crime. The Omnibus Anti-Drug Abuse Act of 1988 defines a drug trafficking crime as "any felony punishable under the Controlled Substances Act (21 USC 801 et seq.), or the Maritime Drug Law Enforcement Act (46 USC. App.1901 et seq.)."

Bailey v. United States, ____ US____, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995) overrules circuit precedent in "use" cases. United States v. Wilson, 77 F3d 105, 110 (5th Cir.1996). Because the Bailey decision is a "use" case rather than a "carry" case, the Supreme Court remanded the consolidated convictions to the appellate court to determine whether the defendant's convictions could be upheld with evidence, that the defendants "carried" a firearm. For a Supreme Court case on "carry," see Smith v. United States, 508 US 223, 113 S.Ct. 2050, 124 L.Ed.2d 138 (1993).

Recent Fifth Circuit cases helpful in understanding the elements of 924(c) offenses include: United States v. Mascurello, 106 F3d 636 (5th Cir.1997); United States v. Brown, 102 F3d 1390 (5th Cir.1996); United States v. Ulloa, 94 F3d 949 (5th Cir.1996); United States v. Johnson, 87 F3d 133 (5th Cir.1996); United States v. Garcia, 86 F3d 394 (5th Cir.1996); United States v. Rivas, 85 F3d 193 (5th Cir.1996); United States v. Andrade, 83 F3d 729 (5th Cir.1996); United States v. Fike, 82 F3d 1315 (5th Cir.1996); United States v. Wilson, 77 F3d 105 (5th Cir.1996).

What constitutes a crime of violence is a question of law that should not be submitted to the jury. The underlying offense must have elements of violence. United States v. Credit, 95 F3d 362 (5th Cir.1996), rehearing denied, (Oct. 10, 1996).

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 2001

2.49 False Statements to Federal Agencies and Agents

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1997 Version:

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 1997

2.50 False Statements to Federal Agencies and Agents

Title 18, United States Code, Section 1001, makes it a crime for anyone to knowingly and willfully make a false or fraudulent statement to a department or agency of the United States.

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

First: That the defendant made a false statement to _______ [name department or agency of United States government];

Second: That the defendant made the statement intentionally, knowing that it was false;

Third: That the statement was material, and

Fourth: That the defendant made the false statement for the purpose of misleading the _______ [name department or agency].

A statement is material if it has a natural tendency to influence, or is capable of influencing, a decision of [name department or agency].

It is not necessary to show that the _______ [name department or agency] was in fact misled.

Note

This instruction assumes the false statement was made to a department or agency of the government. If the false statement is made to the judicial or legislative branch, the judge should tailor the instruction. The False Statements Accountability Act of 1996, Pub. L. No. 104-292, § 2, 110 Stat. 3459, (Oct. 11, 1996), overruled Hubbard v. United States, 514 US 695, 115 S.Ct. 1754, 131 L.Ed.2d 779 (1995). Its new subsection (b) partially preserves the so-called "judicial function exception."

Some courts have held that "reckless disregard" or "reckless indifference" may satisfy the scienter element, at least where the defendant makes a false material statement, and consciously avoids learning the true facts. See United States v. Puente, 982 F2d 156 (5th Cir.1993).

The "exculpatory no" doctrine exception to 18 USC 1001 has been abolished in the Fifth Circuit. United States v. Rodriguez-Rios, 14 F3d 1040 (5th Cir.1994).

Materiality is a jury issue for a § 1001 offense. United States v. Gaudin, ____ US ____, ____,115 S.Ct. 2310, 2312, 132 L.Ed.2d 444 (1995).

A material fact is one "having a natural tendency to influence, or being capable of affecting or influencing a government agency." The agency need not have actually been misled, but "the concealment must simply have the capacity to impair or prevent the functioning of. a government agency." United States v. Beuttenmuller, 29 F3d 973 (5th Cir.1994).

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 2001

2.50 False Statements in Bank Records