PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT
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II. Substantive Offense Instructions (18 USC 1005) - (31 USC 5324(a)(3)) (2.51 - 2.100)

        2.51     False Statements in Bank Records (18 USC 1005)
        2.51     False Statement To A Bank (18 USC 1014)
        2.52     Production Of False Document With Intent To Defraud United States (18 USC 1028(a)(4))
        2.53     Use Of Unauthorized Access Device (18 USC 1029(a)(2))
        2.54     Transmission Of Wagering Information (18 USC 1084)
        2.55     Murder (First Degree) (18 USC 1111)
        2.56     Murder (Second Degree) (18 USC 1111)
        2.57     Voluntary Manslaughter (18 USC 1112)
        2.58     Kidnapping (18 USC 1201(a)(1))
        2.59     Mail Fraud (18 USC 1341)
        2.60     Wire Fraud (18 USC 1343)
        2.61     Bank Fraud (18 USC 1344(2))
        2.62     Mailing Obscene Material (18 USC 1461)
        2.63     Interstate Transportation Of Obscene Material (By Common Carrier) (18 USC 1462)
        2.64     Interstate Transportation Of Obscene Material (For Purpose Of Sale Or Distribution) (18 USC 1465)
        2.65     Corruptly Obstructing Administration Of Justice (18 USC 1503)
        2.66     Obstructing Administration Of Justice By Threats Or Force (18 USC 1503(a))
        2.67     Corruptly Influencing A Juror (18 USC 1503)
        2.68     Intimidation To Influence Testimony (18 USC 1512(b)(1))
        2.69     False Declaration Before Grand Jury Or Court (18 USC 1623)
        2.70     Theft Of Mail Matter (18 USC 1708)
        2.71     Possession Of Stolen Mail (18 USC 1708)
        2.72     Embezzlement/theft Of Mail Matter By Postal Service Employee (18 USC 1709)
        2.73     Extortion By Force, Violence Or Fear (18 USC 1951(a) (Hobbs Act))
        2.74     Extortion Under Color Of Official Right (18 USC 1951(a) (Hobbs Act))
        2.75     Illegal Gambling Business (18 USC 1955)
        2.76     Laundering Of Monetary Instruments (18 USC 1956(a)(1)(A)(i) And 1956(a)(1)(B)(i))
        2.77     Laundering Of Monetary Instruments (18 USC 1956(a)(3)(A) And 1956(a)(3)(B))
        2.78     Racketeer Influenced Corrupt Organizations Act (18 USC 1962(c))
        2.79     Bank Robbery (18 USC 2113) (Subsections (a) and (d) Alleged in the Same Count)
        2.80     Bank Theft (18 USC 2113(b))
        2.81     Carjacking (18 USC 2119)
        2.82     Interstate Transportation Of A Stolen Motor Vehicle (18 USC 2312)
        2.83     Receipt Of A Stolen Motor Vehicle (18 USC 2313)
        2.84     Interstate Transportation Of Stolen Property (18 USC 2314)
        2.85     Receipt, Possession, Or Sale Of Stolen Property (18 USC 2315)
        2.86     Failure To Appear (18 USC 3146)
        2.87     Controlled Substances -- Possession With Intent To Distribute (21 USC 841(a)(1))
        2.88     Unlawful Use Of Communications Facility (21 USC 843(b))
        2.89     Controlled Substances -- Conspiracy (21 USC 846)
        2.90     Continuing Criminal Enterprise (21 USC 848)
        2.91     Controlled Substances -- Manufacturing Operation (21 USC 856(a)(1))
        2.92     Controlled Substances -- Unlawful Importation (21 USC 952(a) And 960(a)(1))
        2.93     Exporting Arms Without A License (22 USC 2778(c) And 22 CFR 127.1(a))
        2.94     Receiving Or Possessing Unregistered Firearms (26 USC 5861(d))
        2.95     Tax Evasion (26 USC 7201)
        2.96     False Statements On Income Tax Return (26 USC 7206(1))
        2.97     Aiding Or Assisting In Preparation Of False Documents Under Internal Revenue Laws (26 USC 7206(2))
        2.98     Reports On Exporting And Importing Monetary Instruments (31 USC 5316(a)(1))
        2.99     Structuring Transactions To Evade Reporting Requirements (31 USC 5324(a)(3))

1997 Version:

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 1997

2.51 False Statements in Bank Records

(18 USC 1005) 

(Third Paragraph)

Title 18, United States Code, Section 1005, makes it a crime for anyone to make a false entry in any book [record] [statement] of a federally insured bank, knowing the entry is false, with intent to defraud 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 _______ was a federally insured bank;

Second: That the defendant made a false entry in a book [record] [statement] of the _______ [name bank];

Third: That the defendant did so knowing it was false; and

Fourth: That the defendant did so intending to injure or defraud _______ [name bank].

Note

See United States v. Munna, 871 F2d 515 (5th Cir.1989), cert. denied, 493 US 1059, 110 S.Ct. 871, 107 L.Ed.2d 955 (1990), relative to the deprivation of intangible rights as constituting bank fraud.

Specific intent to injure or defraud the bank or its public officers is an express element of paragraph three, section 1005. It is not necessary to prove intent to deceive the bank. Intent to deceive an officer, agent, auditor or examiner is sufficient. United States v. Chaney, 964 F2d 437 (5th Cir.1992). If the case involves alleged injury to or deceit of an officer or other entity, the instruction must be tailored accordingly.

Materiality is not an element of this offense when the defendant is charged with a false misstatement. The Fifth Circuit has indicated materiality would be an element if the defendant is charged with a false entry resulting from an omission of information. United States v. Harvard, 103 F3d 412, (5th Cir.1997). In such a case, materiality would be a jury question. United States v. Gaudin, ____ US____, ____, 115 S.Ct. 2310, 2314, 132 L.Ed.2d 444 (1995). An appropriate charge in an "omission" case would have the following as a second element: "That the defendant made a false material omission in a book [record] [statement] of the ______[name bank]. A material omission is one that would naturally tend to influence, or was capable of influencing, the decision of ______ [name bank]."

The judge should be aware that United States v. Wells, ____ U.S .____ 117 S.Ct. 921, 137 L.Ed.2d 107 (1997), holds that materiality is not an element in a prosecution under 28 USC 1014, a similar statute criminalizing the making of false statements to a federally insured financial institution, partially overruling United States v. Jobe, 101 F3d 1046, 1061 (5th Cir.1996). Among other reasons, the Supreme Court relied on the text’s "natural reading," i.e., the absence of "material" within the text of the statute, on its statutory history, and on other elements of proof required by the statute.

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 2001

2.51 False Statement to a Bank

Title 18, United States Code, Section 1014, makes it a crime for anyone knowingly to make a false statement to a federally insured bank for the purpose of influencing the bank to make a loan.

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 bank];

Second: That the defendant knew the statement was false when the defendant made it;

Third: That the defendant did so for the purpose of _______ [describe purpose, e.g., convincing the bank to give the defendant a loan]; and

Fourth: That _______ [name bank] was federally insured.

It is not necessary, however, to prove that the institution involved was, in fact, influenced or misled.

What must be proven is that the defendant intended to influence the lending decision of the bank by the false statement. To make a false statement to a federally insured bank, the defendant need not directly submit the false statement to the institution. It is sufficient if the defendant submits the statement to a third party, knowing that the third party will submit the false statement to the federally insured bank.

Note

United States v. Wells, 117 S.Ct. 921 (1997), holds that materiality is not an element in a prosecution under 18 U.S.C. § 1014, partially overruling United States v. Jobe, 101 F.3d 1046, 1061 (5^th Cir. 1996). See also United States v. Dupre, 117 F.3d 810 (5^th Cir. 1997). Among other reasons, the Supreme Court relied on the text's "natural reading," i.e., the absence of "material" within the text of the statute, on its statutory history, and on other elements of proof required by the statute.

The statute requires only an intent to influence the bank's lending decision. United States v. Devoll, 39 F.3d 575, 579 (5^th Cir. 1994), cert. denied, 115 S.Ct. 1701 (1995). An intent to harm the bank or to bring financial gain to the defendant is not required. Neither reliance by the bank nor an actual defrauding is required. United States v. Shaid, 730 F.2d 225, 232 (5^th Cir. 1984), cert. denied, 105 S.Ct. 151 (1984).

The defendant need not directly make the false statement to an institution covered by the statute. See United States v. Gammage, 790 F.2d 431, 433-34 (5^th Cir. 1986).

If the institution involved is not a federally insured bank, this charge must be modified to reflect the particular type of institution listed in the statute, and as charged in the indictment.

United States v. Huntress, 956 F.2d 1309 (5^th Cir. 1992) approves this instruction.

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1997 Version:

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 1997

2.52 False Statement to a Bank

Title 18, United States Code, Section 1014, makes it a crime for anyone knowingly to make a false statement to a federally insured bank for the purpose of influencing the bank to make a loan.

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 bank];

Second: That the defendant knew the statement was false when the defendant made it;

Third: That the defendant did so for the purpose of _______ [describe purpose, e.g., convincing the bank to give the defendant a loan]; and

Fourth: That _______ [name bank] was federally insured.

It is not necessary, however, to prove that the institution involved was, in fact, influenced or misled.

What must be proven is that the defendant intended to influence the lending decision of the bank by the false statement. To make a false statement to a federally insured bank, the defendant need not directly submit the false statement to the institution. It is sufficient if the defendant submits the statement to a third party, knowing that the third party will submit the false statement to the federally insured bank.

Note

United States v. Jobe describes the elements of this offense, 101 F3d 1046, 1061 (5th Cir.1996), but materiality is not an element, United States v. Wells, ____ US ____, 117 S.Ct. 921, 137 L.Ed.2d 107 (1997), overruling Jobe on this issue.

The statute requires only an intent to influence the bank's lending decision. United States v. Devoll, 39 F3d 575, 579 (5th Cir.1994), cert. denied, ____ US ____, 115 S.Ct. 1701, 131 L.Ed.2d 563 (1995). An intent to harm the bank or to bring financial gain to the defendant is not required. Neither reliance by the bank nor an actual defrauding is required. United States v. Shaid, 730 F2d 225, 232 (5th Cir.1984), cert. denied, 469 US 844, 105 S.Ct. 151, 83 L.Ed.2d 89 (1984).

The defendant need not directly make the false statement to an institution covered by the statute. See United States v. Gammage, 790 F2d 431, 433-34 (5th Cir.1986).

If the institution involved is not a federally insured bank, this charge must be modified to reflect the particular type of institution listed in the statute, and as charged in the indictment.

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 2001

2.52 Production of False Document with
Intent to Defraud United States

This is a complex statute. Section (a) describes seven different violations and section (b) provides different maximum sentences ranging from one year to 25 years depending on various facts. The instruction must be carefully tailored, therefore, to comply with the Apprendi doctrine. For example, in United States v. Villarreal, No. 99-41095, 2001 WL 641519, at *3 (5^th Cir. June 11, 2001), a sentence in excess of three years' confinement was reversed because the trial court's instructions did not ask the jury to find that the identification document in question was one listed in § 1028(b)(1)(A).

Interstate or foreign commerce may be affected even when the document transfer occurred entirely in a local venue. The focus is whether the document would have traveled in interstate or foreign commerce if the defendant had accomplished his intended goal. Thus, the commerce element is satisfied when a fraudulent document is sold to a foreign citizen who presumably desires to remain in this country and possibly travel into other states or countries. Villarreal, 2001 WL 641519, at *2.

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

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1997 Version:

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 1997

2.53 Possession of False Document with
Intent to Defraud United States

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 2001

This instruction is limited to use of an access device in § 1029(a)(2). It provides a model for drafting instructions in cases under other subsections which contain different elements and maximum punishments.

If an issue is raised that the card or plate or account is not an "access device," it may be necessary to submit that issue to the jury. See United States v. Johnson, 718 F.2d 1317 (5^th Cir. 1983) (holding that whether a gold certificate was a security under 18 U.S.C. § 2314 (1976) is a jury issue).

The term "access device" is broad enough to encompass technological advances and includes long-distance telephone access codes. Also, "counterfeit" and "unauthorized" are not mutually exclusive terms. United States v. Brewer, 835 F.2d 550 (5^th Cir. 1987).

A "counterfeit access device" under § 1029(a)(1) includes an otherwise legitimate device procured by the use of false information. United States v. Soape, 169 F.3d 257 (5^th Cir. 1999), cert denied, 119 S.Ct. 2353 (1999).

On "affecting commerce," see United States v. Jarrett, 705 F.2d 198, 203 (7^th Cir. 1983),cert. denied, 104 S.Ct. 995 (1984), and Devitt & Blackmar, § 59.40. On "interstate or foreign commerce," see United States v. Young, 730 F.2d 221 (5^th Cir. 1984), and United States v. Massey,827 F.2d 995 (5^th Cir. 1987).

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

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1997 Version:

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 1997

Title 18, United States Code, Section 1029(a)(2), makes it a crime for anyone to use with intent to defraud one or more unauthorized access devices during any one-year period, and by such conduct obtain anything of value aggregating $1,000 or more during that period.

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

First: That the defendant knowingly used one or more unauthorized access devices;

Second: That by one or more such uses during the one-year period beginning _______, 19__, and ending _______, 19__, the defendant obtained a thing or things, having an aggregate value of $1,000.00 or more;

Third: That the defendant acted with intent to defraud; and

Fourth: That the defendant's conduct affected interstate commerce. The government is not required to prove that the defendant knew that his conduct would affect interstate commerce. It is not necessary for the government to show that the defendant actually intended or anticipated an effect on interstate commerce by his actions or that commerce was actually affected. All that is necessary is that the natural and probable consequence of the acts the defendant took would be to affect interstate commerce. If you decide that there would be any effect at all on interstate commerce, then that is enough to satisfy this element. The effect can be minimal.

The term "access device" means any card, plate, code, account number, electronic serial number, mobile identification number, personal identification number, or other telecommunications service, equipment, or instrument identifier, or other means of account access that can be used, alone or in conjunction with another access device, to obtain money, goods, services, or any other thing of value, or that can be used to initiate a transfer of funds (other than a transfer originated solely by paper instrument).

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

Note

This instruction is limited to use of an access device in § 1029(a)(2). It provides a model for drafting instructions in other cases under other subsections.

If an issue is raised that the card or plate or account is not an access device," it may be necessary to submit that issue to the jury. See United States v. Johnson, 718 F2d 1317 (5th Cir.1983).

The term "access device" is broad enough to encompass technological advances and includes long-distance telephone access codes. Also, "counterfeit and "unauthorized" are not mutually exclusive terms. United States v. Brewer, 835 F2d 550 (5th Cir. 1987)

On "affecting commerce," see United States v. Jarrett, 705 F2d 198, 203 (7th Cir.1983), cert. denied, 465 US 1004, 104 S.Ct. 995, 79 L.Ed.2d 228 (1984), and Devitt & Blackmar, § 59.40. On "interstate or foreign commerce," see United States v. Young, 730 F2d 221 (5th Cir.1984), and United States v. Massey, 827 F2d 995 (5th Cir.1987).

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

The First and Second Circuits have held that the defendant's knowledge of the interstate nature of the wire facility transmission is an element of the crime that must be proved. United States v. Southard, 700 F.2d 1, 24 (1st Cir.), cert. denied, 104 S.Ct. 89 (1983); and United States v. Barone, 467 F.2d 247, 249 (2d Cir. 1972). The Ninth Circuit held, without discussion, that "the knowing use of interstate facilities is not an essential element" of section 1084. United States v. Swank, 441 F.2d 264, 265 (9th Cir. 1971). The issue was raised, but not decided, in United States v. Sellers, 483 F.2d 37, 45 (5th Cir. 1973), cert. denied, 94 S.Ct. 2604 (1974). The Committee has included the element of knowledge of the interstate nature of the transmission.

Definitions of "interstate commerce," "foreign commerce," and "commerce" are in the general instructions at Nos. 1.39, 1.40. The issue of whether the transmission was in interstate or foreign commerce must be submitted to the jury. See United States v. Gaudin, 115 S.Ct. 2310 (1995).

See also United States v. Montford, 27 F.3d 137 (5th Cir. 1994), holding that gambling ship excursions a few miles offshore of the United States coast do not amount to "foreign commerce" within the meaning of § 1084, and that "foreign commerce" requires some form of contact with a foreign state.

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1997 Version:

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 1997

Title 18, United States Code, Section 1084, makes it a crime for anyone to transmit bets or wagers in interstate or foreign commerce.

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 the business of betting or wagering. By this I mean the defendant was prepared on a regular basis to accept bets placed by others—that is, that the defendant was a "bookie;"

Second: That the defendant, as a part of that business, purposely used a wire communication facility to receive or transmit bets on _______ [e.g.: the football game between the Dallas Cowboys and the Pittsburgh Steelers held on January 28, 1996];

Third: That the transmission was made between _______ and _______ [name states or state and foreign place]; and

Fourth: That the defendant knew the transmission was made from one state to another or from one state to a foreign place.

This statute is intended to reach the activities of professional gamblers who knowingly conduct their activities through the use of interstate telephone facilities, or telephone facilities between a state and a foreign place, regardless of which party sent and which received the wager.

To prove that the defendant is in the betting business, the government must show beyond a reasonable doubt that the defendant engaged in a regular course of conduct or series of transactions involving time, attention, and labor devoted to betting or wagering for profit. The government must show more than casual, isolated, or sporadic transactions. On the other hand, it is not necessary that making bets or wagers, or dealing in wagering information, constitutes a person's primary source of income. The government need not show that the defendant has made any prescribed number of bets or that the defendant has actually earned a profit.

Note

The First and Second Circuits have held that the defendant's knowledge of the interstate nature of the wire facility transmission is an element of the crime that must be proved. United States v. Southard, 700 F2d 1, 24 (1st Cir.1983), cert. denied, 464 US 823, 104 S.Ct. 89, 78 L.Ed.2d 97 (1983); and United States v. Barone, 467 F2d 247, 249 (2d Cir.1972). The Ninth Circuit held, without discussion, that "the knowing use of interstate facilities is not an essential element" of § 1084. United States v. Swank, 441 F2d 264, 265 (9th Cir.1971). The issue was raised, but not decided, in United States v. Sellers, 483 F2d 37, 45 (5th Cir.1973), cert. denied, 417 US 908, 94 S.Ct. 2604, 41 L.Ed.2d 212 (1974). The Committee has included the element of knowledge of the interstate nature of the transmission.

Definitions of "interstate commerce," "foreign commerce," and "commerce" are in the general instructions. The issue of whether the transmission was in interstate or foreign commerce must be submitted to the jury. See United States v. Gaudin, ____US____, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995).

See also United States v. Montford, 27 F3d 137 (5th Cir.1994), holding that gambling ship excursions a few miles offshore of the United States coast do not amount to "foreign commerce" within the meaning of § 1084, and that "foreign commerce" requires some form of contact with a foreign state.

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 2001

2.55 Murder (First Degree)

FORECITE National™ Materials Related To This Instruction:

Chapter 92: Homicide

This instruction applies to a premeditated killing only.

There are other methods of committing first degree murder, including a killing in the perpetration of a felony. The instruction must be adjusted accordingly in those cases.

See Lizama v. United States Parole Commission, 245 F.3d 503 (5^th Cir. 2001) and United States v. Lewis, 92 F.3d 1371 (5^th Cir. 1996), affirmed in part, sentence vacated, 118 S.Ct. 1135 (1998), for recent discussions of this statute.

In the proper case, use instructions for Lesser Included Offense, Second Degree murder, and Voluntary Manslaughter; United States v. Browner, 889 F.2d 549 (5^th Cir. 1989).

If there is evidence that the defendant acted lawfully, e.g., in self defense, by accident, or in defense of property, a fifth element should be added and explained. For example, "The defendant did not act in self-defense." An explanation of self-defense should also be included. United States v. Branch, 91 F.3d 699 (5^th Cir.), cert. denied, 117 S.Ct. 1467 (1996).

See United States v. McRae, 593 F.2d 700 (5^th Cir. 1979), cert. denied, 100 S.Ct. 128 (1979);United States v. Shaw, 701 F.2d 367 (5^th Cir. 1983), cert. denied, 104 S.Ct. 1419 (1984).

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1997 Version:

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 1997

2.56 Murder (First Degree)

Title 18, United States Code, Section 1111, makes it a crime for anyone to murder another human being with premeditation.

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 killed _______ without lawful justification;

Second: That the defendant killed _______ with malice aforethought;

Third: That the killing was premeditated; and

Fourth: That the killing took place within the territorial [special maritime] jurisdiction of the United States.

To kill with malice aforethought means either to kill another person deliberately and intentionally, or to act with callous and wanton disregard for human life. To find malice aforethought, you need not be convinced that the defendant hated the person killed, or felt ill will toward the victim at the time.

In determining whether the killing was with malice aforethought, you may consider the use of a weapon or instrument and the manner in which death was caused.

A killing is premeditated when it is the result of planning or deliberation. The amount of time needed for premeditation of a killing depends on the person and the circumstances. It must be long enough for the killer, after forming the intent to kill, to be fully conscious of that intent.

You should consider all the facts and circumstances preceding, surrounding, and following the killing which tend to shed light upon the condition of mind of the defendant, before and at the time of the killing. No fact, no matter how small, no circumstance, no matter how trivial, which bears upon the questions of malice aforethought and premeditation, should escape your careful consideration.

Note

This instruction applies to a premeditated killing only.

There are other methods of committing first degree murder, including a killing in the perpetration of a felony. The instruction must be adjusted accordingly in those cases.

See United States v. Lewis, 92 F3d 1371 (5th Cir.1996), for a recent discussion of this statute.

In the proper case, use instructions for Lesser Included Offense, Second Degree Murder, and Voluntary Manslaughter.

If there is evidence that the defendant acted lawfully, e.g., in self defense, by accident, or in defense of property, a fifth element should be added and explained. For example, "The defendant did not act in self defense." An explanation of self defense should also be included. See Devitt & Blackmar, Federal Jury Practice and Instructions, § 38B.11-38B.15.

See United States v. McRae, 593 F2d 700 (5th Cir.1979), cert. denied, 444 US 862, 100 S.Ct. 128, 62 L.Ed.2d 83 (1979); United States v. Shaw, 701 F2d 367 (5th Cir.1983), cert. denied, 465 US 1067, 104 S.Ct. 1419, 79 L.Ed.2d 744 (1984).

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 2001

2.56 Murder (Second Degree)

FORECITE National™ Materials Related To This Instruction:

Chapter 92: Homicide

Title 18, United States Code, Section 1111, makes it a crime for anyone to murder another human being.

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 unlawfully killed _______ ;

Second: That the defendant killed _______ with malice aforethought; and

Third: That the killing took place within the territorial [special maritime] jurisdiction of the United States.

To kill "with malice aforethought" means either to kill another person deliberately and intentionally, or to act with callous and wanton disregard for human life. To find malice aforethought, you need not be convinced that the defendant hated the person killed, or felt ill will toward the victim at the time.

In determining whether the killing was with malice aforethought, you may consider the use of a weapon or instrument and the manner in which death was caused.

You should consider all the facts and circumstances preceding, surrounding, and following the killing which tend to shed light upon the condition of mind of the defendant, before and at the time of the killing. No fact, no matter how small, no circumstance, no matter how trivial, which bears upon the issue of malice aforethought should escape your careful consideration.

In the proper case, use instructions at Nos. 1.33 and 2.57 for Lesser Included Offense and Voluntary Manslaughter.

"The intent required for second-degree murder is malice aforethought; it is distinguished from first-degree murder by the absence of premeditation." United States v. Browner, 889 F.2d 549 (5^th Cir. 1989); United States v. Harrelson, 766 F.2d 186 (5^th Cir. 1985).

If there is evidence that the defendant acted lawfully, e.g., in self defense, by accident, or in defense of property, a fifth element should be added and explained. For example, "The defendant did not act in self-defense." An explanation of self-defense should also be included. United States v. Branch, 91 F.3d 699 (5^th Cir.), cert. denied, 117 S.Ct. 1467 (1997).

For a recent discussion of this statute, see Lizama v. United States Parole Commission, 245 F.3d 503 (5^th Cir. 2001).

See United States v. McRae, 593 F.2d 700 (5^th Cir. 1979), cert. denied, 100 S.Ct. 128 (1979);United States v. Shaw, 701 F.2d 367 (5^th Cir. 1983), cert. denied, 104 S.Ct. 1419 (1984).

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1997 Version:

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 1997

2.57 Murder (Second Degree)

Title 18, United States Code, Section 1111, makes it a crime for anyone to murder another human being.

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 killed _______ without lawful justification;

Second: That the defendant killed _______ with malice aforethought; and

Third: That the killing took place within the territorial [special maritime] jurisdiction of the United States.

To kill with malice aforethought means either to kill another person deliberately and intentionally, or to act with callous and wanton disregard for human life. To find malice aforethought, you need not be convinced that the defendant hated the person killed, or felt ill will toward the victim at the time.

In determining whether the killing was with malice aforethought, you may consider the use of a weapon or instrument and the manner in which death was caused.

You should consider all the facts and circumstances preceding, surrounding, and following the killing which tend to shed light upon the condition of mind of the defendant, before and at the time of the killing. No fact, no matter how small, no circumstance, no matter how trivial, which bears upon the issue of malice aforethought should escape your careful consideration.

Note

In the proper case, use instructions for Lesser Included Offense and Voluntary Manslaughter.

If there is evidence that the defendant acted lawfully, e.g., in self defense, by accident, or in defense of property, a fourth element should be added and explained. For example, "The defendant did not act in self defense." An explanation of self defense should also be included. See Devitt & Blackmar, Federal Jury Practice and Instructions, § 38B.11-38B.15.

See United States v. McRae, 593 F2d 700 (5th Cir.1979), cert. denied, 444 US 862, 100 S.Ct. 128, 62 L.Ed.2d 83 (1979); United States v. Shaw, 701 F2d 367 (5th Cir.1983), cert. denied, 465 US 1067, 104 S.Ct. 1419, 79 L.Ed.2d 744 (1984).

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 2001

2.57 Voluntary Manslaughter

FORECITE National™ Materials Related To This Instruction:

92.3 Voluntary Manslaughter

This instruction applies only to voluntary manslaughter. 18 U.S.C. § 1112 also covers involuntary manslaughter. See United States v. Browner, 889 F.2d 549 (5^th Cir. 1989).

For a discussion of "heat of passion," see Lizama v. United States Parole Commission, 245 F.3d 503 (5^th Cir. 2001).

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1997 Version:

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 1997

2.58 Voluntary Manslaughter

Title 18, United States Code, Section 1112, makes it a crime for anyone to cause the death of another human being without malice.

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

First: That the defendant caused the death of _______;

Second: That the defendant did so without malice, upon a sudden quarrel or heat of passion; and

Third: That the killing took place within the territorial [special maritime] jurisdiction of the United States.

Note

This instruction applies only to voluntary manslaughter. 18 USC 1112 also covers involuntary manslaughter.

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 2001

2.58 Kidnapping

FORECITE National™ Materials Related To This Instruction:

Chapter 93: Kidnapping, False Imprisonment, Abduction, Etc.

An additional element, prompted by the Apprendi doctrine, is required when the indictment alleges that the kidnapping resulted in the death of a person and the prosecution is seeking the death penalty. If a disputed issue is whether a death resulted, the court should consider giving a lesser included offense instruction.

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

In United States v. Webster, 162 F.3d 308 (5^th Cir. 1999), the court held that the phrase "for ransom, reward or otherwise" in the statute comprehends any purpose at all. There need be no jury unanimity on this point so long as each juror finds that the defendant had some purpose or derived some benefit. 162 F.3d at 328-30. In United States v. Williams, 998 F.2d 258 (5^th Cir. 1993), cert. denied, 114 S.Ct. 940 (1994), the court approved a charge using the term "for immoral purposes," stating that "some benefit" can include sexual gratification.

Under §1201(a)(1), a defendant must abduct a live person who then moves in interstate commerce. See United States v. Davis, 19 F.3d 166, 169-70 (5^th Cir. 1994). However, the defendant need not know that the victim is alive, see id. at 170, or that she is crossing a national or state line. See United States v. Barksdale-Contreras, 972 F.2d 111, 114 (5^th Cir. 1992); United States v. Bankston, 603 F.2d 528, 532 (5^th Cir. 1979). Furthermore, a defendant does not have to transport the victim personally in interstate commerce so long as the victim is transported in interstate commerce by confederates. See United States v. Jackson, 978 F.2d 903, 910 (5^th Cir. 1992).

Transporting a victim from a foreign country to the United States constitutes transportation in "foreign commerce" within the meaning of 18 U.S.C. § 1201(a)(1). See United States v. De La Rosa, 911 F.2d 985, 990-991 (5^th Cir. 1990).

Section 1201(b) provides that failure to release the victim within twenty-four hours after the unlawful seizure creates a rebuttable presumption that the victim has been transported in interstate or foreign commerce. This presumption should be invoked with great caution, if at all. At least one circuit has held it to be unconstitutional. See United States v. Moore, 571 F.2d 76 (2d Cir. 1978). 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).

Nonphysical restraint, such as by deception or fear, is sufficient under the similar Hostage Taking Act, Title 18 U.S.C. §1203. United States v. Carrion-Caliz, 944 F.2d 220, 225 (5^th Cir. 1991). In making this determination, the Fifth Circuit relied upon decisions from other circuits interpreting the Federal Kidnapping Act, 18 U.S.C. §1201. See id. at 225-26 (citing United States v. Wesson, 779 F.2d 1443, 1444 (9^th Cir. 1986), and United States v. Hoog, 504 F.2d 45, 50-51 (8^thCir. 1974), cert. denied, 95 S.Ct. 1349)).

For a statement of the elements of this crime and for a recent discussion on an "unconsenting person" and acting "knowingly and willfully" under this statute, see United States v. Barton, 2001 WL 767829 (5^th Cir. July 9, 2001).

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1997 Version:

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 1997

2.59 Kidnapping

Title 18, United States Code, Section 1201(a)(1), makes it a crime for anyone to kidnap another person and then transport that person in interstate commerce.

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 acting contrary to law, kidnapped [seized] [confined] [inveigled] the person described in the indictment, as charged;

Second: That the defendant held such person for ransom [reward] [some benefit] that the defendant intended to derive from the kidnapping; and

Third: That the defendant intentionally transported such person in interstate commerce while so kidnapped [confined] [inveigled].

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

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

The term "ransom, reward, or some benefit" includes motives of personal monetary gain as well as motives which do not involve financial gain, since a benefit is any legal or illegal object of the kidnapping which a perpetrator might consider of sufficient motive to induce him to undertake it.

The government need not prove that the defendant knew that he was crossing a state line with the victim. So long as the defendant crossed a state line while intentionally transporting the victim, the third element has been satisfied.

Note

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

In United States v. Williams, 998 F2d 258 (5th Cir.1993), cert. denied, 510 US 1099, 114 S.Ct. 940, 127 L.Ed.2d 230 (1994), the court approved a charge using the term "for immoral purposes", stating that "some benefit" can include sexual gratification. See also United States v. De La Rosa, 911 F2d 985 (5th Cir.1990), cert. denied, 500 US 959, 111 S.Ct. 2275, 114 L.Ed.2d 726 (1991); United States v. Jackson, 978 F2d 903 (5ih Cir.1992), cert . denied, 509 US 930, 113 S.Ct. 3055, 125 L.Ed.2d 739 (1993); United States v. Osborne, 68 F3d 94 (5th Cir.1995).

Nonphysical restraint, such as by deception or fear, is sufficient under the similar Hostage Taking Act, Title 18 USC. 1203. United States v. Carrion-Caliz, 944 F2d 220 (5th Cir.1991).

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 2001

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

FORECITE National™ Materials Related To This Instruction:

103.7 Mail Theft And Mail Fraud

A fifth element, prompted by the Apprendi doctrine, is required when the indictment alleges any facts that would result in enhanced penalties under 18 U.S.C. §§ 1341, 2326. If a disputed issue is whether the offense involved telemarketing at all, or whether it victimized 10 or more persons over age 55 or targeted persons over age 55, or whether the scheme affected a financial institution, the court should consider giving a lesser included offense instruction at No. 1.33.

On the elements of a § 1341 offense, see United States v. Peterson, 244 F.3d 385, 389 (5^thCir. 2001); United States v. Reyes, 239 F.3d 722, 735 (5^th Cir. 2001); United States v. Sprick, 233 F.3d 845, 853 (5^th Cir. 2000); United States v. Wyley, 193 F.3d 289, 294 (5^th Cir. 1999); United States v. Brown, 186 F.3d 661, 665 (5^th Cir. 1999); United States v. Powers, 168 F.3d 741, 747 (5^thCir. 1999), cert. denied, 120 S.Ct. 360 (1999).

Proof of the elements of the offense does not require precise identity of the victim of the scheme, see United States v. Hatch, 926 F.2d 387, 392 (5^th Cir. 1991), cert. denied, 111 S.Ct. 2239 (1991); or that the defendant made direct misrepresentations to the victim, see United States v. Humphrey, 104 F.3d 65, 70 (5^th Cir. 1997), and United States v. Pepper, 51 F.3d 469, 472 (5^th Cir. 1995); or that the alleged fraudulent scheme is prohibited by state law, see United States v. Moore, 37 F.3d 169, 172 (5^th Cir. 1994).

This statute protects both property rights and the intangible right to honest services. In property rights cases, the Government must show that the defendant contemplated or intended some harm to the property rights of the victim or a property gain to himself. See United States v. Leonard, 61 F.3d 1181, 1187 (5^th Cir. 1995); United States v. Stouffer, 986 F.2d 916, 922 (5^th Cir. 1993), cert. denied, 114 S.Ct. 115 (1993); United States v. St. Gelais, 952 F.2d 90, 95 (5^th Cir. 1992), cert. denied, 113 S.Ct. 439 (1992). State and municipal licenses in general (and Louisiana's video poker licenses in particular) are not "property" for the purposes of 18 U.S.C. § 1341. Cleveland v. United States, 121 S. Ct. 365, 369 (2000).

The Fifth Circuit Court of Appeals, sitting en banc, held that a scheme to deprive a governmental entity or the citizens of a State of the intangible right to honest services of public officials is subject to prosecution under this statute. See United States v. Brumley, 116 F.3d 728, 731 (5^th Cir. 1997) (members of the Texas Industrial Accident Board and citizens of the State of Texas defrauded of intangible right to honest services). To constitute such a scheme, "the services must be owed under state law." Id. at 735. Fraudulent intent "contemplates that in rendering some particular service or services, the defendant was conscious of the fact that his actions were something less than in the best interests of the employer." Id. at 734.

The third element reflects the holding in Schmuck v. United States, 109 S.Ct. 1443, 1448 (1989), that the mailing be incident to an essential part of the scheme or a step in the plot. SeeReyes, 239 F.3d at 736. This step in the plot may also be a "post-purchase mailing designed to lull the victim into a false sense of security, postpone inquiries or complaints, or make the transaction less suspect." See United States v. Richards, 204 F.3d 177, 209 (5^th Cir. 2000), cert. denied sub nom.Braugh v. United States, 121 S.Ct. 73 (2000). In United States v. Evans, 148 F.3d 477, 483 (5^th Cir. 1998), cert. denied, 119 S.Ct. 886 (1999), the Fifth Circuit distinguished Schmuck on factual grounds and held that a mailing after the scheme to defraud already "reached fruition" did not constitute mail fraud.

The statute, as amended in 1994, now applies to the use of "any private or commercial interstate carrier." Thus, use of commercial carriers may support a prosecution under this provision. See United States v. Marek, 238 F.3d 310, 318 (5th Cir. 2001) (Western Union). Where use of private carriers is involved, the Government need not prove that state lines were crossed, only that the carrier engages in interstate deliveries. See id. (citing United States v. Photogrammetric Data Serv., Inc., 103 F. Supp.2d 875, 882 (E.D. Va. 2000)).

The United States Supreme Court, in Neder v. United States, 119 S. Ct. 1827 (1999), held that materiality is an element to be decided by the jury in cases of mail fraud, wire fraud, and bank fraud. See also United States v. Davis, 226 F.3d 346, 358 (5^th Cir. 2000), cert. denied, 121 S.Ct. 1161 (2001); United States v. Pipkin, 114 F.3d 528, 535 (5^th Cir. 1997). The definition of "materiality" in this instruction was described as the "general" definition by the United States Supreme Court in Neder, 119 S.Ct. at 1837. The definition was drawn from United States v. Gaudin, 115 S.Ct. 2310 (1995), which in turn had quoted from Kungys v. United States, 108 S.Ct. 2310 (1988). In Neder, however, the Supreme Court also noted a different definition in the Restatement (Second) of Torts §538 (1976). Neder, 119 S.Ct at 1840 n.5. Two recent Fifth Circuit cases have discussed both of these definitions in connection with prosecutions under the mail and wire fraud statutes. See United States v. Davis, 226 F.3d 346 (5^th Cir. 2000); United States v. Richards, 204 F.3d 177 (5^th Cir. 2000).

The definition for a "false statement" is derived from United States v. Dillman, 15 F.3d 384, 392 (5^th Cir. 1994); United States v. Gordon, 876 F.2d 1113, 1120 (5^th Cir. 1989); United States v. Chavis, 772 F.2d 100, 109-10 (5^th Cir. 1985).

The Fifth Circuit has held that it is harmless error to give a deliberate ignorance instruction when the government has presented evidence that a jury could reasonably infer that the defendants had the requisite intent to defraud. See Peterson, 244 F.3d at 395.

Because the language of the mail fraud and wire fraud statutes are so similar, cases construing one are applicable to the other. See Richards, 204 F.3d at 208 n.13.

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1997 Version:

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 1997

Title 18, United States Code, Section 1341, makes it a crime for anyone to use the United States mails in carrying out a scheme to defraud.

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 created a scheme to defraud, that is _______ [describe scheme from the indictment];

Second: That the defendant acted with a specific intent to commit fraud; and

Third: That the defendant mailed something [caused another person to mail something] through the United States Postal Service for the purpose of carrying out the scheme.

A "scheme to defraud" includes any scheme to deprive another of money, property, or of the intangible right to honest services by means of false or fraudulent pretenses, representations, or promises.

A representation may be "false" when it constitutes a half truth, or effectively conceals a material fact, provided it is made with intent to defraud.

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

What must be proved beyond a reasonable doubt is that the defendant knowingly devised or intended to devise a scheme to defraud that was substantially the same as the one alleged in the indictment; and that the use of the United States mails was closely related to the scheme, in that the defendant either mailed something or caused it to be mailed in an attempt to execute or carry out the scheme. To "cause" the mails to be used is to do an act with knowledge that the use of the mails will follow in the ordinary course of business or where such use can reasonably be foreseen even though the defendant did not intend or request the mails to be used.

Each separate use of the mails in furtherance of a scheme to defraud constitutes a separate offense.

Note

On the elements of § 1341, see United States v. Aubrey, 878 F2d 825 (5th Cir.1989), cert. denied, 493 US 922, 110 S.Ct. 289, 107 L.Ed.2d 269 (1989); United States v. Kent, 608 F2d 542, 545 (5th Cir.1979), cert. denied, 446 US 936, 100 S.Ct. 2153, 64 L.Ed.2d 788 (1980); United States v. Sneed, 63 F3d 381 (5th Cir.1995), cert. denied, ____ US ____, 116 S.Ct. 712, 133 L.Ed.2d 667 (1996).

Proof of the elements of the offense does not require precise identity of the victim of the scheme, United States v. Hatch, 926 F2d 387, 392 (5th Cir.1991), cert. denied, 500 US 943, 111 S.Ct. 2239, 114 L.Ed.2d 481 (1991), or that the defendant made direct misrepresentations to the victim, United States v. Pepper, 51 F3d 469, 472 (5th Cir.1995), or that the alleged fraudulent scheme is prohibited by state law. United States v. Moore, 37 F3d 169, 172 (5th Cir.1994).

For cases on fraudulent intent, which requires a showing that defendant contemplated or intended some harm to the property rights of the victim, see United States v. St. Gelais, 952 F2d 90, 95 (5th Cir.1992), cert. denied, 506 US 965, 113 S.Ct. 439, 121 L.Ed.2d 358 (1992); United States v. Stouffer, 986 F2d 916, 922 (5th Cir.1993), cert. denied, 510 US 837, 114 S.Ct. 115, 126 L.Ed.2d 80 (1993).

The third element reflects the holding in Schmuck v. United States, 489 US 705, 710, 109 S.Ct. 1443, 1448, 103 L.Ed.2d 734 (1989), that the mailing be "incident to an essential part of the scheme, or a step in the plot." United States v. Rochester, 898 F2d 971 (5th Cir.1990). This step in the plot may also be a "postpurchase mailing designed to lull the victim into a false sense of security, postpone inquiries or complaints, or make the transaction less suspect." See United States v. Helms, 897 F2d 1293 (5th Cir.1990), cert. denied, 498 US 900, 111 S.Ct. 257, 112 L.Ed.2d 215 (1990).

"Mail" denotes a "specific mode of transmission," that is, by its common meaning, the United States Postal Service. United States v. Fox, 69 F3d 15 (5th Cir.1995).

Since mail fraud has no specific intent requirement regarding use of the mails, the test of "causing the mail to be used" is that of reasonable foreseeability. Accordingly, the government need not prove that the defendant used the mails himself or actually intended that the mails be used. United States v. Pazos, 24 F3d 660, 665 (5th Cir.1994); United States v. Sneed, 63 F3d 381 (5th Cir.1995), cert. denied, ____ US ____, 116 S.Ct. 712, 133 L.Ed.2d 667 (1996).

With respect to "reckless indifference," see United States v. Frick, 588 F2d 531, 536 (5th Cir.1979), cert. denied, 441 US 913, 99 S.Ct. 2013, 60 L.Ed.2d 385 (1979). See also note to 18 USC.§ 1001.

This instruction contemplates use of the United States Postal Service. Since the statute also addresses mail matter "to be sent or delivered by any private or commercial interstate carrier," the third element must be modified where other means of violations are alleged.

Similarly,. since this pattern instruction will not cover all schemes or artifices outlawed by the statute, the instruction will need to be tailored to other fact patterns.

'The court should be aware of United States v. Brumley, 79 F3d 1430 (5th Cir.1996), rehearing en banc granted, 91 F3d 676 (5th Cir.1996) (notwithstanding the language of 18 USC 1346, a scheme to deprive persons of the intangible rights to honest services of their local officials is not subject to prosecution under this statute)

See also United States v. Gray, 96 F3d 769 (5th Cir.1996).

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 2001

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

A fifth element, prompted by the Apprendi doctrine, is required when the indictment alleges any facts that would result in enhanced penalties under 18 U.S.C. §§ 1343, 2326. If a disputed issue is whether the offense involved telemarketing at all, or whether it victimized ten or more persons over age 55 or targeted persons over age 55, or whether the scheme affected a financial institution, the court should consider giving a lesser included offense instruction.

For cases that set forth the elements, see United States v. Odiodio, 244 F.3d 398, 402 (5^th Cir. 2001); United States v. Richards, 204 F.3d at 207; United States v. Sharpe, 193 F.3d 852, 864 n.7 (5^th Cir. 1999); United States v. Powers, 168 F.3d 741, 746 (5^th Cir. 1999); United States v. Izydore, 167 F.3d 213, 219 (5^th Cir. 1999); See also United States v. Loney, 959 F.2d 1332, 1334-38 (5th Cir. 1992) (holding that showing of intent includes showing of intent to harm) (discussing at length "property" for the purposes of the federal wire statute).

Once membership in a scheme to defraud is established, a knowing participant is liable for any wire communication that subsequently takes place or that previously took place in connection with the scheme. See Izydore, 167 F.3d at 219.

Because the language of the mail fraud and wire fraud statutes are so similar, cases construing one are applicable to the other. See United States v. Richards, 204 F.3d 177, 208 n.13 (5^th Cir. 2000). Accordingly, the note in the Mail Fraud Instruction at No. 2.59 should also be consulted.

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1997 Version:

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 1997

Title 18, United States Code, Section 1343, makes it a crime for anyone to use interstate wire communications facilities in carrying out a scheme to defraud.

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 created a scheme to defraud, that is _______ [describe scheme from the indictment];

Second: That the defendant acted with a specific intent to commit fraud; and

Third: That the defendant used interstate wire communications facilities [caused another person to use interstate wire communications facilities] for the purpose of carrying out the scheme.

A "scheme to defraud" includes any scheme to deprive another of money, property, or of the intangible right to honest services by means of false or fraudulent pretenses, representations, or promises.

A representation may be "false" when it constitutes a half truth, or effectively conceals a material fact, provided it is made with intent to defraud.

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

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

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

Note

For cases that set forth the elements, see United States v. Keller, 14 F3d 1051, 1056 (5th Cir.1994); United States v. Ragan, 24 F3d 657 (5th Cir.1994); United States v. Shively, 927 F2d 804, 814 (5th Cir.1991), cert. denied, 501 US 1209,111 S.Ct. 2806, 115 L.Ed.2d 979 (1991); United States v. St. Gelais, 952 F2d 90, 95 (5th Cir.1992), cert. denied, 506 US 965, 113 S.Ct. 439, 121 L.Ed.2d 358 (1992); United States v. Moody, 903 F2d 321 (5th Cir. 1990).

The court should be aware of United States v. Brumlev, 79 F3d 1430 (5th Cir.1996), rehearing en banc granted, 91 F3d 676, (5th Cir.1996) (notwithstanding the language of 18 USC 1346, a scheme to deprive persons of the intangible rights to honest services of their local officials is not subject to prosecution under this statute).

There is no requirement of direct contact with the victims in the offense of wire fraud. United States v. Humphrey, 104 F3d 65, 70 (5th Cir.1997).

For a discussion of the requisite intent to defraud under § 1343, see United States v. Ismolla, 100 F3d 380, 389-90 (5th Cir. 1996).

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 2001

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

A sixth element, prompted by the Apprendi doctrine, is required when the indictment alleges any facts that would result in enhanced penalties under 18 U.S.C. §§ 1344, 2326. If a disputed issue is whether the offense involved telemarketing at all, or whether it victimized ten or more persons over age 55 or targeted persons over age 55, or whether the scheme affected a financial institution, the court should consider giving a lesser included offense instruction.

For a prosecution under section 1344(1), modify the language in the first paragraph to track the statute. See United States v. Harvard, 103 F.3d 412, 421 (5th Cir. 1997), for the elements of § 1344(1).

For cases that set forth the elements, see United States v. Odiodio, 244 F.3d 398, 401 (5^th Cir. 2001); United States v. Dadi, 235 F.3d 945, 950-51 (5^th Cir. 2000); and United States v. McCauley, No. 00-20385, 2001 WL 630151, at *3-5 (5^th Cir. June 7, 2001). While the government must prove a risk of loss, the government need not prove a substantial likelihood of risk of loss. McCauley, supra.

Because materiality is an element of the charged offense, the court must submit the question of materiality to the jury. Neder v. United States, 119 S.Ct. 1827 (1999); United States v. Gaudin, 115 S. Ct. 2310 (1995). The definition of "materiality" in this instruction was described as the "general" definition by the United States Supreme Court in Neder, 119 S.Ct. at 1837. The definition was drawn from United States v. Gaudin, 115 S.Ct. 2310 (1995), which in turn had quoted fromKungys v. United States, 108 S.Ct. 2310 (1988). In Neder, however, the Supreme Court also noted a different definition in the Restatement (Second) of Torts § 538 (1976). Neder, 119 S.Ct. at 1840 n.5. Two recent Fifth Circuit cases have discussed both of these definitions in connection with prosecutions under the mail and wire fraud statutes. See United States v. Davis, 226 F.3d 346 (5^thCir. 2000); United States v. Richards, 204 F.3d 177 (5^th Cir. 2000). The definition in this instruction was also discussed in United States v. Campbell, 64 F.3d 967, 975 (5th Cir. 1995), citing United States v. Heath, 970 F.2d 1397, 1403 (5th Cir. 1992). See also United States v. Jobe, 77 F.3d 1461, 1474 (5th Cir. 1996) (materiality is an element of section 1344(2) bank fraud), superseding 77 F.3d 1461, 1474 (5^th Cir. 1996). The judge should be aware that United States v. Wells, 117 S.Ct. 921 (1997), holds that materiality is not an element in a prosecution under 18 U.S.C. § 1014, a similar statute criminalizing the making of false statements to a bank. The Fifth Circuit Court of Appeals has held that 18 U.S.C. § 1014, which prohibits making false statements to a federally insured lending institution, is not a lesser included offense of bank fraud. United States v. Morrow, 177 F.3d 272, 293 (5^th Cir. 1999).

The "intent to defraud" and "scheme or plan to defraud" definitions are derived from United States v. Restivo, 8 F.3d 274, 280 (5th Cir. 1993) (citing United States v. Saks, 964 F.2d 1514, 1519-21 (5th Cir. 1992), cert. denied, 115 S.Ct. 54 (1994)).

The definition for a "false statement" is derived from United States v. Dillman, 15 F.3d 384, 392 (5^th Cir. 1994); United States v. Gordon, 876 F.2d 1113, 1120 (5^th Cir. 1989); United States v. Chavis, 772 F.2d 100, 109-10 (5^th Cir. 1985).

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1997 Version:

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 1997

Title 18, United States Code, Section § 1344(2), makes it a crime for anyone to execute or attempt to execute a scheme or artifice to obtain any money or other property of an insured financial institution by means of false or fraudulent pretenses, representations, or promises.

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 [executed] [attempted to execute] a scheme or plan to obtain money or property from _______ [name bank] by means of false or fraudulent pretenses, representations, or promises;

Second: That the defendant acted with intent to defraud _______ [name bank];

Third: That the false or fraudulent pretenses, representations, or promises that the defendant made were material; that is, they would naturally tend to influence, or were capable of influencing the decision of, _______ [name bank]; and

Fourth: That _______ [name bank] was insured by the Federal Deposit Insurance Corporation [or other agency as defined by 18 USC 20].

A "scheme or plan to defraud" means any plan, pattern, or course of action involving a false or fraudulent pretense, representation, or promise intended to deceive others in order to obtain something of value, such as money, from the institution to be deceived.

A defendant acts with the requisite "intent to defraud" if the defendant acted knowingly and with the specific intent to deceive, ordinarily for the purpose of causing some financial loss to another or bringing about some financial gain to the defendant.

A statement or representation is "false" or "fraudulent" if it is known to be untrue or is made with reckless indifference to its truth or falsity.

It is not necessary that the government prove all of the details alleged in the indictment concerning the precise nature of the alleged scheme, or that the alleged scheme actually succeeded in defrauding someone. What must be proven beyond a reasonable doubt is that the accused knowingly executed or attempted to execute a scheme that was substantially similar to the scheme alleged in the indictment.

Note

For a prosecution under § 1344(,l), modify the language in the first paragraph to track the statute. See United States v. Harvard 103 F3d 412, 421 (5th Cir.1997), for the elements of § 1344(l).

The court must submit the question of materiality to the jury where materiality is an element of the charged offense. United States v. Gaudin, ____ US ____, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995). Under § 1344, the defendant must make a material misrepresentation to the bank, which is defined as one having "the natural tendency to influence, or was capable of influencing the decision of, the lending institution." United States v. Campbell, 64 F3d 967, 975 (5th Cir.1995), citing United States v. Heath, 970 F2d 1397 1403 (5th Cir.1992); United States v. Jobe 101 F3d 1046, 1061 (5th Cir.1996), superseding 77 F3d 1461, 1474 (5^th Cir. 1996) (materiality is an element of § 1344(2) bank fraud). The judge should be aware that United States v. Wells, ____ US ____, 117 S.Ct. 921,137 L.Ed.2d 107 (1997), holds that materiality is not an element in a prosecution under 28 USC 1014, a similar statute criminalizing the making of false statements to a bank.

The "intent to defraud" definition is from United States v. Restivo, 8 F3d 274, 280 (5th Cir.1993) (quoting United States v. Saks, 964 F2d 1514, 1519-21 (5th Cir.1992)), cert. denied, 513 US 807, 115 S.Ct. 54, 130 L.Ed.2d 13 (1994).

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 2001

2.62 Mailing Obscene Material

FORECITE National™ Materials Related To This Instruction:

101.7 Pornography/Obscenity

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1997 Version:

Formerly 2.63 Mailing Obscene Material.

Instruction unchanged.

Note

Miller v. California, 413 US 15, 24, 93 S.Ct. 2607, 2615, 37 L.Ed.2d 419 (1973), establishes a three-pronged test to determine whether material is obscene.

For a discussion on "prurient" interest see Pinkus v. United States, 436 US 293, 301, 98 S.Ct. 1808, 1814, 56 L.Ed.2d 293 (1978); Hamling v. United States, 418 US 87, 125, 94 S.Ct. 2887, 2912, 41 L.Ed.2d 590 (1974); Mishkin v. New York, 383 US 502, 505-07, 86 S.Ct. 958, 962-63, 16 L.Ed.2d 56 (1966); Roth v. United States, 354 US 476, 486-88, 77 S.Ct. 1304, 1310-11, 1 L.Ed.2d 1498 (1957); United States v. Guglielmi, 819 F2d 451, 455 (4th Cir.1987), cert. denied, 484 US 1019, 108 S.Ct. 731, 98 L.Ed.2d 679 (1988).

For a discussion on "patently offensive," see Hoover v. Byrd, 801 F2d 740 (5th Cir.1986) and United States v. Easley, 927 F2d 1442, 1449 (8th Cir.1991).

Although the first two prongs of the Miller test are to be judged by contemporary community standards, the third prong is to be judged by a "reasonable person" standard, a nationally uniform objective standard. Pope v. Illinois, 481 US 497, 500, 107 S.Ct. 1918, 1921, 95 L.Ed.2d 439 (1987); United States v. Easley, 942 F2d 405, 411 (6th Cir.1991).

In cases involving material designed for and primarily disseminated to a clearly defined deviant sexual group, the prurient-appeal requirement is satisfied if the dominant theme of the material taken as a whole appeals to the prurient interest in sex of the members of that group. Mishkin at 963. The Supreme Court has stated that, "[w]e adjust the prurient-appeal requirement to social realities by permitting the appeal of this type of material to be assessed in terms of the sexual interests of its intended and probable recipient group.... " Id.

United States v. Investment Enterprises, Inc., 10 F3d 263., 267 n. 5 (5th Cir.1993) indicates that knowledge of the sexually explicit nature of material is the required scienter for 18 USC 1461 and § 1462. See United States v. Sulaiman, 490 F2d 78, 79 (5th Cir.1974) (stating that proof that the defendant knew the material was sexually oriented is sufficient to establish scienter under § 1461). See United States v. Schmeltzer, 20 F3d 610, 612 (5th Cir.1994) (stating that knowledge that the material is sexually oriented is the scienter requirement for conviction under § 1462). See United States v. Hill, 500 F2d 733, 740 (5th Cir.1974) (asserting that knowledge that the material is sexually oriented is the only scienter required for conviction under § 1462 or § 1465).

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 2001

2.63 Interstate Transportation of Obscene
Material (By Common Carrier)

FORECITE National™ Materials Related To This Instruction:

101.7 Pornography/Obscenity

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1997 Version:

Formerly 2.64 Interstate Transportation of Obscene Material (By Common Carrier).

Instruction unchanged.

Note

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

See note following pattern jury instruction on 18 USC 1461.

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 2001

2.64 Interstate Transportation of Obscene
Material (For Purpose of Sale or Distribution)

FORECITE National™ Materials Related To This Instruction:

101.7 Pornography/Obscenity

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1997 Version:

Formerly 2.65 Interstate Transportation of Obscene Material (For Purpose of Sale or Distribution).

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

See note following pattern jury instruction on 18 USC 1461.

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 2001

2.65 Corruptly Obstructing Administration of Justice

FORECITE National™ Materials Related To This Instruction:

Chapter 84: Contempt, Obstruction Of Justice, Failure To Appear

Title 18, United States Code, Section 1503, makes it a crime for anyone corruptly to influence [obstruct] [impede] [endeavor to influence [obstruct] [impede]] the due administration of justice in connection with a pending judicial proceeding.

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 there was a proceeding pending before a federal court [grand jury];

Second: That the defendant knew of the pending judicial proceeding and influenced [obstructed] [impeded] [endeavored to influence [obstruct] [impede]] the due administration of justice in that proceeding; and

Third: That the defendant's act was done "corruptly," that is, that the defendant acted knowingly and dishonestly, with the specific intent to subvert or undermine the due administration of justice.

[When an "endeavor" is charged, add the following:

It is not necessary to show that the defendant was successful in achieving the forbidden objective, only that the defendant corruptly tried to achieve it in a manner which he knew was likely to [influence] [obstruct] [impede] the due administration of justice as to the natural and probable effect of defendant's actions.]

Note

Under the Apprendi doctrine, a fourth element is needed if the offense was committed against a petit juror in which a class A or B felony was charged.

For a discussion of the elements of this offense, see United States v. De La Rosa, 171 F.3d 215, 221-22 (5^th Cir. 1999), and United States v. Williams, 874 F.2d 968, 977 (5th Cir. 1989), reh'g denied, 878 F.2d 1435 (1989).

With respect to the first element, § 1503 requires a pending judicial proceeding, as opposed to a police or agency investigation. See United States v. Cihak, 137 F.3d 252, 263 (5^th Cir. 1998);United States v. Casel, 995 F.2d 1299, 1306 (5th Cir.), cert. denied, 114 S.Ct. 1308 (1993); United States v. Vesich, 724 F.2d 451, 454 (5th Cir. 1984).

The omnibus clause of § 1503 intends to cover all proscribed endeavors, without regard to the technicalities of the law of attempt or the doctrine of impossibility. United States v. Neal, 951 F.2d 630, 632 (5th Cir. 1992).

In United States v. Aguilar, 115 S.Ct. 2357, 2362 (1995), the Supreme Court read the statute as requiring a "nexus" relationship in time, causation, or logic with the judicial proceedings so that the proscribed endeavor "must have the 'natural and probable effect' of interfering with the due administration of justice." Accord United States v. Sharp, 193 F.3d 852, 865 (5^th Cir. 1999).

The term "administration of justice" is defined as "the performance of acts required by law in the discharge of duties such as appearing as a witness and giving truthful testimony when subpoenaed." Sharp, 193 F.3d at 864; United States v. Williams, 874 F.2d 968, 976 n.24 (5th Cir. 1989) (citing United States v. Partine, 552 F.2d 621 (5th Cir. 1977)).

The trial court did not commit plain error by failing to give a unanimity instruction, at least when the defendant failed to show prejudice. See Sharp, 193 F.3d at 870-71.

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1997 Version:

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 1997

2.66 Obstructing Due Administration of Justice

Title 18, United States Code, Section 1503, makes it a crime for anyone corruptly to influence [obstruct] [impede] [endeavor to influence [obstruct] [ impede]] the due administration of justice in connection with a pending judicial proceeding.

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 there was a proceeding pending before a federal court [grand jury];

Second: That the defendant knew of the pending judicial proceeding and influenced [obstructed] [impeded] [endeavored to influence [obstruct] [impede]] the due administration of justice in that proceeding; and

Third: That the defendant's act was done "corruptly," that is, that the defendant acted knowingly and dishonestly, with the specific intent to subvert or undermine the due administration of justice.

[When an "endeavor" is charged, add the following:

It is not necessary to show that the defendant was successful in achieving the forbidden objective, only that the defendant corruptly tried to achieve it in a manner which he knew was likely to [influence] [obstruct] [impede] the due administration of justice as to the natural and probable effect of defendant's actions.]

Note

See United States v. Williams, 874 F2d 968, 977 (5th Cir. 1989), rehearing denied, 878 F2d 1435 (5th Cir.1989), for a discussion of the elements.

Relative to the first element, § 1503 requires a pending judicial proceeding, as opposed to a police or agency investigation. United States v. Casel, 995 F2d 1299, 1306 (5th Cir.1993), cert. denied, 510 US 1197, 114 S.Ct. 1308, 127 L.Ed.2d 659 (1994); United States v. Vesich, 724 F2d 451, 454 (5th Cir.1984).

The omnibus clause of § 1503 intends to cover all proscribed endeavors, without regard to the technicalities of the law of attempts or the doctrine of impossibility. United States v. Neal, 951 F2d 630, 632 (5th Cir.1992).

In United States v. Aguilar, ____ US____, ____ 115 S.Ct. 2357, 2362, 132 L.Ed.2d 520 (1995), the Supreme Court read the statute as requiring a "nexus" relationship in time, causation, or logic with the judicial proceedings so that the proscribed endeavor "must have the 'natural and probable effect' of interfering with the due administration of justice."

In United States v. Williams, 874 F2d 968, 976 n. 24 (5th Cir.1989), citing United States v. Partin, 552 F2d 621 (5th Cir. 1977), due administration of justice is defined as "the performance of acts required by law in the discharge of duties such as appearing as a witness and giving truthful testimony when subpoenaed."

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 2001

2.66 Obstructing Administration of Justice By Threats or Force

18 U.S.C. § 1503(a)

Title 18, United States Code, Section 1503, makes it a crime for anyone by threats or force to influence [obstruct] [impede] [endeavor to influence [obstruct] [impede]] the due administration of justice in connection with a pending judicial proceeding.

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 there was a proceeding pending before a federal court [grand jury];

Second: That the defendant knew of the pending judicial proceeding;

Third: That the defendant threatened physical force [used physical force], as charged in the indictment; and

Fourth: That the defendant's conduct influenced [obstructed] [impeded] [endeavored to influence [obstruct] [impede]] the due administration of justice in that proceeding.

[When an "endeavor" is charged, add the following:

It is not necessary to show that the defendant was successful in achieving the forbidden objective, only that the defendant corruptly tried to achieve it in a manner which he knew was likely to [influence] [obstruct] [impede] the due administration of justice as to the natural and probable effect of defendant's actions.]

See note to Corruptly Obstructing Due Administration of Justice, Instruction No. 2.65.

This offense provides for an enhanced sentence in the case of a killing, or attempted killing of the juror or court officer, or in a case "in which the offense was committed against a petit juror and in which a class A or B felony was charged." 18 U.S.C. § 1503(b). Another possible enhancement occurs when there is a use or threat of force in connection with the trial of any criminal case. The maximum sentence becomes the higher of that provided in § 1503 or that provided for the criminal offense charged in the trial where the juror is participating. An additional element, prompted by the Apprendi doctrine, would be required in all such cases.

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 2001

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1997 Version:

Instruction unchanged.

See the discussion in the note to Obstructing Due Administration of Justice, 18 USC 1503.

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 2001

2.68 Intimidation to Influence Testimony

FORECITE National™ Materials Related To This Instruction:

77.13 Witness Intimidation

This crime allows for an enhancement of punishment where the violation "occurs in connection with a trial of a criminal case." Section 1512(i). In such cases, therefore, the second element of the offense should specify that the official proceeding was a trial of a criminal case.

For a general discussion of § 1512 and a particular discussion of the "intent to influence" and "official proceeding," see United States v. Shively, 927 F.2d 804, 810-13 (5th Cir.), cert. denied, 111 S.Ct. 2806 (1991).

This instruction presumes an allegation that the intent to influence was accomplished through intimidation, physical force, or threats. However, § 1512(b)(1) also can be violated if one "corruptly persuades" or uses "misleading conduct" towards another person to influence testimony. See e.g.,United States v. Gabriel, 125 F.3d 89, 102 (2^d Cir. 1997). In such a case, this instruction must be modified.

This instruction also presumes an official proceeding was pending. The statute specifically provides that an "official proceeding" need not be pending or about to be instituted at the time of the offense. See §1512(e)(1); United States v. Greenwood, 974 F.2d 1449, 1460 (5^th Cir. 1992).

Any proceeding before a United States district judge, United States bankruptcy judge, United States magistrate judge, or a federal grand jury is an "official proceeding" within the meaning of this law.

If the case involves an attempt to intimidate, add the Attempt instruction, No. 1.32.

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1997 Version:

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 1997

2.68 Intimidation to Influence Testimony

Title 18, United States Code, Section 1512(b)(1), makes it a crime for anyone knowingly to use [attempt to use] intimidation [physical force] [threats] with the intent to influence [delay] [prevent] the testimony of any person in an official proceeding.

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 intimidation [physical force] [threats] against another person [attempted to intimidate [use physical force] [threaten] another person]; and

Second: That the defendant acted knowingly and with intent to influence [delay] [prevent] the testimony of _______ with respect to _______ [describe official proceeding named in indictment], an official proceeding.

The term "intimidation" means the use of any words or actions intended or designed to make another person timid or fearful or make that person refrain from doing something the person would otherwise do, or do something that person would otherwise not do.

[To "attempt" an offense means intentionally to do some act in an effort to bring about or accomplish something the law forbids to be done, knowing one is acting contrary to law. The defendant must have engaged in conduct that went beyond mere planning or preparation. There must have been a substantial step in furtherance of the crime that was strongly corroborative of the defendant's original intent.]

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

Note

For a discussion of § 1512, see United States v. Shively, 927 F2d 804 (5th Cir.1991), cert. denied, 501 US 1209, 111 S.Ct. 2806, 115 L.Ed.2d 979 (1991).

Our instruction presumes an official proceeding was pending. The statute specifically provides that an "official proceeding" need not be pending or about to be instituted at the time of the offense. If it was not, the instruction should be modified.

Any proceeding before a United States district judge, United States bankruptcy judge, United States magistrate judge, or a federal grand jury is an "official proceeding" within the meaning of this law.

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 2001

FORECITE National™ Materials Related To This Instruction:

Chapter 95: Perjury And Related Offenses

Title 18, United States Code, Section 1623, makes it a crime for anyone to make a false material statement under oath to a court [grand jury].

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 statement was made while the defendant was under oath before the court [grand jury] as charged;

Second: That such statement was false in one or more of the respects charged;

Third: That the defendant knew such statement was false when the defendant made it; and

Fourth: That the false statement was material to the court proceeding [grand jury's inquiry].

A statement is "material" if it has a natural tendency to influence, or is capable of influencing, the decision of the court [grand jury].

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

If you should find that a particular question was ambiguous and that the defendant truthfully answered one reasonable interpretation of the question under the circumstances presented, then such answer would not be false. Similarly, if you should find that the question was clear but the answer was ambiguous, and one reasonable interpretation of such answer would be truthful, then such answer would not be false.

Note

The materiality of the alleged false statement is a question for the jury. United States v. Gaudin, 115 S.Ct. 2310 (1995). Earlier Fifth Circuit holdings that materiality is a legal question for determination by the court (e.g., United States v. Abroms, 947 F.2d 1241, 1246 (5^th Cir. 1991)) should no longer be followed.

The definition of "materiality" in this instruction was described as the "general" definition by the United States Supreme Court in Neder v. United States, 119 S.Ct. 1827, 1837 (1999).

If the indictment charges the use of a false document, note that a violation of the use provision of § 1623 is a specific intent crime. United States v. Dudley, 581 F.2d 1193, 1198 (5^th Cir. 1978). Modify the instruction accordingly.

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1997 Version:

Instruction unchanged.

The materiality of the alleged false statement is a question for the jury. United States v. Gaudin, ____ US ___, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995). Earlier Fifth Circuit holdings that materiality is a legal question for determination by the court (e.g., United States v. Abroms, 947 F2d 1241, 1246 (5th Cir. 1991)) should no longer be followed.

The definition of "materiality" is based on Kungys v. United States, 485 US 759, 769, 108 S.Ct. 1537, 1546, 99 L.Ed.2d 839 (1988).

If the indictment charges the use of a false document, note that a violation of the use provision of § 1623 is a specific intent crime. United States v. Dudley, 581 F2d 1193, 1198 (5th Cir.1978). Modify the instruction accordingly.

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 2001

2.70 Theft of Mail Matter

FORECITE National™ Materials Related To This Instruction:

103.7 Mail Theft And Mail Fraud

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1997 Version:

Instruction unchanged.

This paragraph describes two offenses--theft of a letter from the mails as well as removal of the contents of a letter in the mail.

The statute also includes unlawfully taking, abstracting, or obtaining mail by fraud as well as secreting, embezzling, or destroying mail. In such a case, the instruction should be so modified.

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 2001

2.71 Possession of Stolen Mail

FORECITE National™ Materials Related To This Instruction:

103.7 Mail Theft And Mail Fraud

Chapter 97: Receiving Or Possession Of Stolen Property

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1997 Version:

Instruction unchanged.

Note

United States v. Hall, 845 F2d 1281 (5th Cir.1988), cert. denied, 488 US 860, 109 S.Ct. 155, 102 L.Ed.2d 126 (1988), cites the elements of the offense.

The statute also makes illegal the possession of mail which the defendant knows to have been unlawfully taken, embezzled, or abstracted. In such a case, the instruction should be modified.

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 2001

FORECITE National™ Materials Related To This Instruction:

103.5 Embezzlement

103.7 Mail Theft And Mail Fraud

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

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 Postal Service employee at the time stated in the indictment;

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

Third: That the defendant embezzled such mail matter.

A letter is "intended to be conveyed by mail" if a reasonable person who saw the letter would think it was a letter intended to be delivered through the mail.

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

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.

Note

Section 1709 charges two crimes: the embezzlement of letters or articles contained therein and theft of the contents of letters, as distinguished from the letter itself. The statute does not cover stealing a letter. United States v. Trevino, 491 F.2d 74, 75 (5^th Cir. 1974). For theft of a letter, use 18 U.S.C. § 1708 (first paragraph).

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 2001

(18 USC 1951(a)

(Hobbs Act))

FORECITE National™ Materials Related To This Instruction:

103.10 Extortion

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1997 Version:

Instruction unchanged.

Interference with or effect on interstate commerce may be an element of the offense to be submitted to the jury for determination. United States v. Parker, 73 F3d 48 (5th Cir.1996), rehearing en banc granted, 80 F3d 1042 (5th Cir.1996). After the panel decided this issue, an en banc decision was rendered. United States v. Parker,104 F3d 72 (5^th Cir.1997) (en banc). Its meaning on the necessity to submit interference with interstate commerce to the jury as an element is not clear, and the committee continues to rely on the panel decision and to recommend that the issue of interference with interstate commerce be submitted to the jury as an element of this offense.

The effect on interstate commerce need not be substantial to satisfy the statute; the government need only show that interstate commerce was affected "in any way or degree." 18 USC 1951(a). Even a minimal degree of interference with interstate commerce will suffice. United States v. Box, 50 F3d 345, 351-52 (5th Cir.1995). Refer to United States v. Collins, 40 F3d 95 (5th Cir.1994), for a discussion on the interstate commerce requirement as it applies to individual victims rather than business victims.

The Supreme Court has held that "[t]he term 'wrongful' ... would be superfluous if it only served to describe the means used.... Rather, 'wrongful' has meaning in the Act only if it limits the statute's coverage to those instances where the obtaining of property itself would be 'wrongful' because the alleged extortionist has no lawful claim to that property." United States v. Enmons, 410 US 396, 93 S.Ct. 1007, 35 L.Ed.2d 379 (1973). In Enmons, the Court held that the Hobbs Act did not reach the use of violence to achieve legitimate union objectives. Id.

The government is not required to prove that the victim's fear was a consequence of a direct threat by the defendant, so long as the fear is reasonable and the defendant uses it to extort property. United States v. Tomblin, 46 F3d 1369, 1384 (5th Cir.1995); United States v. Quinn, 514 F2d 1250, 1266-67 (5th Cir-1975), cert. denied, 424 US 955, 96 S.Ct. 1430, 47 L.Ed.2d 361 (1976).

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

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 2001

2.74 Extortion Under Color of Official Right

FORECITE National™ Materials Related To This Instruction:

103.10 Extortion

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1997 Version:

Instruction unchanged.

Extortion under color of official right does not require proof that the public official accomplished the extortion by force, threats, or use of fear, nor is it required that the public official induced or solicited the payment by the victim. It is sufficient to prove that the public official received a payment to which he was not entitled with knowledge that the payment was made in return for the performance or nonperformance of an official act. Evans v. United States, 504 US 255, 268, 112 S.Ct. 1881, 1889, 119 L.Ed.2d 57 (1992).

An official may be guilty of extortion even if that official does not have the power or authority to take or withhold the promised action as long as the victim reasonably believed that the official had that authority or power. United States v. Robinson, 700 F2d 205 (5th Cir.1983), cert. denied, 465 US 1008, 104 S.Ct. 1003, 79 L.Ed.2d 235 (1984).

Interference with or effect on interstate commerce may be an element of the offense to be submitted to the jury for determination. United States v. Parker, 73 F3d 48 (5th Cir.1996), rehearing en banc granted, 80 F3d 1042 (5th Cir.1996). After the panel decided this issue, an en banc decision was rendered. United States v. Parker, 104 F3d 72 (5th Cir.1997) (en banc). Its meaning on the necessity to submit interference with interstate commerce to the jury as an element is not clear, and the committee continues to rely on the panel decision and to recommend that the issue of interference with interstate commerce be submitted to the jury as an element of this offense.

The effect on interstate commerce need not be substantial to satisfy the statute; the government need only show that interstate commerce was affected "in any way or degree." 18 USC 1951(a). Even a minimal degree of interference with interstate commerce will suffice. United States v. Box, 50 F3d 345, 351-52 (5th Cir.1995). Refer to United States v. Collins, 40 F3d 95 (5th Cir.1994), for a discussion on the interstate commerce requirement as it applies to individual victims rather than business victims.

The first element of this instruction includes language on attempt because the Hobbs Act proscribes both attempted and completed extortion. 18 USC 1951(a). See also United States v. Quinn, 514 F2d 1250, 1267 (5th Cir.1975), cert. denied, 424 US 955, 96 S.Ct. 1430, 47 L.Ed.2d 361 (1976).

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

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 2001

See generally, United States v. Heacock, 31 F.3d 249 (5^th Cir. 1994), and United States v. Follin, 979 F.2d 369 (5^th Cir. 1992), cert. denied, 113 S.Ct. 3004 (1993).

A conviction can be sustained only on the basis of a violation of the specific state prohibition alleged in the Government's indictment. See United States v. Truesdale, 152 F.3d 443, 447 (5th Cir. 1998) (where indictment alleged only bookmaking under Texas gambling statute, none of provision's remaining four prohibitions could form basis of conviction).

An indictment under this section is not defective for failure to allege that the offense had a substantial effect on interstate commerce. United States v. Threadgill, 172 F.3d 357, 372-73 (5^th Cir. 1999).

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1997 Version:

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 1997

Title 18, United States Code, Section 1955, makes it a crime for anyone to conduct a gambling business that violates _______ [name state] 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 five or more persons, including the defendant, knowingly conducted [financed] [managed] [supervised] [directed] [owned] all [part] of a gambling business, as charged;

Second: That such gambling business violated the laws of the state of _______ or some political subdivision thereof. Bookmaking is against the laws of the state of _______ ; and

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

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

The words "finances, manages, supervises, directs, or owns" are all used in their ordinary sense and include those who finance, manage, or supervise a business. The word "conduct" is a broader term and would include anyone working in the gambling business who is necessary or helpful to it, whether paid or unpaid, or has a voice in management, or a share in profits. A mere bettor or customer, however, would not be participating in the "conduct" of the business.

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

Note

See generally, United States v. Heacock, 31 F3d 249 (5th Cir.1994), and United States v. Follin, 979 F2d 369 (5th Cir.1992), cert. denied, 509 US 908, 113 S.Ct. 3004, 125 L.Ed.2d 696 (1993).

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 2001

FORECITE National™ Materials Related To This Instruction:

Chapter 94: Money Laundering

Title 18, United States Code, Section 1956(a)(1), makes it a crime for anyone knowingly to use the proceeds of certain illegal activity to promote the carrying on of certain illegal activity [conceal or disguise the nature, location, source, ownership, or control of the proceeds].

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 conducted [attempted to conduct] a financial transaction;

Second: That the financial transaction [attempted financial transaction] involved the proceeds of a specified unlawful activity, namely ____________________;

Third: That the defendant knew that the property involved in the financial transaction represented the proceeds of some form of unlawful activity; and

Fourth: That the defendant intended to promote the carrying on of the specified unlawful activity.

or

[Fourth: That the defendant knew that the transaction was designed in whole or part to conceal or disguise the nature, the location, the source, the ownership, or the control of the proceeds.

With respect to the second element, the government must show that in fact the property was the proceeds of ______________________, which is a specified unlawful activity under the statute.

With respect to the third element, the government must prove that the defendant knew that the property involved in the transaction was the proceeds of some kind of crime that is a felony under federal or state law, although it is not necessary to show that the defendant knew exactly what crime generated the funds. I instruct you that _________________ is a felony.

The term "transaction" includes [select from the following, depending on the facts of the case: a purchase, sale, loan, pledge, gift, transfer, delivery or other disposition, and with respect to a financial institution, includes a deposit, withdrawal, transfer between accounts, exchange of currency, loan, extension of credit, purchase or sale of any stock, bond, certificate of deposit, or other monetary instrument, or any other payment, transfer, or delivery by, through, or to a financial institution, by whatever means effected.]

The term "financial transaction" includes any "transaction," as that term has just been defined, which involves the movement of funds by wire or other means or involving one or more monetary instruments, which in any way or degree affects interstate or foreign commerce, or a transaction involving the use of a financial institution which is engaged in, or the activities of which affect, interstate or foreign commerce in any way or degree.

It is not necessary for the government to show that the defendant actually intended or anticipated an effect on interstate commerce by his actions or that commerce was actually affected. All that is necessary is that the natural and probable consequence of the acts the defendant took would be to affect interstate commerce. If you decide that there would be any effect at all on interstate commerce, then that is enough to satisfy this element. The effect can be minimal.

The term "conduct" includes initiating or concluding, or participating in initiating or concluding, a transaction.

The term "proceeds" includes any property, or any interest in property, that someone acquires or retains as a result of the commission of the underlying specified unlawful activity. Proceeds can be any kind of property, not just money.

Note

The foregoing applies to the two more frequently charged subsections of § 1956(a)(1) but would have to be adjusted for indictments charging other subsections.

The elements for an offense charged under § 1956 (a)(1)(A)(i) are discussed in United States v. Wilson, 249 F.3d 366, 377 (5^th Cir. 2001); United States v. Peterson, 244 F.3d 385, 390 (5^th Cir. 2001); United States v. Wyly, 193 F.3d 289, 295 (5^th Cir. 1999); and United States v. Brown, 186 F.3d 661, 667-68 (5^th Cir. 1999). The elements for an offense charged under § 1956 (a)(1)(B)(i) are discussed in United States v. Odiodio, 244 F.3d 398, 403 (5^th Cir. 2001); United States v. Wyly, 193 F.3d 289, 295 (5^th Cir. 1999); and United States v. Burns, 162 F.3d 840, 847 (5th Cir. 1998), cert. denied, August v. United States, 120 S.Ct. 281 (1999).

The judge must determine that the charged "specified unlawful activity" is actually one covered by 18 U.S.C. § 1956(c)(7)(A)(F), and that the charged "some form of unlawful activity" is actually a felony under federal or state law. For a case establishing that a financial transaction involved the proceeds of a specific unlawful activity, see United States v. Westbrook, 119 F.3d 1176, 1191 (5^th Cir. 1997) (evidence that defendant's cash flow exceeded his legitimate income, together with evidence of defendant's extensive drug dealing, is sufficient to show that the transaction involves the proceeds of specified unlawful activity).

For a recent discussion of the element "knowingly attempting to conduct a financial transaction," see United States v. Delgado, 2001 WL 716951 (5^th Cir. June 26, 2001).

For a useful discussion of the scienter element "knowing that the property involved in a financial transaction represents the proceeds of some form of unlawful activity," see United States v. Carr, 25 F.3d 1194, 1204 (3d Cir.), cert. denied, 115 S.Ct. 341 (1994).

For a detailed discussion of the promotion element of § 1956 (a)(1)(A)(i), see Wilson, 249 F.3d at 378-79; Peterson, 244 F.3d at 390-92; and United States v. Brown, 186 F.3d 661, 667-671 (5^th Cir. 1999).

When the money laundering prosecution is based on a "conceal or disguise" theory, the government must show that the defendant desired to create the appearance of legitimate wealth or otherwise conceal the nature of funds so that it might enter the economy as legitimate funds. SeeUnited States v. Powers, 168 F.3d 741, 748 (5^th Cir. 1999); see also United States v. Tencer, 107 F.3d 1120, (5^th Cir. 1997), cert. denied, 118 S.Ct. 390 (1997) (stating that § 1956 (a)(1)(B)(i) does not require an attempt to conceal the identity of the defendant-only a scheme that conceals the source of the funds). For a further detailed analysis of § 1956 (a)(1)(B)(i)'s alternative fourth element, i.e., the "conceal or disguise" requirement, see United States v. Burns, 162 F.3d 840, 848-49 (5^th Cir. 1998), cert. denied, August v. United States, 119 S.Ct. 1477 (1999).

With respect to the interstate commerce aspect of 18 U.S.C. § 1956, the Fifth Circuit inUnited States v. Meshack noted that "'the legislative history of § 1956(c)(4) indicates that the money-laundering statute is intended to reflect the full exercise of Congress's power under the Commerce Clause.'" 225 F.3d 556, 572 (5^th Cir. 2000) (quoting United States v. Gallo, 927 F.2d 815, 823 (5^th Cir. 1994) (citation omitted), amended in part on rehearing, 244 F.3d 367 (5^th Cir. 2001). "Accordingly, because § 1956 regulates conduct that, in the aggregate, has a substantial effect on interstate commerce, to apply the statute constitutionally in any given case 'the link to interstate or foreign commerce need only be slight.'" Id. (quoting Westbrook, 119 F.3d at 1191).

For a case involving a transaction that does not involve a financial institution or its facilities, see United States v. Garza, 118 F.3d 278, 284-85 (5^th Cir. 1997) (explaining that when some "transaction" does not involve a financial institution or its facilities, the government must show a "disposition" took place).

A jury instruction on conspiracy to commit money laundering, which described the substantive offense as involving both an intent to promote illegal activity and also to conceal or disguise the nature and source of the proceeds, was not plain error for failing to require the jury to unanimously agree on which of the two mental states the defendant possessed. See Meshack, 225 F.3d 579-80.

For a case involving commingled funds, see United States v. Jackson, 935 F.2d 832 (7th Cir. 1991).

See also instructions on Attempt at No. 1.32, Interstate Commerce at 1.39, Foreign Commerce at 1.40, and Commerce at 1.41.

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1997 Version:

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 1997

Title 18, United States Code, Section 1956(a)(1), makes it a crime for anyone to knowingly use the proceeds of certain illegal activity to promote the carrying on of certain illegal activity [to knowingly conceal or disguise the nature, location, source, ownership, or control of the proceeds].

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 conducted [attempted to conduct] a financial transaction;

Second: That the financial transaction [attempted financial transaction] involved the proceeds of a specified unlawful activity, namely _______;

Third: That the defendant knew that the property involved in the financial transaction represented the proceeds of some form of unlawful activity; and

Fourth: That the defendant intended to promote the carrying on of the specified unlawful activity.

[Fourth: That the defendant knew that the transaction was designed in whole or part to conceal or disguise the nature, the location, the source, the ownership, or the control of the proceeds.

Under the second element, the government must show that in fact the property was the proceeds of _______, which is a specified unlawful activity under the statute. With respect to the third element, the government must prove that the defendant knew that the property involved in the transaction was the proceeds of some kind of crime that is a felony under federal or state law, although it is not necessary to show that the defendant knew exactly what crime generated the funds. I instruct you that _______ is a felony.

The term "transaction" includes [select from the following, depending on the facts of the case: a purchase, sale, loan, pledge, gift, transfer, delivery or other disposition, and with respect to a financial institution, includes a deposit, withdrawal, transfer between accounts, exchange of currency, loan, extension of credit, purchase or sale of any stock, bond, certificate of deposit, or other monetary instrument, or any other payment, transfer, or delivery by, through, or to a financial institution, by whatever means effected.]

The term "financial transaction" includes any "transaction," as that term has just been defined, which involves the movement of funds by wire or other means or involving one or more monetary instruments, which in any way or degree affects interstate or foreign commerce, or a transaction involving the use of a financial institution which is engaged in, or the activities of which affect, interstate or foreign commerce in any way or degree.

It is not necessary for the government to show that the defendant actually intended or anticipated an effect on interstate commerce by his actions or that commerce was actually affected. All that is necessary is that the natural and probable consequence of the acts the defendant took would be to affect interstate commerce. If you decide that there would be any effect at all on interstate commerce, then that is enough to satisfy this element. The effect can be minimal.

The term "conduct" includes initiating or concluding, or participating in initiating or concluding, a transaction.

The term "proceeds" includes any property, or any interest in property, that someone acquires or retains as a result of the commission of the underlying specified unlawful activity. Proceeds can be any kind of property, not just money.

Note

The foregoing applies to the two more frequently charged subsections of § 1956(a)(1) but would have to be adjusted for indictments charging other subsections.

The judge must determine that the charged "specified unlawful activity" is actually one covered by 18 USC 1956(c)(7)(A)-(E), and that the charged "some form of unlawful activity" is actually a felony under federal or state law.

When the money laundering prosecution is based on a "conceal or disguise" theory, the government must show that the defendant desired to create the appearance of legitimate wealth or otherwise conceal the nature of funds so that it might enter the economy as legitimate funds. United States v. Dobbs, 63 F3d 391, 397 (5th Cir.1995) (government must prove that the specific transactions in question were designed, at least in part,. to launder money).

For a useful discussion of the meaning of the third element, see United States v. Carr, 25 F3d 1194, 1204 (3d Cir.1994), cert. denied, 513 US 939, 115 S.Ct. 341, 130 L.Ed.2d 298 (1994).

The requirement that the financial transaction "in any way or degree" affect interstate or foreign commerce, 18 USC 1956(c)(4), was derived from the Hobbs Act, 18 USC 1951, and is "intended to reflect the full exercise of Congress' power under the Commerce Clause." United States v. Gallo, 927 F2d 815, 822-23 (5th Cir.1991). Under the Hobbs Act, the impact on interstate commerce need only be de minimis. United States v. Collins, 40 F3d 95, 99-101 (5th Cir.1994), cert. denied, ____ US ____, 115 S.Ct. 1986, 131 L.Ed.2d 873 (1995). That concept has also been applied in § 1956 cases. United States v. Grey, 56 F3d 1219, 1225 (10th Cir.1995); United States v. Peay, 972 F2d 71, 74 (4th Cir.1992), cert. denied, 506 US 1071, 113 S.Ct. 1027, 122 L.Ed.2d 172 (1993). The Fifth Circuit has indicated that the laundering of drug proceeds will usually affect interstate commerce. Gallo, 927 F2d at 823.

For a case involving commingled funds, see United States v. Jackson, 935 F2d 832 (7th Cir.1991).

See also instructions on Attempt, Interstate Commerce, Foreign Commerce, and Commerce.

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 2001

FORECITE National™ Materials Related To This Instruction:

Chapter 94: Money Laundering

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1997 Version:

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 1997

Title 18, United States Code, Section 1956(a)(3), makes it a crime for anyone to knowingly use property represented to be proceeds of certain illegal activity to promote the carrying on of certain illegal activity [to knowingly conceal the nature, location, source, ownership, or control of the proceeds].

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 conducted [attempted to conduct] a financial transaction;

Second: That the financial transaction [attempted financial transaction] involved property represented to be the proceeds of a specified unlawful activity, namely _______; and

Third: That the defendant intended to promote the carrying on of specified unlawful activity, namely _______.

[Third: That the defendant intended to conceal or disguise the nature, the location, the source, the ownership, or the control of the proceeds of specified unlawful activity, namely _______.]

The term "transaction" includes [select from the following, depending on the facts of the case: a purchase, sale, loan, pledge, gift, transfer, delivery or other disposition, and with respect to a financial institution, includes a deposit, withdrawal, transfer between accounts, exchange of currency, loan, extension of credit, purchase or sale of any stock, bond, certificate of deposit, or other monetary instrument, or any other payment, transfer, or delivery by, through, or to a financial institution, by whatever means effected.]

The term "financial transaction" includes any "transaction," as that term has just been defined, which involves the movement of funds by wire or other means or involving one or more monetary instruments, which in any way or degree affects interstate or foreign commerce, or a transaction involving the use of a financial institution which is engaged in, or the activities of which affect, interstate or foreign commerce in any way or degree.

It is not necessary for the government to show that the defendant actually intended or anticipated an effect on interstate commerce by his actions or that commerce was actually affected. All that is necessary is that the natural and probable consequence of the acts the defendant took would be to affect interstate commerce. If you decide that there would be any effect at all on interstate commerce, then that is enough to satisfy this element. The effect can be minimal.

The term "conduct" includes initiating or concluding, or participating in initiating or concluding, a transaction.

The term "represented" means any representation made by a law enforcement officer or by another person at the direction of, or with the approval of, a federal official authorized to investigate or prosecute violations of this section. The evidence need not show that the property involved was expressly described as being the proceeds of specified unlawful activity at or before each transaction. It is sufficient if the government proves that the officers made enough representations to cause a reasonable person to understand that the property involved in the transaction(s) was the proceeds of _______, which is the specified unlawful activity named in the indictment.

The term "proceeds" includes any property, or any interest in property, that one would acquire or retain as a result of the commission of the underlying specified unlawful activity. Proceeds can be any kind of property, not just money.

Note

The foregoing applies to two subsections of § 1956(a)(3) but would have to be adjusted for indictments charging a violation of § 1956(a)(3)(C). Also, this charge contemplates a representation of "proceeds," which covers the vast majority of cases. The charge must be adjusted if the representation was that the property was "used to conduct or facilitate" specified unlawful activity.

The judge must determine that the charged "specified unlawful activity" is actually one covered by 18 USC 1956(c)(7)(A)-(E). The charged specified unlawful activity in the second element can be different from that in the third element, at least in a § 1956(a)(3)(A) case.

When the money laundering prosecution is based on a "conceal or disguise" theory, the government must show that the defendant desired to create the appearance of legitimate wealth or otherwise conceal the nature of funds so that it might enter the economy as legitimate funds. See United States v. Dobbs, 63 F3d 391, 397 (5th Cir.1995) (government must prove that the specific transactions in question were designed, at least in part, to launder money).

Concerning the requirement of circumstances which would cause a reasonable person to infer that the property was proceeds of a specified unlawful activity, see United States v. Castaneda-Cantu, 20 F3d 1325, 1331 (5th Cir.1994).

The requirement that the financial transaction "in any way or degree" affect interstate or foreign commerce, 18 USC 1956(c)(4), was derived from the Hobbs Act, 18 USC 1951, and is "intended to reflect the full exercise of Congress' power under the Commerce Clause." United States v. Gallo, 927 F2d 815, 822-23 (5th Cir.1991). Under the Hobbs Act, the impact on interstate commerce need only be de minimis. United States v. Collins, 40 F3d 95, 99-101 (5th Cir.1994), cert. denied, ____ US____, 115 S.Ct. 1986, 131 L.Ed.2d 873 (1995). That concept has also been applied in § 1956 cases. United States v. Grey, 56 F3d 1219, 1225 (10th Cir.1995); United States v. Peay, 972 F2d 71, 74 (4^th Cir.1992), cert. denied, 506 US 1071, 113 S.Ct. 1027, 122 L.Ed.2d 172 (1993). The Fifth Circuit has indicated that the laundering of drug proceeds will usually affect interstate commerce. Gallo, 927 F2d at 823.

See also instructions on Attempt, Interstate Commerce, Foreign Commerce, and Commerce.

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 2001

2.78 Racketeer Influenced Corrupt Organizations Act

Definitions of Interstate Commerce, Foreign Commerce, and Commerce are in the general instructions at Nos. 1.39, 1.40, and 1.41.

The elements of this offense are discussed in Salinas v. United States, 118 S.Ct. 469 (1997). For a discussion of "pattern of racketeering" and a definition of "enterprise," see H.J., Inc. v. Northwestern Bell Telephone Co., 109 S.Ct. 2893 (1989); Abell v. Potomac Ins. Co. of Illinois, 946 F.2d 1160 (5^th Cir. 1991), cert. denied, 112 S.Ct. 1944 (1992); In re Burzynski, 989 F.2d 733 (5^th Cir. 1993).

For a discussion of the "operation and management" test, which is applicable to the third element, see Reves v. Ernst & Young, 113 S.Ct. 1163 (1993).

A sole proprietorship may also be an "enterprise" under RICO so long as it is not a "one man show." See Guidry v. Bank of LaPlace, 954 F.2d 278 (5^th Cir. 1992).

A § 1962(d) RICO conspiracy allegation may involve considerations different from the typical conspiracy. See United States v. Cauble, 706 F.2d 1322 (5^th Cir. 1983), cert. denied, 104 S.Ct 996 (1984); United States v. Faulkner, 17 F.3d 745 (5^th Cir. 1994), cert denied, 115 S.Ct. 193 (1994); United States v. Jensen, 41 F.3rd 946 (5^th Cir. 1994), cert. denied, 115 S.Ct. 1835 (1995).

See United States v. Marmolejo, 89 F.3d 1185, 1196-97 (5^th Cir. 1996), aff'd, Salinas v. United States, 118 S.Ct. 469 (1997), in which the court held that a RICO conspirator need not agree personally to commit the pattern of racketeering activities but instead must simply agree to the objective of the RICO violation.

See United States v. Robertson, 115 S.Ct. 1732 (1995), for definition of "engaging in" interstate commerce.

For a discussion on establishing the existence of two separate entities, a "person" and a distinct "enterprise" under § 1962(c), see Cedric Kushner Promotions, Ltd. v. King, 121 S.Ct. 2087 (2001). In King, the Supreme Court held that the "distinctness" principle under § 1962(c) requires no more than the formal legal distinction between "person" and "enterprise" (namely, corporation). See id. at 2091. Therefore, the RICO provision applies when a corporate employee unlawfully conducts the affairs of the corporation of which he is the sole owner-whether he conducts those affairs within the scope, or beyond the scope, of corporate authority. See id.

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1997 Version:

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 1997

2.78 Racketeer Influenced Corrupt Organizations Act

Title 18, United States Code, Section 1962(c), makes unlawful the crime of racketeering in the RICO statute, that is, the Racketeer Influenced Corrupt Organizations Act. It is a crime for anyone employed by or associated with an enterprise engaged in or affecting commerce to conduct or to participate, directly or indirectly, in the conduct of the affairs of that enterprise through a pattern of racketeering activity. The defendant, _______, is charged in Count ___ with committing this crime from on or about _______, 19__, to on or about _______, 19__, in that the defendant is alleged to have _______.

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 person employed by or associated with the enterprise charged;

Second: That the enterprise existed as alleged in the indictment. An enterprise includes any individual, partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact, although not a legal entity. The term enterprise includes both legal and illegal associations. The enterprise must be separate and apart from the pattern of racketeering activity in which the defendant allegedly engaged. The enterprise must be proven to have been an ongoing organization, formal or informal, that functioned as a continuing unit;

Third: That the defendant, either directly or indirectly, conducted or participated in the conduct of the affairs of the enterprise through a pattern of racketeering activity. The defendant must have participated in the operation or management of the enterprise, but need not be a member of upper management. Racketeering activity includes the acts charged as separate crimes in Counts ___, ___, and ___. I have already instructed you on what the government must prove to establish that the defendant committed these acts. [If the predicate acts are not charged in separate counts, instructions on the elements of each racketeering activity will need to be given as part of the racketeering charge.]

To prove a pattern of racketeering activity, the government must prove beyond a reasonable doubt that (1) the acts of racketeering activity are related to each other, and (2) they amount to or pose a threat of continued criminal activity. To prove the racketeering acts are related to one another, the government must prove that the criminal conduct charged embraces criminal acts that have the same or similar purposes, results, participants, victims, or methods of commission, or otherwise are interrelated by distinguishing characteristics and are not isolated events.

At a minimum, a pattern of racketeering activity requires at least two acts of racketeering activity within ten years of each other; provided, however, that the government proves the relationship and continuity of those acts as I have defined them for you. All of you must be unanimous as to which racketeering acts you each believe beyond a reasonable doubt that the defendant committed. Unless you are unanimous in finding beyond a reasonable doubt that the defendant committed a racketeering act charged, you must disregard that act in deciding whether the defendant is guilty or not guilty of racketeering. It is not sufficient that some of the jurors find that the defendant committed two of the acts while others of you find that the defendant committed different acts. As I have said, the government must prove that the defendant, directly or indirectly, through the pattern of racketeering activity charged, conducted or participated in the conduct of the affairs of the enterprise. To do so, the government must additionally demonstrate a relationship among the defendant, the pattern of racketeering activity, and the enterprise. The defendant and the enterprise cannot be the same. To prove that the defendant conducted or participated as alleged, the government must prove that the defendant in fact committed the racketeering acts as alleged, the defendant's position in the enterprise facilitated his commission of the acts, and these acts had some effect on the enterprise; and

Fourth: That the enterprise was engaged in interstate [foreign] commerce or that its activities affected interstate [foreign] commerce. Defendant's conduct "affected" interstate [foreign] commerce if the conduct had a demonstrated connection or link with such commerce. It is not necessary for the government to prove that the defendant knew or intended his conduct to affect commerce. It is only necessary that the natural consequences of the defendant's conduct affected commerce in some way. Only a minimal effect on commerce is necessary.

Note

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

The elements of this offense are discussed in United States v. Cauble, 706 F2d 1322 (5th Cir.1983), cert. denied, 465 US 1005, 104 S.Ct. 996, 79 L.Ed.2d 229 (1984), and Word of Faith World Outreach Center Church, Inc. v. Sawyer, 90 F3d 118, 121-122 (5th Cir.1996), cert. denied ____ US ____, 117 S.Ct. 1248, ____ L.Ed.2d ____ (1997). For a discussion of "pattern of racketeering" and a definition of "enterprise," see H.J., Inc. v. Northwestern Bell Telephone Co., 492 US 229, 109 S.Ct. 2893, 106 L.Ed.2d 195 (1989); Abell v. Potomac Ins. Co. of Illinois, 946 F2d 1160 (5th Cir.1991); In re Burzynski, 989 F2d 733 (5th Cir.1993).

For a discussion of the "operation and management" test, which is applicable to the third element, see Reyes v. Ernst & Young, 507 US 170, 113 S.Ct. 1163, 122 L.Ed.2d 525 (1993).

A sole proprietorship may also be an "enterprise" under RICO so long as it is not a "one man show." See Guidry v. Bank of LaPlace, 954 F2d 278 (5th Cir.1992).

A § 1962(d) RICO conspiracy allegation may involve considerations different from the typical conspiracy. See Cauble; United States v. Faulkner, 17 F3d 745 (5th Cir.1994), cert. denied, 513 US 870, 115 S.Ct. 193, 130 L.Ed.2d 125 (1994); United States v. Jensen, 41 F3d 946 (5th Cir.1994), cert. denied, ____ US____, 115 S.Ct. 1835, 131 L.Ed.2d 754 (1995).

See United States v. Marmolejo, 86 F3d 404 (5th Cir.1996), in which the court held that a RICO conspirator need not agree personally to violate the statute but instead must simply agree to the objective of the RICO violation.

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 2001

2.79 Bank Robbery

FORECITE National™ Materials Related To This Instruction:

100.1 Robbery

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1997 Version:

Instruction unchanged.

Note

The statute creates various methods of committing the offense, e.g., force and violence or intimidation, and assaulting or jeopardizing the, life of a person by use of a dangerous weapon. Care must be taken in adapting the instruction to the allegations of the indictment. See United States v. Bizzard, 615 F2d 1080, 081-82 (6th Cir.1980). The instruction above can be tailored to either element under subsection (a). This instruction also presupposes that the indictment charges a violation of subsections (a) and (d) in the same count. If a subsection (d) violation is not alleged, the Fourth Element and its corresponding definitions would be deleted. Also, when a violation of subsections (a) and (d) is alleged in one count, the jury should be instructed in an appropriate case that a violation of subsection (a) alone, i.e., the first three elements above, is a lesser included offense of the alleged violation of subsections (a) and (d) combined, i.e., all four elements. See pattern jury instruction on "Lesser Included Offense."

Under subsection (d), both the "assault" and the "putting in jeopardy" prongs require the use of a dangerous weapon. Simpson v. United States, 435 US 6, 13 n. 6, 98 S.Ct. 909, 913 n. 6, 55 L.Ed.2d 70 (1978).

For cases dealing with "intimidation," see United States v. Baker, 17 F3d 94 (5th Cir.); United States v. McCarty, 36 F3d 1349 (5th Cir.1994).

Possession of stolen bank property, 18 USC. 2113(c), is not a lesser included offense of bank robbery. United States v. Buchner, 7 F3d 1149 (5th Cir.1993), cert. denied, 510 US 1207, 114 S.Ct. 1331, 127 L.Ed.2d 678 (1994).

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 2001

2.80 Bank Theft

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Bank Theft (18 USC 2113(b))

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1997 Version:

Instruction unchanged.

A "hot" check can constitute a violation of Section 2113(b) if there is sufficient evidence, other than the bad check itself, to prove intent. United States v. Aguilar, 967 F2d 111 (5th Cir.1992).

The conduct and expectations of a defendant and his associates can be considered in determining value. United States v. Hooten, 933 F2d 293, 297 (5th Cir.1991). 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.

A defendant has the prerequisite intent under Section 2113(b) if he enters a bank with no intent to commit a crime but thereafter develops an intent to steal. United States v. Jones, 993 F2d 58, 61 (5th Cir.1993).

Bell v. United States, 462 US 356, 361, 103 S.Ct. 2398, 2402, 76 L.Ed.2d 638 (1983), includes false pretenses as a "taking" under 18 USC 2113(b), and the statute is not just limited to common law larceny.

For a definition of "steal," see instruction on 18 USC 641.

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 2001

2.81 Carjacking

FORECITE National™ Materials Related To This Instruction:

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

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 intentionally took [attempted to take] from a person [presence of another] a motor vehicle described in the indictment;

Second: That the motor vehicle had been transported in interstate [foreign] commerce;

Third: That the defendant did so by means of force and violence [intimidation]; and

Fourth: That the defendant intended to cause death or serious bodily harm.

[Fifth: That serious bodily injury [death] resulted.]

[Serious bodily injury means bodily injury which involves (A) a substantial risk of death; or (B) extreme physical pain; or (C) protracted and obvious disfigurement; or (D) protracted loss or impairment of the function of a bodily member, organ, or mental faculty.]

Note

18 U.S.C. § 2119 describes three possible separate offenses, depending on the outcome: a carjacking in which (1) neither a serious injury nor a death occurs; (2) a serious injury occurs; or (3) a death occurs. In the latter two instances, the outcomes are elements of the offense and must be charged in the indictment and presented to the jury. Jones v. United States, 119 S.Ct. 1215 (1999). The carjacking statute specifically refers to 18 U.S.C. § 1365 for the definition of "serious bodily injury."

The Fifth Circuit, as well as other circuits, defines "presence of another" broadly to encompass situations where the person may be some distance from their vehicle, even inside a building. United States v. Edwards, 231 F.3d 933 (5^th Cir. 2000); United States v. Lake, 150 F.3d 269 (3^d Cir. 1998); United States v. Moore, 198 F.3d 793 (10^th Cir. 1999); United States v. Kimble,178 F.3d 1163 (11^th Cir. 1999).

With respect to the intent to cause death or serious bodily harm, the United States Supreme Court has held that the element is fulfilled even if the intent is conditional, that is, the defendant intended to do such harm only if the vehicle was not relinquished. Holloway v. United States, 119 S.Ct. 966 (1999).

Definitions of Interstate Commerce, Foreign Commerce, and Commerce are in the general instructions at Nos. 1.39, 1.40, and 1.41.

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1997 Version:

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 1997

2.81 Carjacking

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

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 intentionally took [attempted to take] from a person [presence of another] a motor vehicle described in the indictment;

Second: That the motor vehicle had been transported in interstate [foreign] commerce;

Third: That the defendant did so by means of force and violence [intimidation]; and

Fourth: That the defendant intended to cause death or serious bodily harm.

Note

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

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 2001

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Interstate Transportation Of A Stolen Motor Vehicle (18 USC 2312)

Title 18, United States Code, Section 2312, makes it a crime for anyone to transport [cause to be transported] in interstate commerce a stolen motor vehicle, knowing it to have 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 transported [caused to be transported] in interstate commerce a stolen motor vehicle; and

Second: That, at the time of such transportation, the defendant knew that the motor vehicle had been stolen.

The word "stolen" as used in the indictment in this case includes all wrongful and dishonest takings of motor vehicles with the intent to deprive the owner, temporarily or permanently, of the rights and benefits of ownership.

Note

The Fifth Circuit, in dicta, has cited with approval a broad definition of "stolen" under this statute. United States v. Aguilar, 967 F.2d 111, 113 (5^th Cir. 1992).

Definitions of Interstate Commerce, Foreign Commerce, and Commerce are in the general instructions at Nos. 1.39, 1.40, and 1.41.

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1997 Version:

Instruction unchanged.

The Fifth Circuit, in dicta, has cited with approval a broad definition of "stolen" under this statute. United States v. Agular, 967 F2d 111, 113 (5th Cir.1992). See also United States v. Castro, 26 F3d 557 (5th Cir.1994).

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

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 2001

FORECITE National™ Materials Related To This Instruction:

Chapter 97: Receiving Or Possession Of Stolen Property

See FORECITE National™ Federal Models By Offense: Receipt Of A Stolen Motor Vehicle (18 USC 2313)

Title 18, United States Code, Section 2313, makes it a crime for anyone to receive any motor vehicle which has crossed a state or United States boundary after being stolen, knowing it to have 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 motor vehicle in question was stolen;

Second: That the motor vehicle had crossed a state or United States boundary after being stolen;

Third: That the defendant received the stolen motor vehicle; and

Fourth: That the defendant knew the motor vehicle to have been stolen at the time the defendant received it.

Before a defendant can be convicted of the offense charged the government must prove beyond a reasonable doubt that the defendant knew that the property had been stolen, but it is not required to prove that the defendant knew that the property had crossed a state or United States boundary after being stolen.

The word "stolen" includes all wrongful and dishonest takings of motor vehicles with the intent to deprive the owner, temporarily or permanently, of the rights and benefits of ownership.

Note

United States v. Mitchell, 876 F.2d 1178 (5th Cir. 1989), states the elements of the offense.

Although the above instruction pertains only to a "receipt" offense, an indictment often alleges that the defendant "received, possessed, concealed, sold, and disposed of" a particular motor vehicle. In such cases, it is not necessary for the government to prove that all of these acts were in fact committed, as any one of them is a violation of the statute. The Fifth Circuit has held, however, that the statute describes two conceptual types of wrongdoing-housing of the vehicle and marketing of the vehicle-and the jury must agree unanimously upon which way the offense was committed. United States v. Gipson, 553 F.2d 453 (5^th Cir. 1977); in apparent accord, United States v. Trupin, 117 F.3d 678, 687 (2^d Cir. 1997). The United States Supreme Court, however, has criticized the reasoning of Gipson. Schad v. Arizona, 111 S.Ct. 2491 (1991). The Fifth Circuit revisited the impact of Schad on Gipson in United States v. Correa-Ventura, 6 F.3d 1070 (5^th Cir. 1993). While recognizing that a plurality of the Supreme Court had "criticized" Gipson, the Fifth Circuit did not overrule Gipson, but instead decided the case before it on a different theory. Based on the Schadopinion, two other circuit courts have since rejected the Gipson analysis. See United States v. Sanderson, 966 F.2d 184 (6^th Cir. 1992); United States v. Harris, 959 F.2d 246 (D.C. Cir.), cert. denied, 113 S.Ct. 362 (1992). See general instruction on Unanimity of Theory, No. 1.25.

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1997 Version:

Instruction unchanged.

Note

United States v. Mitchell, 876 F2d 1178 (5th Cir.1989), states the elements of the offense.

An indictment often alleges that the defendant "received, possessed, concealed, sold, and disposed of" a particular motor vehicle. In such cases, it is not necessary for the government to prove that all of these acts were in fact committed, as any one of them is a violation of the statute. The Fifth Circuit has held, however, that the jury must agree unanimously upon the way in which the offense was committed. United States v. Gipson, 553 F2d 453 (5th Cir.1977). The United States Supreme Court, however, has criticized the reasoning of Gipson. Schad v. Arizona, 501 US 624, 111 S.Ct. 2491, 115 L.Ed.2d 555 (1991). Two other circuit courts have concluded that Schad has effectively overturned Gipson. United States v. Sanderson, 966 F2d 184 (6th Cir.1992); United States v. Harris, 959 F2d 246 (D.C. Cir.1992), cert. denied, 506 US 932, 113 S.Ct. 362, 121 L.Ed.2d 275 (1992). See general instruction on Unanimity of Theory.

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 2001

FORECITE National™ Materials Related To This Instruction:

Chapter 97: Receiving Or Possession Of Stolen Property

See FORECITE National™ Federal Models By Offense: Interstate Transportation Of Stolen Property (18 USC 2314) (First Paragraph)

See FORECITE National™ Federal Models By Offense: Causing Interstate Travel In Execution Of A Scheme To Defraud (18 USC 2314) (Second Paragraph)

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1997 Version:

Instruction unchanged.

Note

United States v. Mackay, 33 F3d 489 (5th Cir.1994) sets out the elements of the offense. See also United States v. Parziale, 947 F2d 123 (5th Cir.1991), cert. denied, 503 US 946, 112 S.Ct. 1499, 117 L.Ed.2d 638 (1992); United States v. Judd, 889 F2d 1410 (5th Cir.1989), cert. denied, 494 US 1036, 110 S.Ct. 1494, 108 L.Ed.2d 629 (1990); United States v. Vontsteen, 872 F2d 626 (5th Cir.1989); and Dowling v. United States, 473 US 207, 105 S.Ct. 3127, 87 L.Ed.2d 152 (1985). A conviction requires that the goods actually travel in interstate or foreign commerce. United States v. Payan, 992 F2d 1387 (5th Cir.1993). Since the $5,000 value is jurisdictional, the property must have that value at the time it was stolen or at some point during its receipt, transportation, or concealment. United States v. Watson, 966 F2d 161 (5th Cir.1992).

The statute references three ways the property can be illegally obtained-by stealing, conversion, or fraud. The Fourth Circuit reversed a § 2314 conviction because the trial judge used the general term "stolen" in the instruction when the accusation was that property had been obtained more specifically "by fraud," United States v. Gibson, 924 F2d 1053 (4th Cir.1991). In United States v. Vontsteen, 872 F2d 626 (5th Cir.1989), the Fifth Circuit stated as an element of the § 2314 offense that the defendant must have knowledge that the goods were stolen, converted, or taken by fraud. If the allegation involves a conversion or taking by fraud instead of stealing, the court should delete the definition of stealing and instead give a definition of conversion or fraud, as applicable.

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

If the indictment charges commission of the offense in more than one manner, see the general instruction on Unanimity of Theory.

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 2001

2.85 Receipt, Possession, or Sale of Stolen Property

FORECITE National™ Materials Related To This Instruction:

Chapter 97: Receiving Or Possession Of Stolen Property

See FORECITE National™ Federal Models By Offense: Receipt Of Stolen Property--Elements (18 USC 2315)

See FORECITE National™ Federal Models By Offense: Receipt, Possession, Or Sale Of Stolen Property (18 USC 2315) (First Paragraph)

Title 18, United States Code, Section 2315, makes it a crime for anyone knowingly to receive, conceal, sell, or dispose of stolen property which has a value of $5,000 or more and which has crossed a state or United States boundary.

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 property named in the indictment was stolen [converted] [unlawfully taken];

Second: That such property had crossed a state or United States boundary after being stolen [converted] [unlawfully taken];

Third: That the defendant received, concealed, sold, or disposed of items of the stolen property;

Fourth: That the defendant knew the property was stolen [converted] [unlawfully taken] at the time the defendant received, concealed, sold, or disposed of it; and

Fifth: That such items had a value of $5,000 or more.

Before a defendant can be convicted of the offense charged, the government must prove beyond a reasonable doubt that the defendant knew that the property had been stolen, but it is not required to prove that the defendant knew that the property had crossed a state or United States boundary after being stolen.

The word "stolen" includes all wrongful and dishonest takings of property with the intent to deprive the owner, temporarily or permanently, of the rights and benefits of ownership.

The term "value" means the face, par, or market value, whichever is the greatest.

Note

United States v. Anderson, 174 F.3d 515 (5^th Cir. 1999) sets forth the elements of the offense.

An indictment often alleges that the defendant "received, possessed, concealed, sold, and disposed of" certain stolen property. In such cases, it is not necessary for the government to prove that all of these acts were in fact committed, as any one of them is a violation of the statute. The Fifth Circuit has held, however, that the analogous statute of §2313 describes two conceptual types of wrongdoing-harboring the stolen property and marketing the property-and the jury must agree unanimously upon which way the offense was committed. United States v. Gipson, 553 F.2d 453 (5^th Cir. 1977); in apparent accord, United States v. Trupin, 117 F.3d 678, 687 (2^d Cir. 1997). The United States Supreme Court, however, has criticized the reasoning of Gipson. Schad v. Arizona, 111 S.Ct. 2491 (1991). The Fifth Circuit revisited the impact of Schad on Gipson in United States v. Correa-Ventura, 6 F.3d 1070 (5^th Cir. 1993). While recognizing that a plurality of the Supreme Court had "criticized" Gipson, the Fifth Circuit did not overrule Gipson, but instead decided the case before it on a different theory. Based on the Schad opinion, two other circuit courts have since rejected the Gipson analysis. See United States v. Sanderson, 966 F.2d 184 (6^th Cir. 1992); United States v. Harris, 959 F.2d 246 (D.C. Cir.), cert. denied, 113 S.Ct. 362 (1992). See general instruction on Unanimity of Theory at No. 1.25.

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1997 Version:

Instruction unchanged.

Note

United States v. Mitchell, 876 F2d 1178 (5th Cir.1989), states the elements of 18 USC 2313, a similar offense.

An indictment often alleges that the defendant "received, concealed, sold, and disposed of" certain stolen property. In such cases, it is not necessary for the government to prove that all of these acts were in fact committed, as any one of them is a violation of the statute. The Fifth Circuit has held, however, that the jury must agree unanimously upon the way in which the offense was committed. United States v. Gipson, 553 F2d 453 (5th Cir.1977). The United States Supreme Court, however, has criticized the reasoning of Gipson. Schad v. Arizona, 501 US 624, 111 S.Ct. 2491, 115 L.Ed.2d 555 (1991). Two other circuit courts have concluded that Schad has effectively overturned Gipson. United States v. Sanderson, 966 F2d 184 (6th Cir.1992); United States v. Harris, 959 F2d 246 (D.C.Cir.1992), cert. denied, 506 US 932, 113 S.Ct. 362, 121 L.Ed.2d 275 (1992). See general instruction on Unanimity of Theory.

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 2001

2.86 Failure to Appear

FORECITE National™ Materials Related To This Instruction:

84.2 Failure To Appear

See FORECITE National™ Federal Models By Offense: Failure To Appear (18 USC 3146)

Title 18, United States Code, Section 3146, makes it a crime for anyone purposely to fail to appear in court [surrender for service of sentence] on a required date.

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 previously charged with [convicted of] _______ [name crime] in this court;

Second: That the defendant had been released on bond [his own recognizance] by a _______ [specify judicial officer] on condition that the defendant appear in court [surrender for service of sentence];

Third: That the defendant thereafter failed to appear [surrender for service of sentence] as required; and

Fourth: That the defendant knew he was required to appear [surrender for service of sentence] on that date and purposely failed to do so.

Note

Under some circumstances, the fourth element of the instruction should be modified. In United States v. Allison, 953 F.2d 870 (5^th Cir. 1992), cert. denied, 112 S.Ct. 2319 (1992), modified on rehearing, 986 F.2d 896 (5^th Cir. 1993), cert. denied, 116 S.Ct. 405 (1995), the trial court specifically refused to give the fourth element of the pattern instruction above, and instead substituted language that the defendant did so "willfully." The Fifth Circuit said that this was appropriate under the facts of the particular case. There, the defendant never received notice because it was mailed to a certain residence from which he had already absconded. The Fifth Circuit held: "When a defendant purposefully engages in a course of conduct designed to prevent him from receiving notice to appear, the conduct will fulfill the willful requirement just as clearly as when he receives and deliberately ignores a notice to appear." Id. at 876.

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1997 Version:

Instruction unchanged.

Under some circumstances, the fourth element of the charge should be modified. In United States v. Allison, 953 F2d 870 (5th Cir.1992), cert. denied, 504 US 962, 112 S.Ct. 2319, 119 L.Ed.2d 238 (1992), modified on rehearing, 986 F2d 896 (5th Cir.1993), the trial court specifically refused to give the fourth element of the pattern charge above, and instead substituted language that the defendant did so "willfully." The Fifth Circuit said that this was appropriate under the facts of the particular case. There, the defendant never received notice because it was mailed to a certain residence from which he had already absconded. The Fifth Circuit held: "When a defendant purposefully engages in a course of conduct designed to prevent him from receiving notice to appear, the conduct will fulfill the willful requirement just as clearly as when he receives and deliberately ignores a notice to appear." Id. at 876.

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 2001

2.87 Controlled Substances -- Possession With
Intent to Distribute

FORECITE National™ Materials Related To This Instruction:

Chapter 88: Drugs, Controlled Substances

See FORECITE National™ Federal Models By Offense: Drug Abuse Prevention And Control (Title 21 - Chapter 13 Subchapter I [Control And Enforcement] Part D [Offenses And Penalties])

Applicable Instruction at No. 1.31 defining "possession" should be included.

The fourth element, prompted by the Apprendi doctrine, is required when the indictment alleges a quantity that would result in an enhanced penalty under 21 U.S.C. §841(b). See United States v. Clinton, 2001 WL 721366 at *1-4 (5^th Cir. June 27, 2001); United States v. Garcia, 242 F.3d 593, 599-600 (5^th Cir. 2001); United States v. Salazar-Flores, 238 F.3d 672, 673-74 (5^th Cir. 2001); United States v. Keith, 230 F.3d 784, 786-87 (5^th Cir. 2000); United States v. Doggett, 230 F.3d 160, 164-65 (5^th Cir. 2000); United States v. Meshack, 225 F.3d 556, 575-77 (5^th Cir. 2000),cert. denied, 121 S.Ct. 384 (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). Generally, the exact quantity of the controlled substance need not be determined so long as the jury establishes a quantity at or above a given baseline amount in the appropriate subsection of § 841(b). For example, in a marijuana case, if the amount is determined to be at least 100 kilograms, the maximum sentence would be the same for any amount up to 999 kilograms. See United States v. DeLeon, 247 F.3d 598, 597 (5^th Cir. 2001) (holding that an indictment's allegation of a drug-quantity range, as opposed to a precise drug quantity, is sufficient to satisfy Apprendi and its progeny). However, if there is a fact dispute as to whether the amount is above or below a particular baseline (e.g., 100 kilograms of marijuana versus 99 kilograms), the court may consider submitting the higher amount in the fourth element, accompanied by a Lesser Included Offense instruction, No. 1.33, for the lower amount. Alternatively, the court may substitute for the fourth element a special interrogatory on the verdict form asking the jury to determine the exact amount of the controlled substance.

In a marijuana case, if the indictment fails to allege a drug quantity, the default sentencing provision for a conviction is provided by § 841(b)(1)(D). See United States v. Gonzalez, 2001 WL 815606, at *3 (5^th Cir. July 19, 2001); see also United States v. Garcia, 242 F.3d 593, 599-600 (5^thCir. 2001). Further, when a jury is not instructed to find the amount of cocaine base (crack cocaine), the statutory maximum is determined under § 841(b)(1)(C). See Clinton, 2001 WL 721366 at *2;United States v. Thomas, 246 F.3d 438, 439 (5^th Cir. 2001).

A fifth element, prompted by the Apprendi doctrine, is required when the indictment alleges a serious bodily injury or death that would result in an enhanced penalty under 21 U.S.C. § 841(b). If a disputed issue is whether the serious bodily injury or resulted from the use of the substance, the court should consider giving a Lesser Included Offense instruction, No. 1.33.

If the evidence warrants, the following instruction may be added: "The government must prove beyond a reasonable doubt that the defendant knew he was possessing a controlled substance, but need not prove that the defendant knew which particular controlled substance was involved." United States v. Cartwright, 6 F.3d 294, 303 (5^th Cir. 1993), cert. denied, 115 S.Ct. 671 (1994);United States v. Fragoso, 978 F.2d 896, 902 (5^th Cir. 1992), cert. denied, 113 S.Ct. 1664 (1993).

With regard to the mens rea requirement under § 841, the Fifth Circuit has held that "knowledge" and "intent" are used in their common meaning in the conspiracy and possession statutes and therefore do not require further instruction. United States v. Cano-Guel, 167 F.3d 900, 906 (5^th Cir. 1999) ("knowledge"); United States v. Sanchez-Sotello, 8 F.3d 202, 212 (5^th Cir. 1993),cert. denied, 114 S.Ct. 1410 (1994) ("knowledge" and "intent").

For a discussion on the requisite scienter of "knowledge" in "hidden compartment" cases, see United States v. Ortega Reyna, 148 F.3d 540, 543-47 (5^th Cir. 1998).

For when to give an instruction on the lesser included offense of simple possession, seeUnited States v. Fitzgerald, 89 F.3d 218, 221 (5^th Cir. 1996) and United States v. Lucien, 61 F.3d 366, 373-74 (5^th Cir. 1995).

The Fifth Circuit has noted that the statutory definition of the term "distribute" is "defined broadly enough to include acts which perhaps traditionally would have been defined as mere aiding and abetting." United States v. Brown, 217 F.3d 247, 255 (5^th Cir. 2000).

For cases discussing when to give an instruction on deliberate ignorance, see United States v. Moreno, 185 F.3d 465, 476 (5^th Cir. 1999), cert. denied, 120 S.Ct. 835 (2000); and United States v. Posada-Rios, 158 F.3d 832, 875 (5^th Cir. 1998), cert. denied, Grajales Murga v. United States, 119 S.Ct. 1280 (1999). A deliberate ignorance instruction is found at No. 1.37.

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1997 Version:

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 1997

2.87 Controlled Substances -- Possession With
Intent to Distribute

Title 21, United States Code, Section 841(a)(1), makes it a crime for anyone knowingly or intentionally to possess a controlled substance with intent to distribute it.

_______ is a controlled substance within the meaning of this 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 possessed a controlled substance;

Second: That the substance was in fact _______; and

Third: That the defendant possessed the substance with the intent to distribute it.

To "possess with intent to distribute" simply means to possess with intent to deliver or transfer possession of a controlled substance to another person, with or without any financial interest in the transaction.

Note

Applicable instruction defining "possession" should be included.

If the evidence warrants, the following instruction may be added: "The government must prove beyond a reasonable doubt that the defendant knew he was possessing a controlled substance, but need not prove that the defendant knew which particular controlled substance was involved." United States v. Cartwright, 6 F3d 294, 303 (5th Cir.1993), cert. denied, 513 US 1060, 115 S.Ct. 671, 130 L.Ed.2d 604 (1994); United States v. Fragoso, 978 F2d 896, 902 (5th Cir.1992), cert. denied, 507 US 1012, 113 S.Ct. 1664, 123 L.Ed.2d 282 (1993).

With regard to the mens rea requirement under § 841, the Fifth Circuit has held that "knowledge" and "intent" are used in their common meaning in the conspiracy and possession statutes and therefore do not require further instruction. United States v. Sanchez-Sotelo, 8 F3d 202, 212 (5th Cir.1993), cert. denied, 511 US 1023, 114 S.Ct. 1410, 128 L.Ed.2d 82 (1994).

For when to give an instruction on the lesser included offense of simple possession see United States v. Lucien, 61 F3d 366, 373-74 (5th Cir.1995).

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 2001

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Unlawful Use Of Communications Facility (21 USC 843(b))

Title 21, United States Code, Section 843(b), makes it a crime for anyone knowingly to use a communication facility to commit [facilitate the commission of] another controlled substances offense.

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 used a "communication facility" as charged; and

Second: That the defendant used the "communication facility" with the intent to commit [facilitate the commission of] the offense of _______ [e.g., possession with intent to distribute a controlled substance], as that offense has been defined in these instructions.

The term "communication facility" includes mail, telephone, wire, radio, and all other means of communication.

[To "facilitate" the commission of an offense means to make easier or less difficult, or to aid or assist in the commission of that offense.]

Note

The elements of the offense are discussed in United States v. Mankins, 135 F.3d 946, 949 (5^thCir. 1998).

The Fifth Circuit has held that "[t]here is no statutory requirement that the indictment specify the drug involved in the offense, nor has our court imposed a jurisprudential one." United States v. Guerra-Marez, 928 F.2d 665, 675 (5^th Cir.), cert. denied, 112 S.Ct. 322 (1991). The communications forming the basis of a § 843(b) violation need not specifically refer to the drug trade as long as a reasonable jury could find that the defendant was discussing matters pertaining to the drug offense. United States v. Gonzalez-Rodriguez, 966 F.2d 918, 922-23 (5^th Cir. 1992).

For a useful discussion of the meaning of "facilitating the commission of a drug offense," see United States v. Dixon, 132 F.3d 192, 200-01 (5^th Cir. 1997), cert. denied, 118 S.Ct. 1581 (1998).

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1997 Version:

Instruction unchanged.

The Fifth Circuit has held that "[t]here is no statutory requirement that the indictment specify the drug involved in the offense, nor has our court imposed a jurisprudential one." United States v. Guerra-Marez, 928 F2d 665, 675 (5th Cir.1991), cert. denied, 502 US 917, 112 S.Ct. 3221 116 L.Ed.2d 263 (1991). The communications forming the basis of a § 843(b) violation need not specifically refer to the drug trade as long as a reasonable jury could find that the defendant was discussing matters pertaining to the drug offense. United States v. Gonzalez-Rodriguez, 966 F2d 918, 922-23 (5th Cir.1992).

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 2001

2.89 Controlled Substances -- Conspiracy

FORECITE National™ Materials Related To This Instruction:

Chapter 83: Conspiracy

Chapter 88: Drugs, Controlled Substances

See FORECITE National™ Federal Models By Offense: Controlled Substances -- Conspiracy (21 USC 846)

See FORECITE National™ Federal Models By Offense: Controlled Substances (Conspiracy) (21 USC 846, 955c And/or 963)

Title 21, United States Code, Section 846, makes it a crime for anyone to conspire with someone else to commit a violation of certain controlled substances laws of the United States. In this case, the defendant is charged with conspiring to [describe the object of the conspiracy as alleged in the indictment, e.g., possess with intent to distribute a controlled substance, and give elements of object crime unless they are given under a different count of the indictment].

A "conspiracy" is an agreement between two or more persons to join together to accomplish some unlawful purpose. It is a kind of "partnership in crime" in which each member becomes the agent of every other member.

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 two or more persons, directly or indirectly, reached an agreement to ________ [describe the object of the conspiracy];

Second: That the defendant knew of the unlawful purpose of the agreement;

Third: That the defendant joined in the agreement willfully, that is, with the intent to further its unlawful purpose; and

Fourth: That the overall scope of the conspiracy involved at least ________ [amount] of _________ [substance].

One may become a member of a conspiracy without knowing all the details of the unlawful scheme or the identities of all the other alleged conspirators. If a defendant understands the unlawful nature of a plan or scheme and knowingly and intentionally joins in that plan or scheme on one occasion, that is sufficient to convict him for conspiracy even though the defendant had not participated before and even though the defendant played only a minor part.

The government need not prove that the alleged conspirators entered into any formal agreement, nor that they directly stated between themselves all the details of the scheme. Similarly, the government need not prove that all of the details of the scheme alleged in the indictment were actually agreed upon or carried out. Nor must it prove that all of the persons alleged to have been members of the conspiracy were such, or that the alleged conspirators actually succeeded in accomplishing their unlawful objectives.

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

Note

This instruction is also applicable to an offense under 21 U.S.C. § 963 with appropriate modifications for a conspiracy alleging importation as the object of the conspiracy.

If the evidence warrants, the following instruction may be added: "The government must prove beyond a reasonable doubt that the defendant conspired to possess with intent to distribute some controlled substance, but need not prove that the defendant knew which particular controlled substance was involved." United States v. Cartwright, 6 F.3d 294, 303 (5^th Cir. 1993), cert. denied, 115 S.Ct. 671 (1994); United States v. Fragoso, 978 F.2d 896, 902 (5^th Cir. 1992), cert. denied, 113 S.Ct. 1664 (1993).

The fourth element, prompted by the Apprendi doctrine, is required when the indictment alleges a quantity that would result in an enhanced penalty under 21 U.S.C. §841(b). See United States v. Clinton, 2001 WL 721366 at *1-4 (5^th Cir. June 27, 2001); United States v. Green, 246 F.3d 433, 435-37 (5^th Cir. 2001); United States v. Slaughter, 238 F.3d 580, 583 (5^th Cir. 2000); United States v. Doggett, 230 F.3d 160, 164-65 (5^th Cir. 2000); United States v. Meshack, 225 F.3d 556, 575-77 (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). Generally, the exact quantity of the controlled substance need not be determined so long as the jury establishes a quantity at or above a given baseline amount in the appropriate subsection of §841(b). For example, in a marijuana case, if the amount is determined to be at least 100 kilograms, the maximum sentence would be the same for any amount up to 999 kilograms. See United States v. DeLeon, 247 F.3d 593, 597 (5^th Cir. 2001) (holding that an indictment's allegation of a drug-quantity range, as opposed to a precise drug quantity, is sufficient to satisfy Apprendi and its progeny). However, if there is a fact dispute as to whether the amount is above or below a particular baseline (e.g., 100 kilograms of marijuana versus 99 kilograms), the court may consider submitting the higher amount in the fourth element, accompanied by a Lesser Included Offense instruction, No. 1.33, for the lower amount. Alternatively, the court may substitute for the fourth element a special interrogatory on the verdict form asking the jury to determine the exact amount of the controlled substance. Whatever approach is used, the jury's finding as to the scope of the overall conspiracy establishes the maximum sentencing range.

However, in a drug conspiracy, two separate findings are required. One is the quantity involved in the entire conspiracy, and the other is the quantity which each particular defendant knew or should have known was involved in the conspiracy. United States v. Ruiz, 43 F.3d 985, 990 (5^thCir. 1995); United States v. Maseratti, 1 F.3d 330, 340 (5^th Cir. 1993). It is the Committee's view that the second finding, i.e., determining each particular defendant's liability, should continue to be made by the sentencing judge according to the principles discussed at § 1B1.3 of the Sentencing Guidelines. The Apprendi doctrine affects only the potential maximum sentence. It does not affect any statutory minimum sentences, see United States v. Keith, 230 F.3d 784, 787 (5^th Cir. 2000), nor sentence calculations under the sentencing guidelines, see United States v. Clinton, 2001 WL 721366 at *2; United States v. Doggett, 230 F.3d at 166.

Unlike under the general conspiracy statute, 18 U.S.C. § 371, the government need not prove an overt act by the defendants in furtherance of a drug conspiracy. See United States v. Shabani, 115 S.Ct. 382, 383 (1994); accord United States v. Montgomery, 210 F.3d 446, 449 (5^th Cir. 2000).

Proof of a conspiracy will not support a conviction on substantive counts in the absence of a Pinkerton instruction informing the jury that the defendant could be deemed guilty of substantive counts committed by a co-conspirator in furtherance of a conspiracy in which the defendant participated. United States v. Polk, 56 F.3d 613, 619 (5^th Cir. 1995). See Instruction No. 2.22, Conspirator's Liability for Substantive Count, following 18 U.S.C. § 371.

The foregoing instruction on the intent element was expressly approved in United States v. Arditti, 955 F.2d 331, 340 (5th Cir.), cert. denied, 113 S.Ct. 597 (1992).

Failure to instruct on the elements of the "object" crime of the conspiracy is at least "serious" error, if not plain error. United States v. Vaglica, 720 F.2d 388, 391 (5^th Cir. 1983); see also United States v. Smithers, 27 F.3d 142, 146 (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. Stowell, 947 F.2d 1251, 1258 (5^th Cir. 1991), cert. denied, 112 S.Ct. 1269 (1992); see also United 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"). See Instruction No. 2.21, Multiple Conspiracies, following 18 U.S.C. § 371.

So long as the jury instruction given by the trial court accurately reflects the law on conspiracy, there need not be a separate instruction on the defense of a "mere buyer-seller relationship." See United States v. Asibor, 109 F.3d 1023, 1034-35 (5^th Cir.), cert. denied, 118 S.Ct. 254 (1997); United States v. Maseratti, 1 F.3d 330, 336 (5^th Cir. 1993).

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1997 Version:

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 1997

2.89 Controlled Substances -- Conspiracy

Title 21, United States Code, Section 846, makes it a crime for anyone to conspire with someone else to commit a violation of certain controlled substances laws of the United States. In this case, the defendant is charged with conspiring to _______ [describe the object of the conspiracy as alleged in the indictment, e.g., possess with intent to distribute a controlled substance, and give elements of object crime unless they are given under a different count of the indictment].

A "conspiracy" is an agreement between two or more persons to join together to accomplish some unlawful purpose. It is a kind of "partnership in crime" in which each member becomes the agent of every other member.

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 two or more persons, directly or indirectly, reached an agreement to _______ [describe the object of the conspiracy];

Second: That the defendant knew of the unlawful purpose of the agreement; and

Third: That the defendant joined in the agreement willfully, that is, with the intent to further its unlawful purpose.

One may become a member of a conspiracy without knowing all the details of the unlawful scheme or the identities of all the other alleged conspirators. If a defendant understands the unlawful nature of a plan or scheme and knowingly and intentionally joins in that plan or scheme on one occasion, that is sufficient to convict him for conspiracy even though the defendant had not participated before and even though the defendant played only a minor part.

The government need not prove that the alleged conspirators entered into any formal agreement, nor that they directly stated between themselves all the details of the scheme. Similarly, the government need not prove that all of the details of the scheme alleged in the indictment were actually agreed upon or carried out. Nor must it prove that all of the persons alleged to have been members of the conspiracy were such, or that the alleged conspirators actually succeeded in accomplishing their unlawful objectives.

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

Note

If the evidence warrants, the following instruction may be added: "The government must prove beyond a reasonable doubt that the defendant conspired to possess with intent to distribute some controlled substance, but need not prove that the defendant knew which particular controlled substance was involved." United States v. Fragoso, 978 F2d 896, 902 (5th Cir.1992), cert. denied, 507 US 1012, 113 S.Ct. 1664, 123 L.Ed.2d 282 (1993).

Unlike under the general conspiracy statute, 18 USC 371, the government need not prove an overt act by the defendants in furtherance of a drug conspiracy. United States v. Shabani, 513 US 10, ____, 115 S.Ct. 382, 383, 130 L.Ed.2d 225 (1994); United States v. Polk, 56 F3d 613, 619 (5th Cir.1995).

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 co-conspirator in furtherance of a conspiracy in which the defendant participated. Polk, 56 F3d at 619. See pattern jury instruction on "Conspirator’s Liability for Substantive Count" following 18 USC. § 371.

The foregoing instruction on the intent element was expressly approved in United states v. Arditti, 955 F2d 331, 340 (5^th Cir. 1992) cert. denied, 506 US 998, 113 S.Ct. 597, 121 L.Ed.2d 534 (1992).

Failure to instruct on the elements of the "object" crime of the conspiracy is at least "serious" error, if not plain error. United States v. Vaglica, 720 F2d 388, 391 (5^th Cir. 1983); see also United States v. Smithers, 27 F3d 142, 146 (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. United States v. Erwin, 793 F2d 656, 662, (5^th Cir. 1986), cert. denied, 479 US 991, 107 S.Ct. 589, 93 L.Ed.2d 590 (1986). See pattern jury instruction on "Multiple Conspiracies" following 18 USC 371.

This instruction is also applicable to an offence under 21 USC 963 with appropriate modifications for a conspiracy alleging importation as the object of the conspiracy.

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 2001

2.90 Continuing Criminal Enterprise

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Continuing Criminal Enterprise (21 USC 848)

Title 21, United States Code, Section 848, makes it a crime for anyone to engage in a continuing criminal enterprise.

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 violated the Controlled Substances Act as charged in Counts ______ of the indictment;

Second: That such violations were part of a continuing series of violations, which means at least three violations of the Controlled Substances Act as charged in Counts______ of the indictment. These violations must be connected together as a series of related or ongoing activities as distinguished from isolated and disconnected acts. You must unanimously agree on which of these underlying violations has been proved;

Third: That the defendant obtained substantial income or resources from the series of violations; and

Fourth: That the defendant undertook such violations in concert with five or more other persons with respect to whom the defendant occupied a position of organizer, supervisor, or manager. The five other persons need not have acted at the same time or in concert with each other. You need not unanimously agree on the identity of any other persons acting in concert with the defendant so long as each of you finds that there were five or more such persons.

The term "substantial income or resources" means income in money or property which is significant in size or amount as distinguished from some relatively insignificant, insubstantial, or trivial amount.

The term "organizer, supervisor, or manager" means that the defendant was more than a fellow worker and that the defendant either organized or directed the activities of five or more other persons, exercising some form of managerial authority over them. The defendant need not be the only organizer or supervisor, and the "five or more persons" may include persons who are indirectly subordinate to the defendant through an intermediary.

Note

The requirement under "organizer, supervisor, or manager" that the defendant must exercise some degree of managerial authority is derived from the decision in United States v. Garcia Abrego, 141 F.3d 142, 166-67 (5^th Cir. 1998), cert. denied, 119 S.Ct. 182 (1998).

The statute does not state how many violations are required to satisfy the requirement of a "continuing series of violations," but the Fifth Circuit has determined that at least three predicate drug violations are required. See United States v. Hicks, 945 F.2d 107 (5^th Cir. 1991); United States v. Phillips, 664 F.2d 971, 1013 (5^th Cir. 1981). In Richardson v. United States, 119 S.Ct. 1707, 1710 (1999), the Supreme Court assumed, but did not decide, that three predicate violations were required. It further held that jury unanimity is required as to the predicate violations. See id. at 1713.

The jury need not unanimously agree, however, on the identity of the five participants in the fourth element. See United States v. Short, 181 F.3d 620, 623-24 (5^th Cir. 1999), cert. denied, 120 S.Ct. (2000) (contrasting the Richardson case); United States v. Brito, 136 F.3d 397, 408 (5^th Cir. 1998), cert. denied, 118 S.Ct. 1817 (1998); United States v. Broussard, 80 F.3d 1025, 1038 (5th Cir. 1996). The Fifth Circuit view is shared by a majority of the other circuits. United States v. Hardin, 209 F.3d 652, 659-60 (7^th Cir. 2000); United States v. Avery, 128 F.3d 966, 973 (6^th Cir. 1997);United States v. Hall, 93 F.3d 126, 130 (4^th Cir. 1996); United States v. Williams-Davis, et al., 90 F.3d 490, 509 (D.C. Cir. 1996); United States v. Edmonds, 80 F.3d 810, 822 (3^d Cir. 1996); United States v. Jelinek, 57 F.3d 655, 658-59 (8^th Cir. 1995); United States v. Moorman, 944 F.2d 801, 802-03 (11^th Cir. 1991), cert. denied, 112 S.Ct. 1766; United States v. Tarvers, 833 F.2d 1068, 1074-75 (1^st Cir. 1987); but see United States v. McSwain, 197 F.3d 472, 481-82 (10^th Cir. 1999); United States v. Jerome, 942 F.2d 1328, 1330-31 (9^th Cir. 1991). The Richardson opinion assumed, without deciding, that unanimity is not required on this element. 119 S.Ct. at 1713. The jury may conclude that the defendant managed at least five persons when the persons could be "considered either directly subordinate to [defendant] or indirectly subordinate through a [co-defendant]." See United States v. Garcia Abrego, 141 F.3d 142, 165 (5^th Cir. 1998), cert. denied, 525 U.S. 878 (1998);Tolliver, 61 F.3d at 1216.

The Supreme Court has held that an § 846 drug conspiracy is a lesser included offense of the continuing criminal enterprise. See Rutledge v. United States, 116 S.Ct. 1241, 1250-51 (1996);accord United States v. Brito, 136 F.3d 397, 408 (5^th Cir. 1998), cert. denied, 118 S.Ct. 1817 (1998). A defendant may be indicted for conspiracy and CCE, but may not be sentenced on both charges.United States v. Tolliver, 61 F.3d 1189, 1223 (5th Cir. 1995), vacated on other grounds, 116 S.Ct. 900, cert. denied, 116 S.Ct. 969 (1996). However, except for a drug conspiracy, predicate drug offenses are not lesser included offenses of the continuing criminal enterprise for the purposes of the Fifth Amendment's double jeopardy clause. United States v. Devine, 934 F.2d 1325, 1342-44 (5th Cir. 1991), cert. denied, 112 S.Ct. 954 (1992).

The term "substantial income or resources," as defined in the instructions, adequately informed the jury on the factual issues presented in the case, and the district court was not required to supplement its definition with specific monetary figures. See United States v. Brito, 136 F.3d 397, 407 (5^th Cir. 1998), cert. denied, 118 S.Ct. 1817 (1998).

When the government seeks the death penalty under 21 U.S.C. § 848(e), the Apprendi doctrine requires the submission of additional elements. Furthermore, the statutory definition of "law enforcement officer" may need to be included. See 21 U.S.C. § 848(e)(2).

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1997 Version:

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 1997

2.90 Continuing Criminal Enterprise

Title 21, United States Code, Section 848, makes it a crime for anyone to engage in a continuing criminal enterprise.

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 violated the Controlled Substances Act as charged in Counts _______ of the indictment;

Second: That such violations were part of a continuing series of violations, as hereinafter defined; 

Third: That the defendant obtained substantial income or resources from the series of violations; and

Fourth: That the defendant undertook such violations in concert with five or more other persons with respect to whom the defendant occupied a position of organizer, supervisor, or manager. The five other persons need not have acted at the same time or in concert with each other.

A "continuing series of violations" means at least three violations of the Controlled Substances Act as charged in Counts ___ of the indictment, and also requires a finding that those violations were connected together as a series of related or ongoing activities as distinguished from isolated and disconnected acts. In this case, a "continuing series" means at least three of the violations alleged in the _______ counts of the indictment.

The term "substantial income or resources" means income in money or property which is significant in size or amount as distinguished from some relatively insignificant, insubstantial, or trivial amount. The term "organizer, supervisor, or manager" means that the defendant was more than a fellow worker and that the defendant either organized or directed the activities of five or more other persons, whether or not the defendant was the only organizer or supervisor.

Note

The jury need not unanimously agree on the identity of the five participants. United States v. Broussard, 80 F3d 1025, 1038 (5th Cir.1996); United States v. Thomas 12 F3d 1350, 1366 n. 26 (5th Cir.1994), cert. denied, 511 US 1095, 114 S.Ct. 1861, 128 L.Ed.2d 483 (1994); United States v. Linn, 889 F2d 1369, 1374 (5th Cir. 1989), cert. denied, 498 US 809, 111 S.Ct. 43, 112 L.Ed.2d 19 (1990). Unanimity is perhaps required, however, on the three criminal predicate acts. United States v. Correa-Ventura, 6 F3d 1070, 1082 n. 20 (5th Cir.1993) (citing United States v. Echeverri, 854 F2d 638, 643 (3d Cir.1988)).

Predicate offenses, except for a drug conspiracy, are not lesser included offenses of the continuing criminal enterprise for the purposes of the Fifth Amendment's double jeopardy clause. United States v. Devine, 934 F2d 1325, 1344 (5th Cir.1991), cert. denied, 502 US 1065, 112 S.Ct. 954, 117 L.Ed.2d 121 (1992). A defendant may be indicted for conspiracy and CCE, but may not be sentenced on both charges. United States v. Tolliver, 61 F3d 1189, 1223 (5th Cir.1995), vacated on other grounds, ____ US____, 11 6 S.Ct. 900,133 L.Ed.2d 834 (1996), cert. denied, ____ US ____, 116 S.Ct. 969,133 L.Ed.2d 889 (1996).

The jury may conclude that the defendant managed at least five persons when the persons could be "considered either directly subordinate to [defendant] or indirectly subordinate through a [co-defendant]." Tolliver, 61 F3d at 1216.

Enhanced penalties such as life imprisonment and death require the submission of additional elements. 21 USC 848(a) and (e).

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 2001

2.91 Controlled Substances—
Manufacturing Operations

FORECITE National™ Materials Related To This Instruction:

88.9 Drugs, Controlled Substances: Manufacturing

See FORECITE National™ Federal Models By Offense: Controlled Substances—Establishment Of Manufacturing Operations (21 USC 856(a)(1))

Title 21, United States Code, Section 856(a)(1), makes it a crime for anyone to knowingly open or maintain any place for the purpose of manufacturing, distributing, or using any controlled substance.

___________ is a controlled substance within the meaning of this law.

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 knowingly opened [maintained] a place for the purpose of manufacturing [distributing] [using] a controlled substance.

"Maintaining" a place means that over a period of time, the defendant directed the activities of and the people in the place.

The government is not required to prove that the drug activity was the primary purpose of defendant's opening or maintaining a place, but instead must prove that drug activity was a significant reason why defendant opened or maintained the place.

The elements of § 856(a)(1) are discussed in United States v. Meshack, 225 F.3d 556, 571 (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); United States v. Morgan, 117 F.3d 849, 855 (5^th Cir. 1997), cert. denied, Jackson v. United States, 118 S.Ct. 454 (1997).

It is not required that drug distribution be the primary purpose of defendant's opening or maintaining his establishment, but only a significant purpose. Meshack, 225 F.3d at 571. The meaning of the phrase "the purpose" lies within the common understanding of jurors and needs no further definition. See United States v. Gibson, 55 F.3d 173, 181 (5^th Cir. 1995).

For a useful discussion of the meaning of "maintained," see Morgan, 117 F.3d at 855-58.

The Fifth Circuit has held that a deliberate ignorance instruction is inappropriate, and may constitute reversible error, if given in a section 856(a)(1) case. See United States v. Soto-Silva, 129 F.3d 340, 344 (5^th Cir. 1997); United States v. Chen, 913 F.2d 183, 190 (5th Cir. 1990).

For a useful discussion distinguishing the "purpose" requirement between §856(a)(1) and §856(a)(2), see United States v. Chen, 913 F.2d at 189-191.

In a prosecution under 21 U.S.C. § 856(a)(2), a separate offense is committed each day a narcotics facility is "made available." United States v. Cooper, 966 F.2d 936, 945 (5th Cir.), cert. denied, 113 S.Ct. 461 (1992).

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1997 Version:

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 1997

2.91 Controlled Substances— Establishment of
Manufacturing Operations

Title 21, United States Code, Section 856(a)(2), makes it a crime for anyone to manage or control any building, room, enclosure, either as an owner, lessee, agent, employee, or mortgagee, and rent, lease, or make available for use the building, room, or enclosure for the purpose of unlawfully manufacturing, storing, distributing, or using a controlled substance.

_______ is a controlled substance within the meaning of this law.

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 managed or controlled a building, room, or enclosure, either as an owner, lessee, agent, employee or mortgagee; and

Second: That the defendant knowingly and intentionally rented, leased, or made available for use, with or without compensation, the building, room, or enclosure, for the purpose of unlawfully manufacturing, storing, distributing, or using a controlled substance.

Note

The activity described by 21 USC 856(a)(2) constitutes a separate offense every day that it is committed. United States v. Cooper, 966 F2d 936, 942-44 (5th Cir.1992), cert. denied, 506 US 980, 113 S.Ct. 481, 121 L.Ed.2d 386 (1992).

If the evidence warrants, the following instruction may be given: The term "purpose" refers to the purpose of the parties who are renting, or otherwise using the property, not to the defendant-manager of the property. United States v. Chen, 913 F2d 183, 189-91 (5th Cir.1990).

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 2001

2.92 Controlled Substances -- Unlawful Importation

FORECITE National™ Materials Related To This Instruction:

Chapter 88: Drugs, Controlled Substances

See FORECITE National™ Federal Models By Offense: Controlled Substances (21 USC 952(a))

See FORECITE National™ Federal Models By Offense: Controlled Substances -- Unlawful Importation (21 USC 952(a) And 960(a)(1))

The fourth element, prompted by the Apprendi doctrine, is required when the indictment alleges a quantity that would result in an enhanced penalty under 21 U.S.C. §841(b). See United States v. Clinton, 2001 WL 721366 at *1-4 (5^th Cir. June 27, 2001); United States v. Slaughter, 238 F.3d 580, 583 (5^th Cir. 2000) (21 U.S.C. § 846); United States v. Keith, 230 F.3d 784, 786-87 (5^thCir. 2000) ( 21 U.S.C. § 841); United States v. Doggett, 230 F.3d 160, 164-65 (5^th Cir. 2000) ( 21 U.S.C. §§ 841 and 846). Generally, the exact quantity of the controlled substance need not be determined so long as the jury establishes a quantity at or above a given baseline amount in the appropriate subsection of § 960(b). For example, in a marijuana case, if the amount is determined to be at least 100 kilograms, the maximum sentence would be the same for any amount up to 999 kilograms. See United States v. DeLeon, 247 F.3d 593, 597 (5^th Cir. 2001) (holding that an indictment's allegation of a drug-quantity range, as opposed to a precise drug quantity, is sufficient to satisfy Apprendi and its progeny). However, if there is a fact dispute as to whether the amount is above or below a particular baseline (e.g., 100 kilograms of marijuana versus 99 kilograms), the court may consider submitting the higher amount in the fourth element, accompanied by a Lesser Included Offense instruction, No. 1.33, for the lower amount. Alternatively, the court may substitute for the fourth element a special interrogatory on the verdict form asking the jury to determine the exact amount of the controlled substance.

Although dealing with § 841 rather than §§ 952(a) and 960(b), the cases of United States v. Garcia, 242 F.3d 593, 599-600 (5^th Cir. 2001), and United States v. Thomas, 246 F.3d 438, 439 (5^thCir. 2001), are instructive in determining the default sentencing provision when the indictment fails to allege a drug quantity.

The elements of this offense are discussed in United States v. Moreno, 185 F.3d 465, 471 (5^thCir. 1999), cert. denied, 120 S.Ct. 835 (2000), and United States v. Medina, 161 F.3d 867, 873 (5^thCir. 1998), cert. denied, 526 U.S. 1043 (1999).

If the evidence warrants, the following instruction may be added: "The government must prove beyond a reasonable doubt that the defendant knew he was possessing a controlled substance, but need not prove that the defendant knew which particular controlled substance was involved." United States v. Cartwright, 6 F.3d 294, 303 (5^th Cir. 1993), cert. denied, 115 S.Ct. 671 (1994);United States v. Fragoso, 978 F.2d 896, 902 (5^th Cir. 1992), cert. denied, 113 S.Ct. 1664 (1993).

For a particular discussion of the third element, see United States v. Ojebode, 957 F.2d 1218, 1227 (5th Cir. 1992), cert. denied, 113 S.Ct. 1291 (1993) (indicating that so long as defendant knows he is bringing a controlled substance into the United States, it is not necessary to prove that defendant intended the United States to be the final destination of the substance).

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1997 Version:

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 1997

2.92 Controlled Substances -- Unlawful Importation

Title 21, United States Code, Sections 952(a) and 960(a)(1), make it a crime for anyone knowingly or intentionally to import a controlled substance.

_______ is a controlled substance within the meaning of this 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 intentionally brought a quantity of _______ into the United States from a place outside the United States;

Second: That the defendant knew the substance he was bringing into the United States was a controlled substance; and

Third: That the defendant knew that the substance would enter the United States.

Note

The elements of this offense are taken from United States v. Crooks, 83 F3d 103, 106 (5th Cir.1996), and United States v. Casilla, 20 F3d 600, 603 (5th Cir.1994), cert. denied, 513 US 892, 115 S.Ct. 240, 130 L.Ed.2d 163 (1994).

For a particular discussion of the third element, see United States v. Ojebode, 957 F2d 1218, 1227 (5th Cir.1992), cert. denied, 507 US 923, 113 S.Ct. 1291, 122 L.Ed.2d 683 (1993).

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 2001

2.93 Exporting Arms Without a License

22 USC 2778(c) and 22 CFR 127.1(a)

Title 22, United States Code, Section 2778, and Title 22, Code of Federal Regulations, Section 127.1(a), make it a crime for anyone willfully to export from the United States any defense article which appears on the United States Munitions List without first obtaining a license or written approval from the Department of State.

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 exported articles;

Second: That the articles were listed on the United States Munitions List at the time of export;

Third: That the defendant did so without obtaining a license [written approval] from the State Department; and

Fourth: That the defendant acted "willfully," that is, that the defendant knew such license [approval] was required for the export of these articles and intended to violate the law by exporting them without such license [approval].

The Fifth Circuit held in United States v. Davis, 583 F.2d 190 (5^th Cir. 1978), that the statute's requirement of willfulness connotes the voluntary, intentional violation of a known legal duty. See United States v. Covarrubias, 94 F.3d 172 (5th Cir. 1996); United States v. Hernandez, 662 F.2d 289 (5^th Cir. 1981). See also United States v. Ortiz-Loya, 777 F.2d 973, 980 (5^th Cir. 1985). Covarrubias is cited in United States v. Rodriguez, 132 F.3d 208 (5^th Cir. 1997), for the proposition that mere awareness of general illegality is insufficient to satisfy a knowledge-of-the-law requirement. The Committee recognizes that United States v. Bryan, 118 S.Ct. 1939 (1998), might not require the strict scienter of Rodriguez for offenses under the Firearms Owners' Protection Act, but recommends that Covarrubias be followed for offenses under 22 U.S.C. § 2278, as being a technical statute.

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1997 Version:

Formerly 2.94 Exporting Arms Without a License

Instruction unchanged.

The Fifth Circuit held in United States v. Davis, 583 F2d 190 (5th Cir.1978), that the statutes requirement of willfulness connotes the voluntary, intentional violation of a known legal duty. See United States v. Covarrubias , 94 F3d 172 (5th Cir.1996); United States v. Hernandez, 662 F2d 289 (5th Cir.1981). See also United States v. Ortiz-Loya, 777 F2d 973, 980 (5th Cir.1985).

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Deleted from 2001 Version:

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 1997

2.93 Controlled Substances--Manufacturing or
Distributing for Purposes of Importation

Title 21, United States Code, Section 959(a), makes it a crime for anyone to intentionally or knowingly manufacture or distribute a controlled substance for purposes of importation.

_______ is a controlled substance within the meaning of this 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 manufactured [distributed] a controlled substance outside the United States; and

Second: That the defendant intended that the controlled substance be brought into the United States or that the defendant knew that the controlled substance would be brought into the United States.

Note

In the appropriate case, the language, into the United States"can be replaced by "into waters within a distance of twelve miles of the coast of the United States."

The conduct proscribed by this statute falls under the jurisdiction of the United States even if the illegal activity occurs outside of the United States. United States v. Calcedo-Asprilla, 632 F2d 1161, 1166 (5th Cir.1980), cert. denied, 450 US 1000,101 S.Ct.1707, 68 L.Ed.2d 201 (1981).

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 2001

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Firearms–Possession Of Unregistered Firearms (26 USC 5861(d))

See FORECITE National™ Federal Models By Offense: Receiving Or Possessing Unregistered Firearms (26 USC 5861(d))

Title 26, United States Code, Section 5861(d), makes it a crime for anyone knowingly to possess certain kinds of unregistered firearms such as _______ [describe firearm in the indictment].

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;

Second: That this firearm was a _______ [describe firearm under § 5845, e.g. shotgun having a barrel of less than 18 inches in length];

Third: That the defendant knew of the characteristics of the firearm [describe, e.g., that it was a shotgun having a barrel of less than 18 inches in length];

Fourth: That this firearm was [could readily have been put] in operating condition; and

Fifth: That this firearm was not registered to the defendant in the National Firearms Registration and Transfer Record. It does not matter whether the defendant knew that the firearm was not registered or had to be registered.

Note

Firearms are defined by 26 U.S.C. § 5845. This instruction assumes that the defendant is charged with possession of a shotgun less than 18 inches in barrel length. Substitute other firearm characteristics as necessary.

Section 5861 requires no specific intent or knowledge that a firearm is unregistered. United States v. Freed, 91 S.Ct. 1112, 1117 (1971), reh'g denied, 91 S.Ct. 2201 (1971); United States v. Moschetta, 673 F.2d 96, 100 (5^th Cir. 1982).

The government must prove that the defendant knew of the features or characteristics of the firearm that are within the definition at 26 U.S.C. § 5845. Rogers v. United States, 118 S.Ct. 673 (1998); Staples v. United States, 114 S.Ct. 1793 (1994); United States v. Anderson, 885 F.2d 1248 (5^th Cir. 1989) (en banc) (reversing previous circuit law of United States v. Vasquez, 476 F.2d 730 (5^th Cir. 1973), cert. denied, 94 S.Ct. 181 (1973)). United States v. Reyna, 130 F.3d 104 (5^th Cir. 1997), cert. denied, 118 S.Ct. 1328 (1998), holds that the government is required to prove the defendant had knowledge of the characteristics of the firearm that violate the law.

See United States v. Hooker, 997 F.2d 67 (5^th Cir. 1993), for similar treatment of 18 U.S.C. § 922(k).

It is not an element that the firearm be registerable. United States v. Thomas, 15 F.3d 381 (5^th Cir. 1994), cert. denied, 115 S.Ct. 1798 (1995).

It is well-established that the government must prove that the firearm can be operated or readily restored to operating condition. See United States v. Woods, 560 F.2d 660, 664-65 (5^th Cir. 1977), cert. denied, 98 S.Ct. 1452 (1978).

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1997 Version:

Formerly 2.95 Receiving or Possessing Unregistered Firearms

Instruction unchanged.

Firearms are defined by 26 USC 5845. This instruction assumes that the defendant is charged with possession of a shotgun less than 18 inches in barrel length. Substitute other firearm characteristics as necessary.

Section 5861 requires no specific intent or knowledge that a firearm is unregistered. United States v. Freed, 401 US 601, 606, 91 S.Ct. 1112, 1117, 28 L.Ed.2d 356 (1971), rehearing denied, 403 US 912, 91 S.Ct. 2201, 29 L.Ed.2d 690 (1971); United States v. Moschetta, 673 F2d 96, 100 (5th Cir.1982).

The government must prove that the defendant knew of the features or characteristics of the firearm that are within the definition at 26 USC 5845. Staples v. United States, 511 US 600, 114 S.Ct. 1793, 128 L.Ed.2d 608 (1994); United States v. Anderson, 885 F2d 1248 (5th Cir.1989) (en banc) (reversing previous circuit law of United States v. Vasquez, 476 F2d 730 (5th Cir.1973), cert. denied, 414 US 836, 94 S.Ct. 181, 38 L.Ed.2d 72 (1973)).

It is necessary to instruct the jury that the defendant knew what he possessed. United States v. Mains, 33 F3d 1222, 1229 (10th Cir.1994); United States v. Starkes, 32 F3d 100, 101 (4th Cir.1994); United States v. Edwards, 90 F3d 199 (7th Cir.1996). United States v. Barr, 32 F3d 1320, 1323-24 (8th Cir.1994), holds that the government is not required to prove that the defendant knew that the weapon (in that case a sawed-off shotgun) was a "firearm" as specifically defined in the National Firearms Act where the characteristics of the weapon itself render it "quasi-suspect . "

See United States v. Hooker, 997 F2d 67 (5th Cir.1993), for similar treatment of 18 USC 922(k).

It is not an element that the firearm be registerable. United States v. Thomas, 15 F3d 381 (5th Cir.1994), cert. denied, ____ US ____, 115 S.Ct. 1798, 131 L.Ed.2d 725 (1995).

It is well-established that the government must prove that the firearm can be operated or readily restored to operating condition. See United States v. Woods, 560 F2d 660, 664-65 (5th Cir.1977), cert. denied, 435 US 906, 98 S.Ct. 1452, 55 L.Ed.2d 497 (1978).

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 2001

2.95 Tax Evasion

FORECITE National™ Materials Related To This Instruction:

98.3 Tax Evasion

See FORECITE National™ Federal Models By Offense: Income Tax Evasion (26 USC 7201)

Title 26, United States Code, Section 7201, makes it a crime for anyone willfully to attempt to evade or defeat the payment of federal income tax.

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 owed substantially more tax than he reported on his ____ [year] income tax return because he _______ [e.g., intentionally failed to report income];

Second: That when the defendant filed that income tax return he knew that he owed substantially more taxes to the government than he reported on that return; and

Third: That when the defendant filed his ____ [year] income tax return, he did so with the purpose of evading payment of taxes to the government.

The proof need not show the precise amount or all of the additional tax due as alleged in the indictment, but the government must prove beyond a reasonable doubt that the defendant attempted to evade or defeat payment of some substantial portion of the additional tax he knew he was required by law to pay.

The government must allege and prove an affirmative act and cannot rely upon a failure to act or failure to file a tax return, even if that failure was willful. Spies v. United States, 63 S.Ct. 364 (1943); United States v. Masat, 896 F.2d 88 (5^th Cir. 1990), cert. denied, 113 S.Ct. 108 (1992). This pattern charge deals with the most common § 7201 charge, involving an attempt that consists of the affirmative act of filing a false return. When the act element is alleged to be something other than filing a false return, the instruction must be adapted accordingly to make clear to the jury that merely failing to perform a duty under the tax laws is not an attempt to evade. Id.

Section 7201 requires willfulness. A willful violation of § 7201 has been defined as the voluntary, intentional violation of a known legal duty. Cheek v. United States, 111 S.Ct. 604, 610 (1991). The instruction defines the term as it is used in the context of tax offenses. United States v. Pomponio, 97 S.Ct. 22, 23 (1976); United States v. Burton, 737 F.2d 439 (5^th Cir. 1984).

If a defendant has a good faith belief that he is not liable for a tax, he does not act willfully, even if his belief is objectively unreasonable. Cheek v. United States, supra; United States v. Wisenbaker, 14 F.3d 1022, 1025 (5^th Cir.1994). It is improper for the court to instruct the jury that a defendant's misunderstanding or unreasonable belief is not a defense. Cheek v. United States, supra; United States v. Burton, supra.

The government may need to detail its theory of proof, and the jury must be instructed on it, at least where a net worth theory is employed. Holland v. United States, 75 S.Ct. 127, 132 (1954);Dupree v. United States, 218 F.2d 781 (5th Cir.1955) reh'g denied, 220 F.2d 748 (5th Cir. 1955) (per curiam).

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1997 Version:

Formerly 2.96 Tax Evasion

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 1997

2.96 Tax Evasion

Title 26, United States Code, Section 7201, makes it a crime for anyone willfully to attempt to evade or defeat the payment of federal income tax.

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 owed substantially more tax than he reported on his 19__ income tax return because he _______ [e.g., intentionally failed to report income];

Second: That when the defendant filed that income tax return he knew that he owed substantially more taxes to the government than he reported on that return; and

Third: That when the defendant filed his 19__ income tax return, he did so with the purpose of evading payment of taxes to the government.

The proof need not show the precise amount or all of the additional tax due as alleged in the indictment, but the government must prove beyond a reasonable doubt that the defendant attempted to evade or defeat payment of some substantial portion of the additional tax he knew he was required by law to pay.

Note

The government must allege and prove an affirmative act and cannot rely upon a failure to act or failure to file a tax return even if that failure was willful. Spies v. United States, 317 US 492, 63 S.Ct. 364, 87 L.Ed. 418 (1943); United States v. Masat 896 F2d 88 (5^th Cir. 1990), cert. denied, 506 US 835, 113 S.Ct. 108, 121 L.Ed.2d 66 (1992). This pattern charge deals with the most common § 7201 charge, involving an attempt that consists of the affirmative act of filing a false return. When the act element is alleged to be something other than filing a false return, the instruction must be adapted accordingly to make clear to the jury that merely failing to perform a duty under the tax laws is not an attempt to evade it. Id.

Section 7201 requires willfulness. A willful violation of § 7201 has been defined as the voluntary, intentional violation of a known legal duty. Cheek v. United States, 498 US 192, 200, 111 S.Ct. 604, 610, 112 L.Ed.2d 617 (1991). The instruction defines the term as it is used in the context of tax offenses. United States v. Pomponio, 429 US 10, 10, 97 S.Ct. 22, 23, 50 L.Ed.2d 12 (1976); United States v. Burton, 737 F2d 439 (5^th Cir. 1984).

If a defendant has a good faith belief that he is not liable for a tax, he does not act willfully, even if his belief is objectively unreasonable. Cheek v. United States, supra; United States v. Wisenbaker, 14 F3d 1022, 1025 (5th Cir. 1994). It is improper for the court to instruct the jury that a defendant’s misunderstanding or unreasonable belief is not a defense. Cheek v. United States, supra; United states v. Burton, supra.

The government may need to detail its theory of proof, and the jury must be instructed on it, at least where a net worth theory is employed. Holland v. United States 348 US 121, 128, 75 S.Ct. 127, 132, 99 L.Ed. 150 (1954); Dupree v. United States, 218 F2d 781 (5^th Cir. 1955) rehearing denied, 220 F2d 748 (5^th Cir. 1955) (per curiam).

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 2001

2.96 False Statements on Income Tax Return

FORECITE National™ Materials Related To This Instruction:

98.3 Tax Evasion

See FORECITE National™ Federal Models By Offense: Failure To File A Tax Return (26 USC 7203)

Title 26, United States Code, Section 7206(1), makes it a crime for anyone willfully to make a false material statement on an income tax return.

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 signed an income tax return that contained a written declaration that it was made under penalties of perjury;

Second: That in this return the defendant falsely stated that _____ [state material matters asserted, e.g., the defendant received gross income of $_____ during the year____];

Third: That the defendant knew the statement was false;

Fourth: That the false statement was material; and

Fifth: That the defendant made the statement willfully, that is, with intent to violate a known legal duty.

A statement is "material" if it has a natural tendency to influence, or is capable of influencing, the Internal Revenue Service in investigating or auditing a tax return or in verifying or monitoring the reporting of income by a taxpayer.

Note

The elements of this offense are discussed in United States v. Mann, 161 F.3d 840, 848 (5^thCir. 1998), cert. denied, 119 S.Ct. 1766 (1999). If the indictment involves a statement or document other than an income tax return, then tailor the instruction accordingly.

Where the indictment charges the defendant with a material omission, the second element must be modified to show what the return failed to state.

The definition of "material" is discussed in Neder v. United States, 119 S.Ct. 1827, 1837 (1999). In Neder, the Supreme Court held that materiality is an essential element of this crime and that the defendant has a constitutional right to have that issue submitted to the jury. Neder, 119 S.Ct. at 1833, 1837.

Willfulness, as it relates to tax offenses, is defined as the intentional violation of a known legal duty. Cheek v. United States, 111 S.Ct. 604, 610 (1991); United States v. Charroux, 3 F.3d 827, 831 (5^th Cir. 1993).

Under certain circumstances reliance on a qualified tax preparer is an affirmative defense to a charge of willful filing of a false tax return. United States v. Charroux, 3 F.3d 827, 831 (5^th Cir. 1993); United States v. Wilson, 887 F.2d 69, 73 (5^th Cir. 1989). See also United States v. Masat, 948 F.2d 923, 930 (5^th Cir. 1991), cert. denied, 113 S.Ct. 108 (1992) (to establish reliance as a defense, defendant must show that (1) he relied in good faith on a professional and (2) he made complete disclosures of all the relevant facts).

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1997 Version:

Formerly 2.97 False Statements on Income Tax Return

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 1997

2.97 False Statements on Income Tax Return

Title 26, United States Code, Section 7206(1), makes it a crime for anyone willfully to make a false material statement on an income tax return.

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 signed an income tax return that contained a written declaration that it was made under penalties of perjury;

Second: That in this return the defendant falsely stated that _______ [state material matters asserted, e.g., the defendant received gross income of $_______ during 19__];

Third: That the defendant knew the statement was false;

Fourth: That the false statement was material; and

Fifth: That the defendant made the statement willfully, that is, with intent to violate a known legal duty.

A statement is "material" if it has a natural tendency to influence, or is capable of influencing, the Internal Revenue Service in investigating or auditing a tax return or in verifying or monitoring the reporting of income by a taxpayer.

Note

If the indictment involves a statement or document other than an income tax return, then tailor the instruction accordingly.

Where the indictment charges the defendant with a material omission, the second element must be modified to show what the return failed to state.

The definition of "material" is from United States v. Gaudin, ___US____, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995). In Gaudin, the Supreme Court held that when materiality is an essential element in a criminal prosecution, the defendant has a constitutional right to have that issue submitted to the jury. Id. at 2314, 2320.

The Fifth Circuit, en banc, indicated that failure to instruct the jury on materiality in a prosecution under this section was incorrect, although moot because of the defendant's acquittal. United States v. McGuire, 99 F3d 671 (5th Cir.1996) (per curiam). Our pattern instruction recommends that the issue of materiality be separately submitted as an element and that materiality be defined.

Willfulness, as it relates to tax offenses, is defined as the intentional violation of a known legal duty. United States v. Charroux, 3 F3d 827, 831 (5th Cir.1993).

Under certain circumstances reliance on a qualified tax preparer is an affirmative defense to a charge of willful filing of a false tax return. United States v. Charroux, 3 F3d 827, 831 (5th Cir.1993); United States v. Wilson, 887 F2d 69, 73 (5th Cir.1989). See also United States v. Masat, 948 F2d 923, 930 (5th Cir.1991), cert. denied, 506 US 835, 113 S.Ct. 108, 121 L.Ed.2d 66 (1992) (to establish reliance as a defense, defendant must show that (1) he relied in good faith on a professional and (2) he made complete disclosures of all the relevant facts).

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 2001

2.97 Aiding or Assisting in Preparation of
False Documents under Internal Revenue Laws

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Aiding Or Assisting In Preparation Of False Documents Under Internal Revenue Laws (26 USC 7206(2))

Title 26, United States Code, Section 7206(2), makes it a crime for anyone willfully to aid or assist in the preparation under the internal revenue laws of a document which is false or fraudulent as to any material matter.

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 aided in [assisted in] [procured] [counseled] [advised] the preparation [presentation] of a return [an affidavit] [a claim] arising under [in connection with any matter arising under] the internal revenue laws;

Second: That this return [affidavit] [claim] falsely stated that _____ [state material matters asserted, e.g., _____ received gross income of $______ during the year _____];

Third: That the defendant knew that the statement in the return [affidavit] [claim] was false;

Fourth: That the false statement was material; and

Fifth: That the defendant aided in [assisted in] [procured] [counseled] [advised] the preparation [presentation] of this false statement willfully, that is, with intent to violate a known legal duty.

It is not necessary that the government prove that the falsity or fraud was with the knowledge or consent of the person authorized or required to present such return [claim] [affidavit] [document].

A statement is "material" if it has a natural tendency to influence, or is capable of influencing, the Internal Revenue Service in investigating or auditing a tax return or in verifying or monitoring the reporting of income by a taxpayer.

Note

See note to False Statements On Income Tax Return, Instruction No. 2.96.

The elements of this offense are discussed in United States v. Clark, 139 F.3d 485, 489 (5^thCir.), cert. denied, 119 S.Ct. 227 (1998).

Where the indictment charges the defendant with a material omission, the second element must be modified to show what the return failed to state.

A person need not actually sign or prepare a tax return to aid in its preparation. United States v. Coveney, 995 F.2d 578, 588 (5^th Cir. 1993). In United States v. Bryan, 896 F.2d 68 (5^th Cir. 1990),cert. denied, 111 S.Ct. 76 (1990), the Fifth Circuit held that the following conduct in promoting fraudulent tax shelters was sufficient to support the defendants' convictions: speaking at seminars to generate clients for the scheme, participating in the decision to create an offshore corporation for the clients and discussing how to avoid discovery, and discussing various methods to secretly return offshore gains to clients.

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1997 Version:

Formerly 2.98 Aiding or Assisting in Preparation of False Documents under Internal Revenue Laws.

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 1997

2.98 Aiding or Assisting in Preparation of
False Documents under Internal Revenue Laws

Title 26, United States Code, Section 7206(2), makes it a crime for anyone willfully to aid or assist in the preparation under the internal revenue laws of a document which is false or fraudulent as to any material matter.

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 aided in [assisted in] [procured] [counseled] [advised] the preparation [presentation] of a return [an affidavit] [a claim] arising under [in connection with any matter arising under] the internal revenue laws;

Second: That this return [affidavit] [claim] falsely stated that _______ [state material matters asserted, e.g., _______ received gross income of $_______ during 19__];

Third: That the defendant knew that the statement in the return [affidavit] [claim] was false;

Fourth: That the false statement was material; and

Fifth: That the defendant aided in [assisted in] [procured] [counseled] [advised] the preparation [presentation] of this false statement willfully, that is, with intent to violate a known legal duty.

It is not necessary that the government prove that the falsity or fraud was with the knowledge or consent of the person authorized or required to present such return [claim] [affidavit] [document].

A statement is "material" if it has a natural tendency to influence, or is capable of influencing, the Internal Revenue Service in investigating or auditing a tax return or in verifying or monitoring the reporting of income by a taxpayer.

Note

Where the indictment charges the defendant with a material omission, the second element must be modified to show what the return failed to state.

See note to 26 USC 7206(l).

A person need not actually sign or prepare a tax return to aid in its preparation. United States v. Coveney, 995 F2d 578, 589 (5th Cir.1993). In United States v. Bryan, 896 F2d 68 (5th Cir.1990), cert. denied, 498 US 824, 111 S.Ct. 76, 112 L.Ed.2d 49 (1990), the Fifth Circuit held that the following conduct in promoting fraudulent tax shelters was sufficient to support the defendants' convictions: speaking at seminars to generate clients for the scheme, participating in the decision to create an offshore corporation for the clients and discussing how to avoid discovery, and discussing various methods to secretly return offshore gains to-clients.

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 2001

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Reports On Exporting And Importing Monetary Instruments (31 USC 5316(a)(1))

Title 31, United States Code, Section 5316(a)(1), makes it a crime for anyone intentionally to fail to report the exporting [importing] of monetary instruments of more than $10,000 at one 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 knowingly transported [was about to transport] more than $10,000 in _______ [describe the alleged monetary instrument; e.g., currency] at one time from a place in the United States to or through a place outside the United States [to a place in the United States from or through a place outside the United States];

Second: That the defendant knew that he had a legal duty to file a report of the amount of currency transported; and

Third: That the defendant knowingly failed to file the report, with intent to violate the law.

[Fourth: That the defendant willfully violated this law while violating another law of the United States, specifically _______________________________ (describe the law mentioned in the indictment) [as part of a pattern of illegal activity involving more than $100,000 in a 12-month period].]

Note

The fourth element, prompted by the Apprendi doctrine, is required when the indictment alleges facts which would result in an enhanced penalty under 31 U.S.C. § 5322.

To convict under this statute, the government must prove that "the defendant had actual knowledge of the currency reporting requirement and voluntarily and intentionally violated that known legal duty." United States v. O'Banion, 943 F.2d 1422, 1426-27 (5^th Cir. 1991) (citations omitted).

This offense can be committed through structuring. See 31 U.S.C. § 5324(b). Instruction No. 2.99, Structuring Transactions to Evade Reporting Requirements, must then be adjusted accordingly.

Use definitions in 31 U.S.C. § 5312 if needed in a particular case.

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1997 Version:

Formerly 2.99 Reports on Exporting and Importing Monetary Instruments.

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 1997

Title 31, United States Code, Section 5316(a)(1), makes it a crime for anyone intentionally to fail to report the exporting [importing] of monetary instruments of more than $10,000 at one 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 knowingly transported [was about to transport] more than $10,000 in _______ [describe the alleged monetary instrument; e.g., currency] at one time from a place in the United States to or through a place outside the United States [to a place in the United States from or through a place outside the United States];

Second: That the defendant knew that he had a legal duty to file a report of the amount of currency transported; and

Third: That the defendant knowingly failed to file the report, with intent to violate the law.

Note

To convict under this statute, the government must prove that "the defendant had actual knowledge of the currency reporting requirement and voluntarily and intentionally violated that known legal duty." United States v. O'Banion, 943 F2d 1422, 1426-27 (5th Cir.1991) (citations omitted).

This offense can be committed through structuring. See 31 USC 5324(b). The charge on Structuring Transactions to Evade Reporting Requirements must then be adjusted accordingly

Use definitions in 31 USC 5312 if needed in a particular case.

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 2001

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Structuring Transactions To Evade Reporting Requirements (31 USC 5324(a)(3))

The fourth element, prompted by the Apprendi doctrine, is required when the indictment alleges facts which would result in an enhanced penalty under 31 U.S.C. § 5324(c).

This instruction is based on a charge of structuring to avoid the requirements of 31 U.S.C. § 5313(a). The structuring statute can also be used with other reporting statutes, e.g., §§ 5325 and 5316, and these instructions would have to be adjusted accordingly.

Ratzlaf v. United States, 114 S.Ct. 655, 657-58 (1994), which held that the defendant must act "willfully," was effectively overruled by subsequent legislation adding § 5324(c), thereby making it unnecessary to refer to § 5322 for enforcement of the statute. The new § 5324(c), unlike § 5322, does not require that the defendant act "willfully." See Money Laundering Suppression Act of 1994, Pub. L. No. 103-325, § 411, 108 Stat. 2253 (1994).

If the case involves monetary instruments other than currency, substitute appropriate term. See definition of "monetary instruments" and other pertinent definitions in 31 U.S.C. § 5312.

If the evidence is that the bank filed the CTR as required, then the judge may want to tell the jury that the defendant may be found guilty of this offense even if the bank properly filed the CTR.

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1997 Version:

Formerly 2.100 Structuring Transactions to Evade Reporting Requirements.

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 1997

This instruction is based on a charge of structuring to avoid the requirements of 31 USC 5313(a). The structuring statute can also be used with other reporting statutes, e.g., §§ 5325 and 5316, and these instructions would have to be adjusted accordingly.

Ratzlaf v. United States, 510 US 135, 136-38, 114 S.Ct. 655, 657-58, 126 L.Ed.2d 615 (1994), which held that the defendant must act "willfully," was effectively overruled by subsequent legislation adding § 5324(c), thereby making it unnecessary to refer to § 5322 for enforcement of the statute. The new § 5324(c), unlike § 5322, does not require that the defendant act "willfully." See Money Laundering Suppression Act of 1994, Pub. L. No. 103-325, § 411, 108 Stat. 2253 (1994).

If the case involves monetary instruments other than currency, substitute appropriate term. See definition of "monetary instruments" and other pertinent definitions in 31 USC 5312.

If the evidence is that the bank filed the CTR as required, then the judge may want to tell the jury that the defendant may be found guilty of this offense even if the bank properly filed the CTR.