7^th CIRCUIT FEDERAL INSTRUCTIONS 1999
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Elements Of Offense--Single Offense Cases

        4.01     Elements Of Offense--Single Offense Cases
        4.02     Issues In The Case And Burden Of Proof In Case Involving Defense Of Insanity
        4.03     Unanimity On Specific Acts
        4.04     Date Of Crime Charged
        4.05     Separate Consideration For Each Defendant
        4.06     "Knowingly"--Definition
        4.07     Attempt
        4.08     Specific Intent--General Intent
        4.09     Definition Of Willfully

7^th CIRCUIT FEDERAL INSTRUCTIONS 1999

Whenever self-defense, entrapment, coercion or other substantive or affirmative defenses are properly part of the case, the definition of that defense should be given immediately after this instruction.

In cases involving the defense of insanity, Instruction 4.02 should be given instead of this instruction.

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256.4 Insanity

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Chapter 273 Jury Unanimity As To The Act Or Offense Committed (Duplicity).

[Each count of] [Count __ of] The indictment alleges that the defendant[s] committed certain specific acts. [For any count on which the government seeks conviction] The government need not prove that each and every specific alleged act was committed by the [a] defendant. However, the government must prove that [a] defendant committed at least one of the specific acts which are alleged [in that count]. In order to find that the government has proved the [a] defendant committed a specific act, the jury must unanimously agree on which specific act that defendant committed.

For example, if some of you find defendant [insert example from indictment] and the rest of you find defendant [insert different example], then there is no unanimous agreement on which act has been proved. On the other hand, if all jurors find defendant [insert example from indictment], then there is unanimous agreement.

This instruction explains the necessity for unanimity and the nature of unanimity when the government alleges multiple acts but need prove only one. It is commonly required in tax prosecutions. An altered version of this instruction must be given in substantive RICO prosecutions where two acts must be proved and the jury must agree unanimously on which two acts the defendant has committed.

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40.1 Date Of Crime Charged: Due Process Violation Where Defendant Was Misled By Date Charged In Preparing Defense

40.2 Time And Date Of Crime: Variance Between Pleading And Proof

40.3 Time of Crime: Request For Continuance Necessary To Preserve Variance Issue

The indictment charges that the offense was committed "on or about" ___________. The government must prove that the offense happened reasonably close to that date but is not required to prove that the alleged offense happened on that exact date.

This instruction is unnecessary in the average case where no discrepancy exists between the date charged in the indictment and the date suggested by the evidence at trial.

Where such a discrepancy exists, this instruction may be given if the date suggested by the evidence falls within the applicable statute of limitations, Ledbetter v. United States, 170 U.S. 606, 612 (1898); United States v. Leibowitz, 857 F.2d 373, 378 (7th Cir. 1988), cert. denied, 489 U.S. 1088 (1989). "On or about" as part of the indictment makes a date reasonably near the date in the indictment sufficient, and only a material variance will cause the government’s case to fail. United States v. Leibowitz, 857 F.2d 373, 378 (7th Cir. 1988), cert. denied, 489 U.S. 1088 (1989). There are two possible exceptions to this rule:

1. where the date charged is an essential element of the offense and the defendant was misled by such date in preparing a defense, United States v. Bourque, 541 F.2d 290, 293-96 (1st Cir. 1976), United States v. Cina, 699 F.2d 853, 859 (7th Cir.), cert. denied, 464 U.S. 991 (1983).

2. where the defendant asserts an alibi defense for the specific date(s) charged, United States v. Leibowitz, 857 F.2d 373, 378-79 (7th Cir. 1988), cert. denied, 489 U.S. 1088 (1989).

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19.1.2 Multiple Defendants: Separate Consideration Of Multiple Defendants (see Deliberations)

In cases involving more than one count, it will be necessary for the court to instruct both as to the separate consideration for each defendant and also with regard to separate consideration of charges. Proper joinder and charging are assumed. The instruction was drafted to inform jurors of their imperative duty to consider each charge against each defendant separately. The Committee recognizes that problems may arise where two and only two co- conspirators are charged in the same indictment. Although conviction of one and acquittal of one may be inappropriate, it is believed that the separate consideration of the guilt or innocence of each defendant is paramount no matter what constraints may exist with regard to the results.

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Chapter 47: Knowledge

This instruction has been approved on many occasions by the Seventh Circuit. United States v. Hauert, 40 F.3d 197, 203 (7th Cir. 1994), cert. denied, 115 S.Ct. 1822 (1995)(ruling that the older "ostrich" instruction is not error, but not preferred); United States v. Ramsey, 785 F.2d 184, 190 (7th Cir.), cert. denied, 476 U.S. 1186 (1986); United States v. Arambasich, 597 F.2d 609, 612 (7th Cir. 1979); United States v. Gabriel, 597 F.2d 95, 100 (7th Cir.), cert. denied, 444 U.S. 858 (1979). The initial sentence in brackets is optional and probably only applicable in a case based in large part on circumstantial evidence.

An instruction or combination of instructions which give the jury the impression that negligence will support a verdict of guilty is improper. See United States v Thompson-Hayward Chem. Co., 446 F.2d 583 (8th Cir. 1971).

This instruction should not be interpreted to mean that the defendant must necessarily know that his conduct violated federal law. For some federal offenses, a defendant's knowledge that his conduct affects the federal government or its agents is unnecessary. For examples, see United States v. Stanford, 589 F.2d 285 (7th Cir. 1978), cert. denied, 440 U.S. 983 (1979) (fraudulent statements need not be accompanied by knowledge that the statements were made to welfare agencies funded by federal monies); United States v. Yermian, 468 U.S. 63, 67-70 (1984) (fraudulent statements need not be accompanied by knowledge that they were made concerning a matter within federal agency jurisdiction); United States v. Dick, 744 F.2d 546, 553 (7th Cir. 1984) ("Proof of knowledge that federal funds were involved is not required"); United States v. Feola, 420 U.S. 671, 676-86 (1975) (statute punishing assaults on federal officers does not require knowledge that the person assaulted is a federal officer); United States v. Crutchley, 502 F.2d 1195 (3d Cir. 1974)(knowledge that property belonged to federal government is not required). The issue is essentially one of statutory construction. See United States v, Bailey, 444 U.S. 394 (1980)(quoting Model Penal Code § 2,02, comment (Tent. Draft No. 4, 1955))("clear analysis requires that the question of the kind of culpability required to establish the commission of an offense be faced separately with respect to each material element of the crime"). Where knowledge by the defendant that is conduct does affect the federal government is required, this must be specifically explained in Instruction 4.01 -- "Issues in the Case and Burden of Proof".

The second paragraph is derived from the suggested instruction set forth in United States v. Ramsey, 785 F.2d 184, 190 (7th Cir. 1986). See also United States v. Giovannetti, 919 F.2d 1223 (7th Cir. 1990); United States v. Nobles, 69 F.3d 172 (7th Cir. 1995); United States v. Gonzalez, 933 F.2d 417 (7th Cir. 1991). As for the final bracketed sentence, see United States v. Draves, 103 F.3d 1328 (7th Cir. 1997).

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Chapter 66: Attempt

If the defendant is charged with attempting a particular offense, an additional element must be added to the "elements" instruction for that offense. See United States v. Cea, 914 F.2d 881 (7th Cir. 1990).

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The Committee recommends avoiding instructions that distinguish between "specific intent" and "general intent". In place thereof the Committee recommends that instructions be given which define the precise mental state required by the particular offense charged. [FNa1] Accordingly, district judges should determine the requisite mental state as to each element of the charged offense and instruct thereon.

Traditionally, courts have distinguished between "specific intent" and "general intent". The stock "specific intent" instruction reads: The crime charged in this case requires proof of specific intent before the defendant can be convicted. Specific intent, as the term implies, means more than the general intent to commit the act. To establish specific intent the government must prove that the defendant knowingly did an act which the law forbids (or knowingly failed to do an act which the law requires), purposely intending to violate the law. Such intent may be determined from all the facts and circumstances surrounding the case (and from similar prior crimes and transactions). W. LaBuy, Jury Instructions in Federal Criminal Cases s 4.04, reprinted in 33 F.R.D. 550. See also E. Devitt & C. Blackmar, Federal Jury Practice and Instructions s 14.03 (3d ed. 1977).

Conversely, "general intent" generally is defined as follows: In determining defendant's intention the law assumes that every person intends the natural consequences of his voluntary acts (or omissions). Therefore, the general intent required to be proved as an element of the crime is inferred from defendant's voluntary commission of the act forbidden by law (or his omission of the duty required by law), and it is not necessary to establish that defendant knew that his act (or omission) was a violation of law. LaBuy, supra at s 4.03 reprinted in 33 F.R.D.549. Distinctions between "specific" and "general" intent more than likely confuse rather than enlighten juries. See United States v. Bailey, 100 S.Ct. 624, 629-636 (1980); United States v. Manganellis, 864 F.2d 528, 533-39 (7th Cir. 1988) (elaborate discussion of whether statute called for "specific" or "general" intent). For example, to speak of a defendant's "purpose" or to use the phrase "purposely intending to violate the law" requires a jury to find that a defendant knew his act violated the law. Ordinarily, that is not an essential element of the offense. See United States v. Brighton Building & Maintenance Co., 598 F.2d 1101, 1105 (7th Cir.), cert. denied, 100 S.Ct. 79 & 80 (1979) (criminal antitrust prosecution: "Defendants [are] not entitled to an instruction which [includes] the ... phrase [that the defendant knowingly did an act which the law forbids, purposely intending to violate the law]. 'A requirement of proof not only of this knowledge of likely effects, but also of a conscious desire to bring them to fruition or to violate the law would seem, particularly in such a context, both unnecessarily cumulative and unduly burdensome'"). Similarly, to state that "general intent" is an element of the offense inadequately and erroneously directs the jury on the issue of intent. Thus the stock instructions should be avoided.

The Seventh Circuit Court of Appeals commented on the issue in United States v. Arambasich, 597 F.2d 609 (7th Cir. 1979). There defendant appealed from convictions under the Hobbs Act for extortion and conspiracy to extort. At trial, defendant tendered a stock specific intent instruction which the district court refused. Instead the trial court defined the requisite intent as the intent to obtain something which the defendant knew he was not entitled to receive with knowledge that it was the product of fear of economic harm. On appeal, the court affirmed the convictions, stating:

We are inclined to agree with the district judge in the case at bar that the labels "specific intent" and "general intent," which are emphasized in the stock instructions he refused to give, and the distinction the instructions attempt to make between these categories of intent, are not enlightening to juries. More specific and therefore more comprehensible information is conveyed by stating the precise mental state required for the particular crime. . . .

In the case at bar that mental state consisted of an intent to obtain money from contractors with the knowledge that it was paid because they feared economic harm and that the defendant was not entitled to receive it. . . .

It is unnecessary to use the term "specific intent" or to give any particular form of

instruction. The stock "specific intent" instructions tendered by [defendant] are based on decided cases and have been approved in countless others. Yet they illustrate, if not the "variety" or "disparity," the "confusion of [judicial] definitions of the requisite but elusive mental element" . . . . It is not very helpful to speak of a defendant*s "purpose" to violate the law, as do these stock instructions. Use of the phrase "purposely intending to violate the law" may be erroneously interpreted by jurors, for example, to require that the defendant know his act violates a criminal statute, which is ordinarily unnecessary. . . .

Giving one of the stock instructions may therefore not only confuse but mislead the jury to

the prejudice of the prosecution. A trial judge is accordingly justified in refusing to give it, if he adequately instructs on the requisite mental state by other means.

United States v. Arambasich, 597 F.2d at 611-613 (citations omitted). See also United States v. Perez, 43 F.3d 1131, 1135 (7th Cir. 1994) (use of "specific" not required for assault with intent to commit murder); United States v. Valencia, 907 F.2d 671, 682 (7th Cir. 1990)(acceptable if "the instructions as a whole informed the jury of the mental state the prosecution was required to prove beyond a reasonable doubt in order to secure a conviction."); and W. LaFave & Scott, Criminal Law § 28 at 202 (1972); Model Penal Code § 2.02, comment (Tent. Draft No. 4, 1955). Instructions which attempt to define "general intent" may not only be misleading, but in some cases unconstitutional as well. In Sandstrom v. Montana, 442 U.S. 510 (1979), the Court held unconstitutional an instruction ordinary consequences of his voluntary acts" because: a reasonable jury could well have interpreted the presumption as "conclusive," that is, not technically as a presumption at all, but rather as an irrebuttable direction by the court to find intent once convinced of the facts triggering the presumption. Alternatively, the jury stating that "the law presumes that a person intends they may have interpreted the instruction as a direction to find intent upon proof of the defendant*s voluntary actions (and their "ordinary" consequences), unless the defendant proved the contrary by some quantum of proof which may well have been considerably greater than "some" evidence -- thus effectively shifting the burden of persuasion on the element of intent. Id. at 517 (emphasis in original). See also United States v. Waldemer, 50 F.3d 1379, 1386 (7^th Cir.), cert. denied, 115 S.Ct.. 2598 (1995).

The stock "specific" and "general intent" instructions should be avoided in favor of instructions that precisely define the requisite mental state of the particular crime charged: e.g., Hobbs Act Extortion, 18 USC 1951 (intent to obtain something from another which the defendant knows he is not entitled to receive with knowledge that it is the product of actual or

threatened force, violence, fear or the defendant's office); Obstruction of Justice, Influencing or Injuring an Officer, Juror or Witness, 18 USC 1503 (intent to influence, intimidate, impede or injure); Bribery of Public Officials and Witnesses, 18 USC 201 (intent to influence); Conspiracy Against Rights of Citizens, 18 USC 241 (intent to injure, threaten, or intimidate any citizen in the free exercise of any right); Mail Fraud, 18 USC 1341 (intent to defraud); False Bank Entry, 18 USC 1005 (intent to injure or defraud a bank).

In certain instances, further elucidation of the particular intent described in a particular statute should be given. For example, "intent to defraud" frequently describes the mental state pursuant to which the defendant must act in order to be found guilty. In those instances where "intent to defraud" is an essential element of the charged offense, it should be defined in a manner tailoring it to the allegations of the indictment and the evidence adduced at trial. For example, in a mail fraud prosecution charging a scheme to defraud public bodies, the substantial terms of which included obtaining money by submitting collusive and rigged bids on public projects, the requisite intent to defraud might be described as "knowingly doing an act, with intent to deceive the public bodies out of their right to free and open competition in order to cause financial loss to them or a financial gain to defendants and others." See generally W. LaBuy, Jury Instructions in Federal Criminal Cases § 4.07, reprinted in 33 F.R.D. 555.

In addition to any instruction describing the requisite intent, the issues instruction must include the mental state as an essential element to be proved beyond a reasonable doubt.

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Chapter 46: Willfulness

The Committee recommends that an instruction defining the word "willfully" not be given unless the word is in the statute defining the offense being tried. It should be noted that the word "willfully" is frequently included in the indictment even though not required by statute, and this practice should be discouraged. United States v. Valencia, 907 F.2d 671, 683 (7th Cir. 1990) lays down the Seventh Circuit rules for when to define "willfully" for the jury:

First, as we have noted, the term "willful" does not appear in the statute that defines Mr. Martinez* charged offense. Thus, in general, the term need not be defined in the jury instructions . . . . Second, as we have stated earlier, the elements instructions given at the beginning of the jury charge, supra p. 681, adequately stated the mental state that the prosecution had tp prove in order to secure a conviction . Third, we conclude that the evidence that Mr. Martinez did act willfully was so strong that any failure to define the term had no prejudicial effect on him.

United States v. Valencia, 907 F.2d 671, 683 (7th Cir. 1990).

In many cases, the court need not define "willful" because the concept of willfulness will be adequately explained in other instructions defining "knowingly", "intentionally", or "deliberately", United States v. Sirhan, 504 F.2d 818, 820 (9th Cir. 1974). However, there are certain federal crimes which require willfulness as the only standard of purposeful conduct. For instance, the term "willful" in a failure to file an income tax return case is different from the willful involvement in a conspiracy. In the tax prosecution, "willful" should be defined as follows:

An act is done *willfully" if it is done voluntarily and intentionally with the purpose of avoiding a known legal duty.

This definition is taken primarily from United States v. Pomponio, 429 U.S. 10 (1976), as affirmed in Cheek v. United States, 498 U.S. 192, 201 (1991). The Supreme Court has discussed the various meanings of the term "willfulness" as used in the criminal tax statutes in United States v. Bishop, 412 U.S. 346 (1973). See United States v. Harris, 942 F.2d 1125, 1131-32 (7th Cir. 1991).

If the prosecution involves a perjury or conspiracy prosecution, the definition of "willful" may be different. For instance, the following definition may be appropriate in a perjury or contempt case:

This definition is taken essentially from United States v. Patrick, 542 F.2d 381 (7th Cir. 1976), cert. denied, 430 U.S. 931 (1977).

As used in various criminal statutes, the term "willful" has been construed to mean an act done voluntarily as distinguished from accidentally, with bad purpose, without justifiable excuse, without grounds for believing it was lawful, or with careless disregard whether or not one has the right so to act. See United States v. Murdock, 290 U.S. 389, 394-95 (1933); but see cheek, 498 U.S. at 199-204 ("evil motive" or "bad purpose" does not require proof beyond an intentional violation of a known legal duty; a subjective misunderstanding of the legal duty may be enough to defeat willfulness, and objective reasonableness of position may be considered in determining whether subject misunderstanding actually existed). "Willful" has also been construed to mean an act done with specific intent to violate the law. Screws v. United States, 325 U.S. 91, 101 (1945).

Like the drafters of the Model Penal Code, the Committee was concerned with the confusion resulting from the use of the loose concept of "willfulness" to define criminal culpability. Model Penal Code § 2.02, comment (Tent. Draft No. 4, 1955).

Similarly, the Senate Judiciary Committee has expressed concern about confusion resulting from the various definitions of "willfulness" included under the "intentional" mental state. "One’s state of mind is intentional with respect to conduct or a result if engaging in such conduct or causing such result is one’s conscious objective." S. 1437 (95^th Cong. 1^st Sess.). Elaborating on this definition, the Senate Committee noted that ". . . . the word ‘intentional’ describes the mental attitude associated with an act to connote the meaning that the act is being done on purpose; it does not suggest that the act was committed for a particular purpose, evil in nature." S.Rep.No.95-605, at 58-59.

Judge Learned Hand stated, "The word ‘willful,’ even in criminal statutes, means no more than that the person charged with the duty knows what he is doing. It does not mean that, in addition, he must suppose that he is breaking the law." American Surety Co. v. Sullivan, 7 F.2d 605,606, (2d Cir.1925) (cited with approval in United States v. Hall, 346 F.2d 875, 880 (2d Cir.), cert. Denied, 382 U.S. 910 (1965); Denis v. United States, 171 F.2d 986, 990 (D.C. Cir. 1948), aff’d, 339 U.S. 162 (1950); Townsend v. United States, 95 F.2d 352, 358 (D.C.Cir.1938)).

In United States v. Gris, 247 F.2d 860, 864 (2d Cir.1957), the Second Circuit explained, "It matters not whether appellant realized his conduct was unlawful. He knew exactly what he was doing; and what he did was a violation of the Federal Communications Act. He intended to do what he did, and that was sufficient."

In United States v. Keegan, 331 F.2d, 257, 261 (7^th Cir.), cert. denied, 379 U.S. 828 (1964), the jury was instructed that, "The word ‘willfully’ means that the person knowingly and intentionally committed the acts which constitute the offenses charged."

In cases involving willful violations of the securities laws, juries have been instructed that an act is done "willfully" if done knowingly and deliberately and that the defendant need not know he/she is breaking a particular law. United States v. Peltz, 433 F.2d 48, 54-55 (2d Cir.1970), cert. denied, 401 U.S. 955 (1971); Tarvestad v. United States, 418 F.2d 1043, 1047 (8^th Cir.1969), cert. denied, 397 U.S. 935 (1970).

In United States v. Falk, 605 F.2d 1005 (7^th Cir.1979), cert. denied, 445 U.S. 903 (1980), the Seventh Circuit deemed proper an instruction that ". . . the work ‘willful’ means . . . deliberately and intentionally, as distinguished from something which is merely careless, inadvertent or negligent, that’s to say that the defendant must have know and specifically intended his return to be false when he caused it to be made and subscribed to by him." Id. at 1010.

A consideration of the word "willfully", without benefit of the many cases which have attempted to define it, can lead to the logical conclusion that "willfully" is limited to the deliberateness of the actor in performing the act alleged in the indictment and need not have any reference to his knowledge at the time that the conduct was in violation of law. Earlier cases support this approach to the definition of "willfully." More recent cases, however, have incorporated into the concept of "willfully" the notion of the knowing commission of a criminal act. All of these things being so, it is rarely desirable to give a general definition of "willfully." If the statute uses the term and it must be defined, it should be defined in a manner tailoring it to the details of the particular offense charged.