7^th CIRCUIT FEDERAL INSTRUCTIONS 1999
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Self Defense

        6.01     Self Defense
        6.02     Insanity
        6.03     Alibi
        6.04     Entrapment--Elements
        6.05     Entrapment--Factors
        6.06     Entrapment--Optional Additions Predisposition (Optional additions)
        6.07     Reliance On Public Authority
        6.08     Coercion
        6.09     Intoxication
        6.10     Good Faith
        6.11     Good Faith--Income Tax Cases
        6.12     Buyer-Seller Relationship

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253.4 Self Defense, Defense Of Others, Defense Of Property -- Complete

A person may use force when [he/she] reasonably believes that force is necessary to defend himself/herself [another] against the imminent use of unlawful force. [A person may use force which is intended or likely to cause death or great bodily harm only if he/she reasonably believes that that force is necessary to prevent death or great bodily harm to himself/herself] [another].]

The burden of proof is on the government to prove beyond a reasonable doubt the absence of self-defense. The issues instruction must point this out by adding the defense-negation as an element that must be proved beyond a reasonable doubt. See United States v. Jackson, 569 F.2d 1003 (7th Cir.), cert. denied, 437 U.S. 907 (1978) (particularly note 12 of the majority opinion and the second sentence of the dissent); United States v. Talbott, 78 F.3d 1183, 1186 (7th Cir. 1996).

The second paragraph should be included only if it is applicable to the circumstances of the case.

This instruction, if given, should always be given immediately after the instruction setting forth the elements of the offense.

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256.4 Insanity

If, at the time of the commission of the offense, the defendant, as a result of a severe mental disease or defect, was unable to appreciate the nature and quality or the wrongfulness of his/her acts, then the defendant is not guilty by reason of insanity.

The instruction is based on 18 USC 20.

In any case involving the affirmative defense of insanity under 18 USC 20, the court should give Issues Instruction 4.01 and a special verdict form of "not guilty only by reason of insanity" in addition to the guilty and not guilty verdict forms. 18 USC 4242.

Under 18 USC 4243, if the defendant is found not guilty by reason of insanity, the court must commit the defendant to a suitable facility until he/she is eligible for release under the provisions of that statute. In Shannon v. United States, 114 S. Ct. 2419 (1994), the Supreme Court held that a jury may be instructed on this automatic commitment requirement of § 4243, but only to counteract inaccurate or misleading information presented to the jury during trial.

Therefore, in those situations the instruction should include the following sentence: "If the defendant is found not guilty by reason of insanity, the court will commit the defendant to a suitable facility until he/she is eligible for release under the law."

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251.2 Alibi

You have heard evidence that the defendant was not present at the time and place where the offense charged in the indictment is said to have been committed. The government must prove beyond a reasonable doubt the defendant's presence at the time and place of the offense.

The "alibi" concept is not an affirmative defense. People v. Pearson, 19 Ill.2d 609, 169 N.E.2d 252 (1960). Indeed, even referring to the concept as a "defense" has been criticized. United States v. Carter, 433 F.2d 874 (10th Cir. 1970); Commonwealth v. McLeod, 367 Mass. 500, 326 N.E.2d 905 (1975). Presentation of alibi evidence is simply an attempt at refutation of the government*s evidence concerning an essential element. The government always retains the burden of proving the defendant*s presence at the appropriate place and time when that is an element of the offense charged. United States v. Booz, 451 F.2d 719 (3d Cir. 1971), cert. denied, 414 U.S. 820 (1973); United States v. Read, 658 F.2d 1225, 1232 (7th Cir. 1981) ("The prosecution*s burden often includes disproving defenses because they bring into question facts necessary for conviction.").

One of the policies underlying these instructions is that comments on particular types of evidence should be avoided. Since alibi is an evidentiary matter rather than a defense, the idea of giving no instruction on the topic is appealing. See IPI--Criminal 3d 24-25.05 (1992). However, there is case law which would suggest that, in appropriate cases, failure to give alibi instructions when requested is error. United States v. Beaver, 524 F.2d 963 (5th Cir. 1975), cert. denied, 425 U.S. 905 (1976); United States v. Harris, 458 F.2d 670 (5th Cir.), cert. denied, 409 U.S. 888 (1972); United States v. Cole, 453 F.2d 902 (8th Cir.), cert. denied, 406 U.S. 922 (1972).

Consequently, this instruction is a simple and straightforward presentation of those elements of various instruction forms which courts have held to be important. It does not use the word "alibi", for to do so would necessarily involve expanding the instruction for the sole purpose of defining the word. Furthermore, popularization of the term may have caused a negative connotation.

The instruction is usually appropriate, and perhaps required when requested by a defendant, if the nature of the offense charged is such as to require his presence at a particular place at one or more particular times and the alibi evidence received tends to show his presence elsewhere at all such times. See United States v. Dye, 508 F.2d 1226 (6th Cir. 1974), cert. denied, 420 U.S. 974 (1975). The instruction would not be appropriate, therefore, in a case in which conviction of an offense charged could legitimately be accomplished without showing the defendant's presence at a particular place at a particular time. United States v. Beck, 431 F.2d 536 (5th Cir. 1970). Such is often the case in prosecutions involving an aiding and abetting theory.

United States v. Megna, 450 F.2d 511 (5th Cir. 1971). That is true also of many conspiracy charges. United States v. Guillette, 547 F.2d 743 (2d Cir. 1976), cert. denied, 434 U.S. 839 (1977); United States v. Lee, 483 F.2d 968 (5th Cir. 1973). Furthermore, the instruction might be inappropriate in cases involving charges that proscribe not only conduct of the defendant but conduct of another caused by the defendant, such as many offenses involving the use of the mails. See, e. g., United States v. Haala, 532 F.2d 1324 (10th Cir. 1976).

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257.3 Entrapment

The government must prove beyond a reasonable doubt that the defendant was not entrapped. Thus, the government must prove beyond a reasonable doubt either (1) that, before contact with law enforcement, the defendant was ready and willing or had a predisposition or prior intent to commit the offense, or (2) that the defendant was not induced or persuaded to commit the offense by law enforcement officers or their agents.

The issues instruction must show that the government has the burden to prove the negative, that is, that the defendant was not entrapped.

Predisposition is the key issue in the entrapment defense. "It is only when the government’s deception actually implants the criminal design in the mind of the defendant that the defense of entrapment comes into play." United States v. Russell, 411 U.S. 423, 436 (1973). Entrapment is a relatively limited defense and was held not available even when a government agent provided a defendant with heroin to sell to law enforcement officers. See Hampton v. United States, 425 U.S. 484 (1976); United States v. Buishas, 791 F.2d 1310, 1314 (7th Cir.1986) (marijuana); United States v. Duncan, 896 F.2d 271, 276-77 (7th Cir. 1990)(child pornography). The predisposition must be "independent"; that is, it must have existed before government agents attempted to induce criminal behavior on the part of the defendant. Jacobson v. United States, 503 U.S. 540 (1992); United States v. Akinsanya, 53 F.3d 852, 858 (7th Cir.1995), United States v. Rodriguez-Andrade, 62 F.3d 948, 954 (7th Cir. 1995). The defense of entrapment is not limited to circumstances where the defendant admits he committed the crime. According to Mathews v. United States, 485 U.S. 58, 62 (1988), "even if the defendant denies one or more elements of the crime, he is entitled to an entrapment instruction whenever there is sufficient evidence from which a reasonable jury could find entrapment."

This instruction, if given, should always be given immediately after the instruction setting forth the elements of the offense.

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257.3 Entrapment

In determining whether the defendant was entrapped, you may consider:

(1) The background [or character or reputation] of the defendant [including] [prior criminal history] [or economic status];

(2) Whether it was law enforcement officers or their agents that first suggested the criminal activity;

(3) Whether the defendant performed criminal activity for profit;

(4) Whether the defendant showed reluctance to perform criminal activity;

(5) Whether law enforcement officers or their agents repeatedly induced or persuaded the defendant to perform criminal activity;

(6) Whether law enforcement officers or their agents offered an ordinary opportunity to commit a crime; and

(7) Whether law enforcement officers or their agents offered exceptional [profits or]persuasion or merely solicited commission of the crime.

While no single factor necessarily indicates by itself that a defendant was or was not entrapped, the central question is whether the defendant showed reluctance to engage in criminal activity that was overcome by inducement or persuasion.

The Court of Appeals for the Seventh Circuit has recognized that in determining a defendant’s predisposition on the date of the offense, the defendant’s personal background and the nature and degree of government involvement remain the principal factors to be considered by the jury. See United States v. Townsend, 555 F.2d 152, 155 n. 3 (7th Cir.), cert. denied, 434 U.S. 897 (1977); United States v. Lakich, 23 F.3d 1203, 1209-10 (7th Cir.1994).

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257.3.4 Entrapment: Predisposition

(a) If the defendant was ready and willing or had a predisposition to commit the offense charged, then he was not entrapped, even though law enforcement officers or their agents provided a favorable opportunity to commit the offense, made committing the offense easier, or even participated in acts essential to the offense.

(b) In addition to being ready and willing, the defendant must have had the ability by reason of previous training, experience, occupation, or acquaintances to commit the crime even if the government had not provided the opportunity to do so. Where the defendant is not in a position to become involved in the crime without the government’s help, the defendant is not predisposed.

The optional addition (a) may be used if the defense presentation or argument suggests the contrary to the jury.

The instruction (b) is to be given only when there is an issue whether the defendant had the ability to commit the crime without the assistance of the government. See United States v. Hollingsworth, 27 F.3d 1196 (7th Cir. 1994).

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257.4 Equitable Estoppel

A defendant who acts in reliance on public authority does not act knowingly [or with the intent to (state intent requirement of statute, if any)], and should be found not guilty.

A defendant acts under public authority if:

(1) that defendant is affirmatively told that his/her conduct would be lawful;

(2) the defendant is told this by an official of the [United States] government; [and]

(3) the defendant actually relies on what the official tells him/her in taking the action; [and,

(4) the defendant’s reliance on what he/she was told by the official is reasonable in light of the circumstances.]

In considering whether a defendant actually relied on representations by an official that his/her conduct would lawful, you should consider all of the circumstances of their discussion, including the identity of the official, the point of law discussed, the nature of what the defendant told, and was told by, the official, and whether that reliance was reasonable.

This defense is also known as "entrapment by estoppel." It is "rarely available," United States v. Howell, 37 F.3d 1197, 1204 (7th Cir. 1994). The defense was first recognized by the Supreme Court in Raley v. State of Ohio, 360 U.S. 423 (1959). It is not actually a form of entrapment, but is instead a species of good faith. The jury should not be instructed, as it must be in entrapment cases, that the government has the burden of proving the negative of the defense. United States v. Austin, 915 F.2d 363, 365 (8th Cir. 1990), cert. denied, 499 U.S. 977 (1991).

The bracketed language "United States" in (2) will only be necessary if there is a factual dispute over whether the official who made representations to the defendant was a federal official or an official of some other type. If there is no dispute that the official was an official of some level of government other than federal, such as of a state, reliance on the official’s representations as to the legality of conduct under federal law would not be objectively reasonable, and the instruction should not be given at all. United States v. Rector, 111 F.3d 503, 506-07 (7th Cir. 1997).

Note that a defendant’s subjective reliance might be sufficient for offenses requiring proof of willfulness, such as tax crimes. In such cases, the fourth factor should be omitted and the concluding language should follow the third factor.

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254.1 Duress/Coercion

If the defendant engaged in the conduct charged only because he/she reasonably feared that immediate, serious bodily harm or death would be inflicted upon him/her (or others) if he/she did not engage in the conduct, and he/she had no reasonable opportunity to avoid the injury, then the defendant is not guilty because he/she was coerced.

This instruction, if given, should always be given immediately after the instruction setting forth the elements of the offense.

This coercion instruction does not limit "others" to members of the defendant’s immediate family. The Committee concluded that an instruction limited to kinship could be too narrow in some circumstances. For instance, in some situations a person might violate the law in order to protect a small child who was a complete stranger. However, it should be noted that coercion is not a defense to murder and some other capital offenses. See R. I. Recreation Center v. Aetna Casualty & Surety Co., 177 F.2d 603, 605 (1^st Cir.1949).

It is important to note that if it is uncontested that a defendant had a full opportunity to avoid the criminal act without danger to himself or others he is not entitled to a coercion instruction. Shannon v. United States, 76 F.2d 490, 493 (10th Cir. 1935); United States v. Gordon, 526 F.2d 406 (9^th Cir.1975). The instruction is not mandated solely because a witness charged with contempt received threats of violence. There must also be a showing of present and immediate compulsion. United States v. Tanner, 941 F.2d 574, 587-88 (7th Cir. 1991), cert. denied, 502 U.S. 1102 (1992); United States v. Nickels, 502 F.2d 1173 (7^th Cir.1974), cert. denied, 430 U.S. 931 (1977). While the compulsion is generally physical threats, economic compulsion has been recognized in some civil cases. MCM Partners, Inc. v. Andrews-Bartlett & Associates, Inc., 62 F.3d 967, 980 (7^th Cir.1995) ("Economic coercion or duress is generally an affirmative defense to a conspiracy charge").

Fear of bodily harm as a result of being deprived of narcotics may in some circumstances justify a type of coercion instruction. United States v. McKnight, 427 F.2d 75, 77 (7^th Cir.), cert. denied, 400 U.S. 880 (1970). But fear of suicide of a friend or a relative is not a sufficient basis for a coercion instruction unless there is evidence indicating that the defendant took reasonable alternative steps to avoid the suicide such as calling for restraint or assistance. United States v. Stevison, 471 F.2d 143 (7^th Cir.1972), cert. denied, 411 U.S. 950 (1973). Nor is the threat of discharge from employment to a person who claims the Fifth Amendment before a grand jury sufficient coercion to excuse a witness from his obligation to testify truthfully. United States v. Nickels, 502 F.2d 1173 (7^th Cir.1974), cert. denied, 426 U.S. 911 (1976).

The Supreme Court in United States v. Bailey, 100 S.Ct. 624 (1980), in a prosecution for escape from a federal prison, held that in order to be entitled to an instruction on duress or necessity as a defense to the crime charged, an escapee must first offer evidence justifying his continued absence from custody as well as his initial departure and that an indispensable element of such an offer is testimony of a bona fide effort to surrender or return to custody as soon as the claimed duress or necessity had lost its coercive force. Id. at 4108-09.

The defendant bears the burden to introduce some minimal evidence to require presenting the instruction to the jury. United States v. Patrick, 542 F.2d at 386; United States v. Toney, 27 F.3d 1245, 1248 (7^th Cir.1994).

The burden of proof is on the government to prove beyond a reasonable doubt the absence of coercion. The issues instruction must point this out by adding the coercion-negation as an element that must be proved beyond a reasonable doubt. Johnson v. United States, 291 F.2d 150 (8^th Cir.), cert. denied, 368 U.S. 880 (1961); United States v. Toney, 27 F.3d 1245, 1248 (7^th Cir.1994).

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256.6 Intoxication, Voluntary

You have heard evidence that the defendant was intoxicated at the time of the commission of the offense charged in the indictment. [Brief description of the state of mind required by the charged statute], as that term has been defined in these instructions, is an element of this offense. The evidence of intoxication may be sufficient to create a reasonable doubt whether the defendant formed the required [state of mind] to commit the offense.

There have been no major changes in the law in this area. The law remains that voluntary intoxication is only a defense to "specific intent" crimes, but not to "general intent" crimes, although the Seventh Circuit has mentioned on numerous occasions that these terms should not be used in giving the jury instructions. Instead they advise determining the precise mental state required by the applicable statute and instructing thereon. See Committee Comment on "Specific Intent" -- "General Intent"; W. LaFave & A. Scott, Criminal Law §28 at 202 (1972); United States v. Arambasich, 597 F.2d 609, 611 (7^th Cir.1979) ("We are inclined to agree....that the labels ‘specific intent* and ‘general 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.") United States v. Valencia, 907 F.2d 671, 681 (7^th Cir.1990). Cf. United States v. Brighton Bldg. & Maintenance Co., 598 F.2d 1101, 1105 (7^th Cir.), cert. denied, 444 U.S. 840 (1979). This is especially the case when intoxication, coercion or mistake are raised as defenses. See United States v. Nix, 501 F.2d 516, 518 (7^th Cir.1974) ("Whenever intoxication (or coercion or mistake) is raised as a mitigating factor, use of ‘specific* and ‘general* intent labels interferes with the crucial analysis a court should make...")

Thus, before giving this instruction, the court should determine what state of mind, if any, the crime charged requires. See also United States v. Bayless, 57 F.3d 535, 542 (7^th Cir.1995) and United States v. Fazzini, 871 F.2d 635, 639 (7^th Cir.), cert. denied, 493 U.S. 982 (1989). If a particular intent is an essential element of the crime or the lack thereof is raised as an affirmative defense (see United States v. Mavrick, 601 F.2d 921 (7^th Cir.1979) ), and the defendant has elicited evidence that he acted without that intent because of intoxication, this instruction should be given. See W. LaFave & A. Scott, Criminal Law § 45 at 344-45 (1972), and United States v. Nix, 501 F.2d 516 (7th Cir.1974) for just such an analysis.

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252.10.2 Good Faith

Good faith on the part of the defendant is inconsistent with [intent to defraud, willfulness, etc.], an element of the charge. The burden is not on the defendant to prove his/her good faith; rather, the government must prove beyond a reasonable doubt that the defendant acted with [intent to defraud, willfulness, etc.]

This instruction should be used, where appropriate, only in cases where "intent" is an element. It is not to be used in cases where it is required only that the defendant acted "knowingly."

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252.11.2 Defense Theory: Good Faith In Tax Cases

See Cheek v. United States, 111 S. Ct. 604, 611, 612-13 (1991); United States v.

Becker, 965 F.2d 383 (7^th Cir.1992).

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64.6.7 Buyer-Seller Relationship: Insufficient For Accomplice Liability

83.3.2 Buyer-Seller Relationship Is Not A Conspiracy

The existence of a simple buyer-seller relationship between a defendant and another person, without more, is not sufficient to establish a conspiracy, even where the buyer intends to resell [name the goods.] The fact that a defendant may have bought [name of goods] from another person or sold [name of goods] to another person is not sufficient without more to establish that the defendant was a member of the charged conspiracy.

In considering whether a conspiracy or a simple buyer-seller relationship existed, you should consider all of the evidence, including the following factors:

(1) Whether the transaction involved large quantities of [name of goods];

(2) Whether the parties had a standardized way of doing business overtime;

(3) Whether the sales were on credit or on consignment;

(4) Whether the parties had a continuing relationship;

(5) Whether the seller had a financial stake in a resale by the buyer;

(6) Whether the parties had an understanding that the [name of goods] would be resold.

No single factor necessarily indicates by itself that a defendant was or was not engaged in a simple buyer-seller relationship.

The buyer-seller instruction is a theory of defense instruction and should be given where requested if there is evidence to support it. United States v. Paters, 16 F.3d 188 (7th Cir.1994). The Seventh Circuit has discussed the importance and meaning of the instruction many times. See, e.g., United States v. Berry, 133 F.3d 1020 (7th Cir.1998); United States v. Lindsey, 123 F.3d 978 (7th Cir.1997); United States v. Turner, 93 F.3d 276 (7th Cir. 1996); United States v. Mims, 92 F.3d 461 (7th Cir.1996); United States v. Herrera, 54 F.3d 348 (7th Cir.1995); United States v. Lechuga, 994 F.2d 346 (7th Cir.)(en banc), cert. denied, 114 S. Ct. 482 (1993).

Although the Committee has listed six possible factors the jury may consider in determining whether a buyer-seller relationship existed, the list is not intended to be exhaustive. In a particular case, some or even none of the factors may be relevant and the instruction should be tailored to fit the facts of the case. See United States v. Blankenship, 970 F.2d 283, 286 (7th Cir.1992).

The buyer-seller issue arises primarily in drug cases. However, as the examples in United States v. Blankenship, supra, illustrate, it is not limited to drug cases and may arise in a variety of conspiracy or aiding and abetting cases.

This instruction should be given immediately following the conspiracy elements instruction.