7th CIRCUIT FEDERAL INSTRUCTIONS 1999

7^th CIRCUIT FEDERAL INSTRUCTIONS 1999
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Title 18 Offenses (18 USC 511 - 18 USC 842)

        058    Altering Or Removing Vehicle Identification Numbers (18 USC 511)
        059    Entry Of Goods By Means Of False Statements--Whether Or Not United States Shall Or May Be Deprived Of Any Lawful Duties--Elements (18 USC 542)
        060    Entry Of Goods By Means Of False Statements--Definition Of False Or Fraudulent (18 USC 542)
        061    Definition Of Material (18 USC 542)
        062    Entry Of Goods By Means Of False Statements--Definition Of Entry (18 USC 542)
        063    Entry Of Goods By Means Of False Statements--Definition Of Imported Merchandise (18 USC 542)
        064    Entry Of Goods By Means Of False Statements--United States Has Been Or May Have Been Deprived Of Any Lawful Duties--Elements) (18 USC 542)
        065    Breaking / Removing Customs Seal--Elements (18 USC 549)
        066    Entering; Removing Goods From Customs--Elements (18 USC 549)
        067    Receiving Or Transporting Customs Goods--Elements (18 USC 549)
        068    Definition Of Customs Custody (18 USC 549)
        069    Theft Of Government Property--Elements (Combined Felony & Misdemeanor Instruction) (18 USC 641)
        070    Definition Of Value (18 USC 641)
        071    Theft, Embezzlement, Or Misapplication By Bank Officer Or Employee--Elements (18 USC 656)
        072    Theft, Embezzlement, Or Misapplication By Bank Officer or Employee--Definition Of "Intent To Injure Or Defraud" (18 USC 656)
        073    Embezzlement Or Theft Of Goods From Interstate Shipment--Elements (18 USC 659)
        074    Possession Of Goods Stolen From Interstate Shipment--Elements (18 USC 659)
        075    Theft Concerning Federally Funded Program--Elements (18 USC 666(a)(1)(A))
        076    Bribery Concerning Federally Funded Program--Elements (18 USC 666(a)(1)(B))
        077    "Agent"–– Definition (18 USC 666)
        078    Escape--Elements (18 USC 751)
        079    Importing Explosive Materials Without A License--Elements (18 USC 842)
        080    Manufacturing Explosive Materials Without A License--Elements (18 USC 842)
        081    Dealing In Explosive Materials Without A License--Elements (18 USC 842)
        082    False Statement to Obtain Explosive Materials--Elements (18 USC 842)
        083    Definition Of Importer Of Explosive Materials (18 USC 842)
        084    Definition Of Explosive Materials (18 USC 842)
        085    Definition Of Manufacturer Of Explosive Materials (18 USC 842)
        086    Definition Of Dealer In Explosive Materials (18 USC 842)

7^th CIRCUIT FEDERAL INSTRUCTIONS 1999

[058] Altering or Removing Vehicle Identification Numbers

(18 USC 511)

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Altering Or Removing Vehicle Identification Numbers (18 USC 511)

Committee Comment

Because this statute is so little-used, the Committee has not drafted a pattern instruction for it. For cases discussing the statute generally, see United States v. Chorman, 901 F.2d 102, 110 (4^th Cir.1990)("knowingly" under statute means "knowing action"); United States v. Podell, 869 F.2d 328, 332 (7th Cir.1989) (discussing appropriate unit of prosecution under statute); United States v. Enochs, 857 F.2d 491, 492-93 (8th Cir.1988), cert. denied, 490 U.S. 1022 (1989)(discussing intent element of statute).

7^th CIRCUIT FEDERAL INSTRUCTIONS 1999

[059] Entry of Goods by Means of False Statements--Whether or Not United States Shall or May Be Deprived of Any Lawful Duties--Elements

(18 USC 542)

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Entry Of Goods By Means Of False Statements-Deprivation Of Lawful Duties--Elements (18 USC 542)

To sustain the charge of entering goods into commerce by means of a false statement, the government must prove the following propositions:

First, (here specify merchandise named in indictment) was imported;

Second, the defendant [entered; introduced; attempted to enter; attempted to introduce] (here specify merchandise named in indictment) into the commerce of the United States;

Third, the defendant did so by means of a [fraudulent, false] [invoice; declaration; affidavit; letter; paper; practice] [written or verbal false statement], which he knew was [false; fraudulent]; and,

OR

Third, the defendant made a false statement in a declaration without reasonable cause to believe that the statement was true; and,

OR

Third, the defendant procured the making of a false statement in a declaration without reasonable cause to believe the truth of the statement; and,

[Fourth, the [invoice; declaration; affidavit; letter; paper; statement; practice] was material to the entry of the merchandise.]

If you find from your consideration of all the evidence that each of these propositions has been proved beyond a reasonable doubt, then you should find the defendant guilty.

If, on the other hand, you find from your consideration of all the evidence that any of these propositions has not been proved beyond a reasonable doubt, then you should find the defendant not guilty.

Committee Comment

The Committee believes that materiality of the statements is not an element of the offense except in cases where the defendant is alleged to have procured the making of a false statement. See United States v. Wells, 117 S.Ct.. 921 (1997) where the Court held that a materiality element should not ordinarily be read into a statute. The Court considered the plain language of the statute (18 USC 1014), the actions of Congress after its passage and the rule of lenity. Nevertheless, the Seventh Circuit has not yet decided whether materiality is an element under 18 USC 542, so the question remains open.

The statute also requires proof that the goods in question were imported and that the defendant entered or attempted to enter them into the commerce of the United States. Whether each of these elements has been proved is a question of fact for the jury. See Lee v. United States, 14 F.2d 400, 402 (1st Cir. 1926) and Romano v. United States, 9 F.2d 522, 524 (2d Cir. 1925) (both holding that issue of whether goods were "imported" is a question for the jury); United States v. One Trunk, 171 F. 772, 774 (S.D.N.Y. 1909) and United States v. Mescall, 164 F. 580, 582 (C.C.E.D.N.Y. 1908), reversed on other grounds 215 U.S. 26 (1909) (both holding that question of whether entry occurred is question for the jury). Entry is defined for the jury in instruction 18 USC 542, Definition of Entry.

7^th CIRCUIT FEDERAL INSTRUCTIONS 1999

[060] Entry of Goods by Means of False Statements--Definition of False or Fraudulent

(18 USC 542)

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Entry Of Goods By Means Of False Statements-Deprivation Of Lawful Duties--Elements (18 USC 542)

A [statement; document] is false if untrue when made and known to be untrue by the person making it or causing it to be made at the time it was made.

A [statement; document; practice] is fraudulent if known to be untrue when [made; conducted] and [made; conducted; caused to be made; caused to be conducted] with intent to deceive.

7^th CIRCUIT FEDERAL INSTRUCTIONS 1999

[061] Definition of Material

(18 USC 542)

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Entry Of Goods By Means Of False Statements-Deprivation Of Lawful Duties--Elements (18 USC 542)

A statement is material if it had the effect of influencing the action of the [body or agency], or was capable of or had the potential to do so. [It is not necessary that the statement actually have that influence or be relied on by the [body or agency], so long as it had the potential or capability to do so.]

Committee Comment

This instruction is derived from the materiality instruction for 18 USC 1001.

7^th CIRCUIT FEDERAL INSTRUCTIONS 1999

[062] Entry of Goods by Means of False Statements--Definition of Entry

(18 USC 542)

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Entry Of Goods By Means Of False Statements-Deprivation Of Lawful Duties--Elements (18 USC 542)

The entering or introducing of merchandise into the commerce of the United States does not begin until after the merchandise has arrived in this country and after the importer or owner of the merchandise has begun that series of acts through which he may gain lawful possession of the merchandise. The process is not completed until all duties owed are paid.

Committee Comment

See United States v. Mescall, 215 U.S. 26, 32 (1909); Heike v. United States, 192 F. 83, 99 (2d Cir.1911).

7^th CIRCUIT FEDERAL INSTRUCTIONS 1999

[063] Entry of Goods by Means of False Statements--Definition of Imported Merchandise

(18 USC 542)

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Entry Of Goods By Means Of False Statements-Deprivation Of Lawful Duties--Elements (18 USC 542)

Committee Comment

Because the meaning of the term imported varies in different contexts, the court must formulate a definition for the term on a case by case basis. See e.g., Schiavone-Chase Corp. v. United States, 213 Ct.Cl. 539,553 F.2d 658,663-64 (Ct. Cl.1977); Kee Co. v. United States, 13 U.S.Cust.App. 105, 109 (1925).

7^th CIRCUIT FEDERAL INSTRUCTIONS 1999

[064] Entry of Goods by Means of False Statements--United States Has Been or May Have Been Deprived of Any Lawful Duties--Elements)

(18 USC 542)

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Entry Of Goods By Means Of False Statements-Deprivation Of Lawful Duties--Elements (18 USC 542)

Committee Comment

The Committee has not drafted an instruction for the second paragraph of § 542 because the only reported case which discusses the paragraph, United States v. 218 ½ Carats Loose Emeralds, 153 F. 643 (S.D.N.Y.1907), fails to make clear whether the entry of the merchandise must be concealed, whether the duties owed must be owed in fact, whether the defendant must have made the underlying false statement as well as have acted or failed to act and whether and how the acts prohibited in the second paragraph differ from those prohibited in the first paragraph.

7^th CIRCUIT FEDERAL INSTRUCTIONS 1999

[065] Breaking / Removing Customs Seal--Elements

(18 USC 549)

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Breaking / Removing Customs Seal--Elements (18 USC 549)

To sustain the charge of breaking seals of customs goods, the government must prove the following propositions:

First, the defendant [removed; broke; injured; defaced] any customs seal or other fastening or mark placed upon any [vessel; vehicle; warehouse; package]; [FNa1]

Second, the [vessel; vehicle; warehouse; package] contained merchandise or baggage in bond or in customs custody; and,

Third, the defendant did so without authority and with intent to steal.

If you find from your consideration of all the evidence that each of these propositions has been proved beyond a reasonable doubt, then you should find the defendant guilty.

If, on the other hand, you find from your consideration of all the evidence that any of these propositions has not been proved beyond a reasonable doubt, then you should find the defendant not guilty.

7^th CIRCUIT FEDERAL INSTRUCTIONS 1999

[066] Entering; Removing Goods From Customs--Elements

(18 USC 549)

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Breaking / Removing Customs Seal--Elements (18 USC 549)

To sustain the charge of [removing goods from customs custody; entering with the intent to remove goods from customs custody] the government must prove the following propositions:

First, the defendant entered [a bonded warehouse or vessel or vehicle containing bonded merchandise]; and,

Second, the defendant entered with the intent to steal therefrom any merchandise or baggage.

OR

Second, the defendant removed merchandise or baggage that was [in the vessel, vehicle, or bonded warehouse; otherwise in customs custody or control], and the defendant did so with the intent to steal.

If you find from your consideration of all the evidence that each of these propositions has been proved beyond a reasonable doubt, then you should find the defendant guilty.

If, on the other hand, you find from your consideration of all the evidence that either of these propositions has not been proved beyond a reasonable doubt, then you should find the defendant not guilty.

7^th CIRCUIT FEDERAL INSTRUCTIONS 1999

[067] Receiving or Transporting Customs Goods--Elements (Vol. 3, p. 37)

(18 USC 549)

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Breaking / Removing Customs Seal--Elements (18 USC 549)

To sustain the charge of [receiving; transporting] customs goods, the government must prove the following propositions:

First, the defendant knowingly [received; transported] merchandise or baggage;

Second, someone had previously stolen the merchandise or baggage from [a bonded

warehouse or any vessel or vehicle containing bonded merchandise]; and,

Third, at the time the defendant [received; transported] the merchandise or baggage he knew that it had been stolen [from customs custody].

If you find from your consideration of all the evidence that each of these propositions has been proved beyond a reasonable doubt, then you should find the defendant guilty.

If, on the other hand, you find from your consideration of all the evidence that any of these propositions has not been proved beyond a reasonable doubt, then you should find the defendant not guilty.

7^th CIRCUIT FEDERAL INSTRUCTIONS 1999

[068] Definition of Customs Custody

(18 USC 549)

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Breaking / Removing Customs Seal--Elements (18 USC 549)

Imported goods are in the custody of customs from the moment of their arrival in the United States port until merchandise has been inspected, found to be correctly invoiced and found to otherwise comply with the laws of the United States. [Once the inspection and findings have been made, however, or once a proper bond is filed, the goods can be released from customs custody before the statutory requirements are carried out.]

Committee Comment

Give the bracketed language when appropriate.

This definition was approved in United States v. Garber, 626 F.2d 1144, 1155 (3d Cir.1980). Whether an item is within customs custody or control appears to be a question of fact. See United States v. Radtke, 799 F.2d 298, 306 (7th Cir.1986); United States v. Harold, 588 F.2d 1136, 1140 (5th Cir.1979). In Mungo v. United States, 423 F.2d 1351, 1353 (4th Cir.1970), however, the question was raised as one of jurisdiction. Because there are so few cases that have discussed the issue, the law is less than clear. Nonetheless, it is at least clear that the government must introduce sufficient facts to prove that the merchandise was legally in customs custody at the time it was allegedly removed by the defendant. United States v. Garber, supra; United States v. Harold, supra.

7^th CIRCUIT FEDERAL INSTRUCTIONS 1999

[069] Theft of Government Property--Elements (Combined Felony & Misdemeanor Instruction)

(18 USC 641)

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Theft Of Government Money Or Property (18 USC 641)

To sustain the charge of theft of government property, the government must prove the following propositions:

First, that the [money or] thing of value described in the indictment belonged to the United States and had a value [in excess of] [less than] $1000 at the time charged;

Second, that the defendant stole [or converted] that [money or] thing of value to [the defendant's own or another's use]; and

Second, that the defendant [sold, conveyed, disposed of] that [money or] thing of value without authorization; and

Third, that the defendant did so with the intent to deprive the United States of the use or benefit of that [money or] thing of value.

If you find from your consideration of all the evidence that each of these propositions has been proved beyond a reasonable doubt, then you should find the defendant guilty.

If, on the other hand, you find from your consideration of all the evidence that any one of these propositions has not been proved beyond a reasonable doubt, then you should find the defendant not guilty.

Committee Comment

Use the alternate second element when appropriate.

The term "thing of value" is used instead of the former "property" to conform the instruction to the statutory language.

Other more descriptive "theft" terms, such as embezzlement, may be more appropriate in certain cases.

Section 641 of Title 18 consolidated theft, embezzlement, and receipt of stolen property previously found in Sections 82, 87, 100, and 101 of Title 18. Section 641 contains a lesser included misdemeanor for violations when the money of property in question is valued at less than $1000. "Value" is specifically defined in the statute.

The Committee has drafted this instruction to be used alternatively in felony and misdemeanor cases. Where there is a real dispute as to whether the value of the property is more or less than $1000, the Committee recommends that two separate instructions be given, in each of the alternative forms above, as opposed to use of a special interrogatory. See Fifth Circuit Pattern Instruction No. 8; Devitt & Blackmar, Federal Jury Practice and Instructions § 46.06 (Supp.1980): See also United States v. DeGilio, 538 F.2d 972 (3d Cir.1976), cert. denied, 429 U.S. 1038 (1977); United States v. Cabbell, 427 F.2d 147 (4th Cir.1970) (absent sufficient proof that value of the property exceed $100, court could only sentence under misdemeanor provision). Note that the value is established at the time of possession rather than at the time of theft. United States v. Ditata, 469 F.2d 1270 (7th Cir.1972). See also United States v. Brookins, 52 F.3d 615,619 (7th Cir. 1995).

On the question of intent to deprive the United States the jury may require additional instruction if defendant offers an argument based upon Morrissette v. United States, 342 U.S. 246 (1952).

7^th CIRCUIT FEDERAL INSTRUCTIONS 1999

[070] Definition of Value

(18 USC 641)

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Theft Of Government Money Or Property (18 USC 641)

The word "value" means face value, market value [wholesale or retail], or a price actually paid for the item in question, whichever is greater. [Market value is the price someone would be willing to pay for the item to someone else willing to sell it.] [To have value a thing need not be a physical object [, and may be something like (information, labor, etc.), as long as it has economic worth.]]

Committee Comment

See 18 USC 641; United States v. Smith, 489 F.2d 1330 (7th Cir.1973), cert. denied, 416 U.S. 994 (1974).

Regarding market value, see United States v. Brookins, 52 F.3d 615 (7th Cir.1995). Regarding intangible property, see United States v. Howard, 30 F.3d 871 (7th Cir.1994). The term "par value" is eliminated because it is covered by the remaining terms. Relevant illustration is encouraged in intangible property cases.

7^th CIRCUIT FEDERAL INSTRUCTIONS 1999

[071] Theft, Embezzlement, or Misapplication by Bank Officer or Employee--Elements

(18 USC 656)

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Theft Or Embezzlement By Bank Officer Or Employee (18 USC 656)

To sustain the charge of [embezzlement, abstraction, purloinment, misapplication] by a bank [officer, director, agent, employee], the government must prove the following propositions:

First, that at the time of the offense charged the defendant was [an officer, a director, an agent, an employee of or connected in any capacity with] the (here designate bank);

Second, that the (here designate bank) was a [Federal Reserve bank, member bank, national bank, insured bank or a receiver of the same];

Third, that the defendant used his / her position as [an officer, a director, an agent, an employee] to [embezzle, abstract, purloin, knowingly misapply] [moneys, funds, credits] belonging to the bank or entrusted to its care;

Fourth, that the defendant did so with the intent to injure or defraud the bank; and

Fifth, that the amount of the [moneys, funds, credits] [embezzled, abstracted, purloined, willfully misapplied] exceeded $1000.

If you find from your consideration of all the evidence that each of these propositions has been proved beyond a reasonable doubt, then you should find the defendant guilty.

If on the other hand, you find from your consideration of all the evidence that any one of these propositions has not been proved beyond a reasonable doubt, then you should find the defendant not guilty.

Committee Comment

Although the question of whether the institution is a federal bank must be proved, it is a question the jury rarely reaches, because this proof is usually met by stipulation or introduction of the certificate of insurance. If proof is lacking, then the judge will enter a directed verdict of not guilty.

Also, if the value is in question, then an alternate instruction patterned after the instruction on § 641 Misdemeanor should be given.

This instruction is adapted from United States v. Dreitzler, 577 F.2d 539 (9th Cir.1978), cert. denied, 400 U.S. 921 (1979). For a discussion of 18 USC 656, its background, and judicial interpretation, see Annot., 51 A.L.R.Fed. 420 (1981).

7^th CIRCUIT FEDERAL INSTRUCTIONS 1999

[072] Theft, Embezzlement, or Misapplication by Bank Officer or Employee--Definition of "Intent to Injure or Defraud"

(18 USC 656)

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Theft Or Embezzlement By Bank Officer Or Employee (18 USC 656)

A bank [officer] [employee] acts with the intent to injure or defraud a bank when [he/she] uses [his/her] relationship with or position in the bank for [his/her] own [or another's] personal advantage [, or when [he/she] [acts with the intent to injure the bank's interests or with reckless disregard for the interests of the bank.]

Committee Comment

See United States v. Crabtree, 979 F.2d 1261, 1268-69 (7th Cir.1992). The final clause in

the proposed instruction should only be used if the case is tried on the theory set forth therein.

7^th CIRCUIT FEDERAL INSTRUCTIONS 1999

[073] Embezzlement or Theft of Goods From Interstate Shipment--Elements

(18 USC 659)

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Theft From Interstate Shipment (18 USC 659)

To sustain the charge of [embezzling, stealing, or unlawfully taking, carrying away, concealing, or by fraud or deception obtaining] goods or chattels [moving as interstate commerce, which are a part of or which constitute an interstate shipment of freight], the government must prove the following propositions:

First, that the defendant [embezzled, stole, or unlawfully took, carried away, concealed, or obtained by fraud or deception] the goods or chattels described in the indictment;

Second, that the defendant did so with the intent to convert the goods or chattels to his/her own use; and

Third, that the goods or chattels were moving as, or were a part of, [an interstate, a foreign] shipment of property.

If you find from your consideration of all the evidence that each of these propositions has been proved beyond a reasonable doubt, then you should find the defendant guilty.

If, on the other hand, you find from your consideration of all the evidence that any one of these propositions has not been proved beyond a reasonable doubt, then you should find the defendant not guilty.

Committee Comment

Section 659 describes six distinct offenses, and further provides that if the goods or chattels in question do not exceed the value $1000, the offense is a misdemeanor. See Instruction on § 641 Misdemeanor--Elements.

If the value of the goods or chattels is in issue, the court should give a lesser included offense instruction. In cases in which "value" is in issue, the Committee recommends using the proposed definition of "value" found in the pattern instructions for 18 USC 641.

7^th CIRCUIT FEDERAL INSTRUCTIONS 1999

[074] Possession of Goods Stolen from Interstate Shipment--Elements

(18 USC 659)

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Theft From Interstate Shipment (18 USC 659)

To sustain the charge of possession of goods or chattels stolen from an interstate shipment, the government must prove the following propositions:

First, that the goods or chattels described in the indictment were [embezzled, stolen, or unlawfully taken, carried away, concealed, or obtained by fraud or deception];

Second, that the defendant possessed the goods or chattels with knowledge that they were [embezzled, stolen, or unlawfully taken, carried away or concealed, or obtained by fraud or deception]; and

Third, that the goods or chattels were moving as, or were a part of, [an interstate, a foreign] shipment of property.

If you find from your consideration of all the evidence that each of these propositions has been proved beyond a reasonable doubt, then you should find the defendant guilty.

If, on the other hand, you find from your consideration of all the evidence that any of these propositions has not been proved beyond a reasonable doubt, then you should find the defendant not guilty.

Committee Comment

Choose appropriate terms contained in brackets.

United States v. Zarattini, 552 F.2d 753 (7th Cir.), cert. denied, 431 U.S. 942 (1977), indicates that intent to convert is not an element under a charge of possession.

The government must prove beyond a reasonable doubt that goods were stolen from an interstate shipment and the person possessing the goods knew they had been stolen.

United States v. DeGeratto, 727 F. Supp. 1254,1265 (N.D. Ind. 1990); United States v. Green, 779 F.2d 1313, 1318 (7th Cir.1985).

In cases in which "value" is in issue, the Committee recommends using the proposed definition of "value" found in the pattern instructions for 18 USC 641.

7^th CIRCUIT FEDERAL INSTRUCTIONS 1999

[075] Theft Concerning Federally Funded Program--Elements

(18 USC 666(a)(1)(A))

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Theft Concerning Federally Funded Program--Elements (18 USC 666(a)(1)(A))

To sustain the charge of [embezzlement] [theft] [fraud] [conversion] [misapplication], the government must prove the following propositions:

First, that the defendant was an agent of [an organization] [a [state] [local] [Indian tribal] government, or any agency of that government] [, such as [name charged entity here if status is not in dispute]];

Second, that the defendant [embezzled] [stole] [obtained by fraud] [knowingly and without authority converted to the use of someone other than the rightful owner] [intentionally misapplied] some [money] [property];

Third, that the [money] [property] was owned by, or was under the care, custody or control of the [organization] [government or agency];

Fourth, that the [money] [property] had a value of $5,000 or more; and

Fifth, that the [organization] [government or agency], in a one year period, received benefits of more than $10,000 under any Federal program involving a grant, contract subsidy, loan, guarantee, insurance or other assistance. [The one year period must begin no more than 12 months before the defendant committed these acts and must end no more than 12 months afterward.]

If you find from your consideration of all the evidence that each of these propositions has been proved beyond a reasonable doubt, then you should find the defendant guilty.

If, on the other hand, you find from your consideration of all the evidence that any one of these propositions has not been proved beyond a reasonable doubt, then you should find the defendant not guilty.

Committee Comment

The government is not required to prove that the theft affected the federal funds received by the organization or agency. Salinas v. United States, 522 U.S. 52, ___-___, 118 S.Ct. 469, 473-75 (1997). The jury should be so instructed in the event a contrary argument is raised.

FORECITE National™ CASE NOTES: See FORECITE National™ 103.9.3.3 [Bribery Concerning Federal Program: Requirement Of Nexus Between Bribe Or Kickback And Expenditure Of Federal Funds (18 USC 666(a)(1)(B))].

7^th CIRCUIT FEDERAL INSTRUCTIONS 1999

[076] Bribery Concerning Federally Funded Program--Elements

(18 USC 666(a)(1)(B))

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Bribery Concerning Federally Funded Program--Elements (18 USC 666(a)(1)(B))

To sustain the charge of bribery, the government must prove the following propositions:

First, that the defendant was an agent of [an organization] [a [state] [local] [Indian tribal] government, or any agency of that government] [, such as [name charged entity here if status is not in dispute]];

Second, that the defendant solicited, demanded, accepted or agreed to accept anything of value from another person;

Third, that the defendant did so corruptly with the intent to be influenced or rewarded in connection with some business, transaction or series of transactions of the [organization] [government or agency];

Fourth, that this business, transaction or series of transactions involved any thing of a value of $5,000 or more; and

Fifth, that the [organization] [government or agency], in a one year period, received benefits of more than $10,000 under any Federal program involving a grant, contract subsidy, loan, guarantee, insurance or other assistance. [The one year period must begin no more than 12 months before the defendant committed these acts and must end no more than 12 months afterward.]

[A person acts corruptly when that person acts with the understanding that something of value is to be offered or given to reward or influence him/her in connection with his/her [organizational] [official] duties.]

If you find from your consideration of all the evidence that each of these propositions has been proved beyond a reasonable doubt, then you should find the defendant guilty.

If, on the other hand, you find from your consideration of all the evidence that any one of these propositions has not been proved beyond a reasonable doubt, then you should find the defendant not guilty.

Committee Comment

The government is not required to prove that the bribe or other payment affected the federal funds received by the organization or agency. Salinas v. United States, 522 U.S. 52, __-__ 118 S.Ct. 469, 473-75 (1997). The jury should be so instructed in the event a contrary position is raised.

The definition of "corruptly" set forth above is derived from United States v. Bonito, 57 F.3d 167, 171 (2nd Cir. 1995). The term has been defined somewhat differently in the context of other criminal statutes. See, e.g., Roma Construction Co. v. aRusso, 96 F.3d 566, 573-74 (1st Cir. 1996). It is not necessary that this instruction contain the word "bribe" or "bribery," but it must define the term "corruptly." See United States v. Medley, 913 F.2d 1248 (7th Cir.1990).

A defendant need only be partially motivated by the expectation of or desire for reward. United States v. Coyne, 4 F.3d 100 (2nd Cir.1993).

FORECITE National™ CASE NOTES: See FORECITE National™ 103.9.3.3 [Bribery Concerning Federal Program: Requirement Of Nexus Between Bribe Or Kickback And Expenditure Of Federal Funds (18 USC 666(a)(1)(B))].

7^th CIRCUIT FEDERAL INSTRUCTIONS 1999

[077] "Agent"–Definition

(18 USC 666)

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Bribery Of An Agent Of A Program Receiving Federal Funds (18 USC 666(a)(2))

An agent is a person who is authorized to act on behalf of an [organization] [government or agency], including an employee, officer or representative.

7^th CIRCUIT FEDERAL INSTRUCTIONS 1999

[078] Escape--Elements

(18 USC 751)

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Escape from Custody (18 USC 751)

To sustain the charge of [attempted] escape, the government must prove the following propositions:

First, that the defendant was in the custody of [name or describe custodial official, institution or agency] pursuant to [describe authority for custody, e.g. judgment of conviction, arrest, court order]; and

Second, that the defendant knowingly [left] [attempted to leave] [intentionally failed to return to] that custody without authorization to do so.

If you find from your consideration of all the evidence that each of these propositions has been proved beyond a reasonable doubt, then you should find the defendant guilty.

If, on the other hand, you find from your consideration of all the evidence that any one of these propositions has not been proved beyond a reasonable doubt, then you should find the defendant not guilty.

Committee Comment

Some additional definition of "custody" should be offered in cases where it is minimal or constructive, as opposed to those obvious cases involving arrest, jail or prison.

7^th CIRCUIT FEDERAL INSTRUCTIONS 1999

[079] Importing Explosive Materials Without a License--Elements

(18 USC 842)

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Importing Explosive Materials Without a License--Elements (18 USC 842)

To sustain the charge of engaging in the business of importing explosive materials without a license, the government must prove the following propositions:

First, the defendant was an importer of explosive materials; and,

Second, the defendant did not have a license, issued by the Secretary of the Treasury, permitting him to act as an importer of explosive materials.

If you find from your consideration of all the evidence that each of these propositions has been proved beyond a reasonable doubt, then you should find the defendant guilty.

If, on the other hand, you find from your consideration of all the evidence that either of these propositions has not been proved beyond a reasonable doubt, then you should find the defendant not guilty.

7^th CIRCUIT FEDERAL INSTRUCTIONS 1999

[080] Manufacturing Explosive Materials Without a License--Elements

(18 USC 842)

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Importing Explosive Materials Without a License--Elements (18 USC 842)

To sustain the charge of manufacturing explosive materials without a license, the government must prove the following propositions:

First, the defendant was a manufacturer of explosive materials; and,

Second, the defendant did not have a license, issued by the Secretary of the Treasury, permitting him to act as a manufacturer of explosive materials.

If you find from your consideration of all the evidence that each of these propositions has been proved beyond a reasonable doubt, then you should find the defendant guilty.

If, on the other hand, you find from your consideration of all the evidence that either of these propositions has not been proved beyond a reasonable doubt, then you should find the defendant not guilty.

7^th CIRCUIT FEDERAL INSTRUCTIONS 1999

[081] Dealing in Explosive Materials Without a License--Elements

(18 USC 842)

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Importing Explosive Materials Without a License--Elements (18 USC 842)

To sustain the charge of dealing in explosive materials without a license, the government must prove the following propositions:

First, the defendant was dealing in explosive materials; and,

Second, the defendant did not have a license, issued by the Secretary of the Treasury, permitting him to act as a dealer in explosive materials.

If you find from your consideration of all the evidence that each of these propositions has been proved beyond a reasonable doubt, then you should find the defendant guilty.

If, on the other hand, you find from your consideration of all the evidence that either of these propositions has not been proved beyond a reasonable doubt, then you should find the defendant not guilty.

7^th CIRCUIT FEDERAL INSTRUCTIONS 1999

[082] False Statement to Obtain Explosive Materials--Elements

(18 USC 842)

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Importing Explosive Materials Without a License--Elements (18 USC 842)

To sustain the charge of making a false [written; oral] statement, intended or likely to deceive, for the purpose of obtaining explosive materials, the government must prove the following propositions:

First, the defendant knowingly made a false statement [to the Secretary of the Treasury or his delegate; to a licensed importer, manufacturer, or dealer in explosive materials];

Second, the false [written; oral] statement was intended or likely to deceive; and,

Third, the false [written; oral] statement was made for the purpose of obtaining explosive materials.

If you find from your consideration of all the evidence that each of these propositions has been proved beyond a reasonable doubt, then you should find the defendant guilty.

If, on the other hand, you find from your consideration of all the evidence that any of these propositions has not been proved beyond a reasonable doubt, then you should find the defendant not guilty.

7^th CIRCUIT FEDERAL INSTRUCTIONS 1999

[083] Definition of Importer of Explosive Materials

(18 USC 842)

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Importing Explosive Materials Without a License--Elements (18 USC 842)

An importer of explosive materials is any person engaged in the business of bringing explosive materials into the United States for purposes of sale or distribution.

7^th CIRCUIT FEDERAL INSTRUCTIONS 1999

[084] Definition of Explosive Materials

(18 USC 842)

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Importing Explosive Materials Without a License--Elements (18 USC 842)

Explosive materials means explosives, blasting agents, and detonators.

Committee Comment

If necessary to define "explosives, blasting agents, or detonators," use the statutory definitions found in 18 USC 841.

7^th CIRCUIT FEDERAL INSTRUCTIONS 1999

[085] Definition of Manufacturer of Explosive Materials

(18 USC 842)

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Importing Explosive Materials Without a License--Elements (18 USC 842)

A manufacturer of explosive materials is any person engaged in the business of manufacturing explosive materials for the purposes of sale or distribution or for his/her own use.

7^th CIRCUIT FEDERAL INSTRUCTIONS 1999

[086] Definition of Dealer in Explosive Materials

(18 USC 842)

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Importing Explosive Materials Without a License--Elements (18 USC 842)

A dealer in explosive materials is any person engaged in the business of distributing explosive materials at wholesale or retail.