7th CIRCUIT FEDERAL INSTRUCTIONS 1999
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Title 18 Offenses (18 USC 1426 - 18 USC 1951)

        124    Reproduction Of Naturalization Or Citizenship Papers – General Note (18 USC 1426)
        125    Influencing Or Injuring Officer--Elements (18 USC 1503)
        126    Influencing Or Injuring Juror--Elements (18 USC 1503)
        127    Influencing Or Injuring Witness--Elements (18 USC 1503)
        128    Obstruction Of Justice Generally--Elements (18 USC 1503)
        129    Definition Of Witness (18 USC 1503)
        130    Influencing -- Definition Of Endeavor (18 USC 1503)
        131    Obstruction Of Justice Generally--Definition Of Endeavor (18 USC 1503)
        132    False Declarations Before Grand Jury Or Court--Elements (18 USC 1623)
        133    Materiality – -Definition (18 USC 1623)
        134    Records Or Documents (18 USC 1623)
        135    Sequence Of Questions (18 USC 1623)
        136    Inconsistent Statements (18 USC 1623)
        137    Recantation (18 USC 1623)
        138    Obstruction Of Mails (18 USC 1701)
        139    Theft Of Mail from Authorized Depository--Elements (18 USC 1708)
        140    Definition Of Stolen (18 USC 1708)
        141    Mail Theft; Next To A Depository--Elements (18 USC 1708)
        142    Buying, Receiving, Concealing, Or Unlawfully Possessing Stolen Mail--Elements (18 USC 1708)
        143    Removing Contents Of/Secreting/Embezzling/Destroying Mail (18 USC 1708)
        144    Theft Of Mail By Officer Of Employee - Elements (18 USC 1709)
        145    Extortion - Nonrobbery - Elements (18 USC 1951)
        146    Attempted Extortion - Elements (18 USC 1951)
        147    Extortion--Robbery - Elements (18 USC 1951)
        148    Definition Of Robbery (18 USC 1951)
        149    Color Of Official Right--Definition (18 USC 1951)
        150    Extortion--Definition (18 USC 1951)
        151    Property--Definition (18 USC 1951)
        152    Interstate Commerce--Definition (18 USC 1951)

7th CIRCUIT FEDERAL INSTRUCTIONS 1999

 [124] Reproduction of Naturalization or Citizenship Papers –General Note

(18 USC 1426)

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Reproduction Of Naturalization Or Citizenship Papers - General Note (18 USC 1426)

Committee Comment

This section covers a wide variety of offenses involving the reproduction and sale of naturalization or citizenship papers. Accordingly, pattern instructions are not suitable for this section.

7th CIRCUIT FEDERAL INSTRUCTIONS 1999

[125] Influencing or Injuring Officer--Elements

(18 USC 1503) 

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Obstructing Due Administration Of Justice (18 USC 1503)

See FORECITE National™ Federal Models By Offense: Corruptly Influencing A Juror (18 USC 1503)

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

First, that (name) was an officer in or of any court of the United States;

Second, that the defendant endeavored to [influence, intimidate, impede] (name) by (here insert act as described in the indictment) on account of his/her being an officer in or of any court of the United States;

Third, that the defendant acted knowingly; and

Fourth, that the defendant's acts were done corruptly, that is, with the purpose of wrongfully impeding the due administration of justice.

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

Several cases have held that the term "corruptly" means that a defendant acted with an improper motive or with an evil or wicked purpose. See United States v. Partin, 552 F.2d 621, 641 (5th Cir.), cert. denied, 434 U.S. 903 (1977); United States v. Ryan, 455 F.2d 728, 734 (9th Cir. 1971); United States v. Haldeman, 559 F.2d 31, 115 n. 229 (D.C. Cir. 1976), cert. denied, 431 U.S. 933 (1977). The Seventh Circuit has not yet addressed this question.

7th CIRCUIT FEDERAL INSTRUCTIONS 1999

[126] Influencing or Injuring Juror--Elements

(18 USC 1503) 

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Obstructing Due Administration Of Justice (18 USC 1503)

See FORECITE National™ Federal Models By Offense: Corruptly Influencing A Juror (18 USC 1503)

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

First, that (name) was a juror or prospective juror;

Second, that the defendant endeavored to [influence, intimidate, impede] (name) by (here insert act as described in the indictment) on account of his/her being a juror or prospective juror;

Third, that the defendant acted knowingly; and

Fourth, that the defendant's acts were done corruptly, that is, with the purpose of wrongfully impeding the due administration of justice.

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 of 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

This statute also applies to venire members who have not been sworn or selected as jurors and are prospective jurors. United States v. Russell, 255 U.S. 138 (1921); United States v. Jackson, 607 F.2d 1219 (8th Cir.1979); cert. denied, 444 U.S. 1080 (1980).

Several cases have held that the term "corruptly" means that a defendant acted with an improper motive or with an evil or wicked purpose. See United States v. Partin, 552 F.2d 621, 641 (5th Cir.), cert. denied, 434 U.S. 903 (1977); United States v. Ryan, 455 F.2d 728, 734 (9th Cir. 1971); United States v. Haldeman, 559 F.2d 31, 115 n. 229 (D.C. Cir. 1976), cert. denied, 431 U.S. 933 (1977). The Seventh Circuit has not yet addressed this question.

7th CIRCUIT FEDERAL INSTRUCTIONS 1999

[127] Influencing or Injuring Witness--Elements

(18 USC 1503) 

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Obstructing Due Administration Of Justice (18 USC 1503)

See FORECITE National™ Federal Models By Offense: Corruptly Influencing A Juror (18 USC 1503)

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

First, that (name) was a witness;

Second, that the defendant endeavored to [influence, intimidate, impede] (name) by (here insert act as described in the indictment) on account of his/her being a witness;

Third, that the defendant acted knowingly; and

Fourth, that the defendant's acts were done corruptly, that is, with the purpose of wrongfully impeding the due administration of justice.

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 of 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

Several cases have held that the term "corruptly" means that a defendant acted with an improper motive or with an evil or wicked purpose. See United States v. Partin, 552 F.2d 621, 641 (5th Cir.), cert. denied, 434 U.S. 903 (1977); United States v. Ryan, 455 F.2d 728, 734 (9th Cir. 1971); United States v. Haldeman, 559 F.2d 31, 115 n. 229 (D.C. Cir.1976), cert. denied, 431 U.S. 933 (1977). The Seventh Circuit has not yet addressed this question.

7th CIRCUIT FEDERAL INSTRUCTIONS 1999

[128] Obstruction of Justice Generally--Elements

(18 USC 1503) 

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Obstructing Due Administration Of Justice (18 USC 1503)

See FORECITE National™ Federal Models By Offense: Corruptly Influencing A Juror (18 USC 1503)

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

First, that the defendant [influenced, obstructed, impeded] or endeavored to [influence, obstruct, impede] the due administration of justice;

Second, that the defendant acted knowingly; and

Third, that the defendant's acts were done [corruptly], that is, [by threats, by force, by threatening letter or communication] with the purpose of wrongfully impeding the due administration of justice.

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 of 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

This instruction is for use when the omnibus, or catch-all, provision of Section 1503 is used. This provision has been widely applied to cover virtually any circumstance in which there is an effort to obstruct or interfere with the administration of justice. See United States v. Howard, 569 F.2d 1331 (5th Cir.), cert. denied sub nom., 439 U.S. 834 (1978); United States v. Walasek, 527 F.2d 676 (3d Cir1975); United States v. Solow, 138 F. Supp. 812 (S.D.N.Y.1956).

Several cases have held that the term "corruptly" means that a defendant acted with an improper motive or with an evil or wicked purpose. See United States v. Partin, 552 F.2d 621, 641 (5th Cir.), cert. denied, 434 U.S. 903 (1977); United States v. Ryan, 455 F.2d 728, 734 (9th Cir. 1971); United States v. Haldeman, 559 F.2d 31, 115 n. 229 (D.C. Cir. 1976), cert. denied, 431 U.S. 933 (1977). The Seventh Circuit has not yet addressed this question.

7th CIRCUIT FEDERAL INSTRUCTIONS 1999

[129] Definition of Witness

(18 USC 1503) 

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Obstructing Due Administration Of Justice (18 USC 1503)

See FORECITE National™ Federal Models By Offense: Corruptly Influencing A Juror (18 USC 1503)

A witness is a person who is expected by the defendant to be called to testify in a pending judicial proceeding or grand jury investigation. It is not necessary that the witness actually have been subpoenaed to testify in a pending judicial proceeding or grand jury investigation.

Committee Comment

The matter must be a grand jury investigation or a judicial proceeding pending before a judge or magistrate. United States v. Brown, 688 F.2d 596 (9th Cir.1982); United States v. Shoup, 608 F.2d 950 (3d Cir.1979).

The witness in question need not know of the existence of the proceedings or of the likelihood that he may testify . The focus is on the defendant's mental state, i.e., did the defendant expect the witness to be called to testify? United States v. Berardi, 675 F.2d 894 (7th Cir.1982).

This instruction should be given only if the matters referred to in the instruction are the subject of a factual dispute.

7th CIRCUIT FEDERAL INSTRUCTIONS 1999

[130] Influencing--Definition of Endeavor

(18 USC 1503) 

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Obstructing Due Administration Of Justice (18 USC 1503)

See FORECITE National™ Federal Models By Offense: Corruptly Influencing A Juror (18 USC 1503)

The word endeavor describes any effort or act to influence [a witness, a juror, an officer in or of any court of the United States]. The endeavor need not be successful, but it must have at least a reasonable tendency to impede the [witness, juror, officer] in the discharge of his duties.

Committee Comment

See United States v. Nicosia, 638 F.2d 970 (7th Cir.1980), cert. denied, 452 U.S. 961 (1981); United States v. Harris, 558 F.2d 366 (7th Cir.1977); United States v. Jackson, 513 F.2d 456 (D.C.Cir.1975); United States v. DeStephano, 476 F.2d 324 (7th Cir.1973).

Use when applicable. United States v. Nicosia, supra.

It is no defense that the result intended by the defendant was impossible.

7th CIRCUIT FEDERAL INSTRUCTIONS 1999

 [131] Obstruction of Justice Generally--Definition of Endeavor

(18 USC 1503)

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Obstructing Due Administration Of Justice (18 USC 1503)

See FORECITE National™ Federal Models By Offense: Corruptly Influencing A Juror (18 USC 1503)

The word endeavor describes any effort or act to influence, obstruct, or impede the due administration of justice. The endeavor need not be successful, but it must have at least a reasonable tendency to influence, obstruct, or impede the due administration of justice.

Committee Comment

See United States v. Nicosia, 638 F.2d 970 (7th Cir.1980), cert. denied, 452 U.S. 961 (1981); United States v. Harris, 558 F.2d 366 (7th Cir.1977); United States v. Jackson, 513 F.2d 456 (D.C.Cir.1975); United States v. DeStephano, 476 F.2d 324 (7th Cir.1973).

It is no defense that the result intended by the defendant was impossible.

7th CIRCUIT FEDERAL INSTRUCTIONS 1999

 [132] False Declarations Before Grand Jury or Court--Elements

(18 USC 1623)

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: False Declaration Before Grand Jury Or Court (18 USC 1623)

To sustain the charge of false declaration before a grand jury or in a court, the government must prove the following propositions:

First, that the defendant, while under oath, testified falsely before a [United States grand jury, Court of the United States] as charged in the indictment;

Second, that the defendant's testimony related to some material matter; and

Third, that the defendant knew the testimony was false.

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

Willfulness is not an element required to establish a violation of 18 USC 1623. United States v. Watson, 623 F.2d 1198, 1207 (7th Cir. 1980). Watson is still good law on the absence of willfulness as an element after United States v. Gaudin, 515 U.S. 506, 510 (1995).

Also, if recantation is a defense, see instruction on § 1623 Recantation, and add a fourth element to this instruction.

7th CIRCUIT FEDERAL INSTRUCTIONS 1999

[133] Materiality–Definition

(18 USC 1623) 

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: False Declaration Before Grand Jury Or Court (18 USC 1623)

A statement is material if it had the effect of impeding, interfering with or influencing the [court] [jury] [grand jury] in the matter it was considering, or had the potential or capability of doing so. [It is not necessary that the statement actually have that effect, so long as it had the potential or capability of doing so.]

Committee Comment

United States v. Watson, 623 F.2d 1198, 1207 (7th Cir. 1980) defined materiality as "effect or tendency of statement to impede, influence, or dissuade a grand jury from pursuing its investigation." Watson held that materiality is a question of law. However, the Supreme Court has ruled that materiality is a mixed question and should be given to the jury. United States v. Gaudin, 515 U.S. 506, 510 (1995). See also United States v. DiDomenico, 78 F.3d 294,302 (7th Cir.1996); Waldeimer v. United States, 911 F.Supp. 1105,1113 (S.D.Ill. 1996); Kraut v. Wisconsin Laborers Health Fund, 992 F.2d 113 (7th Cir.1993). United States v. Martellano, 675 F.2d 940, 942 (7th Cir.1982); and United States v. Picketts, 655 F.2d 837, 840 (7th Cir.), cert. denied, 454 U.S. 1056 (1981).

7th CIRCUIT FEDERAL INSTRUCTIONS 1999

[134] Records or Documents

(18 USC 1623) 

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: False Declaration Before Grand Jury Or Court (18 USC 1623)

Making or using a record or document knowing it to be false or to contain a false declaration constitutes making or using a false declaration.

7th CIRCUIT FEDERAL INSTRUCTIONS 1999

[135] Sequence of Questions

(18 USC 1623) 

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: False Declaration Before Grand Jury Or Court (18 USC 1623)

In determining whether an answer to a question is false, you should consider the sequence of questions in which the question and answer occurred as an aid to understanding the defendant's intent when making the declaration.

Committee Comment

See United States v. Bonacorsa, 528 F.2d 1218 (2d Cir.), cert. denied, 426 U.S. 935 (1976).

7th CIRCUIT FEDERAL INSTRUCTIONS 1999

 [136] Inconsistent Statements

(18 USC 1623)

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: False Declaration Before Grand Jury Or Court (18 USC 1623)

If you find that the defendant under oath has knowingly made two or more declarations which are so inconsistent that one of them is necessarily false, you need not find which of the two declarations is false. If you find that the defendant believed each declaration to be true when made, then you must find the defendant not guilty.

7th CIRCUIT FEDERAL INSTRUCTIONS 1999

 [137] Recantation

(18 USC 1623)

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: False Declaration Before Grand Jury Or Court (18 USC 1623)

The defendant recants his false declarations when, in the same continuous proceeding, he admits to the [grand jury, court] that his earlier declarations were false. However, in order for the defendant to recant his testimony, he must admit the falsities: (1) before the proceeding has been substantially affected by the testimony, and (2) before it has become manifest to the defendant that the false declarations have been or will be exposed to the [grand jury, court].

Committee Comment

The recantation bar of Section 1623(d) is available under limited circumstances in false declaration prosecutions. The subsection lists two seemingly alternative conditions precedent which must be fulfilled before the admission of falsity may bar prosecution with the use of the disjunctive "or". In United States v. Moore, 613 F.2d 1029 (D.C. Cir.1979), cert. denied, 446 U.S. 954 (1980), however, the court held that the two conditions must be read with the conjunctive "and" -- otherwise the intent of Congress would be defeated. The Fifth Circuit has adopted the Moore court's reasoning and conclusion. United States v. Scrimgeour, 636 F.2d 1019 (5th Cir.), cert. denied, 454 U.S. 878 (1981).

The Second Circuit recently acknowledged the issue of the use of "or" between the two conditions but found it unnecessary in the case before it to resolve the matter. United States v. D'Auria, 672 F. 2d 1085 (2d Cir.1982). The Seventh Circuit and remaining circuits have not directly addressed the issue.

United States v. Denison, 663 F.2d 611 (5th Cir.1981), construed the "had become manifest" clause as referring to whether the witness knew at the rime of recantation that the grand jury or trial court knew or would come to learn of the declaration's falsity. United States v. Moore, supra, implicitly accepts the Denison view. In the Seventh Circuit, both Judge Swygert and Judge Pell, in separate statements following a per curiam en banc opinion in United States v. Clavey, 578 F.2d 1219 (7th Cir.), cert. denied, 439 U.S. 954 (1978), adopted the view that "manifest" refers to the witness.

The only circuit opinion that addresses the phrase "substantially affected" does so by reviewing the standards for materiality in perjury prosecutions. That court concluded that false testimony which had not had a substantial effect for purposes of Section 1623(d) may still be material in the Section 1623(d) sense. United States v. Moore, 613 F.2d at 1038. United States v. Krogh, 366 F.Supp. 1255 (D.D.C.1973), concluded as a matter of law that the grand jury had been substantially affected when it "acted" on issues that encompassed the given matter of the testimony which had been falsely given. United States v. Tucker, 495 F.Supp. 607 (E.D.N.Y.1980), citing Krogh's approach, found that a grand jury had been substantially affected when it was unable to indict a suspect due to the defendant's false declaration.

A valid recantation is a bar to prosecution, accordingly, the defense must be raised before trial, and failure to raise the defense constitutes a waiver. United States v. Denison, supra; United States v. Swainson, 548 F.2d 657 (6th Cir.), cert. denied, 431 U.S. 937 (1977); accord, United States v. Kahn, 472 F.2d 272 (2d Cir.), cert. denied, 411 U.S. 982 (1973). The government must prove by a preponderance of the evidence on the pretrial motion to dismiss that the defendant did not recant within the meaning of Section 1623(d). United States v. Tucker, supra.

7th CIRCUIT FEDERAL INSTRUCTIONS 1999

 [138] Obstruction of Mails

(18 USC 1701)

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Obstruction Of Mails (18 USC 1701)

Committee Comment

Because there is no present statutory or constitutional right to a jury trial under this section, the Committee has not drafted a jury instruction to cover this section.

7th CIRCUIT FEDERAL INSTRUCTIONS 1999

 [139] Theft of Mail from Authorized Depository--Elements

(18 USC 1708)

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Theft Of Mail (18 USC 1708)

See FORECITE National™ Federal Models By Offense: Theft Of Mail Matter (18 USC 1708) (First Paragraph)

See FORECITE National™ Federal Models By Offense: Possession Of Stolen Mail (18 USC 1708) (Third Paragraph)

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

First, that the defendant [stole, obtained by fraud or deception, attempted to obtain by fraud or deception] (here name specific mail matter as charged in the indictment); and

Second, that the defendant [stole, obtained by fraud or deception, attempted to obtain by fraud or deception] (here name specific mail matter as charged in the indictment) from [the mail, a post office, a letter box, a mail receptacle, a mail route, an authorized depository for mail, a mail carrier].

If you find from your consideration of all the evidence that both of these propositions have 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.

Committee Comment

Three situations commonly arise under § 1708 involving improperly addressed or mis-delivered mail.

In the first situation, the sender mistakenly addresses a letter to the defendant instead of the intended recipient, and the post office subsequently delivers the letter to the defendant addressee. At one time, it was held that when the defendant removed the letter from the mail, § 1708 was not violated because there was no intent to steal. United States v. Lampson, 627 F.2d 62,66 (7th Cir.1980); Allen v. United States, 387 F.2d 641, 643 (5th Cir.1968); Goodman v. United States, 341 F.2d 272,273 (5th Cir.1965) all The purpose of the statute is to protect against theft generally. Allen v. United States, 387 F.2d at 642. However, United States v. Palmer, 864 F.2d 524,526 (7th Cir.1988), cert. denied, 490 U.S. 1110 (1989), determined that § 1708 applies to all misdelivered mail whether it be miscarried or misaddressed. The court in Palmer, did not see why misaddressed mail should be treated differently than misdelivered mail. In both cases, the job of the postal system is not complete until the letter is delivered to the intended recipient or back to the sender. The 7th Circuit is in accord with the First and Tenth Circuits on this point.

In the second situation, mail is correctly addressed, but is constructively delivered to a third person. In United States v. Logwood, 360 F.2d 905 (7th Cir.1966), for example, mail for all rooming house tenants always delivered to the landlady who delivered it to her tenants. When the landlady’s son stole a letter from his mother’s windowsill, the court held that the letter was not stolen from an authorized mail receptacle and that the theft was therefore outside the purview of § 1708. Accord United States v. Patterson, 664 F.2d 1346 (9th Cir.1982) (mail delivered to front desk of YMCA and held there in boxes for guests not in authorized mail receptacle under § 1708.) Palmer does not apply here because the mail was out of the control of the postal service and they were effectively powerless to prevent the theft.

In the third situation, mail is delivered to someone other than the addressee. Under United States v. Lampson, supra, a defendant who removes mail from his mail box does not intend to steal at the time the mail is removed from the receptacle. This was not viewed as a violation of § 1708. While Lampson is not cited in Palmer, supra, Palmer clearly states that § 1708 covers all misdelivered mail, whether it be misaddressed or given to the wrong person. Therefore, it is no longer necessary to draw a distinction between misaddressed and mis-delivered mail.

7th CIRCUIT FEDERAL INSTRUCTIONS 1999

[140] Definition of Stolen

(18 USC 1708) 

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Theft Of Mail (18 USC 1708)

See FORECITE National™ Federal Models By Offense: Possession Of Stolen Mail (18 USC 1708) (Third Paragraph)

Mail is "stolen" when it has been taken willfully from the mails with the intent to deprive the owner of the rights and benefits of ownership. That intent must exist at the time the item[s] is [are] taken from the mails.

Committee Comment

See United States v. Turley, 352 U.S. 407, 417 (1957); United States v. Lampson, 627 F.2d 62, 66 (7th Cir.1980); United States v. Ashford, 403 F.Supp. 461, 464-65 (N.D.Ia.1975), aff'd, 530 F.2d 792 (8th Cir.1976).

7th CIRCUIT FEDERAL INSTRUCTIONS 1999

[141] Mail Theft; Next to a Depository--Elements

(18 USC 1708) 

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Theft Of Mail (18 USC 1708)

See FORECITE National™ Federal Models By Offense: Possession Of Stolen Mail (18 USC 1708) (Third Paragraph)

To sustain the charge of theft of mail next to a depository of mail, the government must prove the following propositions:

First, the defendant [stole; obtained by fraud or deception] (here name specific mail matter); and

Second, at the time defendant [stole; obtained by fraud or deception] (here name specific mail matter), it had been left for collection on or next to an authorized depository for mail.

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.

7th CIRCUIT FEDERAL INSTRUCTIONS 1999

 [142] Buying, Receiving, Concealing, or Unlawfully Possessing Stolen Mail--Elements

(18 USC 1708)

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Theft Of Mail (18 USC 1708)

See FORECITE National™ Federal Models By Offense: Possession Of Stolen Mail (18 USC 1708) (Third Paragraph)

To sustain the charge of [buying, receiving, concealing, possessing] stolen mail, the government must prove the following propositions:

First, that the defendant knowingly [bought, received, concealed, possessed] (here name specific mail matter as charged in the indictment);

Second, that the (here name specific mail matter as charged in the indictment) previously had been [stolen, taken, embezzled] from [the mail, a post office, a letter box, a mail receptacle, a mail route, an authorized depository for mail, a mail carrier); and

Third, that the defendant knew that (here name specific mail matter as charged in the indictment) previously had been [stolen, taken, embezzled].

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 wording of the second paragraph is intended to make clear to the jury, without burdening it with an additional instruction, that the defendant need not have stolen the mail himself/herself.

7th CIRCUIT FEDERAL INSTRUCTIONS 1999

[143] Removing Contents of/Secreting/Embezzling/Destroying Mail

(18 USC 1708) 

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Theft Of Mail (18 USC 1708)

See FORECITE National™ Federal Models By Offense: Possession Of Stolen Mail (18 USC 1708) (Third Paragraph)

Committee Comment

Because the second and third sections of the first paragraph of 18 USC 1708, which proscribe removing the contents of a piece of mail or secreting, embezzling or destroying mail or its contents, are unclear, little-used, and apparently repetitive of other sections of Title 18, the Committee has not drafted pattern instructions for them.

7th CIRCUIT FEDERAL INSTRUCTIONS 1999

[144] Theft of Mail by Officer of Employee - Elements

(18 USC 1709) 

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Embezzlement/Theft Of Mail Matter By Postal Service Employee (18 USC 1709)

To sustain the charge of [embezzlement, theft] of mail by a Postal Service employee, the government must prove the following propositions:

First, that the defendant was a Postal Service [employee, officer];

Second, that [the (here name specific mail matter involved), any article or thing contained within the (here name specific mail matter involved)] was [entrusted to the defendant, came into the defendant's possession] for the purpose of being [conveyed by mail, carried or delivered by any person employed in any department of the Postal Service, forwarded through or delivered from any post office or station thereof established by authority of the Postmaster General or of the Postal Service]; and

Third, that the defendant embezzled [the (here name specific mail matter involved), any article or thing contained within the (here name specific mail matter involved)].

[Third, that defendant [stole, wrongfully removed with intent to convert to his own use] any article or thing contained within the (here name specific mail matter involved).]

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 1709 charges two crimes: embezzlement and theft. A defendant can be charged with embezzlement of both mail matter and any article or thing contained therein, but can be charged with theft only of any article or thing contained within mail matter and not theft of the matter itself. United States v. Trevino, 491 F.2d 74, 75 (5th Cir.1974). When the defendant is charged with embezzlement, an instruction defining embezzlement must be given.

Courts define the word "removed" in the alternate third element generally to encompass felonious intent to convert the property of another to one's own use. United States v. Coleman, 449 F.2d 772, 773 (5th Cir.1971); United States v. Rush, 551 F.Supp. 148, 151 (S.D.Ia.1982). Contra United States v. Greene, 349 F.Supp. 1112, 1114 (D.Md.1971), aff'd, 468 F.2d 920 (4th Cir.1972).

Use the initial third element when the defendant is charged with embezzlement. Use the bracketed alternate third element when the defendant is charged with theft. Use separate instructions when the defendant is charged with both embezzlement and theft.

7th CIRCUIT FEDERAL INSTRUCTIONS 1999

[145] Extortion - Non-Robbery - Elements

(18 USC 1951) 

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Interference With Commerce By Robbery Or Extortion (Hobbs Act) (18 USC 1951)

See FORECITE National™ Federal Models By Offense: Extortion - Nonrobbery - Elements (18 USC 1951)

To sustain the charge of extortion, as charged in Count ___, the government must prove the following propositions:

First, that the defendant knowingly obtained money or property from [name of victim];

Second, that the defendant did so by means of extortion [by] [threatened] [force] [violence] [fear] [under color of official right], as that term is defined in these instructions;

Third, that [name of victim] consented to part with the money or property because of the extortion;

Fourth, that the defendant believed that [name of victim] parted with the money or property because of the extortion; and

Fifth, that the conduct of the defendant affected interstate commerce.

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.

7th CIRCUIT FEDERAL INSTRUCTIONS 1999

[146] Attempted Extortion - Elements

(18 USC 1951) 

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Interference With Commerce By Robbery Or Extortion (Hobbs Act) (18 USC 1951)

See FORECITE National™ Federal Models By Offense: Extortion - Nonrobbery - Elements (18 USC 1951)

To sustain the charge of attempted extortion, as charged in Count ___, the government must prove the following propositions:

First, that the defendant knowingly [obtained or] attempted to obtain money or property from ________________;

Second, that the defendant did so by means of extortion [by] [threatened] [force] [violence] [fear] [under color of official right], as that term is defined in these instructions;

Third, that the defendant believed that _____________ [would have] parted with the money or property because of the extortion; and

Fourth, that the conduct of the defendant affected, would have affected or had the potential to affect interstate commerce.

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.

7th CIRCUIT FEDERAL INSTRUCTIONS 1999

[147] Extortion--Robbery–Elements

(18 USC 1951) 

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Interference With Commerce By Robbery Or Extortion (Hobbs Act) (18 USC 1951)

See FORECITE National™ Federal Models By Offense: Extortion - Nonrobbery - Elements (18 USC 1951)

To sustain the charge of extortion by robbery, as charged in Count ___, the government must prove the following propositions:

First, that the defendant knowingly obtained money or property from or in the presence of [name of victim];

Second, that the defendant did so by means of robbery, as that term is defined in these instructions;

Third, that the defendant believed that [name of victim] parted with the money or property because of the robbery; and

Fourth, that the robbery affected interstate commerce.

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.

7th CIRCUIT FEDERAL INSTRUCTIONS 1999

[148] Definition of Robbery

(18 USC 1951) 

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Interference With Commerce By Robbery Or Extortion (Hobbs Act) (18 USC 1951)

See FORECITE National™ Federal Models By Offense: Extortion - Nonrobbery - Elements (18 USC 1951)

Robbery means the unlawful taking or obtaining of personal property from the person or in the presence of another, against his/her will, by means of actual or threatened force, or violence [or fear of injury, immediate or future, to his/her person or property, or property in his/her custody or possession, or the person or property of a relative or member of his/her family or of anyone in his/her company at the time of the taking or obtaining].

Committee Comment

Use material in brackets when appropriate.

7th CIRCUIT FEDERAL INSTRUCTIONS 1999

[149] Color of Official Right--Definition

(18 USC 1951) 

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Interference With Commerce By Robbery Or Extortion (Hobbs Act) (18 USC 1951)

See FORECITE National™ Federal Models By Offense: Extortion - Nonrobbery - Elements (18 USC 1951)

[Attempted] Extortion under color of official right occurs when a public official receives [or attempts to obtain] money or property to which he/she is not entitled, knowing [believing] that the money or property is being [would be] given to him/her in return for the taking, withholding or other influencing of official action. [Although the official must receive [or attempt to obtain] the money or property, the government does not have to prove that the public official first suggested the giving of money or property, or that the official asked for or solicited it.] [While the official must receive [or attempt to obtain] the money or property in return for the official action, the government does not have to prove [that the official actually took or intended to take that action] [or] [that the official could have actually taken the action in return for which payment was made] [or] [that the official would not have taken the same action even without payment].]

[Acceptance by an elected official of a campaign contribution, by itself, does not constitute extortion under color of official right, even if the person making the contribution has business pending before the official. However, if a public official receives [or attempts to obtain] money or property, knowing [believing] that it is [would be] given in exchange for a specific requested exercise of his/her official power, he/she has committed extortion under color of official right, even if the money or property is [to be] given to the official in the form of a campaign contribution.]

Committee Comment

See Evans v. United States, 504 U.S. 255 (1992); McCormick v. United States, 500 U.S. 257 (1991); United States v. Allen, 10 F.3d 405 (7th Cir.1993) (suggesting that McCormick applies to state bribery violations charged under RICO).

7th CIRCUIT FEDERAL INSTRUCTIONS 1999

[150] Extortion--Definition (18 USC 1951)

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Interference With Commerce By Robbery Or Extortion (Hobbs Act) (18 USC 1951)

See FORECITE National™ Federal Models By Offense: Extortion - Nonrobbery - Elements (18 USC 1951)

[Attempted] Extortion by [threatened] [force] [or] [violence] [or] [fear] means the wrongful use of [threatened] [force] [or] [violence] [or] [fear] to obtain [or attempt to obtain] money or property. "Wrongful" means that the defendant had no lawful right to obtain [money] [property] in that way. ["Fear" includes fear of economic loss. This includes fear of a direct loss of money, fear of harm to future business operations or a fear of some loss of ability to compete in the marketplace in the future if the victim did not pay the defendant.] The government must prove that the victim's fear was [would have been] reasonable under the circumstances. [However, the government need not prove that the defendant actually intended to cause the harm threatened.]

Committee Comment

See United States v. Capo, 791 F.2d 1054, 1062 (2d Cir.1986); United States v. Beeler, 587 F.2d 340, 344 (6th Cir. 1978); United States v. Brecht, 540 F.2d 45, 51-52 (2d Cir.1976); United States v. Crowley, 504 F.2d 992, 997 (7th Cir. 1974); United States v. DeMet, 486 F.2d 816, 819-20 (7th Cir. 1973); United States v. Biondo, 483 F.2d 635, 640 (8th Cir. 1973); United States v. Varlack, 225 F.2d 665, 668-69 (2d Cir. 1955).

7th CIRCUIT FEDERAL INSTRUCTIONS 1999

[151] Property--Definition

(18 USC 1951) 

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Interference With Commerce By Robbery Or Extortion (Hobbs Act) (18 USC 1951)

See FORECITE National™ Federal Models By Offense: Extortion - Nonrobbery - Elements (18 USC 1951)

The term property includes (here name that which was extorted as charged in the indictment).

Committee Comment

In cases where there is no dispute that the item at issue is property (such as in cases in which the "property" is money), the Committee suggests that the appropriate term be incorporated into the Elements instruction rather than using a separate definitional instruction.

7th CIRCUIT FEDERAL INSTRUCTIONS 1999

[152] Interstate Commerce--Definition

(18 USC 1951)  

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Interference With Commerce By Robbery Or Extortion (Hobbs Act) (18 USC 1951)

See FORECITE National™ Federal Models By Offense: Extortion - Nonrobbery - Elements (18 USC 1951)

With respect to Count _____, the government must prove that the defendant's actions affected [had the potential to affect] interstate commerce in any way or degree. This means that the natural consequences of the defendant's actions were [would have been] some effect on interstate commerce, however minimal. [This would include reducing the assets of a [person who] [or] [business that] customarily purchased goods from outside the state of ____________ or actually engaged in business outside the state of ___________, and if those assets would have been available to the [person] [or] [business] for the purchase of such goods or the conducting of such business if not for defendant's conduct.] It is not necessary for you to find that the defendant knew or intended that his actions would affect interstate commerce[, or that there have been an actual effect on interstate commerce].

[Even though money was provided by a law enforcement agency as part of an investigation, a potential effect on interstate commerce can be established by proof that the money, if it had come from ___________, would have affected interstate commerce as I have described above.]

Committee Comment

Much of the language in brackets is designed for undercover cases charged as attempted extortion.

Courts should feel free to customize the bracketed sentence in the first paragraph regarding the "asset depletion" theory to fit the allegations in particular cases.