8TH CIRCUIT MODEL INSTRUCTIONS 2000

8TH CIRCUIT MODEL INSTRUCTIONS 2009
Go to Federal Model Instructions Table of Contents - Go to 8th Circuit Table of Contents

Final Instructions: Elements of Offenses (6.18.1005 - 6.18.1956J)

        6.18.1005         False Entry In Bank Records (18 USC 1005) (Third Paragraph)
        6.18.1006A      False Entries In Federal Credit Institution Records (18 USC 1006) (First Paragraph)
        6.18.1006B      Participation In Federal Credit Institution Transactions (18 USC 1006 Third Paragraph)
        6.18.1014         False Statement To A Financial Institution (18 USC 1014)
         6.18.1071        Concealing A Person From Arrest (18 USC 1071)
        6.18.1111         Introductory Comments to Homicide Instructions
        6.18.1111A      Murder, First Degree, Within Special Maritime and Territorial Jurisdiction of the
                                United States (18 USC 1111)
        6.18.1111A-1 "Malice Aforethought" Defined
        6.18.1111A-2 "Premeditation" Defined
        6.18.1111A-3   Heat of Passion or Sudden Quarrel Caused by Adequate Provocation, Defined
        6.18.1111B      Murder, Second Degree, Within Special Maritime and Territorial Jurisdiction of the
                                 United States (18 USC 1111)
        6.18.1112A      Voluntary Manslaughter, Within Special Maritime and Territorial Jurisdiction of the
                                 United States (18 USC 1112)
        6.18.1112B      Involuntary Manslaughter, Within Special Maritime and Territorial Jurisdiction of the
                                 United States (18 USC 1112)
        6.18.1114A      Murder, First Degree, Federal Victim (18 USC 1114)
        6.18.1114B      Murder, Second Degree, Federal Victim (18 USC 1114)
        6.18.1114C      Voluntary Manslaughter, Federal Victim (18 USC 1114)
        6.18.1114D      Involuntary Manslaughter, Federal Victim (18 USC 1114)
        6.18.1341         Mail Fraud (18 USC 1341)
        6.18.1344         Bank Fraud (18 USC 1344)
        6.18.1503A      Corruptly Endeavoring to Influence a Juror (18 USC 1503)
        6.18.1503B       Influencing A Juror By Threats (18 USC 1503)
        6.18.1503C      Obstruction Of Justice (18 USC 1503)
        6.18.1510         Obstruction Of Criminal Investigations (18 USC 1510(a))
        6.18.1512         Tampering With A Witness (18 USC 1512(b)(1))
        6.18.1513         Retaliating Against A Witness (18 USC 1513)
        6.18.1621         Perjury (18 USC 1621)
        6.18.1622         Subornation Of Perjury (18 USC 1622)
        6.18.1623         False Declaration Before Court Or Grand Jury (18 USC 1623)
        6.18.1708A      Mail Theft (18 USC 1708) (First Paragraph)
        6.18.1708B       Possession Of Stolen Mail (18 USC 1708) (Third Paragraph)
        6.18.1709A       Embezzlement Of Mail (18 USC 1709) (First Clause)
        6.18.1709B       Theft of Mail by Postal Service Employee (18 USC 1709) (Second Clause)
        6.18.1951         Interference With Commerce By Means Of Extortion (18 USC 1951) (Hobbs Act)
        6.18.1955         Illegal Gambling Business (18 USC 1955)
        6.18.1956A       Money Laundering -- Financial Transaction To Promote Specified Unlawful
                                  Activity (18 USC 1956(a)(1)(A)(i))
        6.18.1956B       Money Laundering -- Financial Transaction To Conceal Proceeds
                                  (18 USC 1956(a)(1)(B)(i))
        6.18.1956C       Money Laundering -- Financial Transaction To Avoid Reporting
                                  Requirements (18 USC 1956(a)(1)(B)(ii))
        6.18.1956D       Money Laundering -- Movement Of Monetary Instruments And Funds To
                                  Promote Specified Unlawful Activity (18 USC 1956(a)(2)(A))
        6.18.1956E        Money Laundering -- Movement Of Monetary Instruments And Funds To
                                  Conceal Proceeds (18 USC 1956(a)(2)(B)(i))
        6.18.1956F        Money Laundering -- Movement Of Monetary Instruments And Funds To
                                  Avoid Reporting Requirements (18 USC 1956(a)(2)(B)(ii))
        6.18.1956G        Money Laundering "Sting" -- Financial Transaction With Intent To Promote
                                  Specified Unlawful Activity (18 USC 1956(a)(3)(A))
        6.18.1956H       Money Laundering "Sting" -- Financial Transaction With Intent To Conceal
                                  Nature Of Property (18 USC 1956(a)(3)(B))
        6.18.1956I         Money Laundering "Sting" -- Financial Transaction With Intent To Avoid
                                  Transaction Reporting Requirement (18 USC 1956(a)(3)(C))
        6.18.1956J         Supplemental Instructions

8TH CIRCUIT MODEL INSTRUCTIONS 2009

6.18.1005 FALSE ENTRY IN BANK RECORDS
(18 USC 1005)
(Third Paragraph)

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: False Statements In Bank Records (18 USC 1005)

The crime of making a false entry in bank records, as charged in [Count _____ of] the indictment, has four elements, which are:

One, that the defendant¹ made or caused to be made a false entry [concerning a material fact]² in a [book] [report] [statement] of (name of bank or other covered institution)³;

Two, the defendant knew the entry was false;

Three,⁴ [the defendant did so with the intent [to injure] [to defraud] [the bank] [(or describe other entity or person covered by the statute allegedly intended to be injured or defrauded, i.e., "any other company, body politic or corporate, or any individual person")];]

[the defendant did so with the intent to deceive an officer of the bank (or describe other entity or person covered by the statute allegedly intended to be deceived, i.e., "the Comptroller of the Currency, or the Federal Deposit Insurance Corporation, or any agent or examiner appointed to examine the affairs of such bank or company, or the Board of Governors of the Federal Reserve System");] and

Four, the bank was (describe federal relation, e.g., insured by the FDIC).

An entry is "false" if untrue when made. An entry may be false if it records a transaction which did not occur, or fails to record a transaction which did occur and should have been accurately recorded, or inaccurately reports or records a transaction.

[To act with "intent to injure" means to act with intent to cause pecuniary loss.] [To act with "intent to defraud" means to act with intent to deceive or cheat, ordinarily for the purpose of causing a financial loss to someone else or bringing about a financial gain to the defendant or another.] [To act with "intent to deceive" means to act with intent to mislead or to cause a person to believe that which is false.]⁵

[A fact is "material" if it has a natural tendency to influence, or is capable of influencing the decision of the institution. (Whether a fact is material does not depend on whether a course of action intended to deceive others actually succeeded.)]⁶

(Insert paragraph describing Government's burden of proof; see Instruction 3.09, supra.)

Notes on Use

1. The Federal Judicial Center Pattern Jury Instructions list as an element that the defendant be an employee of the bank. The third paragraph of the statute does not make this distinction and proscribes "whoever," not merely officers, from making false entries. United States v. Edick, 432 F.2d 350, 352-53 (4th Cir. 1970).

2. Although neither 18 USC 1005 nor § 1006 expressly require the false statement or entry to be of a "material fact," both the Eleventh Circuit and the Fifth Circuit impose such a requirement, albeit without much discussion. United States v. Rapp, 871 F.2d 957, 963-64 (11th Cir. 1989) (citing United States v. Jackson, 621 F.2d 216, 219 (5th Cir. 1980)) (section 1005); United States v. Beuttenmuller, 29 F.3d 973, 982 (5th Cir. 1994) (section 1006). Both circuits suggest using the definition of materiality approved for section 1001 instructions. The Eighth Circuit has not specifically addressed this issue. In Feingold v. United States, 49 F.3d 437 (8th Cir. 1995), the court mentioned the requirement of materiality in conjunction with a section 1001 charge, but did not make any reference to a materiality issue in a section 1005 charge that was discussed in the preceding sentence. The issue apparently was not raised, and was not discussed in the appellate opinion.

In section 1001, materiality is important because the statute requires that the statement be of a material fact and no intent to deceive or defraud is required for conviction. The statutory language in sections 1005 and 1006 does not include a requirement of materiality, but does impose a requirement that the government prove an intent to defraud or deceive. Materiality of the statement would seem less significant if the individual seeks to deceive or defraud. The requirement of materiality was arguably intentionally left out of sections 1005 and 1006 for that reason, although no court has yet so stated. In the absence of case law on point, the Committee recommends requiring that materiality be found by the jury. If it is an element, under the holding of United States v. Gaudin, 515 U.S. 506 (1995), it is a jury issue and must be instructed.

3. The types of institutions covered include the Federal Reserve Bank, member banks of the Federal Reserve System, national banks, bank holding companies, and any state bank, banking association, trust company or savings bank, the deposits of which are insured by the Federal Deposit Insurance Corporation.

4. Intent to deceive rather than defraud or injure may be alleged in the indictment, and the jury should be instructed accordingly. The defendant does not have to know that his act violates the law and is not entitled to an instruction defining "specific intent." United States v. Dougherty, 763 F.2d 970, 973-74 (8th Cir. 1985).

In the event the indictment alleges and the evidence at trial supports the submission to the jury of more than one mental state, for example, intent to defraud the bank and intent to deceive the comptroller of currency, the jury may be instructed that they can find the defendant guilty if they find unanimously and beyond a reasonable doubt that the government has proven at least one theory. See generally United States v. Gipson, 553 F.2d 453 (5th Cir. 1977); United States v. Frazin, 780 F.2d 1461, 1468 (9th Cir. 1977).

5. "Intent to deceive" is defined according to United States v. Godwin, 566 F.2d 975 (5th Cir. 1978).

6. See United States v. Gaudin, 515 U.S. at 508 (agreed definition); United States v. Adler, 623 F.2d 1287, 1292 n.7 (8th Cir. 1980) ("A writing or document is materially false if such writing has a natural tendency to influence or is capable of influencing the decision of the government agency making the determination required in the matter."); United States v. Johnson, 937 F.2d 392, 396 (8th Cir. 1991) ("Actual reliance by the government is not necessary."); Blake v. United States, 323 F.2d 245, 247 (8th Cir. 1963) (same).

Committee Comments

See 2A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 41.03 (5th ed. 2000); Fifth Circuit Pattern Jury Instructions: Criminal § 2.31 (1997); Eleventh Circuit Pattern Jury Instructions: Criminal (Offense) § 33 (1997); Federal Judicial Center, Pattern Criminal Jury Instructions § 81 (1988). United States v. Biggerstaff, 383 F.2d 675 (4th Cir. 1967).

"[S]ection 1005 is intended to be broad enough to cover any document or record of the bank that would reveal pertinent information for the officers or directors of the bank." United States v. Foster, 566 F.2d 1045, 1052 (6th Cir. 1977).

"The essence of the offense is making or causing to be made a bank entry which represents what is not true or does not exist." United States v. Steffen, 641 F.2d 591, 597 (8th Cir. 1981). "An omission where an honest entry would otherwise be made can be a false entry for section 1005 purposes." United States v. Copple, 827 F.2d 1182, 1187 (8th Cir. 1987). For example, omitting information that would show the true nature of a transaction can be a violation. United States v. Austin, 823 F.2d 257 (8th Cir. 1987). For other examples of false entries, see United States v. Dougherty, 763 F.2d 970 (8th Cir. 1985) (failure to record improper issuance of bankers' acceptances); United States v. Mohr, 728 F.2d 1132 (8th Cir. 1984) (exceeding loan limit and concealing documents); United States v. Ness, 665 F.2d 248 (8th Cir. 1981) (check-rolling without deposits to customer accounts, which were not really legitimate loans); United States v. Steffen, 641 F.2d 591 (8th Cir. 1981) (forged minutes of board of directors' meeting); United States v. Bevans, 496 F.2d 494 (8th Cir. 1974) (rollover of insufficient fund checks and their treatment as new checks each day to avoid posting as overdrafts).

Coffin v. United States, 156 U.S. 432, 463 (1895), held that "the making of a false entry is a concrete offense which is not committed where the transaction entered actually took place, and is entered exactly as it occurred." However, the Coffin holding has been modified, and a literally true and accurate entry may still be false if it records a fraudulent transaction, contains a half truth, or conceals a material fact. Agnew v. United States, 165 U.S. 36, 52-54 (1897); United States v. Walker, 871 F.2d 1298, 1308 (6th Cir. 1989); United States v. Gleason, 616 F.2d 2, 29 (2d Cir. 1979); United States v. Krepps, 605 F.2d 101, 109 (3d Cir. 1979).

The person responsible for the false entries need not have actually made the entry himself; it is enough that he set into motion the actions that necessarily resulted in the making of the entry in the normal course of business. United States v. Wolf, 820 F.2d 1499, 1504 (9th Cir. 1987); United States v. Krepps, 605 F.2d 101, 109 n.28 (3d Cir. 1979).

Intent to injure, defraud, or deceive is an element. No other definition of "specific intent," i.e., willfulness in the sense of a purpose to violate the law is necessary. United States v. Dougherty, 763 F.2d 970, 973-74 (8th Cir. 1985). Consistent with the Dougherty opinion, and with the recommendation in Instruction 7.02, "willfully" is not included in the description of the mental element for this offense. Cases that include "willfully" in the description of the mental element of a section 1005 offense use the term in the sense of acting voluntarily and intentionally rather than as a "specific intent" requirement of the statute. For example, the Fifth Circuit instruction does not include "willfully" as part of the mental element of a section 1005 violation, and United States v. Jackson, 621 F.2d 216, 219 (5th Cir. 1980), lists section 1005 elements without mentioning "willfully." A recent case, United States v. Kington, 875 F.2d 1091, 1104 (5th Cir. 1989), cites Jackson in listing section 1005 elements. However, in denying a rehearing in Kington, the court stated at 878 F.2d 815, 817, "[w]e note in particular that the district court's intent instruction on the section 1005 count required both willfulness and an intent to injure or defraud." Also, in a recent case, the Eleventh Circuit said, "[t]o substantiate the [section 1005 violations] the government must prove . . . that Rapp knowingly and willfully made, or directed or authorized the making of, a false entry concerning a material fact in a book or record . . . with knowledge of its falsity and with the intent to defraud or deceive . . . ." United States v. Rapp, 871 F.2d 957, 963 (11th Cir. 1989) (citing Jackson as the source of these elements). Under paragraph three of section 1005 it is error to give a "reckless disregard" instruction, since "reckless disregard" does not adequately reflect the statutorily required mental state. See United States v. Welliver, 601 F.2d 203, 210 (5th Cir. 1979); United States v. Adamson, 700 F.2d 953, 964 (5th Cir. 1983). Although materiality is not statutorily required, some circuits have imposed the requirement. See cases cited in Note 2, supra. Until the Eighth Circuit addresses the issue, the Committee recommends including materiality in the jury instructions and allowing the jury to decide the issue.

In cases where violations of civil rules and regulations are shown by the evidence, it may be appropriate to instruct the jury that they are not to consider violations of such regulations as a crime. See United States v. Kindig, 854 F.2d 703, 707 n.1 (5th Cir. 1988).

(For 2008 version see below).

*******************************************************************************************************************************************

2008 Version

The crime of making a false entry in bank records, as charged in [Count _____ of] the indictment, has four elements, which are:

One, that the defendant¹ made or caused to be made a false entry [concerning a material fact]² in a [book] [report] [statement] of (name of bank or other covered institution)³;

Two, the defendant knew the entry was false;

Three,⁴ [the defendant did so with the intent [to injure] [to defraud] [the bank] [(or describe other entity or person covered by the statute allegedly intended to be injured or defrauded, i.e., "any other company, body politic or corporate, or any individual person")];]

[the defendant did so with the intent to deceive an officer of the bank (or describe other entity or person covered by the statute allegedly intended to be deceived, i.e., "the Comptroller of the Currency, or the Federal Deposit Insurance Corporation, or any agent or examiner appointed to examine the affairs of such bank or company, or the Board of Governors of the Federal Reserve System");] and

Four, the bank was (describe federal relation, e.g., insured by the FDIC).

An entry is "false" if untrue when made. An entry may be false if it records a transaction which did not occur, or fails to record a transaction which did occur and should have been accurately recorded, or inaccurately reports or records a transaction.

[To act with "intent to injure" means to act with intent to cause pecuniary loss.] [To act with "intent to defraud" means to act with intent to deceive or cheat, ordinarily for the purpose of causing a financial loss to someone else or bringing about a financial gain to the defendant or another.] [To act with "intent to deceive" means to act with intent to mislead or to cause a person to believe that which is false.]⁵

[A fact is "material" if it has a natural tendency to influence, or is capable of influencing the decision of the institution. (Whether a fact is material does not depend on whether a course of action intended to deceive others actually succeeded.)]⁶

(Insert paragraph describing Government's burden of proof; see Instruction 3.09, supra.)

Notes on Use

5. "Intent to deceive" is defined according to United States v. Godwin, 566 F.2d 975 (5th Cir. 1978).

Committee Comments

(For 2006 version see below)

***************************************************************************************************************************

2006 Version

The crime of making a false entry in bank records, as charged in [Count _____ of] the indictment, has four elements, which are:

One, that the defendant1 made or caused to be made a false entry [concerning a material fact]2 in a [book] [report] [statement] of (name of bank or other covered institution)3;

Two, the defendant knew the entry was false;

Three,4 [the defendant did so with the intent [to injure] [to defraud] [the bank] [(or describe other entity or person covered by the statute allegedly intended to be injured or defrauded, i.e., "any other company, body politic or corporate, or any individual person")];]

[the defendant did so with the intent to deceive an officer of the bank (or describe other entity or person covered by the statute allegedly intended to be deceived, i.e., "the Comptroller of the Currency, or the Federal Deposit Insurance Corporation, or any agent or examiner appointed to examine the affairs of such bank or company, or the Board of Governors of the Federal Reserve System");] and

Four, the bank was (describe federal relation, e.g., insured by the FDIC).

An entry is "false" if untrue when made. An entry may be false if it records a transaction which did not occur, or fails to record a transaction which did occur and should have been accurately recorded, or inaccurately reports or records a transaction.

[To act with "intent to injure" means to act with intent to cause pecuniary loss.] [To act with "intent to defraud" means to act with intent to deceive or cheat, ordinarily for the purpose of causing a financial loss to someone else or bringing about a financial gain to the defendant or another.] [To act with "intent to deceive" means to act with intent to mislead or to cause a person to believe that which is false.]5

[A fact is "material" if it has a natural tendency to influence, or is capable of influencing the decision of the institution. (Whether a fact is material does not depend on whether a course of action intended to deceive others actually succeeded.)]6

(Insert paragraph describing Government's burden of proof; see Instruction 3.09, supra.)

Notes on Use

5. "Intent to deceive" is defined according to United States v. Godwin, 566 F.2d 975 (5th Cir. 1978).

Committee Comments

For 2000 version see below

******************************************************************************************************************

2000 Version

The crime of making a false entry in bank records, as charged in [Count _____ of] the indictment, has four essential elements, which are:

One, that defendant1 made or caused to be made a false entry [concerning a material fact]2 in a [book] [report] [statement] of (name of bank or other covered institution)3;

Two, the defendant knew the entry was false;

Three,4 [the defendant did so with the intent [to injure] [to defraud] [the bank] [(or describe other entity or person covered by the statute allegedly intended to be injured or defrauded, i.e., "any other company, body politic or corporate, or any individual person")];]

[the defendant did so with the intent to deceive an officer of the bank (or describe other entity or person covered by the statute allegedly intended to be deceived, i.e., "the Comptroller of the Currency, or the Federal Deposit Insurance Corporation, or any agent or examiner appointed to examine the affairs of such bank or company, or the Board of Governors of the Federal Reserve System");] and

Four, the bank was (describe federal relation, e.g., insured by the FDIC).

An entry is "false" if untrue when made. An entry may be false if it records a transaction which did not occur, or fails to record a transaction which did occur and should have been accurately recorded, or inaccurately reports or records a transaction.

[To act with "intent to injure" means to act with intent to cause pecuniary loss.] [To act with "intent to defraud" means to act with intent to deceive or cheat, ordinarily for the purpose of causing a financial loss to someone else or bringing about a financial gain to defendant or another.] [To act with "intent to deceive" means to act with intent to mislead or to cause a person to believe that which is false.]5

[A fact is "material" if it has a natural tendency to influence, or is capable of influencing the decision of the institution. (Whether a fact is material does not depend on whether a course of action intended to deceive others actually succeeded.)]6

(Insert paragraph describing Government's burden of proof; see Instruction 3.09, supra.)

Committee Comments

See 2 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Criminal § 50.09 (Cum. Supp. 1997); Fifth Circuit Pattern Jury Instructions: Criminal § 2.31 (1997); Eleventh Circuit Pattern Jury Instructions: Criminal (Offense) § 33 (1997); Federal Judicial Center, Pattern Criminal Jury Instructions § 81 (1988). United States v. Biggerstaff, 383 F.2d 675 (4th Cir. 1967).

"The essence of the offense is making or causing to be made a bank entry which represents what is not true or does not exist." United States v. Steffen, 641 F.2d 591, 597 (8th Cir.), cert. denied, 452 U.S. 943 (1981). "An omission where an honest entry would otherwise be made can be a false entry for section 1005 purposes." United States v. Copple, 827 F.2d 1182, 1187 (8th Cir. 1987). For example, omitting information that would show the true nature of a transaction can be a violation. United States v. Austin, 823 F.2d 257 (8th Cir. 1987). For other examples of false entries, see United States v. Dougherty, 763 F.2d 970 (8th Cir. 1985) (failure to record improper issuance of bankers' acceptances); United States v. Mohr, 728 F.2d 1132 (8th Cir. 1984) (exceeding loan limit and concealing documents); United States v. Ness, 665 F.2d 248 (8th Cir. 1981) (check-rolling without deposits to customer accounts, which were not really legitimate loans); United States v. Steffen, 641 F.2d 591 (8th Cir.), cert. denied, 452 U.S. 943 (1981) (forged minutes of board of directors' meeting); United States v. Bevans, 496 F.2d 494 (8th Cir. 1974) (rollover of insufficient fund checks and their treatment as new checks each day to avoid posting as overdrafts).

Coffin v. United States, 156 U.S. 432, 463 (1895), held that "the making of a false entry is a concrete offense which is not committed where the transaction entered actually took place, and is entered exactly as it occurred." However, the Coffin holding has been modified, and a literally true and accurate entry may still be false if it records a fraudulent transaction, contains a half truth, or conceals a material fact. Agnew v. United States, 165 U.S. 36, 52-54 (1897); United States v. Walker, 871 F.2d 1298, 1308 (6th Cir. 1989); United States v. Gleason, 616 F.2d 2, 29 (2d Cir. 1979), cert. denied, 444 U.S. 1082 (1980); United States v. Krepps, 605 F.2d 101, 109 (3d Cir. 1979).

Intent to injure, defraud, or deceive is an essential element. No other definition of "specific intent," i.e., willfulness in the sense of a purpose to violate the law is necessary. United States v. Dougherty, 763 F.2d 970, 973-74 (8th Cir. 1985). Consistent with the Dougherty opinion, and with the recommendation in Instruction 7.02, "willfully" is not included in the description of the mental element for this offense. Cases that include "willfully" in the description of the mental element of a section 1005 offense use the term in the sense of acting voluntarily and intentionally rather than as a "specific intent" requirement of the statute. For example, the Fifth Circuit instruction does not include "willfully" as part of the mental element of a section 1005 violation, and United States v. Jackson, 621 F.2d 216, 219 (5th Cir. 1980), lists section 1005 elements without mentioning "willfully." A recent case, United States v. Kington, 875 F.2d 1091, 1104 (5th Cir. 1989), cites Jackson in listing section 1005 elements. However, in denying a rehearing in Kington, the court stated at 878 F.2d 815, 817, "[w]e note in particular that the district court's intent instruction on the section 1005 count required both willfulness and an intent to injure or defraud." Also, in a recent case, the Eleventh Circuit said, "[t]o substantiate the [section 1005 violations] the government must prove . . . that Rapp knowingly and willfully made, or directed or authorized the making of, a false entry concerning a material fact in a book or record . . . with knowledge of its falsity and with the intent to defraud or deceive . . . ." United States v. Rapp, 871 F.2d 957, 963 (11th Cir. 1989) (citing Jackson as the source of these elements). Under paragraph three of section 1005 it is error to give a "reckless disregard" instruction, since "reckless disregard" does not adequately reflect the statutorily required mental state. See United States v. Welliver, 601 F.2d 203, 210 (5th Cir. 1979); United States v. Adamson, 700 F.2d 953, 964 (5th Cir.), cert. denied, 464 U.S. 833 (1983). Although materiality is not statutorily required, some circuits have imposed the requirement. See cases cited in Note 2, infra. Until the Eighth Circuit addresses the issue, the Committee recommends including materiality in the jury instructions and allowing the jury to decide the issue.

Notes on Use

1. The Federal Judicial Center Pattern Jury Instructions list as an essential element that the defendant be an employee of the bank. The third paragraph of the statute does not make this distinction and proscribes "whoever," not merely officers, from making false entries. United States v. Edick, 432 F.2d 350, 352-53 (4th Cir. 1970).

In section 1001, materiality is important because the statute requires that the statement be of a material fact and no intent to deceive or defraud is required for conviction. The statutory language in sections 1005 and 1006 does not include a requirement of materiality, but does impose a requirement that the government prove an intent to defraud or deceive. Materiality of the statement would seem less significant if the individual seeks to deceive or defraud. The requirement of materiality was arguably intentionally left out of sections 1005 and 1006 for that reason, although no court has yet so stated. In the absence of case law on point, the Committee recommends requiring that materiality be found by the jury. If it is an element, under the holding of United States v. Gaudin, 515 U.S. 506, 115 S. Ct. 2310 (1995), it is a jury issue and must be instructed.

5. "Intent to deceive" is defined according to United States v. Godwin, 566 F.2d 975 (5th Cir. 1978).

6. See United States v. Gaudin, 515 U.S. at ___, 115 S. Ct. at 2313 (agreed definition); United States v. Adler, 623 F.2d 1287, 1292 n.7 (8th Cir. 1980) ("A writing or document is materially false if such writing has a natural tendency to influence or is capable of influencing the decision of the government agency making the determination required in the matter."); United States v. Johnson, 937 F.2d 392, 396 (8th Cir. 1991) ("Actual reliance by the government is not necessary."); Blake v. United States, 323 F.2d 245, 247 (8th Cir. 1963) (same).

8TH CIRCUIT MODEL INSTRUCTIONS 2009

6.18.1006A FALSE ENTRIES IN FEDERAL CREDIT
INSTITUTION RECORDS
(18 USC 1006) (First Paragraph)

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: False Entries In Federal Credit Institution Records (18 USC 1006)

The crime of making a false entry in credit institution records, as charged in [Count _____ of] the indictment, has [four] [five] elements, which are:

One, the defendant was [an officer of] [an agent of] [an employee of] [connected in a capacity with]¹ (name of covered agency or institution);²

Two, the defendant made or caused to be made a false entry [concerning a material fact]³ in a [book of] [report of] [statement of or to] (name of agency or institution);

Three, the defendant knew the entry was false;

Four,⁴ the defendant did so with the intent to [defraud the institution (or describe other covered entity or person allegedly intended to be defrauded, i.e., "any other company, body politic or corporate, or any individual");] [deceive an [officer] [auditor] [examiner] [agent] of [the institution] [department or agency of the United States.]⁵

[Five, (name of institution) was (describe federal relation, e.g., accounts insured by the Administrator of the National Credit Union Administration).]⁶

An entry is "false" if untrue when made. An entry may be false if it records a transaction which did not occur, or fails to record a transaction which did occur and should have been accurately recorded, or inaccurately reports or records a transaction.

[To act with "intent to defraud" means to act with intent to deceive or cheat, ordinarily for the purpose of causing a financial loss to someone else or bringing about a financial gain to the defendant or another.] [To act with "intent to deceive" means to act with intent to mislead or to cause a person to believe that which is false.]⁷

[A fact is "material" if it has a natural tendency to influence, or is capable of influencing the decision of the institution. (Whether a fact is material does not depend on whether a course of action is intended to deceive others actually succeeded.)]⁸

(Insert paragraph describing Government's burden of proof; see Instruction 3.09, supra.)

Notes on Use

1. The language in the statute, "connected in any capacity with," is construed broadly to effectuate congressional intent by protecting federally insured lenders from fraud. United States v. Prater, 805 F.2d 1441, 1446 (11th Cir. 1986); United States v. Payne, 750 F.2d 844, 853 (11th Cir. 1985).

2. The types of agencies and institutions covered include among others: Federal Deposit Insurance Corporation, National Credit Union Administration, Office of Thrift Supervision, Resolution Trust Corporation, and any lending, mortgage, insurance, credit or savings and loan corporation or association acting under the laws of the United States or any institution the accounts of which are insured by the Federal Deposit Insurance Corporation or the National Credit Union Administration Board.

3. Although neither 18 USC 1005 nor § 1006 expressly require the false statement or entry to be of a "material fact," both the Eleventh Circuit and the Fifth Circuit impose such a requirement, albeit without much discussion. United States v. Rapp, 871 F.2d 957, 963-64 (11th Cir. 1989) (citing United States v. Jackson, 621 F.2d 216, 219 (5th Cir. 1980)) (section 1005); United States v. Beuttenmuller, 29 F.3d 973, 982 (5th Cir. 1994) (section 1006). Both circuits suggest using the definition of materiality approved for section 1001 instructions. The Eighth Circuit has not specifically addressed this issue. In Feingold v. United States, 49 F.3d 437 (8th Cir. 1995), the court mentioned the requirement of materiality in conjunction with a section 1001 charge, but did not make any reference to a materiality issue in a section 1005 charge that was discussed in the preceding sentence. The issue apparently was not raised, and was not discussed in the appellate opinion.

4. The jury should be instructed on intent to defraud or to deceive according to the allegations of the indictment.

5. Intent to injure, defraud, or deceive is an element. No other definition of "specific intent," i.e., willfulness in the sense of a purpose to violate the law is necessary. United States v. Dougherty, 763 F.2d 970, 973-74 (8th Cir. 1985). Consistent with the Dougherty opinion, and with the recommendation in Instruction 7.02, infra, "willfully" is not included in the description of the mental element for this offense. Cases that include "willfully" in the description of the mental element of a section 1005 violation, and United States v. Jackson, 621 F.2d 216, 219 (5th Cir. 1980), list section 1005 elements without mentioning "willfully." United States v. Kington, 875 F.2d 1091, 1104 (5th Cir. 1989), cites Jackson in listing section 1005 elements. However, in denying a rehearing in Kington, the court stated at 878 F.2d 815, 817, "[w]e note in particular that the district court's intent instruction on the section 1005 count required both willfulness and an intent to injure or defraud." Also, the Eleventh Circuit said, "[t]o substantiate the [section 1005 violations] the government must prove . . . that Rapp knowingly and willfully made, or directed or authorized the making of, a false entry concerning a material fact in a book or record . . . with knowledge of its falsity and with the intent to defraud or deceive . . . ." United States v. Rapp, 871 F.2d 957, 963 (11th Cir. 1989) (citing Jackson as the source of these elements).

6. Use this paragraph where the false entry is in a report of a lending institution rather than one of the federal agencies named in the statute. The Federal Savings and Loan Insurance Corporation was abolished in 1989. Institutions formerly insured by FSLIC are now insured by FDIC. Section 1006 was amended one year later to account for this change and the legal effect of the delay is unclear.

7. "Intent to deceive" is defined according to United States v. Godwin, 566 F.2d 975 (5th Cir. 1978).

8. See United States v. Gaudin, 515 U.S. at 508 (agreed definition); United States v. Adler, 623 F.2d 1287, 1292 n.7 (8th Cir. 1980) ("A writing or document is materially false if such writing has a natural tendency to influence or is capable of influencing the decision of the government agency making the determination required in the matter."); United States v. Johnson, 937 F.2d 392, 396 (8th Cir. 1991) ("Actual reliance by the government is not necessary."); Blake v. United States, 323 F.2d 245, 247 (8th Cir. 1963) (same).

Committee Comments

See United States v. Tullos, 868 F.2d 689, 693-94 (5th Cir. 1989); United States v. Stovall, 825 F.2d 817, 822 (5th Cir.), opinion amended, 833 F.2d 526 (5^th Cir. 1987).

A false entry in the records of a federal lending institution in violation of section 1006 and willful misapplication of the funds of a federal lending institution in violation of section 657 are separate offenses. United States v. Stovall, 825 F.2d at 822-23.

Failure to disclose a bank officer's interest in a loan, and failure to disclose nominee status of a borrower, constitute false entries. United States v. Rochester, 898 F.2d 971, 978 (5th Cir. 1990); United States v. Tullos, 868 F.2d at 694 n.6.

United States v. Payne, 750 F.2d 844, 861 (11th Cir. 1985), holds that the "exculpatory no" doctrine, which developed as an exception to 18 USC 1001, is applicable to prosecutions under section 1006.

Tullos and Stovall include "knowingly and willfully" in defining the mental element of a section 1006 offense. The Committee believes that the reasoning of United States v. Dougherty, 763 F.2d 970, 973-74 (8th Cir. 1985), applies, and that there is no need to instruct on an element of willfulness. Intent to defraud or to deceive correctly defines the mental element of the offense. See, e.g., United States v. Rochester, 898 F.2d 971, 979 (5th Cir. 1990); United States v. Payne, 750 F.2d 844, 858 (11th Cir. 1989); United States v. Chenaur, 552 F.2d 294, 297 n.3 and 299 n.7 (9th Cir. 1977); United States v. Hykel, 461 F.2d 721, 723 (3d Cir. 1972); Beaudine v. United States, 368 F.2d 417, 420 n.4 (5th Cir. 1966). Although materiality is not statutorily required, some circuits have imposed the requirement. See cases cited in Note 2, supra. Until the Eighth Circuit addresses the issue, the Committee recommends including materiality in the jury instructions and allowing the jury to decide the issue.

In cases where violations of civil rules and regulations are shown by the evidence, it may be appropriate to instruct the jury that they are not to consider violations of such regulations as a crime. See United States v. Kindig, 854 F.2d 703, 707 n.1 (5th Cir. 1988).

(For 2008 version see below).

*******************************************************************************************************************************************

2008 Version

The crime of making a false entry in credit institution records, as charged in [Count _____ of] the indictment, has [four] [five] elements, which are:

One, the defendant was [an officer of] [an agent of] [an employee of] [connected in a capacity with]¹ (name of covered agency or institution);²

Two, the defendant made or caused to be made a false entry [concerning a material fact]³ in a [book of] [report of] [statement of or to] (name of agency or institution);

Three, the defendant knew the entry was false;

Four,⁴ the defendant did so with the intent to [defraud the institution (or describe other covered entity or person allegedly intended to be defrauded, i.e., "any other company, body politic or corporate, or any individual");] [deceive an [officer] [auditor] [examiner] [agent] of [the institution] [department or agency of the United States.]⁵

[Five, (name of institution) was (describe federal relation, e.g., accounts insured by the Administrator of the National Credit Union Administration).]⁶

An entry is "false" if untrue when made. An entry may be false if it records a transaction which did not occur, or fails to record a transaction which did occur and should have been accurately recorded, or inaccurately reports or records a transaction.

[To act with "intent to defraud" means to act with intent to deceive or cheat, ordinarily for the purpose of causing a financial loss to someone else or bringing about a financial gain to the defendant or another.] [To act with "intent to deceive" means to act with intent to mislead or to cause a person to believe that which is false.]⁷

[A fact is "material" if it has a natural tendency to influence, or is capable of influencing the decision of the institution. (Whether a fact is material does not depend on whether a course of action is intended to deceive others actually succeeded.)]⁸

(Insert paragraph describing Government's burden of proof; see Instruction 3.09, supra.)

Notes on Use

4. The jury should be instructed on intent to defraud or to deceive according to the allegations of the indictment.

7. "Intent to deceive" is defined according to United States v. Godwin, 566 F.2d 975 (5th Cir. 1978).

Committee Comments

See United States v. Tullos, 868 F.2d 689, 693-94 (5th Cir. 1989); United States v. Stovall, 825 F.2d 817, 822 (5th Cir.), opinion amended, 833 F.2d 526 (5^th Cir. 1987).

In cases where violations of civil rules and regulations are shown by the evidence, it may be appropriate to instruct the jury that they are not to consider violations of such regulations as a crime. See United States v. Kindig, 854 F.2d 703, 707 n.1 (5th Cir. 1988).

(For 2006 version see below)

***************************************************************************************************************************

2006 Version

The crime of making a false entry in credit institution records, as charged in [Count _____ of] the indictment, has [four] [five] elements, which are:

One, the defendant was [an officer of] [an agent of] [an employee of] [connected in a capacity with]1 (name of covered agency or institution);2

Two, the defendant made or caused to be made a false entry [concerning a material fact]3 in a [book of] [report of] [statement of or to] (name of agency or institution);

Three, the defendant knew the entry was false;

Four,4 the defendant did so with the intent to [defraud the institution (or describe other covered entity or person allegedly intended to be defrauded, i.e., "any other company, body politic or corporate, or any individual");] [deceive an [officer] [auditor] [examiner] [agent] of [the institution] [department or agency of the United States.]5

[Five, (name of institution) was (describe federal relation, e.g., accounts insured by the Administrator of the National Credit Union Administration).]6

An entry is "false" if untrue when made. An entry may be false if it records a transaction which did not occur, or fails to record a transaction which did occur and should have been accurately recorded, or inaccurately reports or records a transaction.

[To act with "intent to defraud" means to act with intent to deceive or cheat, ordinarily for the purpose of causing a financial loss to someone else or bringing about a financial gain to the defendant or another.] [To act with "intent to deceive" means to act with intent to mislead or to cause a person to believe that which is false.]7

[A fact is "material" if it has a natural tendency to influence, or is capable of influencing the decision of the institution. (Whether a fact is material does not depend on whether a course of action is intended to deceive others actually succeeded.)]8

(Insert paragraph describing Government's burden of proof; see Instruction 3.09, supra.)

Notes on Use

4. The jury should be instructed on intent to defraud or to deceive according to the allegations of the indictment.

7. "Intent to deceive" is defined according to United States v. Godwin, 566 F.2d 975 (5th Cir. 1978).

Committee Comments

See United States v. Tullos, 868 F.2d 689, 693-94 (5th Cir. 1989); United States v. Stovall, 825 F.2d 817, 822 (5th Cir.), opinion amended, 833 F.2d 526 (5th Cir. 1987).

In cases where violations of civil rules and regulations are shown by the evidence, it may be appropriate to instruct the jury that they are not to consider violations of such regulations as a crime. See United States v. Kindig, 854 F.2d 703, 707 n.1 (5th Cir. 1988).

For 2000 version see below

******************************************************************************************************************

2000 Version

The crime of making a false entry in credit institution records, as charged in [Count _____ of] the indictment, has [four] [five] essential elements, which are:

One, the defendant was [an officer of] [an agent of] [an employee of] [connected in a capacity with]1 (name of covered agency or institution);2

Two, the defendant made or caused to be made a false entry [concerning a material fact]3 in a [book of] [report of] [statement of or to] (name of agency or institution);

Three, the defendant knew the entry was false;

Four,4 the defendant did so with the intent to [defraud the institution (or describe other covered entity or person allegedly intended to be defrauded, i.e., "any other company, body politic or corporate, or any individual");] [deceive an [officer] [auditor] [examiner] [agent] of [the institution] [department or agency of the United States.]5 [

Five, (name of institution) was (describe federal relation, e.g., accounts insured by the Administrator of the National Credit Union Administration).]6

An entry is "false" if untrue when made. An entry may be false if it records a transaction which did not occur, or fails to record a transaction which did occur and should have been accurately recorded, or inaccurately reports or records a transaction.

[To act with "intent to defraud" means to act with intent to deceive or cheat, ordinarily for the purpose of causing a financial loss to someone else or bringing about a financial gain to defendant or another.] [To act with "intent to deceive" means to act with intent to mislead or to cause a person to believe that which is false.]7

[A fact is "material" if it has a natural tendency to influence, or is capable of influencing the decision of the institution. (Whether a fact is material does not depend on whether a course of action is intended to deceive others actually succeeded.)]8

(Insert paragraph describing Government's burden of proof; see Instruction 3.09, supra.)

Committee Comments

See United States v. Tullos, 868 F.2d 689, 693-94 (5th Cir. 1989); United States v. Stovall, 825 F.2d 817, 822 (5th Cir. 1987).

Tullos and Stovall include "knowingly and willfully" in defining the mental element of a section 1006 offense. The Committee believes that the reasoning of United States v. Dougherty, 763 F.2d 970, 973- 74 (8th Cir. 1985), applies, and that there is no need to instruct on an element of willfulness. Intent to defraud or to deceive correctly defines the mental element of the offense. See, e.g., United States v. Rochester, 898 F.2d 971, 979 (5th Cir. 1990); United States v. Payne, 750 F.2d 844, 858 (11th Cir. 1989); United States v. Chenaur, 552 F.2d 294, 297 n.3 and 299 n.7 (9th Cir. 1977); United States v. Hykel, 461 F.2d 721, 723 (3d Cir. 1972); Beaudine v. United States, 368 F.2d 417, 420 n.4 (5th Cir. 1966). Although materiality is not statutorily required, some circuits have imposed the requirement. See cases cited in Note 2, infra. Until the Eighth Circuit addresses the issue, the Committee recommends including materiality in the jury instructions and allowing the jury to decide the issue.

Notes on Use

In section 1001, materiality is important because the statute requires that the statement be of a material fact and no intent to deceive or defraud is required for conviction. The statutory language in sections 1005 and 1006 does not include a requirement of materiality, but does impose a requirement that the government prove an intent to defraud or deceive. Materiality of the statement would seem less significant if the individual seeks to deceive or defraud. The requirement of materiality was arguably intentionally left out of sections 1005 and 1006 for that reason, although no court has yet so stated. In the absence of case law on point, the Committee recommends requiring that materiality be found by the jury. If it is an element, under the holding of United States v. Gaudin, 515 U.S. 506, 115 S. Ct. 2310 (1995), it is a jury issue and must be instructed.

4. The jury should be instructed on intent to defraud or to deceive according to the allegations of the indictment.

5. Intent to injure, defraud, or deceive is an essential element. No other definition of "specific intent," i.e., willfulness in the sense of a purpose to violate the law is necessary. United States v. Dougherty, 763 F.2d 970, 973-74 (8th Cir. 1985). Consistent with the Dougherty opinion, and with the recommendation in Instruction 7.02, infra, "willfully" is not included in the description of the mental element for this offense. Cases that include "willfully" in the description of the mental element of a section 1005 violation, and United States v. Jackson, 621 F.2d 216, 219 (5th Cir. 1980), list section 1005 elements without mentioning "willfully." United States v. Kington, 875 F.2d 1091, 1104 (5th Cir. 1989), cites Jackson in listing section 1005 elements. However, in denying a rehearing in Kington, the court stated at 878 F.2d 815, 817, "[w]e note in particular that the district court's intent instruction on the section 1005 count required both willfulness and an intent to injure or defraud." Also, the Eleventh Circuit said, "[t]o substantiate the [section 1005 violations] the government must prove . . . that Rapp knowingly and willfully made, or directed or authorized the making of, a false entry concerning a material fact in a book or record . . . with knowledge of its falsity and with the intent to defraud or deceive . . . ." United States v. Rapp, 871 F.2d 957, 963 (11th Cir. 1989) (citing Jackson as the source of these elements).

7. "Intent to deceive" is defined according to United States v. Godwin, 566 F.2d 975 (5th Cir. 1978).

8. See United States v. Gaudin, 515 U.S. at ___, 115 S. Ct. at 2313 (agreed definition); United States v. Adler, 623 F.2d 1287, 1292 n.7 (8th Cir. 1980) ("A writing or document is materially false if such writing has a natural tendency to influence or is capable of influencing the decision of the government agency making the determination required in the matter."); United States v. Johnson, 937 F.2d 392, 396 (8th Cir. 1991) ("Actual reliance by the government is not necessary."); Blake v. United States, 323 F.2d 245, 247 (8th Cir. 1963) (same).

8TH CIRCUIT MODEL INSTRUCTIONS 2009

6.18.1006B PARTICIPATION IN FEDERAL CREDIT
INSTITUTION TRANSACTIONS
(18 USC 1006, Third Paragraph)

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Participation In Federal Credit Institution Transactions (18 USC 1006)

The crime of (describe offense charged, e.g., receiving benefits through a transaction of a credit institution), as charged in [Count _____ of] the indictment, has [three] [four] elements, which are:

One, the defendant was [an officer of] [an agent of] [an employee of] [connected in a capacity with]¹ (name of covered agency or institution)²;

Two, the defendant [participated in] [shared in] [directly or indirectly received] any [money] [profit] [property] [benefit] through [a transaction] [a loan] [a commission] [a contract] [an act] of (name of covered agency or institution);

Three, the defendant did so with the intent to defraud [the United States] [an agency of the United States] (name of covered agency or institution);

[Four, (name of institution) was (describe federal relation, e.g., accounts insured by the Administrator of the National Credit Union Administration).]³

To act with "intent to defraud" means to act with intent to deceive or cheat, ordinarily for the purpose of causing a financial loss to someone else or bringing about a financial gain to the defendant or another.

(Insert paragraph describing Government's burden of proof; see Instruction 3.09, supra.)

Notes on Use

1. Title 18 USC 1005 was amended by the Financial Institutions Reform, Recovery and Enforcement Act (FIRREA) of 1989 to include a paragraph similar to the third clause of 18 USC 1006. Presumably, this instruction can serve as a pattern for section 1005 offenses under the new provision. The language in the statute, "connected in any capacity with," is construed broadly to effectuate congressional intent by protecting federally insured lenders from fraud. United States v. Prater, 805 F.2d 1441, 1446 (11th Cir. 1986); United States v. Payne, 750 F.2d 844, 853 (11th Cir. 1985).

3. Use this paragraph where the illegal participation or receipt of benefits is in connection with a transaction of a lending institution rather than one of the federal agencies named in the statute. The Federal Savings and Loan Insurance Corporation was abolished in 1989. Institutions formerly insured by FSLIC are now insured by FDIC. Section 1006 was amended one year later to account for this change, and the legal effect of the delay is unclear.

Committee Comments

See United States v. Griffin, 579 F.2d 1104, 1108 (8th Cir. 1978); United States v. Chenaur, 552 F.2d 294, 297 n.3 (9th Cir. 1977); United States v. Hykel, 461 F.2d 721, 723 (3d Cir. 1972).

Participation or benefit with intent to defraud is sufficient; there is no need to show actual loss to the institution. United States v. Rice, 645 F.2d 691 (9th Cir. 1981); United States v. Chenaur, 552 F.2d at 299; Beaudine v. United States, 368 F.2d 417, 420 (5th Cir. 1966).

The offense of misapplication of funds (18 USC 657) is different from the offense of fraudulent participation in the benefits of a loan (18 USC 1006). United States v. Rochester, 898 F.2d 971, 980 (5th Cir. 1990).

Although case law discusses willfulness as an intent element of a section 1006 violation, see, e.g., United States v. Rochester, 898 F.2d at 978-79, the Committee believes the rationale of United States v. Dougherty, 763 F.2d 970, 973-74 (8th Cir. 1985), controls, and that a "specific intent" instruction should not be given. Griffin lists as the fourth element of a section 1006 violation "that such act or acts were done knowingly and willfully." 579 F.2d at 1108. However, Dougherty was decided after Griffin, and "specific intent," apart from intent to defraud or deceive, does not appear to be required by section 1006.

See also Committee Comments and Notes on Use, Instruction 6.18.1006A, supra.

(For 2008 version see below).

*******************************************************************************************************************************************

2008 Version

The crime of (describe offense charged, e.g., receiving benefits through a transaction of a credit institution), as charged in [Count _____ of] the indictment, has [three] [four] elements, which are:

One, the defendant was [an officer of] [an agent of] [an employee of] [connected in a capacity with]¹ (name of covered agency or institution)²;

Two, the defendant [participated in] [shared in] [directly or indirectly received] any [money] [profit] [property] [benefit] through [a transaction] [a loan] [a commission] [a contract] [an act] of (name of covered agency or institution);

Three, the defendant did so with the intent to defraud [the United States] [an agency of the United States] (name of covered agency or institution);

[Four, (name of institution) was (describe federal relation, e.g., accounts insured by the Administrator of the National Credit Union Administration).]³

To act with "intent to defraud" means to act with intent to deceive or cheat, ordinarily for the purpose of causing a financial loss to someone else or bringing about a financial gain to the defendant or another.

(Insert paragraph describing Government's burden of proof; see Instruction 3.09, supra.)

Notes on Use

Committee Comments

See United States v. Griffin, 579 F.2d 1104, 1108 (8th Cir. 1978); United States v. Chenaur, 552 F.2d 294, 297 n.3 (9th Cir. 1977); United States v. Hykel, 461 F.2d 721, 723 (3d Cir. 1972).

See also Committee Comments and Notes on Use, Instruction 6.18.1006A, supra.

(For 2006 version see below)

***************************************************************************************************************************

2006 Version

The crime of (describe offense charged, e.g., receiving benefits through a transaction of a credit institution), as charged in [Count _____ of] the indictment, has [three] [four] elements, which are:

One, the defendant was [an officer of] [an agent of] [an employee of] [connected in a capacity with]1 (name of covered agency or institution)2;

Two, the defendant [participated in] [shared in] [directly or indirectly received] any [money] [profit] [property] [benefit] through [a transaction] [a loan] [a commission] [a contract] [an act] of (name of covered agency or institution);

Three, the defendant did so with the intent to defraud [the United States] [an agency of the United States] (name of covered agency or institution);

[Four, (name of institution) was (describe federal relation, e.g., accounts insured by the Administrator of the National Credit Union Administration).]3

To act with "intent to defraud" means to act with intent to deceive or cheat, ordinarily for the purpose of causing a financial loss to someone else or bringing about a financial gain to the defendant or another.

(Insert paragraph describing Government's burden of proof; see Instruction 3.09, supra.)

Notes on Use

Committee Comments

See United States v. Griffin, 579 F.2d 1104, 1108 (8th Cir. 1978); United States v. Chenaur, 552 F.2d 294, 297 n.3 (9th Cir. 1977); United States v. Hykel, 461 F.2d 721, 723 (3d Cir. 1972).

See also Committee Comments and Notes on Use, Instruction 6.18.1006A, supra.

For 2000 version see below

******************************************************************************************************************

2000 Version

The crime of (describe offense charged, e.g., receiving benefits through a transaction of a credit institution), as charged in [Count _____ of] the indictment, has [three] [four] essential elements, which are:

One, the defendant was [an officer of] [an agent of] [an employee of] [connected in a capacity with]1 (name of covered agency or institution)2;

Two, the defendant [participated in] [shared in] [directly or indirectly received] any [money] [profit] [property] [benefit] through [a transaction] [a loan] [a commission] [a contract] [an act] of (name of covered agency or institution);

Three, the defendant did so with the intent to defraud [the United States] [an agency of the United States] (name of covered agency or institution);

[Four, (name of institution) was (describe federal relation, e.g., accounts insured by the Administrator of the National Credit Union Administration).]3

To act with "intent to defraud" means to act with intent to deceive or cheat, ordinarily for the purpose of causing a financial loss to someone else or bringing about a financial gain to defendant or another.

(Insert paragraph describing Government's burden of proof; see Instruction 3.09, supra.)

Committee Comments

See United States v. Griffin, 579 F.2d 1104, 1108 (8th Cir. 1978); United States v. Chenaur, 552 F.2d 294, 297 n.3 (9th Cir. 1977); United States v. Hykel, 461 F.2d 721, 723 (3d Cir. 1972).

See also Committee Comments and Notes on Use, Instruction 6.18.1006A, supra.

Notes on Use

1. 18 USC 1005 was amended by the Financial Institutions Reform, Recovery and Enforcement Act (FIRREA) of 1989 to include a paragraph similar to the third clause of 18 USC 1006. Presumably, this instruction can serve as a pattern for section 1005 offenses under the new provision. The language in the statute, "connected in any capacity with," is construed broadly to effectuate congressional intent by protecting federally insured lenders from fraud. United States v. Prater, 805 F.2d 1441, 1446 (11th Cir. 1986); United States v. Payne, 750 F.2d 844, 853 (11th Cir. 1985).

8TH CIRCUIT MODEL INSTRUCTIONS 2009

6.18.1014 FALSE STATEMENT TO A FINANCIAL INSTITUTION
(18 USC 1014)

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Making A False Statement Or Report (18 USC 1014)

The crime of making a false statement to a financial institution, as charged in [Count _____ of] the indictment, has three elements, which are:¹

One, the defendant knowingly made a false statement (describe the alleged false statement, e.g., that the defendant had no current indebtedness to another financial institution) to (name of financial institution);

Two, the defendant made the false statement for the purpose of influencing the action of (name of financial institution) upon (describe transaction, e.g., an application for a loan);

Three, that (name of financial institution) was (describe federal relation, e.g., insured by the FDIC) at the time the statement was made².

A statement is "false" if untrue when made.

(Insert paragraph describing Government's burden of proof; see Instruction 3.09, supra.)

Notes on Use

1. In United States v. Wells, 519 U.S. 482 (1997), the Supreme Court held that materiality is not an element of section 1014, and remanded the case. On remand, the court of appeals held that "in light of the Supreme Court decision in this case, any reference to materiality in the jury instruction is unnecessary and has the potential to cause confusion." United States v. Wells, 519 U.S. 482 (1997). This revised instruction removes all references to materiality.

2. In United States v. Carlisle, 118 F.3d 1271, 1274 (8th Cir. 1997), the court noted the importance of proof of federal relation at the time of the offense.

Committee Comments

See Fifth Circuit Pattern Jury Instructions: Criminal § 2.52 (1997). Williams v. United States, 458 U.S. 279, 284 (1982); United States v. Concemi, 957 F.2d 942, 951 (1st Cir. 1992); United States v. Haddock, 956 F.2d 1534, 1549 (10th Cir. 1992); United States v. Huntress, 956 F.2d 1309, 1317 (5th Cir. 1992); United States v. Bonnette, 663 F.2d 495, 497 (4th Cir. 1981).

Reliance is not an element of a section 1014 violation. It is not necessary to prove that the financial institution was influenced by or actually relied on the false statement. United States v. Copple, 827 F.2d 1182, 1187 (8th Cir. 1987); United States v. Bonnette, 663 F.2d at 498. Materiality, likewise, is not an element of section 1014. United States v. Wells, 519 U.S. 482 (1997).

A number of false statements in a single document constitutes only one violation of section 1014. United States v. Sue, 586 F.2d 70 (8th Cir. 1978).

(For 2008 version see below).

*******************************************************************************************************************************************

2008 Version

The crime of making a false statement to a financial institution, as charged in [Count _____ of] the indictment, has three elements, which are:¹

One, the defendant knowingly made a false statement (describe the alleged false statement, e.g., that the defendant had no current indebtedness to another financial institution) to (name of financial institution);

Two, the defendant made the false statement for the purpose of influencing the action of (name of financial institution) upon (describe transaction, e.g., an application for a loan);

Three, that (name of financial institution) was (describe federal relation, e.g., insured by the FDIC) at the time the statement was made².

A statement is "false" if untrue when made.

(Insert paragraph describing Government's burden of proof; see Instruction 3.09, supra.)

Notes on Use

2. In United States v. Carlisle, 118 F.3d 1271, 1274 (8th Cir. 1997), the court noted the importance of proof of federal relation at the time of the offense.

Committee Comments

A number of false statements in a single document constitutes only one violation of section 1014. United States v. Sue, 586 F.2d 70 (8th Cir. 1978).

(For 2006 version see below)

***************************************************************************************************************************

2006 Version

The crime of making a false statement to a financial institution, as charged in [Count _____ of] the indictment, has three elements, which are:1

One, the defendant knowingly made a false statement (describe the alleged false statement, e.g., that the defendant had no current indebtedness to another financial institution) to (name of financial institution);

Two, the defendant made the false statement for the purpose of influencing the action of (name of financial institution) upon (describe transaction, e.g., an application for a loan);

Three, that (name of financial institution) was (describe federal relation, e.g., insured by the FDIC) at the time the statement was made2.

A statement is "false" if untrue when made.

(Insert paragraph describing Government's burden of proof; see Instruction 3.09, supra.)

Notes on Use

2. In United States v. Carlisle, 118 F.3d 1271, 1274 (8th Cir. 1997), the court noted the importance of proof of federal relation at the time of the offense.

Committee Comments

A number of false statements in a single document constitutes only one violation of section 1014. United States v. Sue, 586 F.2d 70 (8th Cir. 1978).

For 2000 version see below

******************************************************************************************************************

2000 Version

The crime of making a false statement to a financial institution, as charged in [Count _____ of] the indictment, has three essential elements, which are:1

One, the defendant knowingly made a false statement (describe the alleged false statement, e.g., that defendant had no current indebtedness to another financial institution) to (name of financial institution);

Two, the defendant made the false statement for the purpose of influencing the action of (name of financial institution) upon (describe transaction, e.g., an application for a loan);

Three, that (name of financial institution) was (describe federal relation, e.g., insured by the FDIC) at the time the statement was made2. A statement is "false" if untrue when made.

(Insert paragraph describing Government's burden of proof; see Instruction 3.09, supra.)

Committee Comments

A number of false statements in a single document constitutes only one violation of section 1014. United States v. Sue, 586 F.2d 70 (8th Cir. 1978).

Notes on Use

1. In United States v. Wells, 519 U.S. 482, 117 S. Ct. 921 (1997), the Supreme Court held that materiality is not an element of section 1014, and remanded the case. On remand, the court of appeals held that "in light of the Supreme Court decision in this case, any reference to materiality in the jury instruction is unnecessary and has the potential to cause confusion." United States v. Wells, No. 93-3924, slip op. at 6 (8th Cir. Oct. 14, 1997). This revised instruction removes all references to materiality.

2. In United States v. Carlisle, 118 F.3d 1271, 1274 (8th Cir. 1997), the court noted the importance of proof of federal relation at the time of the offense.

8TH CIRCUIT MODEL INSTRUCTIONS 2009

6.18.1071 CONCEALING A PERSON FROM ARREST
(18 USC 1071)

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Concealing Person From Arrest (18 USC 1071)

The crime of concealing a person from arrest as charged in [Count ___ of] the indictment, has four essential elements, which are:

One, a federal warrant had been issued for the arrest of (name of the person named in the arrest warrant) [for the crime of (specify offense)] [after conviction of (specify offense)];

Two, the defendant knew the warrant had been issued;

Three, with that knowledge, the defendant harbored or concealed (name of the person named in the arrest warrant); and

Four, the defendant intended to prevent the discovery or arrest of (name of the person named in the arrest warrant).

(Insert paragraph describing Government’s burden of proof; see Instruction 3.09, supra.)

Committee Comments

A similar instruction was cited with approval by the Eighth Circuit in United States v. Hayes, 518 F.3d 989 (8^th Cir. 2008). It remains an open question whether merely lying about a fugitive’s whereabouts is sufficient to support a conviction for this offense. Id.

New; no 2008 version

8TH CIRCUIT MODEL INSTRUCTIONS 2009

6.18.1111 INTRODUCTORY COMMENTS TO HOMICIDE INSTRUCTIONS

Committee Comments

Federal Jurisdiction under 18 USC 7

Federal jurisdiction may be exclusive or concurrent. Certain statutes, such as 18 USC 1114, base federal jurisdiction on the identity of the victim. Other statutes, such as 18 USC 1111, base federal jurisdiction on where the crime occurs. These latter statutes, the federal enclave laws, permit federal courts to serve as a forum for the prosecution of certain crimes when they occur within the "special maritime and territorial jurisdiction of the United States," 18 USC 7.

The phrase "within the exclusive jurisdiction of the United States" applies to crimes committed within the premises, grounds, forts, arsenals, navy-yards, and other places within the boundaries of a state or within a territory over which the Federal Government has jurisdiction. In re Gon-shay-ee, 130 U.S. 343, 351 (1889). Currently, 18 USC 7 describes those same places more expansively and affixes to them the phrase "special maritime and territorial jurisdiction of the United States." The statute defines this as including, among other things, the high seas, any other waters within the admiralty and maritime jurisdiction of the United States and without jurisdiction of any particular state, any American vessel on the waters of any of the Great Lakes or on any of the waters connecting the Great Lakes, and any American aircraft while in flight over the high seas, or over any other waters within the admiralty and maritime jurisdiction of the United States. Although not enumerated in section 7, federal jurisdiction extends to crimes committed in Indian country under 18 USC 1152, and exclusive federal jurisdiction is granted over certain enumerated offenses, including murder and manslaughter, committed by an Indian within Indian country (18 USC 1153).

Federal jurisdiction under 18 USC 1111 and 1112 ultimately depends on the location of the offense. The location is determined by where the injury was inflicted or other means employed which caused the death, without regard to where the death actually occurred. 18 USC 3236; United States v. Parker, 622 F.2d 298, 302 (8th Cir. 1980). If injuries are inflicted both outside and inside the federal boundary, the Eighth Circuit adopts a proximate cause analysis and requires the government to prove beyond a reasonable doubt that the victim died as a proximate result of the injuries inflicted within the federal boundary. Id.

It is unclear in light of United States v. Gaudin, 515 U.S. 506 (1995), whether the element of federal jurisdiction is a question of law to be determined by the court or a question of fact to be determined by the jury. However, the Eighth Circuit in United States v. Stands, 105 F.3d 1565, 1575 (8th Cir. 1997), held that the location of the crime is a factual issue for the jury, but it is for the court, not the jury, to determine whether that land is in Indian country and thus within federal jurisdiction.

Injection of Defenses

See Instruction 9.05.

In the Eighth Circuit, it is well established that a defendant is entitled to an instruction on his theory of the case if there is evidence to support it and a proper request has been made. United States v. Long Crow, 37 F.3d 1319, 1323 (8th Cir. 1994) (quoting United States v. Brown, 540 F.2d 364, 380 (8th Cir. 1976)). The evidence need not be overwhelming, and a defendant is entitled to an instruction on a theory of defense even though the evidentiary basis for that theory is "weak, inconsistent, or of doubtful credibility." United States v. Scout, 112 F.3d 955, 960 (8th Cir. 1997) (citing Closs v. Leapley, 18 F.3d 574, 580 (8th Cir. 1994)); but see Long Crow, 37 F.3d at 1323 (the defendant must establish the insanity defense "by clear and convincing evidence"). Nonetheless, a defendant still has the burden of producing some evidence to support his theory. See Hall v. United States, 46 F.3d 855 (8th Cir. 1995) (there must be evidence upon which a jury could rationally sustain the defense).

Self-Defense

See Instructions 3.09, supra, and 9.04, infra.

When evidence is introduced which supports a claim of self-defense, the government must prove the absence of self-defense beyond a reasonable doubt. See United States v. Scout, 112 F.3d at 960 (citing United States v. Alvarez, 755 F.2d 830, 842 n.12 (11th Cir. 1985)). In other words, the absence of self-defense is not an element of the crime; rather, it is an affirmative defense on which the defendant bears the burden of production. Once the defendant has met this burden, the government must satisfy the burden of persuasion and negate self-defense. Id.

When self-defense is raised, instructions should be modified to include an additional element, that "the defendant did not kill (name of victim) in self-defense." An explanation of self-defense should also be included.

Heat of Passion

See Instruction 9.05, infra.

The prosecution must prove beyond a reasonable doubt the absence of heat of passion when the issue is properly raised in a homicide case. Mullaney v. Wilbur, 421 U.S. 684, 697-98 (1975).

Lesser-Included Offense

"The defendant may be found guilty of an offense necessarily included in the offense charged . . . ." FRCP 31(c). See Instruction 3.10, supra.

The Eighth Circuit has formulated a five-point test to determine when a lesser-included offense instruction should be given. United States v. Parker, 32 F.3d 395, 400-01 (8th Cir. 1994) (citing United States v. Thompson, 492 F.2d 359, 362 (8th Cir. 1974)):

A defendant is entitled to an instruction on a lesser-included offense if: (1) a proper request is made; (2) the elements of the lesser offense are identical to part of the elements of the greater offense; (3) there is some evidence which would justify conviction of the lesser offense; (4) the proof on the element or elements differentiating the two crimes is sufficiently in dispute so that the jury may consistently find the defendant innocent of the greater and guilty of the lesser-included offense; and (5) there is mutuality, i.e., a charge may be demanded by either the prosecution or the defense.

See also United States v. Eagle Hawk, 815 F.2d 1213, 1215 (8th Cir. 1987), and United States v. Neiss, 684 F.2d 570, 571 (8th Cir. 1982).

(For 2008 version see below).

*******************************************************************************************************************************************

2008 Version

Federal Jurisdiction under 18 USC 7

Injection of Defenses

See Instruction 9.05.

Self-Defense

See Instructions 3.09, supra, and 9.04, infra.

Heat of Passion

See Instruction 9.05, infra.

The prosecution must prove beyond a reasonable doubt the absence of heat of passion when the issue is properly raised in a homicide case. Mullaney v. Wilbur, 421 U.S. 684, 697-98 (1975).

Lesser-Included Offense

"The defendant may be found guilty of an offense necessarily included in the offense charged . . . ." FRCP 31(c). See Instruction 3.10, supra.

A defendant is entitled to an instruction on a lesser-included offense if: (1) a proper request is made; (2) the elements of the lesser offense are identical to part of the elements of the greater offense; (3) there is some evidence which would justify conviction of the lesser offense; (4) the proof on the element or elements differentiating the two crimes is sufficiently in dispute so that the jury may consistently find the defendant innocent of the greater and guilty of the lesser-included offense; and (5) there is mutuality, i.e., a charge may be demanded by either the prosecution or the defense.

See also, United States v. Eagle Hawk, 815 F.2d 1213, 1215 (8th Cir. 1987), and United States v. Neiss, 684 F.2d 570, 571 (8th Cir. 1982).

(For 2006 version see below)

***************************************************************************************************************************

2006 Version

Federal Jurisdiction under 18 USC 7

Injection of Defenses

See Instruction 9.05.

Self-Defense

See Instructions 3.09, supra, and 9.04, infra.

Heat of Passion

See Instruction 9.05, infra.

The prosecution must prove beyond a reasonable doubt the absence of heat of passion when the issue is properly raised in a homicide case. Mullaney v. Wilbur, 421 U.S. 684, 697-98 (1975).

Lesser-Included Offense

"The defendant may be found guilty of an offense necessarily included in the offense charged . . . ." FRCP 31(c). See Instruction 3.10, supra.

A defendant is entitled to an instruction on a lesser-included offense if: (1) a proper request is made; (2) the elements of the lesser offense are identical to part of the elements of the greater offense; (3) there is some evidence which would justify conviction of the lesser offense; (4) the proof on the element or elements differentiating the two crimes is sufficiently in dispute so that the jury may consistently find the defendant innocent of the greater and guilty of the lesser-included offense; and (5) there is mutuality, i.e., a charge may be demanded by either the prosecution or the defense.

See also, United States v. Eagle Hawk, 815 F.2d 1213, 1215 (8th Cir. 1987), and United States v. Neiss, 684 F.2d 570, 571 (8th Cir. 1982).

No 2000 Version

8TH CIRCUIT MODEL INSTRUCTIONS 2009

6.18.1111A
MURDER, FIRST DEGREE, WITHIN SPECIAL MARITIME AND TERRITORIAL JURISDICTION
OF THE UNITED STATES (18 USC 1111)¹

FORECITE National™ Materials Related To This Instruction:

FORECITE National™ Chapter 92: Homicide

See generally FORECITE National™ 92.7 [Intentional Murder].

See generally FORECITE National™ 92.9 [Felony Murder, Statutorily Specified Offenses].

See generally FORECITE National™ 92.15 [Assault With Intent To Commit Murder].

See generally FORECITE National™ 92.16 [Conspiracy To Commit Murder].

See FORECITE National™ Federal Models By Offense: Murder (First Degree) (18 USC 1111)

The crime of murder in the first degree [, as charged in [Count __] of the indictment,] has four elements, which are:

One, the defendant unlawfully killed^{2 3} (name of victim);

Two, the defendant did so with malice aforethought as defined in instruction ________;⁴

Three, the killing was premeditated⁵ as defined in instruction _______;⁶ and

Four, the killing occurred at (describe location where killing is alleged to have occurred upon which jurisdiction is based).⁷

(Insert paragraph describing Government’s burden of proof; see Instruction 3.09, supra.)

Notes on Use

1. Numerous statutes refer to section 1111. This instruction may be modified for these situations.

2. The statute states that the defendant must "unlawfully" kill. The issue of whether the defendant unlawfully killed is injected in a number of ways, as for instance when the defendant raises the defense of self-defense or defense of others. Those defenses are addressed by adding the appropriate language based on instruction 3.09 to this instruction, rather than by adding another element to this instruction. The burden of proof remains on the government to disprove self-defense once the defense is raised.

3. "Caused the death of" may be used instead of "killed."

4. If the defense of heat of passion is raised, the instruction should be modified to add "and not in the heat of passion as submitted in instruction ___." The Supreme Court has held that the prosecution must "prove beyond a reasonable doubt the absence of the heat of passion on sudden provocation when the issue is properly presented in a homicide case." Mullaney v. Wilbur, 421 U.S. 684, 697-98, 704 (1975).

5. This element may be modified to state "the defendant premeditated upon the death of (name of victim)."

6. When any other form of first degree murder is at issue (i.e., a murder "perpetrated by poison, lying in wait . . . or committed in the perpetration of, or attempt to perpetrate, any arson, escape, murder, kidnapping, treason, espionage, sabotage, aggravated sexual abuse or sexual abuse, burglary, or robbery..."), the instruction relative to premeditation should be appropriately modified. (For example, in a case where the killing occurred during a robbery, the third element should be stricken, and a new element should be added requiring "the killing of [victim] was committed during the perpetration of a robbery." This element should be followed by language which defines accurately the necessary elements of the offense in question, in this example, robbery.)

7. It is the Committee's opinion that the issue of where the killing occurred is a question of fact to be determined by the jury but the issue of federal jurisdiction is a question of law to be determined by the court. See United States v. Gaudin, 515 U.S. 506 (1995). See also United States v. Stands, 105 F.3d 1565, 1575 (8th Cir. 1997) (the location of the crime is a factual issue for the jury, but it is for the court, not the jury, to determine whether that land is in Indian country and thus within federal jurisdiction). If, however, the court should desire to submit the issue of federal jurisdiction to the jury, a fifth element may be added, as follows:

[Five, (describe alleged location) is within the (describe basis under which the location is within the special maritime or territorial jurisdiction of the United States, e.g., the boundaries of the Sioux Indian reservation).]

If this is done, the first sentence should be modified to state that the crime has five elements.

See 18 USC 7 for the definition of "special maritime and territorial jurisdiction of the United States," and 18 USC 1152 and 1153 for federal jurisdiction over Indian country and Indians. The Committee recommends adding the appropriate definition with the statutory phrase.

Committee Comments

See 18 USC 1111 and Introductory Comments. See generally, Beardslee v. United States, 387 F.2d 280 (8th Cir. 1967). Aside from the forms of first degree murder which are "perpetrated by poison, lying in wait," etc., the necessary feature of first degree murder which distinguishes it from second degree murder is the element of "premeditation." Beardslee v. United States. This factor is covered by the third element above. In United States v. Downs, 56 F.3d 973 (8th Cir. 1995), the Eighth Circuit describes the three nonexclusive categories of evidence which are reviewed in determining sufficiency of evidence of premeditation:

(1) facts about how and what the defendant did prior to the actual killing which show he was engaged in activity directed toward the killing, that is, planning activity; (2) facts about the defendant’s prior relationship and conduct with the victim from which motive may be inferred; and (3) facts about the nature of the killing from which it may be inferred that the manner of killing was so particular and exacting that the defendant must have intentionally killed according to a preconceived design.

Downs, 56 F.3d at 975. Intention and premeditation may be established by circumstantial evidence. United States v. Blue Thunder, 604 F.2d 550 (8th Cir. 1979); United States v. Black Elk, 579 F.2d 49, 51 (8th Cir. 1978); cf., United States v. Thompson, 492 F.2d 359, 362 (8th Cir. 1974) (insufficient circumstantial evidence of intent).

In Ball v. United States, 140 U.S. 118, 133 (1891), the Supreme Court recognized the applicability of the common law’s year-and-a-day rule to federal prosecutions for murder. The Eighth Circuit, in dicta, has recognized that the government must allege and prove that death occurred within a year and a day of the infliction of injury, Merrill v. United States, 599 F.2d 240, 241-42 (8th Cir. 1979). Unless there is an issue in the case as to whether death occurred more than a year and a day beyond infliction of the fatal injury, the Committee does not believe it is necessary to instruct on the issue.

Second degree murder can be a lesser-included offense under a charge of first degree murder. See Introductory Comments, supra.

(For 2008 version see below).

*******************************************************************************************************************************************

2008 Version

The crime of murder in the first degree [, as charged in [Count __] of the indictment,] has four elements, which are:

One, the defendant unlawfully killed^{2 3} (name of victim);

Two, the defendant did so with malice aforethought as defined in instruction ________;⁴

Three, the killing was premeditated⁵ as defined in instruction _______;⁶ and

Four, the killing occurred at (describe location where killing is alleged to have occurred upon which jurisdiction is based).⁷

(Insert paragraph describing Government’s burden of proof; see Instruction 3.09, supra.)

Notes on Use

1. Numerous statutes refer to section 1111. This instruction may be modified for these situations.

3. "Caused the death of" may be used instead of "killed."

5. This element may be modified to state "the defendant premeditated upon the death of (name of victim)."

[Five, (describe alleged location) is within the [describe basis under which the location is within the special maritime or territorial jurisdiction of the United States, e.g., the boundaries of the Sioux Indian reservation.]

If this is done, the first sentence should be modified to state that the crime has five elements.

See 18 USC 7 for the definition of "special maritime and territorial jurisdiction of the United States," and 18 USC§ 1152 and 1153 for federal jurisdiction over Indian country and Indians. The Committee recommends adding the appropriate definition with the statutory phrase.

Committee Comments

(1) facts about how and what the defendant did prior to the actual killing which show he was engaged in activity directed toward the killing, that is, planning activity; (2) facts about the defendant’s prior relationship and conduct with the victim from which motive may be inferred; and (3) facts about the nature of the killing from which it may be inferred that the manner of killing was so particular and exacting that the defendant must have intentionally killed according to a preconceived design.

Second degree murder can be a lesser-included offense under a charge of first degree murder. See Introductory Comments, supra.

(For 2006 version see below)

***************************************************************************************************************************

2006 Version

The crime of murder in the first degree [, as charged in [Count __] of the indictment,] has four elements, which are:

One, the defendant unlawfully killed2 3 (name of victim);

Two, the defendant did so with malice aforethought as defined in instruction ________;4

Three, the killing was premeditated5 as defined in instruction _______;6 and

Four, the killing occurred at (describe location where killing is alleged to have occurred upon which jurisdiction is based).7

(Insert paragraph describing Government’s burden of proof; see Instruction 3.09, supra.)

Notes on Use

1. Numerous statutes refer to section 1111. This instruction may be modified for these situations.

3. "Caused the death of" may be used instead of "killed."

5. This element may be modified to state "the defendant premeditated upon the death of (name of victim)."

[Five, (describe alleged location) is within the [describe basis under which the location is within the special maritime or territorial jurisdiction of the United States, e.g., the boundaries of the Sioux Indian reservation.]

If this is done, the first sentence should be modified to state that the crime has five elements.

Committee Comments

(1) facts about how and what the defendant did prior to the actual killing which show he was engaged in activity directed toward the killing, that is, planning activity; (2) facts about the defendant’s prior relationship and conduct with the victim from which motive may be inferred; and (3) facts about the nature of the killing from which it may be inferred that the manner of killing was so particular and exacting that the defendant must have intentionally killed according to a preconceived design.

Second degree murder can be a lesser-included offense under a charge of first degree murder. See Introductory Comments, supra.

No 2000 Version

8TH CIRCUIT MODEL INSTRUCTIONS 2009

6.18.1111A-1
"MALICE AFORETHOUGHT" DEFINED

FORECITE National™ Materials Related To This Instruction:

See generally FORECITE National™ 92.16 [Conspiracy To Commit Murder].

See FORECITE National™ Federal Models By Offense: Murder (First Degree) (18 USC 1111)

As used in these instructions, "malice aforethought" means an intent, at the time of a killing, willfully to take the life of a human being, or an intent willfully to act in callous and wanton disregard of the consequences to human life; but "malice aforethought" does not necessarily imply any ill will, spite or hatred towards the individual killed.¹ ²

In determining whether [the victim] was unlawfully killed with malice aforethought, you should consider all the evidence concerning the facts and circumstances preceding, surrounding and following the killing which tend to shed light upon the question of intent.

Notes on Use

1. This instruction should be modified in the case of felony murder or murder for hire. As here stated, the instruction is designed for situations where a defendant is accused as the principal.

2. If the court wishes to further define malice and "callous and wanton disregard," the Eighth Circuit has stated: "Malice may be established by evidence of conduct which is reckless and wanton, and a gross deviation from a reasonable standard of care, of such a nature that a jury is warranted in inferring that the defendant was aware of a serious risk of death or serious bodily harm." United States v. Johnson, 879 F.2d 331, 334 (8^th Cir. 1989) (quoting United States v. Black Elk, 579 F.2d 49, 51 (8^th Cir. 1978)).

(For 2008 version see below).

*******************************************************************************************************************************************

2008 Version

As used in these instructions, "malice aforethought" means an intent, at the time of a killing, willfully to take the life of a human being, or an intent willfully to act in callous and wanton disregard of the consequences to human life; but "malice aforethought" does not necessarily imply any ill will, spite or hatred towards the individual killed.¹ ²

In determining whether [the victim] was unlawfully killed with malice aforethought, you should consider all the evidence concerning the facts and circumstances preceding, surrounding and following the killing which tend to shed light upon the question of intent.

Notes on Use

1. This instruction should be modified in the case of felony murder or murder for hire. As here stated, the instruction is designed for situations where a defendant is accused as the principal.

(For 2006 version see below)

***************************************************************************************************************************

2006 Version

As used in these instructions, "malice aforethought" means an intent, at the time of a killing, willfully to take the life of a human being, or an intent willfully to act in callous and wanton disregard of the consequences to human life; but "malice aforethought" does not necessarily imply any ill will, spite or hatred towards the individual killed.1 2

In determining whether [the victim] was unlawfully killed with malice aforethought, you should consider all the evidence concerning the facts and circumstances preceding, surrounding and following the killing which tend to shed light upon the question of intent.

Notes on Use

1. This instruction should be modified in the case of felony murder or murder for hire. As here stated, the instruction is designed for situations where a defendant is accused as the principal.

2. If the court wishes to further define malice and "callous and wanton disregard," the Eighth Circuit has stated: "Malice may be established by evidence of conduct which is reckless and wanton, and a gross deviation from a reasonable standard of care, of such a nature that a jury is warranted in inferring that the defendant was aware of a serious risk of death or serious bodily harm." United States v. Johnson, 879 F.2d 331, 334 (8th Cir. 1989) (quoting United States v. Black Elk, 579 F.2d 49, 51 (8th Cir. 1978)).

No 2000 Version

8TH CIRCUIT MODEL INSTRUCTIONS 2009

6.18.1111A-2
"PREMEDITATION" DEFINED

FORECITE National™ Materials Related To This Instruction:

See generally FORECITE National™ 92.16 [Conspiracy To Commit Murder].

See FORECITE National™ Federal Models By Offense: Murder (First Degree) (18 USC 1111)

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

[For there to be premeditation the defendant must think about the taking of a human life before acting. The amount of time required for premeditation cannot be arbitrarily fixed. The time required varies as the minds and temperaments of people differ and according to the surrounding circumstances in which they may be placed. Any interval of time between forming the intent to kill, and acting on that intent, which is long enough for the defendant to be fully conscious and mindful of what [he] [she] intended and willfully set about to do, is sufficient to justify the finding of premeditation.]¹

Notes on Use

1. The instruction may be submitted with the bracketed paragraph included if the court wishes to provide further description to the jury of premeditation.

(For 2008 version see below).

*******************************************************************************************************************************************

2008 Version

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

[For there to be premeditation the defendant must think about the taking of a human life before acting. The amount of time required for premeditation cannot be arbitrarily fixed. The time required varies as the minds and temperaments of people differ and according to the surrounding circumstances in which they may be placed. Any interval of time between forming the intent to kill, and acting on that intent, which is long enough for the defendant to be fully conscious and mindful of what [he] [she] intended and willfully set about to do, is sufficient to justify the finding of premeditation.]¹

Notes on Use

1. The instruction may be submitted with the bracketed paragraph included if the court wishes to provide further description to the jury of premeditation.

(For 2006 version see below)

***************************************************************************************************************************

2006 Version

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

[For there to be premeditation the defendant must think about the taking of a human life before acting. The amount of time required for premeditation cannot be arbitrarily fixed. The time required varies as the minds and temperaments of people differ and according to the surrounding circumstances in which they may be placed. Any interval of time between forming the intent to kill, and acting on that intent, which is long enough for the defendant to be fully conscious and mindful of what [he] [she] intended and willfully set about to do, is sufficient to justify the finding of premeditation.]1

Notes on Use

1. The instruction may be submitted with the bracketed paragraph included if the court wishes to provide further description to the jury of premeditation.

No 2000 Version

8TH CIRCUIT MODEL INSTRUCTIONS 2009

6.18.1111A-3 HEAT OF PASSION OR SUDDEN QUARREL
CAUSED BY ADEQUATE PROVOCATION, DEFINED

FORECITE National™ Materials Related To This Instruction:

See generally FORECITE National™ 92.16 [Conspiracy To Commit Murder].

See FORECITE National™ Federal Models By Offense: Murder (First Degree) (18 USC 1111)

The defendant acted upon heat of passion [or sudden quarrel]¹ caused by adequate provocation, if:

One, the defendant was provoked in a way that would cause a reasonable person to lose [his] [her] self-control;²

Two, a reasonable person subject to the same provocation would not have regained self-control in the time between the provocation and the killing; and

Three, the defendant did not regain [his] [her] self-control in the time between the provocation and the killing.

Heat of passion [or sudden quarrel] may result from anger, rage, resentment, terror or fear. The question is whether the defendant, while in such an emotional state, lost self-control and acted on impulse and without reflection.

Provocation, in order to be adequate under the law, must be such as would naturally induce a reasonable person in the passion of the moment to temporarily lose self-control and kill on impulse and without reflection. [A blow or other personal violence may constitute adequate provocation, but trivial or slight provocation, entirely disproportionate to the violence of the retaliation, is not adequate provocation.]³

It must be such provocation as would arouse a reasonable person. [If the provocation aroused the defendant because he was voluntarily intoxicated, and would not have aroused a sober person, it does not reduce the offense to manslaughter.]⁴

Notes on Use

1. The Committee recommends that "sudden quarrel" not be included in the verdict director, as heat of passion now appears to subsume "sudden quarrel." See Notes on Use to Instruction 6.18.1112A, infra. See United States v. Martinez, 988 F.2d 685, 690-96 (7^th Cir. 1993), for an extensive description of the history of the defense of "sudden quarrel" or "mutual combat," in which the Court concludes that the term may be "an anachronism with no meaning not adequately served by a proper definition of heat of passion." See also United States v. McRae, 593 F.2d 700, 705 (5^th Cir. 1979) ("it is surely not the quarrel that signifies but the heat of passion that it occasions"). Cases in the Eighth Circuit, however, typically state that voluntary manslaughter requires evidence of a killing upon sudden quarrel or heat of passion. See, e.g., United States v. Eagle Elk, 658 F.2d 644, 648 (8th Cir. 1981).

If "sudden quarrel" is included, the Committee recommends it be defined. See United States v. Martinez, 988 F.2d at 696, quoting 2 LaFave and Scott, Substantive Criminal Law § 7.10(b)(2) at 256 (1986), in which "mutual combat" is defined as meaning that the parties "willingly engage in mutual combat, and during the fight one kills the other as the result of an intention to do so formed during the struggle."

2. There is case law holding the provocation must be sudden. See United States v. Bordeaux, 980 F.2d 534, 537 (8^th Cir. 1992) ("A defendant’s anger with the victim, however, is not sufficient to establish heat of passion without an element of sudden provocation. Evidence of ‘a string of prior arguments and a continuing dispute,’ without any indication of some sort of instant incitement . . . ," is not sufficient.)

3. Courts typically add, "Mere words alone, no matter how abusive or insulting, are not adequate provocation." This is the common law rule. However, there is a trend in the case law that words alone will sometimes suffice if the words are informational (conveying information of a fact which constitutes reasonable provocation when that fact is observed) rather than merely insulting or abusive words. LaFave & Scott, Substantive Criminal Law (1986), § 7.10(6). But see Robinson, Criminal Law Defenses (1984), Vol. I, § 102(b) (the one exception to the common law rule appears to be the confession of adultery).

4. While the issue is not clearly resolved in the Eighth Circuit, the Committee recommends this language be used only if there is evidence the defendant was voluntarily intoxicated. See United States v. F.D.L., 836 F.2d 1113, 1116-18 (8^th Cir. 1988). Where adequate provocation or heat of passion is raised as a defense and the defendant wishes to offer evidence of his intoxication, the trend seems to be that the provocation must be that which will arouse a reasonable sober person. See LaFave & Scott, Substantive Criminal Law, § 4.10.

When voluntary intoxication is raised as an insanity defense, it will be disallowed by statute and case law. 18 USC 17 and the legislative history (S. Rep. 225, 98^th Cong., 1^st Sess. 222 at 229 (1983) ("the voluntary use of alcohol or drugs, even if they render the defendant unable to appreciate the nature and quality of his acts, does not constitute insanity . . . ."); United States v. F.D.L., 836 F.2d at 1116. It is the general rule, however, that voluntary intoxication may negate specific intent but not general intent. United States v. Johnston, 543 F.2d 55 (8^th Cir. 1976). See Montana v. Egelhoff, 518 U.S. 37 (1996); United States v. Johnson, 879 F.2d 331, n.1 (8^th Cir. 1989).

(For 2008 version see below).

*******************************************************************************************************************************************

2008 Version

The defendant acted upon heat of passion [or sudden quarrel]¹ caused by adequate provocation, if:

One, the defendant was provoked in a way that would cause a reasonable person to lose [his] [her] self-control;²

Two, a reasonable person subject to the same provocation would not have regained self-control in the time between the provocation and the killing; and

Three, the defendant did not regain [his] [her] self-control in the time between the provocation and the killing.

Heat of passion [or sudden quarrel] may result from anger, rage, resentment, terror or fear. The question is whether the defendant, while in such an emotional state, lost self-control and acted on impulse and without reflection.

Provocation, in order to be adequate under the law, must be such as would naturally induce a reasonable person in the passion of the moment to temporarily lose self-control and kill on impulse and without reflection. [A blow or other personal violence may constitute adequate provocation, but trivial or slight provocation, entirely disproportionate to the violence of the retaliation, is not adequate provocation.]³

It must be such provocation as would arouse a reasonable person. [If the provocation aroused the defendant because he was voluntarily intoxicated, and would not have aroused a sober person, it does not reduce the offense to manslaughter.]⁴

Notes on Use

(For 2006 version see below)

***************************************************************************************************************************

2006 Version

The defendant acted upon heat of passion [or sudden quarrel]1 caused by adequate provocation, if:

One, the defendant was provoked in a way that would cause a reasonable person to lose [his] [her] self-control;2

Two, a reasonable person subject to the same provocation would not have regained self-control in the time between the provocation and the killing; and

Three, the defendant did not regain [his] [her] self-control in the time between the provocation and the killing.

Heat of passion [or sudden quarrel] may result from anger, rage, resentment, terror or fear. The question is whether the defendant, while in such an emotional state, lost self-control and acted on impulse and without reflection.

Provocation, in order to be adequate under the law, must be such as would naturally induce a reasonable person in the passion of the moment to temporarily lose self-control and kill on impulse and without reflection. [A blow or other personal violence may constitute adequate provocation, but trivial or slight provocation, entirely disproportionate to the violence of the retaliation, is not adequate provocation.]3

It must be such provocation as would arouse a reasonable person. [If the provocation aroused the defendant because he was voluntarily intoxicated, and would not have aroused a sober person, it does not reduce the offense to manslaughter.]4

Notes on Use

1. The Committee recommends that "sudden quarrel" not be included in the verdict director, as heat of passion now appears to subsume "sudden quarrel." See Notes on Use to Instruction 6.18.1112A, infra. See United States v. Martinez, 988 F.2d 685, 690-96 (7th Cir. 1993), for an extensive description of the history of the defense of "sudden quarrel" or "mutual combat," in which the Court concludes that the term may be "an anachronism with no meaning not adequately served by a proper definition of heat of passion." See also United States v. McRae, 593 F.2d 700, 705 (5th Cir. 1979) ("it is surely not the quarrel that signifies but the heat of passion that it occasions"). Cases in the Eighth Circuit, however, typically state that voluntary manslaughter requires evidence of a killing upon sudden quarrel or heat of passion. See, e.g., United States v. Eagle Elk, 658 F.2d 644, 648 (8th Cir. 1981).

2. There is case law holding the provocation must be sudden. See United States v. Bordeaux, 980 F.2d 534, 537 (8th Cir. 1992) ("A defendant’s anger with the victim, however, is not sufficient to establish heat of passion without an element of sudden provocation. Evidence of ‘a string of prior arguments and a continuing dispute,’ without any indication of some sort of instant incitement . . . ," is not sufficient.)

4. While the issue is not clearly resolved in the Eighth Circuit, the Committee recommends this language be used only if there is evidence the defendant was voluntarily intoxicated. See United States v. F.D.L., 836 F.2d 1113, 1116-18 (8th Cir. 1988). Where adequate provocation or heat of passion is raised as a defense and the defendant wishes to offer evidence of his intoxication, the trend seems to be that the provocation must be that which will arouse a reasonable sober person. See LaFave & Scott, Substantive Criminal Law, § 4.10.

When voluntary intoxication is raised as an insanity defense, it will be disallowed by statute and case law. 18 USC 17 and the legislative history (S. Rep. 225, 98th Cong., 1st Sess. 222 at 229 (1983) ("the voluntary use of alcohol or drugs, even if they render the defendant unable to appreciate the nature and quality of his acts, does not constitute insanity . . . ."); United States v. F.D.L., 836 F.2d at 1116. It is the general rule, however, that voluntary intoxication may negate specific intent but not general intent. United States v. Johnston, 543 F.2d 55 (8th Cir. 1976). See Montana v. Egelhoff, 518 U.S. 37 (1996); United States v. Johnson, 879 F.2d 331, n.1 (8th Cir. 1989).

No 2000 Version

8TH CIRCUIT MODEL INSTRUCTIONS 2009

6.18.1111B
MURDER, SECOND DEGREE, WITHIN SPECIAL MARITIME AND TERRITORIAL JURISDICTION
OF THE UNITED STATES (18 USC 1111)¹

FORECITE National™ Materials Related To This Instruction:

See generally FORECITE National™ 92.16 [Conspiracy To Commit Murder].

See FORECITE National™ Federal Models By Offense: Murder (Second Degree) (18 USC 1111)

The crime of murder in the second degree [, as charged in [Count ___ of] the indictment,] has [three] [four] elements, which are:

One, the defendant unlawfully killed^{2, 3} (name of victim);

Two, the defendant did so with malice aforethought as defined in instruction ________;⁴ [and]

Three, the killing occurred within (describe location where killing is alleged to have occurred upon which jurisdiction is based) [.; and

Four, (describe alleged location) is within the (describe basis under which the location is within the special maritime or territorial jurisdiction of the United States, e.g., the boundaries of the Sioux Indian reservation.]^{5, 6}

(Insert paragraph describing Government’s burden of proof; see Instruction 3.09, supra. See also Instruction 3.10, supra.)

Notes on Use

1. Numerous statutes incorporate section 1111 as an element. This instruction may be modified to apply to these offenses.

2. The statute states that the defendant must "unlawfully" kill. The issue of whether the defendant unlawfully killed is injected when the defendant raises the defense of self-defense or defense of others. Those defenses are addressed by adding the appropriate language based on Instruction 3.09 to this instruction, rather than by adding another element to this instruction.

The burden of proof remains on the government to disprove self-defense once the defense is raised.

3. "Caused the death of" may be used instead of "killed."

5. See Introductory Comments and 18 USC 7 for the definition of "special maritime and territorial jurisdiction of the United States," and 18 USC 1152 and 1153 for federal jurisdiction over Indian country and Indians.

6. It is unclear whether the element of federal jurisdiction is a question of law to be determined by the court or a question of fact to be determined by the jury. See United States v. Gaudin, 515 U.S. 506 (1995). But see United States v. Stands, 105 F.3d 1565, 1575 (8th Cir. 1997) (the location of the crime is a factual issue for the jury, but it is for the court, not the jury, to determine whether that land is in Indian country and thus within federal jurisdiction).

Committee Comments

See Committee Comments, Instruction 6.18.1111A, and Introductory Comments, supra.

Section 1111(a), Title 18, United States Code, provides that premeditated, unlawful killing is murder in the first degree, and further provides that killing a human being in the perpetration of specified felonies is murder in the first degree. "Any other murder is murder in the second degree." Id. "To convict of second degree murder, the jury must find that the defendant killed the victim with 'malice aforethought.'" United States v. Bordeaux, 980 F.2d 534, 536 (8th Cir. 1992). Second degree murder can be a lesser-included offense under a charge of first degree murder. See Introductory Comments, supra.

(For 2008 version see below).

*******************************************************************************************************************************************

2008 Version

The crime of murder in the second degree [, as charged in [Count ___ of] the indictment,] has [three] [four] elements, which are:

One, the defendant unlawfully killed^{2, 3} (name of victim);

Two, the defendant did so with malice aforethought as defined in instruction ________;⁴ [and]

Three, the killing occurred within (describe location where killing is alleged to have occurred upon which jurisdiction is based) [.; and

Four, (describe alleged location) is within the (describe basis under which the location is within the special maritime or territorial jurisdiction of the United States, e.g., the boundaries of the Sioux Indian reservation.]^{5, 6}

(Insert paragraph describing Government’s burden of proof; see Instruction 3.09, supra. See also Instruction 3.10, supra.)

Notes on Use

1. Numerous statutes incorporate section 1111 as an element. This instruction may be modified to apply to these offenses.

The burden of proof remains on the government to disprove self-defense once the defense is raised.

3. "Caused the death of" may be used instead of "killed."

5. See Introductory Comments and 18 USC 7 for the definition of "special maritime and territorial jurisdiction of the United States," and 18 USC§ 1152 and 1153 for federal jurisdiction over Indian country and Indians.

Committee Comments

See Committee Comments, Instruction 6.18.1111A, and Introductory Comments, supra.

(For 2006 version see below)

***************************************************************************************************************************

2006 Version

The crime of murder in the second degree [, as charged in [Count ___ of] the indictment,] has [three] [four] elements, which are:

One, the defendant unlawfully killed2, 3 (name of victim);

Two, the defendant did so with malice aforethought as defined in instruction ________;4 [and]

Three, the killing occurred within (describe location where killing is alleged to have occurred upon which jurisdiction is based) [.; and

Four, (describe alleged location) is within the (describe basis under which the location is within the special maritime or territorial jurisdiction of the United States, e.g., the boundaries of the Sioux Indian reservation.]5, 6

(Insert paragraph describing Government’s burden of proof; see Instruction 3.09, supra. See also Instruction 3.10, supra.)

Notes on Use

1. Numerous statutes incorporate section 1111 as an element. This instruction may be modified to apply to these offenses.

The burden of proof remains on the government to disprove self-defense once the defense is raised.

3. "Caused the death of" may be used instead of "killed."

Committee Comments

See Committee Comments, Instruction 6.18.1111A, and Introductory Comments, supra.

No 2000 Version

8TH CIRCUIT MODEL INSTRUCTIONS 2009

6.18.1112A VOLUNTARY MANSLAUGHTER, WITHIN SPECIAL
MARITIME AND TERRITORIAL JURISDICTION OF THE UNITED STATES
(18 USC 1112)

FORECITE National™ Materials Related To This Instruction:

FORECITE National™ Chapter 92: Homicide

See generally FORECITE National™ 92.3 [Voluntary Manslaughter].

See FORECITE National™ Federal Models By Offense: Voluntary Manslaughter (18 USC 1112)

The crime of voluntary manslaughter [, as charged in [Count ___ of] the indictment,] has threeelements, which are:

One, the defendant voluntarily, intentionally, and unlawfully killed (name of victim);^{1, 2}

Two, the defendant acted [in the heat of passion] [upon sudden quarrel]³ caused by adequate provocation, as defined in instruction _____; [and]

Three, the killing occurred within (describe location where killing is alleged to have occurred upon which jurisdiction is based) [.; and

Four, (describe alleged location) is within the (describe basis under which the location is within the special maritime or territorial jurisdiction of the United States, e.g., the boundaries of the Sioux Indian reservation).]⁴

(Insert paragraph describing Government’s burden of proof; see Instruction 3.09, supra.)

Notes on Use

1. If there is evidence of justification or excuse, the following language should be included after the final element:

"A killing is 'unlawful' within the meaning of this instruction if it was [neither] [not] [justifiable] [nor] [excusable]."

2. "Caused the death of" may be used instead of "killed."

3. The Committee recommends that "sudden quarrel" not be included, as heat of passion now appears to include "sudden quarrel." See United States v. Martinez, 988 F.2d 685, 690-96 (7th Cir. 1993), for an extensive description of the history of the defense of "sudden quarrel," in which the Court concludes that the term "sudden quarrel" may be "an anachronism with no meaning not adequately served by a proper definition of heat of passion." See also United States v. McRae, 593 F.2d 700, 705 (5th Cir. 1979) ("it is surely not the quarrel that signifies but the heat of passion that it occasions"). Cases in the Eighth Circuit, however, typically state that voluntary manslaughter requires evidence of a killing upon sudden quarrel or heat of passion. See, e.g., United States v. Eagle Elk, 658 F.2d 644, 648 (8th Cir. 1981).

4. It is unclear whether the element of federal jurisdiction is a question of law to be determined by the court or fact to be determined by the jury. After United States v. Gaudin, 515 U.S. 506 (1995), the Committee believes courts will hold that federal jurisdiction is an element of § 1112 and will require that the issue be submitted to the jury. But see United States v. Stands, 105 F.3d 1565, 1575 (8th Cir. 1997) (the location of the crime is a factual issue for the jury, but it is for the court, not the jury, to determine whether that land is in Indian country and thus within federal jurisdiction). If, however, the court should desire to submit the element of federal jurisdiction to the jury, the following could be added as element five:

[Five, (describe alleged location) is within the (describe basis under which the location is within the special maritime or territorial jurisdiction of the United States, e.g., the boundaries of the Sioux Indian reservation).]

Committee Comments

See Committee Comments, Instruction 6.18.1111A, supra, and Introductory Comments.

Voluntary manslaughter is the unlawful killing without malice, upon a sudden quarrel or heat of passion. 18 USC 1112. The element of malice aforethought distinguishes between murder and manslaughter. United States v. Weise, 89 F.3d 502, 505 (8th Cir. 1996); United States v. Bordeaux, 980 F.2d 534, 536 (8th Cir. 1992). The offense of voluntary manslaughter requires evidence of a killing upon sudden quarrel or heat of passion, which eliminates the mental element of malice required for murder, United States v. Bordeaux, 980 F.2d at 537 (citing United States v. Elk, 658 F.2d 644, 648 (8th Cir. 1981)).

Voluntary manslaughter can be a lesser-included offense under a charge of first degree or second degree murder, and involuntary manslaughter can be a lesser-included offense under a charge of voluntary manslaughter. See Introductory Comments, supra.

JUSTIFICATION OR EXCUSE

If there is evidence of justification or excuse, the jury should be instructed that an "unlawful killing" is one that is not justifiable or excusable. Justification or excuse may include self-defense, defense of others, the right to prevent at least certain felonies, coercion or necessity, mental disorder, and other factual situations sufficient to remove the matter from the criminal arena. See LaFave and Scott, Substantive Criminal Law (1986), Vol. 2, § 7.10 et seq.; Wharton's Criminal Law (1994), Vol. 2, § 120 et seq.

Where the justification or excuse is not "perfect," i.e., it does not meet all the elements for the defense, some cases and state criminal codes have concluded that the "imperfect" defense may warrant the killing being manslaughter rather than murder. Other cases decline to accept this approach and instead treat the issue as part of adequate provocation. LaFave & Scott, supra.

SELF-DEFENSE

See Instruction 9.04, infra.

When a defendant presents evidence in support of a claim of self-defense, the government must prove the absence of self-defense beyond a reasonable doubt. See United States v. Scout, 112 F.3d at 960 (citing United States v. Alvarez, 755 F.2d 830, 842 n.12 (11th Cir. 1985)). In other words, the absence of self-defense is not an element of the crime; rather, it is an affirmative defense on which the defendant bears the burden of production. Alvarez, 755 F.2d at 714 n.1. Once the defendant has met this burden, the government must satisfy the burden of persuasion and negate self-defense. Id.

Failure to provide a separate instruction explaining that the government bears the burden of proof on self-defense can constitute reversible error. See, e.g., United States v. Corrigan, 548 F.2d 879, 883-84 (10th Cir. 1977).

The Committee recommends adding a fifth element to this instruction when self-defense is an issue. See Note 2, supra.

(For 2008 version see below).

*******************************************************************************************************************************************

2008 Version

The crime of voluntary manslaughter [, as charged in [Count ___ of] the indictment,] has threeelements, which are:

One, the defendant voluntarily, intentionally, and unlawfully killed (name of victim);^{1, 2}

Two, the defendant acted [in the heat of passion] [upon sudden quarrel]³ caused by adequate provocation, as defined in instruction _____; [and]

Three, the killing occurred within (describe location where killing is alleged to have occurred upon which jurisdiction is based) [.; and

Four, (describe alleged location) is within the (describe basis under which the location is within the special maritime or territorial jurisdiction of the United States, e.g., the boundaries of the Sioux Indian reservation).]⁴

(Insert paragraph describing Government’s burden of proof; see Instruction 3.09, supra.)

Notes on Use

1. If there is evidence of justification or excuse, the following language should be included after the final element:

"A killing is 'unlawful' within the meaning of this instruction if it was [neither] [not] [justifiable] [nor] [excusable]."

2. "Caused the death of" may be used instead of "killed."

[Five, (describe alleged location) is within the [describe basis under which the location is within the special maritime or territorial jurisdiction of the United States, e.g., the boundaries of the Sioux Indian reservation.]

Committee Comments

See Committee Comments, Instruction 6.18.1111A, and Introductory Comments.

JUSTIFICATION OR EXCUSE

SELF-DEFENSE

See Instruction 9.04, infra.

The Committee recommends adding a fifth element to this instruction when self-defense is an issue. See Note 2, supra.

(For 2006 version see below)

***************************************************************************************************************************

2006 Version

The crime of voluntary manslaughter [, as charged in [Count ___ of] the indictment,] has three elements, which are:

One, the defendant voluntarily, intentionally, and unlawfully killed (name of victim);1, 2

Two, the defendant acted [in the heat of passion] [upon sudden quarrel] 3 caused by adequate provocation, as defined in instruction _____; [and]

Three, the killing occurred within (describe location where killing is alleged to have occurred upon which jurisdiction is based) [.; and

Four, (describe alleged location) is within the (describe basis under which the location is within the special maritime or territorial jurisdiction of the United States, e.g., the boundaries of the Sioux Indian reservation).]4

(Insert paragraph describing Government’s burden of proof; see Instruction 3.09, supra.)

Notes on Use

1. If there is evidence of justification or excuse, the following language should be included after the final element:

"A killing is 'unlawful' within the meaning of this instruction if it was [neither] [not] [justifiable] [nor] [excusable]."

2. "Caused the death of" may be used instead of "killed."

[Five, (describe alleged location) is within the [describe basis under which the location is within the special maritime or territorial jurisdiction of the United States, e.g., the boundaries of the Sioux Indian reservation.]

Committee Comments

See Committee Comments, Instruction 6.18.1111A, supra, and Introductory Comments.

JUSTIFICATION OR EXCUSE

SELF-DEFENSE

See Instruction 9.04, infra.

The Committee recommends adding a fifth element to this instruction when self-defense is an issue. See Note 2, supra.

No 2000 Version

8TH CIRCUIT MODEL INSTRUCTIONS 2009

6.18.1112B INVOLUNTARY MANSLAUGHTER, WITHIN SPECIAL
MARITIME AND TERRITORIAL JURISDICTION OF THE UNITED STATES
(18 USC 1112)

FORECITE National™ Materials Related To This Instruction:

FORECITE National™ Chapter 92: Homicide

See generally FORECITE National™ 92.4 [Involuntary Manslaughter].

See FORECITE National™ Federal Models By Offense: Involuntary Manslaughter (18 USC 1112)

The crime of involuntary manslaughter[, as charged in [Count ___ of] the indictment,] has [four] [five] elements, which are:

One, ________ (name of victim) is dead;

Two, the defendant caused the death of the victim, as charged;

[Three, the death of the victim occurred as a result of an act done by the defendant during the commission of [an unlawful act¹ not amounting to a felony] [a lawful act, done either in an unlawful manner or with wanton or reckless disregard for human life, which might produce death] (describe act, e.g., was driving in excess of the speed limit);] or

[Three, [the defendant knew that his conduct was a threat to the lives of others][it was reasonably foreseeable that the defendant’s conduct might be a threat to the lives of others];] [and]

Four, the killing occurred within (describe location where killing is alleged to have occurred upon which jurisdiction is based).²

(Insert paragraph describing Government’s burden of proof; see Instruction 3.09, supra.)

Notes on Use

1. If there is evidence of justification or excuse, the following language should be included after the final element:

"A killing is 'unlawful' within the meaning of this instruction if it was [neither] [not] [justifiable] [nor] [excusable]."

See Committee Comments to Instruction 6.18.1112A regarding justification and excuse.

2. It is unclear whether the element of federal jurisdiction is a question of law to be determined by the court or fact to be determined by the jury. After United States v. Gaudin, 515 U.S. 506 (1995), the Committee believes courts will hold that federal jurisdiction is an element of § 1112 and will require that the issue be submitted to the jury. But see United States v. Stands, 105 F.3d 1565, 1575 (8th Cir. 1997) (the location of the crime is a factual issue for the jury, but it is for the court, not the jury, to determine whether that land is in Indian country and thus within federal jurisdiction). If, however, the court should desire to submit the element of federal jurisdiction to the jury, the following could be added as element five:

[Five, (describe alleged location) is within the (describe basis under which the location is within the special maritime or territorial jurisdiction of the United States, e.g., the boundaries of the Sioux Indian reservation).]

Committee Comments

See Committee Comments, Instruction 6.18.1112A, and Introductory Comments.

Involuntary manslaughter can be a lesser-included offense of voluntary manslaughter under 18 USC 1112. See Introductory Comments, supra. United States v. One Star, 979 F.2d 1319 (8th Cir. 1992).

Under 18 USC 1112, there are two types of involuntary manslaughter. Involuntary manslaughter can either occur in the commission of (1) an unlawful act or (2) a lawful act in an unlawful manner or without due caution. United States v. McMillan, 820 F.2d 251, 257 (8th Cir. 1987).

In determining what constitutes an "unlawful act" under 18 USC 1112, the Assimilative Crimes Act, 18 USC 13, permits resort to state law when the acts of the defendant are not punishable under any enactment of Congress. See United States v. Butler, 541 F.2d 730, 735-36 (8th Cir. 1976); see also United States v. Bald Eagle, 849 F.2d 361 n.2 (8th Cir. 1988).

"The requisite mental state for involuntary manslaughter is 'gross' or 'criminal' negligence, a far more serious level of culpability than that of ordinary tort negligence, but still short of the extreme recklessness, or malice required for murder." United States v. One Star, 979 F.2d 1319, 1321 (8th Cir. 1992). "It is well settled that involuntary manslaughter is a lesser-included offense of murder." Ibid.

Actual knowledge of a threat to the lives of others, or knowledge of circumstances that would allow the defendant to foresee the life-threatening nature of his conduct, is a separate element of the crime which must be established in addition to gross negligence. United States v. Opsta, 659 F.2d 848, 849 (8th Cir. 1981) (citing United States v. Schmidt, 626 F.2d 616, 617 (8th Cir. 1980)).

There is authority for the proposition that self-defense is inconsistent with a charge of involuntary manslaughter, so that it would be error to submit on the lesser-included offense of involuntary manslaughter when the defendant asserts self-defense. Such an instruction would abrogate the complete nature of self-defense as a defense. United States v. Iron Shield, 697 F.2d 845 (8th Cir. 1983) (citing United States v. Smith, 521 F.2d 374, 377 (10th Cir. 1975)).

(For 2008 version see below).

*******************************************************************************************************************************************

2008 Version

The crime of involuntary manslaughter[, as charged in [Count ___ of] the indictment,] has [four] [five] elements, which are:

One, ________ (name of victim) is dead;

Two, the defendant caused the death of the victim, as charged;

[Three, the death of the victim occurred as a result of an act done by the defendant during the commission of [an unlawful act¹ not amounting to a felony] [a lawful act, done either in an unlawful manner or with wanton or reckless disregard for human life, which might produce death] (describe act, e.g., was driving in excess of the speed limit);] or

[Three, [the defendant knew that his conduct was a threat to the lives of others][it was reasonably foreseeable that the defendant’s conduct might be a threat to the lives of others];] [and]

Four, the killing occurred within (describe location where killing is alleged to have occurred upon which jurisdiction is based).²

(Insert paragraph describing Government’s burden of proof; see Instruction 3.09, supra.)

Notes on Use

1. If there is evidence of justification or excuse, the following language should be included after the final element:

"A killing is 'unlawful' within the meaning of this instruction if it was [neither] [not] [justifiable] [nor] [excusable]."

See Committee Comments to Instruction 6.18.1112A regarding justification and excuse.

[Five, (describe alleged location) is within the [describe basis under which the location is within the special maritime or territorial jurisdiction of the United States, e.g., the boundaries of the Sioux Indian reservation.]

Committee Comments

See Committee Comments, Instruction 6.18.1112A, and Introductory Comments.

Involuntary manslaughter can be a lesser-included offense of voluntary manslaughter under 18 USC 1112. See Introductory Comments, supra. United States v. One Star, 979 F.2d 1319 (8th Cir. 1992).

(For 2006 version see below)

***************************************************************************************************************************

2006 Version

The crime of involuntary manslaughter[, as charged in [Count ___ of] the indictment,] has [four] [five] elements, which are:

One, ________ (name of victim) is dead;

Two, the defendant caused the death of the victim, as charged;

[Three, the death of the victim occurred as a result of an act done by the defendant during the commission of [an unlawful act1 not amounting to a felony] [a lawful act, done either in an unlawful manner or with wanton or reckless disregard for human life, which might produce death] (describe act, e.g., was driving in excess of the speed limit);] or

[Three, [the defendant knew that his conduct was a threat to the lives of others][it was reasonably foreseeable that the defendant’s conduct might be a threat to the lives of others];] [and]

Four, the killing occurred within (describe location where killing is alleged to have occurred upon which jurisdiction is based).2

(Insert paragraph describing Government’s burden of proof; see Instruction 3.09, supra.)

Notes on Use

1. If there is evidence of justification or excuse, the following language should be included after the final element:

"A killing is 'unlawful' within the meaning of this instruction if it was [neither] [not] [justifiable] [nor] [excusable]."

See Committee Comments to Instruction 6.18.1112A regarding justification and excuse.

[Five, (describe alleged location) is within the [describe basis under which the location is within the special maritime or territorial jurisdiction of the United States, e.g., the boundaries of the Sioux Indian reservation.]

Committee Comments

See Committee Comments, Instruction 6.18.1112A, and Introductory Comments.

Involuntary manslaughter can be a lesser-included offense of voluntary manslaughter under 18 USC 1112. See Introductory Comments, supra. United States v. One Star, 979 F.2d 1319 (8th Cir. 1992).

No 2000 Version

8TH CIRCUIT MODEL INSTRUCTIONS 2009

6.18.1114A
MURDER, FIRST DEGREE, FEDERAL VICTIM
(18 USC 1114)

FORECITE National™ Materials Related To This Instruction:

FORECITE National™ Chapter 92: Homicide

See FORECITE National™ Federal Models By Offense: Killing Or Attempting To Kill Federal Officer Or Employee (18 USC 1114)

The crime of murder in the first degree [, as charged in [Count ___ of] the indictment,] has four elements, which are:

One, the defendant unlawfully killed^{1 2} (name of victim);

Two, the defendant did so with malice aforethought and not in the heat of passion;³

Three, the killing was premeditated⁴ as defined in instruction ______;⁵ and

Four, (name of victim) was killed [while engaged in his/her official duties] [on account of the performance of his/her official duties] as an [officer] [employee] of the United States.

The defendant does not have to know that (the victim) was a federal officer.

(Insert paragraph describing government’s burden of proof; see Instruction 3.09, supra.)

Notes on Use

1. The statute states that the defendant must "unlawfully" kill. The issue of whether the defendant unlawfully killed is injected in a number of ways, as for instance when the defendant raises the defense of self-defense or defense of others. Those defenses are addressed by adding the appropriate language based on Instruction 3.09 to this instruction, rather than by adding another element to this instruction. The burden of proof remains on the government to disprove self-defense once the defense is raised.

2. "Caused the death of" may be used instead of "killed."

3. If the defense of heat of passion is raised, the instruction should be modified to add "and not in the heat of passion as submitted in instruction ___." The Supreme Court has held that the prosecution must "prove beyond a reasonable doubt the absence of the heat of passion on sudden provocation when the issue is properly presented in a homicide case." Mullaney v. Wilbur, 421 U.S. 684, 697-98, 704 (1975).

4. This element may be modified to state "the defendant premeditated upon the death of (name of victim)."

5. When any other form of first degree murder is at issue (i.e., a murder "perpetrated by poison, lying in wait . . . or committed in the perpetration of, or attempt to perpetrate, any arson, escape, murder, kidnaping, treason, espionage, sabotage, aggravated sexual abuse or sexual abuse, burglary, or robbery. . . ."), the instruction relative to premeditation should be appropriately modified. (For example, in a case where the killing occurred during a robbery, the third element should be stricken, and a new element should be added requiring "the killing of [victim] was committed during the perpetration of a robbery." This element should be followed by language which defines accurately the necessary elements of the offense in question, in this example, robbery.)

Committee Comments

See 18 USC 1111, 1114; Introductory Comments Comments; and Instructions 6.18.1111A, 6.18.1112A, supra.

See Committee Comments, Instructions 6.18.1111A, 6.18.1112A, supra.

OFFICIAL DUTY

The test for determining whether a federal officer or employee is engaged in the performance of an official duty is whether the officer or employee was acting within the scope of employment or engaging in a "personal frolic." United States v. Street, 66 F.3d 969, 978 (8^th Cir. 1995). The scope of what the agent is employed to do is not defined by whether the officer or employee was abiding by the controlling laws and regulations at the time of the incident. Id. Moreover, the scope of employment is not defined by the job description. Id. Instead, in the Eighth Circuit, the scope of employment is interpreted broadly by looking to whether the officer or employee's actions fall within the agency's overall mission. Id. The statute was intended by Congress to protect federal officers and facilitating the accomplishment of federal law enforcement functions. Id. at 974.

FEDERAL OFFICER

A defendant need not be aware that the victim is a federal officer. United States v. Feola, 420 U.S. 671, 684 (1975).

A state, local or tribal officer may also be a federal officer due to cross-deputization by a federal agency. If deputized officers are pursuing duties in furtherance of their federal deputization, they are federal officers for purposes of 18 USC 111 and 1114. United States v. Schrader, 10 F.3d 1345, 1350-51 (8th Cir. 1993). (For example, section 1114 provides that any officer or employee of the Indian field service of the United States is protected under the statute. The Bureau of Indian Affairs is part of the Indian field service of the United States. Tribal police officers who are employed by a tribe under a contract with the Bureau of Indian Affairs to provide aid in the enforcement or carrying out in Indian country of a law of either the United States or an Indian tribe are federal officers for the purpose of 18 USC 111. United States v. Young, 85 F.3d 334 (8^th Cir. 1996).) Whether an officer is a federal officer is a issue of law for the court; whether the person is in fact an officer and whether he was performing federal law enforcement functions are questions for the jury. United States v. Oakie, 12 F.3d 1436, 1439-40 (8^th Cir. 1993).

(For 2008 version see below).

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2008 Version

The crime of murder in the first degree [, as charged in [Count ___ of] the indictment,] has four elements, which are:

One, the defendant unlawfully killed^{1 2} (name of victim);

Two, the defendant did so with malice aforethought and not in the heat of passion;³

Three, the killing was premeditated⁴ as defined in instruction ______;⁵ and

Four, (name of victim) was killed [while engaged in his/her official duties] [on account of the performance of his/her official duties] as an [officer] [employee] of the United States.

The defendant does not have to know that (the victim) was a federal officer.

(Insert paragraph describing government’s burden of proof; see Instruction 3.09, supra.)

Notes on Use

2. "Caused the death of" may be used instead of "killed."

4. This element may be modified to state "the defendant premeditated upon the death of (name of victim)."

Committee Comments

See 18 USC 1111, 1114; Introductory Comments Comments; and Instructions 6.18.1111A, 6.18.1112A, supra.

See Committee Comments, Instructions 6.18.1111A, 6.18.1112A, supra.

OFFICIAL DUTY

FEDERAL OFFICER

A defendant need not be aware that the victim is a federal officer. United States v. Feola, 420 U.S. 671, 684 (1975).

(For 2006 version see below)

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2006 Version

The crime of murder in the first degree [, as charged in [Count ___ of] the indictment,] has four elements, which are:

One, the defendant unlawfully killed1 2 (name of victim);

Two, the defendant did so with malice aforethought and not in the heat of passion;3

Three, the killing was premeditated4 as defined in instruction ______;5 and

Four, (name of victim) was killed [while engaged in his/her official duties] [on account of the performance of his/her official duties] as an [officer] [employee] of the United States.

The defendant does not have to know that (the victim) was a federal officer.

(Insert paragraph describing government’s burden of proof; see Instruction 3.09, supra.)

Notes on Use

2. "Caused the death of" may be used instead of "killed."

4. This element may be modified to state "the defendant premeditated upon the death of (name of victim)."

Committee Comments

See 18 USC 1111, 1114; Introductory Comments; and Instructions 6.18.1111A, 6.18.1112A, supra.

See Committee Comments, Instructions 6.18.1111A and 6.18.1112A, supra.

OFFICIAL DUTY

The test for determining whether a federal officer or employee is engaged in the performance of an official duty is whether the officer or employee was acting within the scope of employment or engaging in a "personal frolic." United States v. Street, 66 F.3d 969, 978 (8th Cir. 1995). The scope of what the agent is employed to do is not defined by whether the officer or employee was abiding by the controlling laws and regulations at the time of the incident. Id. Moreover, the scope of employment is not defined by the job description. Id. Instead, in the Eighth Circuit, the scope of employment is interpreted broadly by looking to whether the officer or employee's actions fall within the agency's overall mission. Id. The statute was intended by Congress to protect federal officers and facilitating the accomplishment of federal law enforcement functions. Id. at 974.

FEDERAL OFFICER

A defendant need not be aware that the victim is a federal officer. United States v. Feola, 420 U.S. 671, 684 (1975).

A state, local or tribal officer may also be a federal officer due to cross-deputization by a federal agency. If deputized officers are pursuing duties in furtherance of their federal deputization, they are federal officers for purposes of 18 USC 111 and 1114. United States v. Schrader, 10 F.3d 1345, 1350-51 (8th Cir. 1993). (For example, section 1114 provides that any officer or employee of the Indian field service of the United States is protected under the statute. The Bureau of Indian Affairs is part of the Indian field service of the United States. Tribal police officers who are employed by a tribe under a contract with the Bureau of Indian Affairs to provide aid in the enforcement or carrying out in Indian country of a law of either the United States or an Indian tribe are federal officers for the purpose of 18 USC 111. United States v. Young, 85 F.3d 334 (8th Cir. 1996).) Whether an officer is a federal officer is a issue of law for the court; whether the person is in fact an officer and whether he was performing federal law enforcement functions are questions for the jury. United States v. Oakie, 12 F.3d 1436, 1439-40 (8th Cir. 1993).

No 2000 Version

8TH CIRCUIT MODEL INSTRUCTIONS 2009

6.18.1114B
MURDER, SECOND DEGREE, FEDERAL VICTIM
(18 USC 1114)

FORECITE National™ Materials Related To This Instruction:

FORECITE National™ Chapter 92: Homicide

See FORECITE National™ Federal Models By Offense: Killing Or Attempting To Kill Federal Officer Or Employee (18 USC 1114)

The crime of murder in the second degree [, as charged in [Count ___ of] the indictment,] has three elements, which are:

One, the defendant unlawfully killed^{1 2} (name of victim);

Two, the defendant did so with malice aforethought as defined in instruction ____;³ and

Three, (name of victim) was killed [while engaged in his/her official duties] [on account of the performance of his/her official duties] as an [officer] [employee] of the United States.

The defendant does not have to know that (the victim) was a federal officer.

(Insert paragraph describing Government’s burden of proof; see Instruction 3.09, supra.)

Notes on Use

1. The statute states that the defendant must "unlawfully" kill. The issue of whether the defendant unlawfully killed is injected in a number of ways, as, for instance, when the defendant raises the defense of self-defense or defense of others. Those defenses are addressed by adding the appropriate language based on instruction 3.09 to this instruction, rather than by adding another element to this instruction. The burden of proof remains on the government to disprove self-defense once the defense is raised.

2. "Caused the death of" may be used instead of "killed."

Committee Comments

See 18 USC 1111, 1114; Introductory Comments; and Instructions 6.18.1111A, 6.18.1112A, supra.

See Committee Comments, Instructions 6.18.1111A, 6.18.1112A, and 6.18.1114A, supra.

(For 2008 version see below).

*******************************************************************************************************************************************

2008 Version

The crime of murder in the second degree [, as charged in [Count ___ of] the indictment,] has three elements, which are:

One, the defendant unlawfully killed^{1 2} (name of victim);

Two, the defendant did so with malice aforethought as defined in instruction ____;³ and

Three, (name of victim) was killed [while engaged in his/her official duties] [on account of the performance of his/her official duties] as an [officer] [employee] of the United States.

The defendant does not have to know that (the victim) was a federal officer.

(Insert paragraph describing Government’s burden of proof; see Instruction 3.09, supra.)

Notes on Use

2. "Caused the death of" may be used instead of "killed."

Committee Comments

See 18 USC 1111, 1114; Introductory Comments; and Instructions 6.18.1111A, 6.18.1112A, supra.

See Committee Comments, Instructions 6.18.1111A, 6.18.1112A, and 6.18.1114A, supra.

(For 2006 version see below)

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2006 Version

The crime of murder in the second degree [, as charged in [Count ___ of] the indictment,] has three elements, which are:

One, the defendant unlawfully killed1 2 (name of victim);

Two, the defendant did so with malice aforethought as defined in instruction ____;3 and

Three, (name of victim) was killed [while engaged in his/her official duties] [on account of the performance of his/her official duties] as an [officer] [employee] of the United States.

The defendant does not have to know that (the victim) was a federal officer.

(Insert paragraph describing Government’s burden of proof; see Instruction 3.09, supra.)

Notes on Use

2. "Caused the death of" may be used instead of "killed."

Committee Comments

See 18 USC 1111, 1114; Introductory Comments; and Instructions 6.18.1111A, 6.18.1112A, supra.

See Committee Comments, Instructions 6.18.1111A, 6.18.1112A, and 6.18.1114A, supra.

No 2000 Version

8TH CIRCUIT MODEL INSTRUCTIONS 2009

6.18.1114C
VOLUNTARY MANSLAUGHTER, FEDERAL VICTIM
(18 USC 1114)

FORECITE National™ Materials Related To This Instruction:

FORECITE National™ Chapter 92: Homicide

See FORECITE National™ Federal Models By Offense: Killing Or Attempting To Kill Federal Officer Or Employee (18 USC 1114)

The crime of voluntary manslaughter [, as charged in [Count ___ of] the indictment,] has three elements, which are:

One, the defendant voluntarily, intentionally, and unlawfully killed (name of victim);^{2 3}

Two, the defendant acted upon [in the heat of passion] [sudden quarrel]⁴ caused by adequate provocation, as defined in instruction ____; and

Three, (name of victim) was killed [while engaged in his/her official duties] [on account of the performance of his/her official duties] as an [officer] [employee] of the United States.

The defendant does not have to know that (name of victim) was a federal officer.

(Insert paragraph describing Government’s burden of proof; see Instruction 3.09, supra.)

Notes on Use

1. If there is evidence of justification or excuse, the following language should be included after the final element:

"A killing is 'unlawful' within the meaning of this instruction if it was [neither] [not] [justifiable] [nor] [excusable]."

2. "Caused the death of" may be used instead of "killed."

Committee Comments

See 18 USC 1111, 1114; Introductory Comments; and Instructions 6.18.1111A, 6.18.1112A, supra.

See Committee Comments, Instructions 6.18.1111A, 6.18.1112A, and 6.18.1114A, supra.

(For 2008 version see below).

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2008 Version

The crime of voluntary manslaughter [, as charged in [Count ___ of] the indictment,] has three elements, which are:

One, the defendant voluntarily, intentionally, and unlawfully killed (name of victim);^{2 3}

Two, the defendant acted upon [in the heat of passion] [sudden quarrel]⁴ caused by adequate provocation, as defined in instruction ____; and

Three, (name of victim) was killed [while engaged in his/her official duties] [on account of the performance of his/her official duties] as an [officer] [employee] of the United States.

The defendant does not have to know that (name of victim) was a federal officer.

(Insert paragraph describing Government’s burden of proof; see Instruction 3.09, supra.)

Notes on Use

1. If there is evidence of justification or excuse, the following language should be included after the final element:

"A killing is 'unlawful' within the meaning of this instruction if it was [neither] [not] [justifiable] [nor] [excusable]."

2. "Caused the death of" may be used instead of "killed."

Committee Comments

See 18 USC 1111, 1114; Introductory Comments; and Instructions 6.18.1111A, 6.18.1112A, supra.

See Committee Comments, Instructions 6.18.1111A, 6.18.1112A, and 6.18.1114A, supra.

(For 2006 version see below)

***************************************************************************************************************************

2006 Version

The crime of voluntary manslaughter [, as charged in [Count ___ of] the indictment,] has three elements, which are:

One, the defendant voluntarily, intentionally, and unlawfully killed (name of victim);2 3

Two, the defendant acted upon [in the heat of passion] [sudden quarrel]4 caused by adequate provocation, as defined in instruction ____; and

Three, (name of victim) was killed [while engaged in his/her official duties] [on account of the performance of his/her official duties] as an [officer] [employee] of the United States.

The defendant does not have to know that (name of victim) was a federal officer.

(Insert paragraph describing Government’s burden of proof; see Instruction 3.09, supra.)

Notes on Use

1. If there is evidence of justification or excuse, the following language should be included after the final element:

"A killing is 'unlawful' within the meaning of this instruction if it was [neither] [not] [justifiable] [nor] [excusable]."

2. "Caused the death of" may be used instead of "killed."

Committee Comments

See 18 USC 1111, 1114; Introductory Comments; and Instructions 6.18.1111A, 6.18.1112A, supra.

See Committee Comments, Instructions 6.18.1111A, 6.18.1112A, and 6.18.1114A, supra.

No 2000 Version

8TH CIRCUIT MODEL INSTRUCTIONS 2009

6.18.1114D
INVOLUNTARY MANSLAUGHTER, FEDERAL VICTIM
(18 USC 1114)

FORECITE National™ Materials Related To This Instruction:

FORECITE National™ Chapter 92: Homicide

See FORECITE National™ Federal Models By Offense: Killing Or Attempting To Kill Federal Officer Or Employee (18 USC 1114)

The crime of involuntary manslaughter [, as charged in [Count ___ of] the indictment,] has four elements, which are:

One, ________ (name of victim) is dead;

Two, the defendant caused the death of the victim, as charged;

[Three, the death of the victim occurred as a result of an act done by the defendant during the commission of [an unlawful act¹ not amounting to a felony] [a lawful act, done either in an unlawful manner or with wanton or reckless disregard for human life, which might produce death] (describe act, e.g., was driving in excess of the speed limit); or]

[Three, [the defendant knew that his conduct was a threat to the lives of others][it was reasonably foreseeable that the defendant’s conduct might be a threat to the lives of others];] and

Four, (name of victim) [was killed] [died] [while engaged in his/her official duties] [on account of the performance of his/her official duties] as an [officer] [employee] of the United States.

(Insert paragraph describing Government’s burden of proof; see Instruction 3.09, supra.)

Notes on Use

1. If there is evidence of justification or excuse, the following language should be included after the final element:

"A killing is 'unlawful' within the meaning of this instruction if it was [neither] [not] [justifiable] [nor] [excusable]."

See Committee Comments to Instruction 6.18.1112A regarding justification and excuse.

Committee Comments

See 18 USC 1111, 1114; Introductory Comments; and Instructions 6.18.1111A, 6.18.1112A, supra.

See Committee Comments, Instructions 6.18.1111A, 6.18.1112A, and 6.18.1114A, supra.

For 2008 version see below).

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2008 Version

The crime of involuntary manslaughter [, as charged in [Count ___ of] the indictment,] has four elements, which are:

One, ________ (name of victim) is dead;

Two, the defendant caused the death of the victim, as charged;

[Three, the death of the victim occurred as a result of an act done by the defendant during the commission of [an unlawful act¹ not amounting to a felony] [a lawful act, done either in an unlawful manner or with wanton or reckless disregard for human life, which might produce death] (describe act, e.g., was driving in excess of the speed limit); or]

[Three, [the defendant knew that his conduct was a threat to the lives of others][it was reasonably foreseeable that the defendant’s conduct might be a threat to the lives of others];] and

Four, (name of victim) [was killed] [died] [while engaged in his/her official duties] [on account of the performance of his/her official duties] as an [officer] [employee] of the United States.

(Insert paragraph describing Government’s burden of proof; see Instruction 3.09, supra.)

Notes on Use

1. If there is evidence of justification or excuse, the following language should be included after the final element:

"A killing is 'unlawful' within the meaning of this instruction if it was [neither] [not] [justifiable] [nor] [excusable]."

See Committee Comments to Instruction 6.18.1112A regarding justification and excuse.

Committee Comments

See 18 USC 1111, 1114; Introductory Comments; and Instructions 6.18.1111A, 6.18.1112A, supra.

See Committee Comments, Instructions 6.18.1111A, 6.18.1112A, and 6.18.1114A, supra.

(For 2006 version see below)

***************************************************************************************************************************

2006 Version

The crime of involuntary manslaughter [, as charged in [Count ___ of] the indictment,] has four elements, which are:

One, ________ (name of victim) is dead;

Two, the defendant caused the death of the victim, as charged;

[Three, the death of the victim occurred as a result of an act done by the defendant during the commission of [an unlawful act1 not amounting to a felony] [a lawful act, done either in an unlawful manner or with wanton or reckless disregard for human life, which might produce death] (describe act, e.g., was driving in excess of the speed limit); or]

[Three, [the defendant knew that his conduct was a threat to the lives of others][it was reasonably foreseeable that the defendant’s conduct might be a threat to the lives of others];] and

Four, (name of victim) [was killed] [died] [while engaged in his/her official duties] [on account of the performance of his/her official duties] as an [officer] [employee] of the United States.

(Insert paragraph describing Government’s burden of proof; see Instruction 3.09, supra.)

Notes on Use

1. If there is evidence of justification or excuse, the following language should be included after the final element:

"A killing is 'unlawful' within the meaning of this instruction if it was [neither] [not] [justifiable] [nor] [excusable]."

See Committee Comments to Instruction 6.18.1112A regarding justification and excuse.

Committee Comments

See 18 USC 1111, 1114; Introductory Comments; and Instructions 6.18.1111A, 6.18.1112A, supra.

See Committee Comments, Instructions 6.18.1111A, 6.18.1112A, and 6.18.1114A, supra.

No 2000 Version

8TH CIRCUIT MODEL INSTRUCTIONS 2009

6.18.1341 MAIL FRAUD

(18 USC 1341)

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

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Mail Fraud (18 USC 1341)

The crime of [mail] fraud, as charged in [Count _____ of] the indictment, has [three] [four] elements, which are:

One, the defendant voluntarily and intentionally [devised or made up a scheme to defraud another out of [money, property or property rights] [the intangible right to honest services]¹] [participated in a scheme to defraud with knowledge of its fraudulent nature] [devised or participated in a scheme to obtain [money, property or property rights] [the intangible right to honest services] by means of material false representations or promises]² [which scheme is described as follows: (describe scheme in summary form or in manner charged in the indictment)];³

Two, the defendant did so with the intent to defraud; [and]

Three, the defendant used, or caused to be used, [the mail] [a private interstate carrier] [a commercial interstate carrier]⁴ in furtherance of, or in an attempt to carry out, some essential step in the scheme; [and]

[Four, the scheme was in connection with the conduct of telemarketing.]

[Four, the scheme was in connection with the conduct of telemarketing and

(a) victimized ten or more persons over the age of 55, or

(b) targeted persons over the age of 55.]

[Four, that the scheme affected a financial institution.]⁵

The phrase "scheme to defraud" includes any plan or course of action intended to deceive or cheat another out of [money, property or property rights] [the intangible right to honest services] by [employing material falsehoods] [concealing material facts] [omitting material facts]. It also means the obtaining of [money or property] [the intangible right to honest services] from another by means of material false representations or promises. A scheme to defraud need not be fraudulent on its face but must include some sort of fraudulent misrepresentation or promise reasonably calculated to deceive a reasonable person.⁶

A statement or representation is "false" when it is untrue when made or effectively conceals or omits a material fact.⁷

A [fact] [falsehood] [representation] [promise] is "material" if it has a natural tendency to influence, or is capable of influencing, the decision of a reasonable person in deciding whether to engage or not to engage in a particular transaction.⁸ [However, whether a [fact] [falsehood] [representation] [promise] is "material" does not depend on whether the person was actually deceived.]⁹

To act with "intent to defraud" means to act knowingly and with the intent to deceive someone for the purpose of causing some [financial loss] or [loss of property or property rights] [loss of an intangible right to honest services] to another or bringing about some financial gain to oneself or another to the detriment of a third party.¹⁰ [With respect to false statements, the defendant must have known the statement was untrue when made or have made the statement with reckless indifference to its truth or falsity.]¹¹

[The term property rights, as used in the mail fraud statute, includes intangible as well as tangible property rights. It includes any property right which has a value – not necessarily a monetary value – to the owner of the property right. For example, a scheme to deprive a company of the exclusive use of confidential business information obtained by the employees would be a scheme to deprive the company of intangible property rights.]¹²

It is not necessary that the use of [the mail] [an interstate carrier] by the participants themselves be contemplated or that the defendant do any actual [mailing] [sending of material by an interstate carrier] or specifically intend that [the mail] [an interstate carrier] be used. It is sufficient if [the mail] [an interstate carrier] was in fact used to carry out the scheme and the use of [the mail] [an interstate carrier] by someone was reasonably foreseeable.¹³

[Mailings] [Deliveries by an interstate carrier] which are designed to lull victims into a false sense of security, postpone inquiries or complaints, or make the transaction less suspect are [mailings] [deliveries] in furtherance of the scheme.]¹⁴

[Each separate use of [the mail] [an interstate carrier] in furtherance of the scheme to defraud constitutes a separate offense.]¹⁵

[The [mail] fraud counts of the indictment charge that each defendant, along with the other defendants, devised or participated in a scheme. The Government need not prove, however, that the defendants met together to formulate the scheme charged, or that there was a formal agreement among them, in order for them to be held jointly responsible for the operation of the scheme and the use of [the mail] [an interstate carrier] for the purpose of accomplishing the scheme. It is sufficient if only one person conceives the scheme and the others knowingly, voluntarily and intentionally join in and participate in some way in the operation of the scheme in order for such others to be held jointly responsible.]¹⁶

[It is not necessary that the Government prove [all of the details alleged in the indictment concerning the precise nature and purpose of the scheme] [that the material [mailed] [sent by an interstate carrier] was itself false or fraudulent] [that the alleged scheme actually succeeded in defrauding anyone] [that the use of [the mail] [an interstate carrier] was intended as the specific or exclusive means of accomplishing the alleged fraud].]¹⁷

[If you find proof beyond a reasonable doubt of a business custom (describe custom, e.g., to date stamp only items received through the mail), that is evidence from which you may, but are not required to, find or infer that [the mail] [an interstate carrier] was used to deliver those items.]¹⁸

(Insert paragraph describing Government's burden of proof; see Instruction 3.09, supra.)

Notes on Use

1. Depriving another of the intangible right of honest services is covered by the mail fraud statute. 18 USC 1346. In United States v. Jain, 93 F.3d 436 (8th Cir. 1996), the court held that in a private sector (as opposed to public corruption) honest services mail fraud, the government must show an intent to harm the victim before mail fraud is proven.

2. The proper mail fraud theory charged in the indictment should be selected and included in the body of the instruction. If more than one theory is part of the evidence in the case, and the theories constitute a separate offense or an element of the offense, such alternatives can be submitted in the disjunctive and the jury instructed that all jurors must agree as to the particular theory. United States v. Blumeyer, 114 F.3d 758 (8th Cir. 1997). In such a case, the jury may be instructed as follows:

You need not find that all of the theories charged in Count ___ of the indictment are proven; instead, you must find unanimously and beyond a reasonable doubt that at least one of the theories set out in Count __ of the indictment is proven.

If more than one false promise or statement is part of the evidence in the case, and the promises or statements set out different ways of committing the offense but do not constitute a separate offense or an element of the offense, then the jury may be instructed that all the jurors need not agree as to the particular theory, or the particular false promise or statement, that was made. In such a case, the jury may be instructed as follows:

Count ___ of the indictment accuses the defendant of committing the crime of ___ in more than one possible way. The first is that he ___. The second is that he ___. The government does not have to prove all of these for you to return a guilty verdict on this charge. Proof beyond a reasonable doubt of any one of these ways is enough. In order to return a guilty verdict, all twelve of you must agree that at least one of these has been proved; however, all of you need not agree that the same one has been proved.

See Schad v. Arizona, 501 U.S. 624 (1991) (plurality opinion), in which the Supreme Court rejected the approach of requiring unanimity when the means used to commit an offense simply satisfy an element of a crime and do not themselves constitute a separate offense or an element of an offense. In these circumstances, unanimity is not required. Id. at 630-33. On the other hand, if the means used to commit an offense are deemed an element of the crime, unanimity is required. See also Richardson v. United States, 526 U.S. 813, 817 (1999) (plurality opinion), in which the Court again distinguished the elements of a crime from the means used to commit the elements of the crime. If a fact is an element, "a jury in a federal criminal case cannot convict unless it unanimously finds that the Government has proved [it]." Id. On the other hand, if the fact is defined as a means of committing the crime, "a federal jury need not always decide unanimously which of several possible sets of underlying brute facts make up a particular element, say, which of several possible means the defendant used to commit an element of the crime." Richardson, 526 U.S. at 817 (citing Schad v. Arizona, 501 U.S. 624 (1991)).

3. In a simple case a brief description of the fraud should be given in the first element. An example would be:

One, that the defendant devised a scheme to defraud the brokerage firm of Smith & Jones by pledging counterfeit stock certificates as collateral on margin loans given to the defendant, thus causing a loss to Smith & Jones of 5 million dollars.

Some schemes will be too complicated to lend themselves to short descriptions. In those schemes the court may more fully summarize the scheme or refer to the description of the scheme contained in the indictment.

In submitting a summary of the scheme to the jury, the court should be aware that on occasion some allegations and misrepresentations charged in the indictment are not proven. These may be deleted from the summary; however, the court should be aware that if many allegations are not proven, there may be a material and prejudicial variance between what is alleged in the indictment and what is proven at trial.

4. After September 13, 1994, 18 USC 1341 covers schemes carried out by depositing matter to be sent or delivered by any private or commercial interstate carrier.

5. A fourth element is required when the indictment alleges any facts that would result in enhanced penalties under 18 USC 1341, 2326. See Apprendi v. New Jersey, 530 U.S. 466 (2000). Consideration should also be given to the use of a special verdict form (interrogatories to follow finding of guilt).

6. "Intent to defraud" and "scheme to defraud" should be defined in the instruction. "A scheme to defraud need not be fraudulent on its face, but ‘must involve some sort of fraudulent misrepresentations or omissions reasonably calculated to deceive persons of ordinary prudence and comprehension.’" United States v. Goodman, 984 F.2d 235, 237 (8th Cir. 1993).

7. Preston v. United States, 312 F.3d 959 (8^th Cir. 2002).

8. Preston v. United States, 312 F.3d 959 (8^th Cir. 2002).

9. See United States v. Henderson, 416 F.3d 686 (8^th Cir. 2005) (material under 42 USC 408(a)(3, 4); United States v. Mitchell, 388 F.3d 1139 (8^th Cir. 2004) (18 USC 1001 (materiality)).

10. United States v. Ervasti, 201 F.3d 1029 (8^th Cir. 2000). False statements have been defined as those which were known to be untrue at the time they were made, or made with reckless indifference as to their truth or falsity, and made with the intent to deceive. United States v. Marley, 549 F.2d 561 (8th Cir. 1977). Reckless indifference is sufficient in these cases, and a deliberate ignorance instruction, Model Instruction 7.04, should not be necessary. Mattingly v. United States, 924 F.2d 785 (8th Cir. 1991), is not applicable to these cases.

11. United States v. Casperson, 773 F.2d 216 (8^th Cir. 1985).

12. 18 USC 1346. In Carpenter v. United States, 484 U.S. 19 (1987), the Supreme Court adopted a very broad definition of property rights under the mail and wire fraud statutes. The Court stated that the statute covered intangible as well as tangible property rights and included the Wall Street Journal's right to control the use of information obtained by its reporters in the course of their duties. The Court held that the right of the Journal to decide how and when to use its confidential business information obtained by its reporters was a property right and that a scheme to deprive the Journal of this confidential business information was a scheme within the scope of the mail fraud statutes, even if no monetary loss to the Journal was caused by the scheme.

In United States v. Shyres, 898 F.2d 647, 652 (8th Cir. 1990), the court held that the right to exercise control over spending is a property right protected by the mail fraud statute and approved the following instruction:

The term "property rights" as used in the mail fraud statute includes intangible as well as tangible property. Intangible property rights include any valuable right considered as a source of wealth, and include the right to exercise control over how one's money is spent.

See also United States v. Granberry, 908 F.2d 278 (8th Cir. 1990).

However, the Supreme Court held in Cleveland v. United States, 532 U.S. 12 (2000), that state and municipal licenses are not property under the mail fraud statute.

13. See 2A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 47.04 (5th ed. 2000). See also Pereira v. United States, 347 U.S. 1, 8-9 (1954), which holds as follows:

The elements of the offense of mail fraud under 18 USC (Supp. V) § 1341 are (1) a scheme to defraud, and (2) the mailing of a letter, etc., for the purpose of executing the scheme. It is not necessary that the scheme contemplate the use of the mails as an essential element. United States v. Young, 232 U.S. 155 (1914). Here, the scheme to defraud is established, and the mailing of the check by the bank, incident to an essential part of the scheme, is established. There remains only the question whether Pereira "caused" the mailing. That question is easily answered. Where one does an act with knowledge that the use of the mails will follow in the ordinary course of business, or where such use can reasonably be foreseen, even though not actually intended, then he "causes" the mails to be used. United States v. Kenofskey, 243 U.S. 440 (1917).

This Circuit has defined "reasonably foreseeable" in a variety of contexts. In a mail fraud scheme in which an insurance company was a victim, the court stated as follows:

One who engages in carrying out a scheme to defraud is therefore responsible . . . for a use made of the mail to effect a necessary or facilitating incident thereof where such use is from the nature of the business and the incident one of such ordinary course as to constitute a matter of natural expectability. A use of the mail which is of such a general expectable occurrence is entitled to be found to be reasonably foreseeable. Thus, we observed generally . . . as to the ordinary course of such an insurance business as is here involved:

Certainly in dealing with insurance agents it will be contemplated that the mails will have to be employed in carrying on business with the different companies for whom the agent does business.

United States v. Minkin, 504 F.2d 350, 353-54 (8th Cir. 1974) (citation omitted).

In United States v. Boyd, 606 F.2d 792, 794 (8th Cir. 1979), the court held:

Conduct is within the mail fraud statute when, as in this case, the use of the mails for the purpose of executing the flow of payoff funds is a reasonably foreseeable possibility in furthering the transaction.

See also United States v. Rabbitt, 583 F.2d 1014, 1022-23 (8th Cir. 1978).

In United States v. Brown, 540 F.2d 364, 376 (8th Cir. 1976), the court stated:

[T]hus . . . Brown was on notice that transfer of funds from Reliance to Mansion House by mail rather than by hand delivery was a reasonable possibility. This was sufficient evidence from which the jury could find that Brown caused the use of the mails to accomplish the ultimate objective of the scheme.

14. United States v. Sampson, 371 U.S. 75 (1962); United States v. Brown, 540 F.2d 364, 376 (8th Cir. 1976); United States v. Tackett, 646 F.2d 1240, 1243 (8th Cir. 1981).

In Schmuck v. United States, 489 U.S. 705, 713 (1989), the Court held that all mailings that are in any way part of the execution of the scheme will supply the mailing element of the offense even if the mailing later may turn out to be counterproductive and allow the discovery of the scheme.

15. 2A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 47.15 (5th ed. 2000); Atkinson v. United States, 344 F.2d 97 (8th Cir. 1965); United States v. Calvert, 523 F.2d 895, 903 n.6, 914 (8th Cir. 1975).

16. Reistroffer v. United States, 258 F.2d 379, 395 (8th Cir. 1958); United States v. Porter, 441 F.2d 1204, 1211 (8th Cir. 1971).

17. See 2A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 47.04 (5th ed. 2000); United States v. West, 549 F.2d 545, 552 (8th Cir. 1977); United States v. Gross, 416 F.2d 1205, 1210 (8th Cir. 1969); Atkinson v. United States, 344 F.2d 97, 98 (8th Cir. 1965); United States v. Calvert, 523 F.2d 895, 912 (8th Cir. 1975) (use of mail need not be specifically nor exclusively intended).

18. United States v. Shyres, 898 F.2d 647, 658 (8th Cir. 1990); United States v. Cady, 567 F.2d 771, 775 (8th Cir. 1977); United States v. Minkin, 504 F.2d 350, 352-53 (8th Cir. 1974); United States v. Joyce, 499 F.2d 9, 17 (7th Cir. 1974); Bolen v. United States, 303 F.2d 870, 875 (9th Cir. 1962). Likewise mailing can be inferred from the presence of a regular postmark. United States v. Noelke, 1 Fed. 426 (C.C.N.Y. 1880). See also Instruction 4.13, supra, on specific inferences.

Committee Comments

The crime of mail fraud is very broad in scope. As the Eighth Circuit restated in United States v. Bishop, 825 F.2d 1278, 1280 (8th Cir. 1987):

The crime of mail fraud is broad in scope; . . . the fraudulent aspect of the scheme to "defraud" is measured by a nontechnical standard . . . . Law puts its imprimatur on the accepted moral standards and condemns conduct which fails to match the "reflection of moral uprightness, of fundamental honesty, fair play and right dealing in the general business life of the members of society." This is indeed broad. For as Judge Holmes once observed, "The law does not define fraud; it needs no definition. It is as old as falsehood and as versatile as human ingenuity."

The definition of "scheme" as used in these instructions is very old and is similar to one of the first definitions used in this circuit in United States v. Dexter, 154 Fed. 890, 896 (N.D. Ia. 1907). The court there stated:

A scheme may be said to be a design or plan formed to accomplish some purpose. An artifice may be said to be an ingenious contrivance or device of some kind and when use in a bad sense of the word corresponds with trick or fraud. Hence, a scheme or artifice to defraud within the meaning of this statute would be to form some plan or devise some trick to perpetrate a fraud upon another.

The scheme must be one "reasonably calculated to deceive persons of ordinary prudence and comprehension." United States v. Goodman, 984 F.2d 235, 237 (8th Cir. 1993), and must employ material falsehoods. Neder v. United States, 527 U.S. 1 (1999). A scheme under the statute encompasses false representations as to future intentions as well as existing facts. Durland v. United States, 161 U.S. 306 (1896). Indeed, as stated above, a scheme to defraud may be actionable even though no actual misrepresentations are made. See United States v. Clausen, 792 F.2d 102, 104-05 (8th Cir. 1986). A scheme to defraud may also involve the concealment of material facts. United States v. Bessesen, 433 F.2d 861, 863, 864 (8th Cir. 1970).

Because of the diverse types of mail fraud schemes prosecuted, it is difficult to tailor a "model" instruction that does not refer to the indictment in the case. Because of the broad application of the mail fraud statute, it will be necessary to define certain terms in the instructions to the jury.

In Clausen, the court stated that the mail fraud statute prohibited both schemes to defraud and the obtaining of money and property by means of false pretenses. The court held that false pretenses were not essential in order to prove a scheme to defraud. Thus, it is proper to instruct the jury that the mail fraud statute may be violated either by devising a scheme to defraud or by obtaining money or property by means of false or fraudulent pretenses, representations or promises.

One who participates in an ongoing mail fraud devised by others is guilty of the crime of mail fraud. United States v. Wilson, 506 F.2d 1252, 1258 (7th Cir. 1974).

Intent to defraud is an element of mail fraud. DeMier v. United States, 616 F.2d 366, 369 (8th Cir. 1980). Thus, good faith can be a theory of defense. United States v. Arnold, 543 F.2d 1224 (8th Cir. 1976). A defendant is entitled to an instruction on a good faith theory of defense and one should be given if there is evidence to support the theory, United States v. Casperson, 773 F.2d 216, 222-24 (8th Cir. 1985); United States v. Sherer, 653 F.2d 334, 337 (8th Cir. 1981), but not where the defendant denies the conduct which is charged and the issue is one of credibility. United States v. Kimmel, 777 F.2d 290, 292-93 (5th Cir. 1985). See Instruction 9.08, infra, for good faith instructions. See also 2A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 47.16 (5th ed. 2000).

The elements of wire fraud in violation of 18 USC 1343 are identical to the elements of mail fraud with one exception; the defendant must cause interstate wire facilities to be used instead of the mail. See generally, United States v. Tackett, 646 F.2d 1240, 1242-43 (8th Cir. 1981); United States v. Mendenhall, 597 F.2d 639, 641 (8th Cir. 1979); United States v. West, 549 F.2d 545, 549-53 (8th Cir. 1977); United States v. Gross, 416 F.2d 1205, 1209-10 (8th Cir. 1969). But see United States v. Bryant, 766 F.2d 370 (8th Cir. 1985).

Each use of the mail or the wires is a separate offense notwithstanding the fact that the defendant devised only one scheme to defraud. See, e.g., United States v. Massa, 740 F.2d 629, 645-46 (8th Cir. 1984); United States v. Calvert, 523 F.2d 895, 914 (8th Cir. 1975).

If a conspiracy to commit mail fraud is charged, one should be aware that the Eighth Circuit at the present time requires proof that the conspiracy "contemplated the use of the mails." United States v. Donahue, 539 F.2d 1131, 1135, 1136 (8th Cir. 1976). That decision relied heavily on the case of Blue v. United States, 138 F.2d 351 (6th Cir. 1943). In United States v. Reed, 721 F.2d 1059 (6th Cir. 1983), the Sixth Circuit rejected Blue in its entirety and held that only a reasonably foreseeable use of the mail need be proven in a conspiracy case. Of the circuits which have decided this issue, it appears that only the Eighth Circuit requires that a mail fraud conspiracy "contemplate the use of the mails." United States v. Craig, 573 F.2d 455 (7th Cir. 1977).

(For 2008 version see below).

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2008 Version

The crime of [mail] fraud, as charged in [Count _____ of] the indictment, has [three] [four] elements, which are:

One, the defendant voluntarily and intentionally [devised or made up a scheme to defraud another out of [money, property or property rights] [the intangible right to honest services]¹] [participated in a scheme to defraud with knowledge of its fraudulent nature] [devised or participated in a scheme to obtain [money, property or property rights] [the intangible right to honest services] by means of material false representations or promises]² [which scheme is described as follows: (describe scheme in summary form or in manner charged in the indictment)];³

Two, the defendant did so with the intent to defraud; [and]

Three, the defendant used, or caused to be used, [the mail] [a private interstate carrier] [a commercial interstate carrier]⁴ in furtherance of, or in an attempt to carry out, some essential step in the scheme; [and]

[Four, the scheme was in connection with the conduct of telemarketing.]

[Four, the scheme was in connection with the conduct of telemarketing and

(a) victimized ten or more persons over the age of 55, or

(b) targeted persons over the age of 55.]

[Four, that the scheme affected a financial institution.]⁵

The phrase "scheme to defraud" includes any plan or course of action intended to deceive or cheat another out of [money, property or property rights] [the intangible right to honest services] by [employing material falsehoods] [concealing material facts] [omitting material facts]. It also means the obtaining of [money or property] [the intangible right to honest services] from another by means of material false representations or promises. A scheme to defraud need not be fraudulent on its face but must include some sort of fraudulent misrepresentation or promise reasonably calculated to deceive a reasonable person.⁶

A statement or representation is "false" when it is untrue when made or effectively conceals or omits a material fact.⁷

A [fact] [falsehood] [representation] [promise] is "material" if it has a natural tendency to influence, or is capable of influencing, the decision of a reasonable person in deciding whether to engage or not to engage in a particular transaction.⁸ [However, whether a [fact] [falsehood] [representation] [promise] is "material" does not depend on whether the person was actually deceived.]⁹

To act with "intent to defraud" means to act knowingly and with the intent to deceive someone for the purpose of causing some [financial loss] or [loss of property or property rights] [loss of an intangible right to honest services] to another or bringing about some financial gain to oneself or another to the detriment of a third party.¹⁰ [With respect to false statements, the defendant must have known the statement was untrue when made or have made the statement with reckless indifference to its truth or falsity.]¹¹

[The term property rights, as used in the mail fraud statute, includes intangible as well as tangible property rights. It includes any property right which has a value – not necessarily a monetary value – to the owner of the property right. For example, a scheme to deprive a company of the exclusive use of confidential business information obtained by the employees would be a scheme to deprive the company of intangible property rights.]¹²

It is not necessary that the use of [the mail] [an interstate carrier] by the participants themselves be contemplated or that the defendant do any actual [mailing] [sending of material by an interstate carrier] or specifically intend that [the mail] [an interstate carrier] be used. It is sufficient if [the mail] [an interstate carrier] was in fact used to carry out the scheme and the use of [the mail] [an interstate carrier] by someone was reasonably foreseeable.¹³

[Mailings] [Deliveries by an interstate carrier] which are designed to lull victims into a false sense of security, postpone inquiries or complaints, or make the transaction less suspect are [mailings] [deliveries] in furtherance of the scheme.]¹⁴

[Each separate use of [the mail] [an interstate carrier] in furtherance of the scheme to defraud constitutes a separate offense.]¹⁵

[The [mail] fraud counts of the indictment charge that each defendant, along with the other defendants, devised or participated in a scheme. The Government need not prove, however, that the defendants met together to formulate the scheme charged, or that there was a formal agreement among them, in order for them to be held jointly responsible for the operation of the scheme and the use of [the mail] [an interstate carrier] for the purpose of accomplishing the scheme. It is sufficient if only one person conceives the scheme and the others knowingly, voluntarily and intentionally join in and participate in some way in the operation of the scheme in order for such others to be held jointly responsible.]¹⁶

[It is not necessary that the Government prove [all of the details alleged in the indictment concerning the precise nature and purpose of the scheme] [that the material [mailed] [sent by an interstate carrier] was itself false or fraudulent] [that the alleged scheme actually succeeded in defrauding anyone] [that the use of [the mail] [an interstate carrier] was intended as the specific or exclusive means of accomplishing the alleged fraud].]¹⁷

[If you find proof beyond a reasonable doubt of a business custom (describe custom, e.g., to date stamp only items received through the mail), that is evidence from which you may, but are not required to, find or infer that [the mail] [an interstate carrier] was used to deliver those items.]¹⁸

(Insert paragraph describing Government's burden of proof; see Instruction 3.09, supra.)

Notes on Use

You need not find that all of the theories charged in Count ___ of the indictment are proven; instead, you must find unanimously and beyond a reasonable doubt that at least one of the theories set out in Count __ of the indictment is proven.

Count ___ of the indictment accuses the defendant of committing the crime of ___ in more than one possible way. The first is that he ___. The second is that he ___. The government does not have to prove all of these for you to return a guilty verdict on this charge. Proof beyond a reasonable doubt of any one of these ways is enough. In order to return a guilty verdict, all twelve of you must agree that at least one of these has been proved; however, all of you need not agree that the same one has been proved.

3. In a simple case a brief description of the fraud should be given in the first element. An example would be:

One, that the defendant devised a scheme to defraud the brokerage firm of Smith & Jones by pledging counterfeit stock certificates as collateral on margin loans given to the defendant, thus causing a loss to Smith & Jones of 5 million dollars.

4. After September 13, 1994, 18 USC 1341 covers schemes carried out by depositing matter to be sent or delivered by any private or commercial interstate carrier.

7. Preston v. United States, 312 F.3d 959 (8^th Cir. 2002).

8. Preston v. United States, 312 F.3d 959 (8^th Cir. 2002).

9. See United States v. Henderson, 416 F.3d 686 (8^th Cir. 2005) (material under 42 USC 408(a)(3, 4); United States v. Mitchell, 388 F.3d 1139 (8^th Cir. 2004) (18 USC 1001 (materiality)).

10. United States v. Ervasti, 201 F.3d 1029 (8^th Cir. 2000). False statements have been defined as those which were known to be untrue at the time they were made, or made with reckless indifference as to their truth or falsity, and made with the intent to deceive. United States v. Marley, 549 F.2d 561 (8th Cir. 1977). Reckless indifference is sufficient in these cases, and a deliberate ignorance instruction, Model Instruction 7.04, should not be necessary. Mattingly v. United States, 924 F.2d 785 (8th Cir. 1991), is not applicable to these cases.

11. United States v. Casperson, 773 F.2d 216 (8^th Cir. 1985).

The term "property rights" as used in the mail fraud statute includes intangible as well as tangible property. Intangible property rights include any valuable right considered as a source of wealth, and include the right to exercise control over how one's money is spent.

See also United States v. Granberry, 908 F.2d 278 (8th Cir. 1990).

However, the Supreme Court held in Cleveland v. United States, 532 U.S. 12 (2000), that state and municipal licenses are not property under the mail fraud statute.

13. See 2A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 47.04 (5th ed. 2000). See also, Pereira v. United States, 347 U.S. 1, 8-9 (1954), which holds as follows:

The elements of the offense of mail fraud under 18 USC (Supp. V) § 1341 are (1) a scheme to defraud, and (2) the mailing of a letter, etc., for the purpose of executing the scheme. It is not necessary that the scheme contemplate the use of the mails as an essential element. United States v. Young, 232 U.S. 155 (1914). Here, the scheme to defraud is established, and the mailing of the check by the bank, incident to an essential part of the scheme, is established. There remains only the question whether Pereira "caused" the mailing. That question is easily answered. Where one does an act with knowledge that the use of the mails will follow in the ordinary course of business, or where such use can reasonably be foreseen, even though not actually intended, then he "causes" the mails to be used. United States v. Kenofskey, 243 U.S. 440 (1917).

This Circuit has defined "reasonably foreseeable" in a variety of contexts. In a mail fraud scheme in which an insurance company was a victim, the court stated as follows:

One who engages in carrying out a scheme to defraud is therefore responsible . . . for a use made of the mail to effect a necessary or facilitating incident thereof where such use is from the nature of the business and the incident one of such ordinary course as to constitute a matter of natural expectability. A use of the mail which is of such a general expectable occurrence is entitled to be found to be reasonably foreseeable. Thus, we observed generally . . . as to the ordinary course of such an insurance business as is here involved:

Certainly in dealing with insurance agents it will be contemplated that the mails will have to be employed in carrying on business with the different companies for whom the agent does business.

United States v. Minkin, 504 F.2d 350, 353-54 (8th Cir. 1974) (citation omitted).

In United States v. Boyd, 606 F.2d 792, 794 (8th Cir. 1979), the court held:

Conduct is within the mail fraud statute when, as in this case, the use of the mails for the purpose of executing the flow of payoff funds is a reasonably foreseeable possibility in furthering the transaction.

See also United States v. Rabbitt, 583 F.2d 1014, 1022-23 (8th Cir. 1978).

In United States v. Brown, 540 F.2d 364, 376 (8th Cir. 1976), the court stated:

[T]hus . . . Brown was on notice that transfer of funds from Reliance to Mansion House by mail rather than by hand delivery was a reasonable possibility. This was sufficient evidence from which the jury could find that Brown caused the use of the mails to accomplish the ultimate objective of the scheme.

14. United States v. Sampson, 371 U.S. 75 (1962); United States v. Brown, 540 F.2d 364, 376 (8th Cir. 1976); United States v. Tackett, 646 F.2d 1240, 1243 (8th Cir. 1981).

16. Reistroffer v. United States, 258 F.2d 379, 395 (8th Cir. 1958); United States v. Porter, 441 F.2d 1204, 1211 (8th Cir. 1971).

Committee Comments

The crime of mail fraud is very broad in scope. As the Eighth Circuit restated in United States v. Bishop, 825 F.2d 1278, 1280 (8th Cir. 1987):

The crime of mail fraud is broad in scope; . . . the fraudulent aspect of the scheme to "defraud" is measured by a nontechnical standard . . . . Law puts its imprimatur on the accepted moral standards and condemns conduct which fails to match the "reflection of moral uprightness, of fundamental honesty, fair play and right dealing in the general business life of the members of society." This is indeed broad. For as Judge Holmes once observed, "The law does not define fraud; it needs no definition. It is as old as falsehood and as versatile as human ingenuity."

A scheme may be said to be a design or plan formed to accomplish some purpose. An artifice may be said to be an ingenious contrivance or device of some kind and when use in a bad sense of the word corresponds with trick or fraud. Hence, a scheme or artifice to defraud within the meaning of this statute would be to form some plan or devise some trick to perpetrate a fraud upon another.

One who participates in an ongoing mail fraud devised by others is guilty of the crime of mail fraud. United States v. Wilson, 506 F.2d 1252, 1258 (7th Cir. 1974).

(For 2006 version see below)

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2006 Version

The crime of [mail] fraud, as charged in [Count _____ of] the indictment, has [three] [four] elements, which are:

One, the defendant voluntarily and intentionally [devised or made up a scheme to defraud another out of [money, property or property rights] [the intangible right to honest services]1] [participated in a scheme to defraud with knowledge of its fraudulent nature] [devised or participated in a scheme to obtain [money, property or property rights] [the intangible right to honest services] by means of material false representations or promises]2 [which scheme is described as follows: (describe scheme in summary form or in manner charged in the indictment)];3

Two, the defendant did so with the intent to defraud; [and]

Three, the defendant used, or caused to be used, [the mail] [a private interstate carrier] [a commercial interstate carrier]4 in furtherance of, or in an attempt to carry out, some essential step in the scheme; [and]

[Four, the scheme was in connection with the conduct of telemarketing.]

[Four, the scheme was in connection with the conduct of telemarketing and

(a) victimized ten or more persons over the age of 55, or

(b) targeted persons over the age of 55.]

[Four, that the scheme affected a financial institution.]5

The phrase "scheme to defraud" includes any plan or course of action intended to deceive or cheat another out of [money, property or property rights] [the intangible right to honest services] by [employing material falsehoods] [concealing material facts] [omitting material facts]. It also means the obtaining of [money or property] [the intangible right to honest services] from another by means of material false representations or promises. A scheme to defraud need not be fraudulent on its face but must include some sort of fraudulent misrepresentation or promise reasonably calculated to deceive a reasonable person.6

A statement or representation is "false" when it is untrue when made or effectively conceals or omits a material fact.7

A [fact] [falsehood] [representation] [promise] is "material" if it has a natural tendency to influence, or is capable of influencing, the decision of a reasonable person in deciding whether to engage or not to engage in a particular transaction.8 [However, whether a [fact] [falsehood] [representation] [promise] is "material" does not depend on whether the person was actually deceived.]9

To act with "intent to defraud" means to act knowingly and with the intent to deceive someone for the purpose of causing some [financial loss] or [loss of property or property rights] [loss of an intangible right to honest services] to another or bringing about some financial gain to oneself or another to the detriment of a third party.10 [With respect to false statements, the defendant must have known the statement was untrue when made or have made the statement with reckless indifference to its truth or falsity.]11

[The term property rights, as used in the mail fraud statute, includes intangible as well as tangible property rights. It includes any property right which has a value – not necessarily a monetary value – to the owner of the property right. For example, a scheme to deprive a company of the exclusive use of confidential business information obtained by the employees would be a scheme to deprive the company of intangible property rights.]12

It is not necessary that the use of [the mail] [an interstate carrier] by the participants themselves be contemplated or that the defendant do any actual [mailing] [sending of material by an interstate carrier] or specifically intend that [the mail] [an interstate carrier] be used. It is sufficient if [the mail] [an interstate carrier] was in fact used to carry out the scheme and the use of [the mail] [an interstate carrier] by someone was reasonably foreseeable.13

[Mailings] [Deliveries by an interstate carrier] which are designed to lull victims into a false sense of security, postpone inquiries or complaints, or make the transaction less suspect are [mailings] [deliveries] in furtherance of the scheme.]14

[Each separate use of [the mail] [an interstate carrier] in furtherance of the scheme to defraud constitutes a separate offense.]15

[The [mail] fraud counts of the indictment charge that each defendant, along with the other defendants, devised or participated in a scheme. The Government need not prove, however, that the defendants met together to formulate the scheme charged, or that there was a formal agreement among them, in order for them to be held jointly responsible for the operation of the scheme and the use of [the mail] [an interstate carrier] for the purpose of accomplishing the scheme. It is sufficient if only one person conceives the scheme and the others knowingly, voluntarily and intentionally join in and participate in some way in the operation of the scheme in order for such others to be held jointly responsible.]16

[It is not necessary that the Government prove [all of the details alleged in the indictment concerning the precise nature and purpose of the scheme] [that the material [mailed] [sent by an interstate carrier] was itself false or fraudulent] [that the alleged scheme actually succeeded in defrauding anyone] [that the use of [the mail] [an interstate carrier] was intended as the specific or exclusive means of accomplishing the alleged fraud.]17

[If you find proof beyond a reasonable doubt of a business custom (describe custom, e.g., to date stamp only items received through the mail), that is evidence from which you may, but are not required to, find or infer that [the mail] [an interstate carrier] was used to deliver those items.]18

(Insert paragraph describing Government's burden of proof; see Instruction 3.09, supra.)

Notes on Use

You need not find that all of the theories charged in Count ___ of the indictment are proven; instead, you must find unanimously and beyond a reasonable doubt that at least one of the theories set out in Count __ of the indictment is proven.

Count ___ of the indictment accuses the defendant of committing the crime of ___ in more than one possible way. The first is that he ___. The second is that he ___. The government does not have to prove all of these for you to return a guilty verdict on this charge. Proof beyond a reasonable doubt of any one of these ways is enough. In order to return a guilty verdict, all twelve of you must agree that at least one of these has been proved; however, all of you need not agree that the same one has been proved.

3. In a simple case a brief description of the fraud should be given in the first element. An example would be:

One, that the defendant devised a scheme to defraud the brokerage firm of Smith & Jones by pledging counterfeit stock certificates as collateral on margin loans given to the defendant, thus causing a loss to Smith & Jones of 5 million dollars.

4. After September 13, 1994, 18 USC 1341 covers schemes carried out by depositing matter to be sent or delivered by any private or commercial interstate carrier.

7. Preston v. United States, 312 F.3d 959 (8th Cir. 2002).

8. Preston v. United States, 312 F.3d 959 (8th Cir. 2002).

9. See United States v. Henderson, 416 F.3d 686 (8th Cir. 2005) (material under 42 USC 408(a)(3, 4); United States v. Mitchell, 388 F.3d 1139 (8th Cir. 2004) (18 USC 1001 (materiality)).

10. United States v. Ervasti, 201 F.3d 1029 (8th Cir. 2000). False statements have been defined as those which were known to be untrue at the time they were made, or made with reckless indifference as to their truth or falsity, and made with the intent to deceive. United States v. Marley, 549 F.2d 561 (8th Cir. 1977). Reckless indifference is sufficient in these cases, and a deliberate ignorance instruction, Model Instruction 7.04, should not be necessary. Mattingly v. United States, 924 F.2d 785 (8th Cir. 1991), is not applicable to these cases.

11. United States v. Casperson, 773 F.2d 216 (8th Cir. 1985).

The term "property rights" as used in the mail fraud statute includes intangible as well as tangible property. Intangible property rights include any valuable right considered as a source of wealth, and include the right to exercise control over how one's money is spent.

See also United States v. Granberry, 908 F.2d 278 (8th Cir. 1990).

However, the Supreme Court held in Cleveland v. United States, 532 U.S. 12 (2000), that state and municipal licenses are not property under the mail fraud statute.

The elements of the offense of mail fraud under 18 USC (Supp. V) § 1341 are (1) a scheme to defraud, and (2) the mailing of a letter, etc., for the purpose of executing the scheme. It is not necessary that the scheme contemplate the use of the mails as an essential element. United States v. Young, 232 U.S. 155 (1914). Here, the scheme to defraud is established, and the mailing of the check by the bank, incident to an essential part of the scheme, is established. There remains only the question whether Pereira "caused" the mailing. That question is easily answered. Where one does an act with knowledge that the use of the mails will follow in the ordinary course of business, or where such use can reasonably be foreseen, even though not actually intended, then he "causes" the mails to be used. United States v. Kenofskey, 243 U.S. 440 (1917).

This Circuit has defined "reasonably foreseeable" in a variety of contexts. In a mail fraud scheme in which an insurance company was a victim, the court stated as follows:

One who engages in carrying out a scheme to defraud is therefore responsible . . . for a use made of the mail to effect a necessary or facilitating incident thereof where such use is from the nature of the business and the incident one of such ordinary course as to constitute a matter of natural expectability. A use of the mail which is of such a general expectable occurrence is entitled to be found to be reasonably foreseeable. Thus, we observed generally . . . as to the ordinary course of such an insurance business as is here involved:

Certainly in dealing with insurance agents it will be contemplated that the mails will have to be employed in carrying on business with the different companies for whom the agent does business.

United States v. Minkin, 504 F.2d 350, 353-54 (8th Cir. 1974) (citation omitted).

In United States v. Boyd, 606 F.2d 792, 794 (8th Cir. 1979), the court held:

Conduct is within the mail fraud statute when, as in this case, the use of the mails for the purpose of executing the flow of payoff funds is a reasonably foreseeable possibility in furthering the transaction.

See also United States v. Rabbitt, 583 F.2d 1014, 1022-23 (8th Cir. 1978).

In United States v. Brown, 540 F.2d 364, 376 (8th Cir. 1976), the court stated:

[T]hus . . . Brown was on notice that transfer of funds from Reliance to Mansion House by mail rather than by hand delivery was a reasonable possibility. This was sufficient evidence from which the jury could find that Brown caused the use of the mails to accomplish the ultimate objective of the scheme.

14. United States v. Sampson, 371 U.S. 75 (1962); United States v. Brown, 540 F.2d 364, 376 (8th Cir. 1976); United States v. Tackett, 646 F.2d 1240, 1243 (8th Cir. 1981).

16. Reistroffer v. United States, 258 F.2d 379, 395 (8th Cir. 1958); United States v. Porter, 441 F.2d 1204, 1211 (8th Cir. 1971).

Committee Comments

The crime of mail fraud is very broad in scope. As the Eighth Circuit restated in United States v. Bishop, 825 F.2d 1278, 1280 (8th Cir. 1987):

The crime of mail fraud is broad in scope; . . . the fraudulent aspect of the scheme to "defraud" is measured by a nontechnical standard . . . . Law puts its imprimatur on the accepted moral standards and condemns conduct which fails to match the "reflection of moral uprightness, of fundamental honesty, fair play and right dealing in the general business life of the members of society." This is indeed broad. For as Judge Holmes once observed, "The law does not define fraud; it needs no definition. It is as old as falsehood and as versatile as human ingenuity."

A scheme may be said to be a design or plan formed to accomplish some purpose. An artifice may be said to be an ingenious contrivance or device of some kind and when use in a bad sense of the word corresponds with trick or fraud. Hence, a scheme or artifice to defraud within the meaning of this statute would be to form some plan or devise some trick to perpetrate a fraud upon another.

One who participates in an ongoing mail fraud devised by others is guilty of the crime of mail fraud. United States v. Wilson, 506 F.2d 1252, 1258 (7th Cir. 1974).

For 2000 version see below

******************************************************************************************************************

2000 Version

The crime of [mail] fraud, as charged in [Count _____ of] the indictment, has four essential elements, which are:

One, the defendant voluntarily and intentionally [devised or made up a scheme to defraud another out of [money, property or property rights] [the intangible right to honest services]1] [participated in a scheme to defraud with knowledge of its fraudulent nature] [devised or participated in a scheme to obtain [money, property or property rights] [the intangible right to honest services] by means of material false representations or promises]2 [which scheme is described as follows: (describe scheme in summary form or in manner charged in the indictment)];3

Two, the defendant did so with the intent to defraud;

Three, it was reasonably foreseeable that [the mail] [a private interstate carrier] [a commercial interstate carrier]4 would be used; and

Four, [the mail] [a private interstate carrier] [a commercial interstate carrier] was used in furtherance of some essential step in the scheme.

The phrase "scheme to defraud" includes any plan or course of action intended to deceive or cheat another out of [money, property or property rights] [the intangible right to honest services] by [employing material falsehoods] [concealing material facts] [omitting material facts]. It also means the obtaining of [money or property] [the intangible right to honest services] from another by means of material false representations or promises.5

A statement or representation is "false" when it is untrue when made or effectively conceals or omits a material fact. A [fact] [falsehood] [representation] [promise] is "material" if it has a natural tendency to influence, or is capable of influencing, the decision of a reasonable person in deciding whether to engage or not to engage in a particular transaction. [However, whether a [fact] [falsehood] [representation] [promise] is "material" does not depend on whether the person was actually deceived.]

To act with "intent to defraud" means to act knowingly and with the intent to deceive someone for the purpose of causing some [financial loss] or [loss of property or property rights] [loss of an intangible right to honest services] to another or bringing about some financial gain to oneself or another to the detriment of a third party.6 [With respect to false statements the defendant must have known the statement was untrue when made or have made the statement with reckless indifference to its truth or falsity.]7

[The term property rights, as used in the mail fraud statute, includes intangible as well as tangible property rights. It includes any property right which has a value -- not necessarily a monetary value -- to the owner of the property right. For example, a scheme to deprive a company of the exclusive use of confidential business information obtained by the employees would be a scheme to deprive the company of intangible property rights.]8

It is not necessary that the use of [the mail] [an interstate carrier] by the participants themselves be contemplated or that the defendant do any actual [mailing] [sending of material by an interstate carrier] or specifically intend that [the mail] [an interstate carrier] be used. It is sufficient if [the mail] [an interstate carrier] was in fact used to carry out the scheme and the use of [the mail] [an interstate carrier] by someone was reasonably foreseeable.9

[Mailings] [Deliveries by an interstate carrier] which are designed to lull victims into a false sense of security, postpone inquiries or complaints, or make the transaction less suspect are [mailings] [deliveries] in furtherance of the scheme.]10

[Each separate use of [the mail] [an interstate carrier] in furtherance of the scheme to defraud constitutes a separate offense.]11

[The [mail] fraud counts of the indictment charge that each defendant, along with the other defendants, devised or participated in a scheme. The Government need not prove, however, that the defendants met together to formulate the scheme charged, or that there was a formal agreement among them, in order for them to be held jointly responsible for the operation of the scheme and the use of [the mail] [an interstate carrier] for the purpose of accomplishing the scheme. It is sufficient if only one person conceives the scheme and the others knowingly, voluntarily and intentionally join in and participate in some way in the operation of the scheme in order for such others to be held jointly responsible.]12

[It is not necessary that the Government prove [all of the details alleged in the indictment concerning the precise nature and purpose of the scheme] [that the material [mailed] [sent by an interstate carrier] was itself false or fraudulent] [that the alleged scheme actually succeeded in defrauding anyone] [that the use of [the mail] [an interstate carrier] was intended as the specific or exclusive means of accomplishing the alleged fraud.]]13

[If you find proof beyond a reasonable doubt of a business custom (describe custom, e.g., to date stamp only items received through the mail), that is evidence from which you may, but are not required to, find or infer that [the mail] [an interstate carrier] was used to deliver those items.]14

(Insert paragraph describing Government's burden of proof; see Instruction 3.09, supra.)

Committee Comments

See 2 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Criminal §§ 40.01-40.17 (4th ed. 1990); Seventh Circuit Federal Jury Instructions: Criminal at 259 (1999); United States v. Leyden, 842 F.2d 1026, 1028 (8th Cir. 1988); United States v. Pintar, 630 F.2d 1270, 1280 (8th Cir. 1980); Carpenter v. United States, 484 U.S. 19 (1987); Pereira v. United States, 347 U.S. 1, 8-9 (1954).

The crime of mail fraud is very broad in scope. As the Eighth Circuit restated in United States v. Bishop, 825 F.2d 1278 (8th Cir. 1987) (quoting United States v. States, 488 F.2d 761, 764 (8th Cir. 1973), cert. denied, 417 U.S. 909 (1974) and Blachly v. United States, 380 F.2d 665, 671 (5th Cir. 1967)):

The crime of mail fraud is broad in scope; . . . the fraudulent aspect of the scheme to "defraud" is measured by a nontechnical standard . . . . Law puts its imprimatur on the accepted moral standards and condemns conduct which fails to match the "reflection of moral uprightness, of fundamental honesty, fair play and right dealing in the general business life of the members of society." This is indeed broad. For as Judge Holmes once observed, "The law does not define fraud; it needs no definition. It is as old as falsehood and as versatile as human ingenuity."

Bishop, 825 F.2d at 1280.

The definition of "scheme" as used in these instructions is very old and is similar to one of the first definitions used in this circuit in United States v. Dexter, 154 Fed. 890 (N.D. Iowa 1907). The court states in that case:

A scheme may be said to be a design or plan formed to accomplish some purpose. An artifice may be said to be an ingenious contrivance or device of some kind and when use in a bad sense of the word corresponds with trick or fraud. Hence, a scheme or artifice to defraud within the meaning of this statute would be to form some plan or devise some trick to perpetrate a fraud upon another.

154 F.2d at 896.

The scheme must be one "reasonably calculated to deceive persons of ordinary prudence and comprehension." Silverman v. United States, 213 F.2d 405, 407 (5th Cir.), cert. denied, 318 U.S. 828 (1954), and must employ material falsehoods. Neder v. United States, 527 U.S. 1, 119 S. Ct. 1827 (1999). A scheme under the statute encompasses false representations as to future intentions as well as existing facts. Durland v. United States, 161 U.S. 306 (1896). Indeed, as stated above, a scheme to defraud may be actionable even though no actual misrepresentations are made. See United States v. Clausen, 792 F.2d 102, 104-05 (8th Cir.), cert. denied, 479 U.S. 858 (1986). A scheme to defraud may also involve the concealment of material facts. Blachly v. United States, 380 F.2d 665 (5th Cir. 1967); United States v. Bessesen, 433 F.2d 861, 863, 864 (8th Cir. 1970), cert. denied, 401 U.S. 1009 (1971).

One who participates in an ongoing mail fraud devised by others is guilty of the crime of mail fraud. United States v. Wilson, 506 F.2d 1252, 1258 (7th Cir. 1974).

Intent to defraud is an element of mail fraud. DeMier v. United States, 616 F.2d 366, 369 (8th Cir. 1980). Thus, good faith can be a theory of defense. United States v. Arnold, 543 F.2d 1224 (8th Cir. 1976), cert. denied, 429 U.S. 1051 (1977). A defendant is entitled to an instruction on a good faith theory of defense and one should be given if there is evidence to support the theory, United States v. Casperson, 773 F.2d 216, 222-24 (8th Cir. 1985); United States v. Scherer, 653 F.2d 334, 337 (8th Cir.), cert. denied, 454 U.S. 1034 (1981), but not where the defendant denies the conduct which is charged and the issue is one of credibility. United States v. Kimmel, 777 F.2d 290, 292-93 (5th Cir. 1985), cert. denied, 476 U.S. 1104 (1986) and United States v. Wilkinson, 460 F.2d 725 (5th Cir. 1972). See Instruction 9.08, infra, for good faith instructions. See also 2 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Criminal § 40.14 (4th ed. 1990)

The elements of wire fraud in violation of 18 USC 1343 are identical to the elements of mail fraud with one exception; the defendant must cause interstate wire facilities to be used instead of the mail. See generally, United States v. Tackett, 646 F.2d 1240, 1242-43 (8th Cir. 1981); United States v. Mendenhall, 597 F.2d 639, 641 (8th Cir.), cert. denied, 444 U.S. 855 (1979); United States v. West, 549 F.2d 545, 549-553 (8th Cir.), cert. denied, 430 U.S. 956 (1977); United States v. Gross, 416 F.2d 1205, 1209-1210 (8th Cir. 1969), cert. denied, 397 U.S. 1013 (1970). But see United States v. Bryant, 766 F.2d 370 (8th Cir. 1985), cert. denied, 474 U.S. 1054 (1986).

Each use of the mail or the wires is a separate offense notwithstanding the fact that the defendant devised only one scheme to defraud. See, e.g., United States v. Massa, 740 F.2d 629, 645-46 (8th Cir. 1984), cert. denied, 471 U.S. 1115 (1985); United States v. Calvert, 523 F.2d 895, 914 (8th Cir. 1975), cert. denied, 424 U.S. 911 (1976).

If a conspiracy to commit mail fraud is charged, one should be aware that the Eighth Circuit at the present time requires proof that the conspiracy "contemplated the use of the mails." United States v. Donahue, 539 F.2d 1131, 1135, 1136 (8th Cir. 1976). That decision relied heavily on the case of Blue v. United States, 138 F.2d 351 (6th Cir. 1943), cert. denied, 322 U.S. 736 (1944). In United States v. Reed, 721 F.2d 1059 (6th Cir. 1983), the Sixth Circuit rejected Blue in its entirety and held that only a reasonably foreseeable use of the mail need be proven in a conspiracy case. Of the circuits which have decided this issue, it appears that only the Eighth Circuit requires that a mail fraud conspiracy "contemplate the use of the mails." United States v. Craig, 573 F.2d 455 (7th Cir. 1977), cert. denied, 439 U.S. 820 (1978).

Notes on Use

1. Depriving another of the intangible right of honest services is covered by the mail fraud statute where the offense occurs after November 18, 1988. 18 USC 1346. The Eighth Circuit has held that 18 USC 1346 effectively overruled the opinion in McNally v. United States, 483 U.S. 350, 107 S. Ct. 2875 (1987). United States v. Blumeyer, 114 F.3d 758 (8th Cir. 1997). In United States v. Jain, 93 F.3d 436 (8th Cir. 1996), the court held that in a private sector (as opposed to public corruption) honest services mail fraud, the government must show an intent to harm the victim before mail fraud is proven. For a discussion of the extent of 18 USC 1346, see 25 Am. Crim. L. Rev. 743 (1988).

2. The proper mail fraud theory charged in the indictment should be selected. If more than one theory is submitted to the jury, the jury should be instructed that they can find the defendant guilty if they find unanimously and beyond a reasonable doubt that the government has proven at least one theory. See generally, United States v. Gipson, 553 F.2d 453 (5th Cir. 1977); United States v. Frazin, 780 F.2d 1461, 1468 (9th Cir.), cert. denied sub nom., Miller v. United States, 479 U.S. 839 (1986); 91 Harv. L. Rev. 499 (1977).

3. In a simple case a brief description of the fraud should be given in the first element. An example would be:

One, that the defendant devised a scheme to defraud the brokerage firm of Smith & Jones by pledging counterfeit stock certificates as collateral on margin loans given to the defendant, thus causing a loss to Smith & Jones of 5 million dollars.

4. After September 13, 1994, 18 USC 1341 covers schemes carried out by depositing matter to be sent or delivered by any private or commercial interstate carrier.

5. "Intent to defraud" and "scheme to defraud" should be defined in the instruction. The definitions of "scheme to defraud" and "intent to defraud" are taken essentially from 2 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Criminal §§ 40.13, 40.14 (4th ed. 1990) and the materiality requirement has been added consistent with Neder v. United States, 527 U.S. 1, 119 S. Ct. 1827 (1999) and United States v. Gaudin, 515 U.S. 506, ___, 115 S. Ct. 2310, 2313 (1995). Similar definitions of "intent to defraud" and "scheme to defraud" are contained in Eleventh Circuit Pattern Jury Instructions: Criminal (Offense) § 41.1 (1997) and Fifth Circuit Pattern Jury Instructions: Criminal § 2.60 (1997).

6. Since the decision of the Supreme Court in v. McNally v. United States, 483 U.S. 350, 107 S. Ct. 2875 (1987), it is important to instruct the jury in a mail fraud case, where the offense occurs prior to November 18, 1988, that a scheme to defraud have as its object or effect the deprivation of money or property rights from the victim of the fraud. The Court in McNally reversed a long line of cases which held that the mail fraud statute proscribed schemes to defraud citizens of their intangible right to honest and impartial government. The Court stated, "The mail fraud statute clearly protects property rights, but does not refer to the intangible rights of citizenry to good government." 483 U.S. at 356, 107 S. Ct. at 2879.

The Court did state that the meaning of the phrase "scheme and artifice to defraud" should be interpreted broadly as to the meaning of property rights.

7. See 2 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Criminal § 47.04 (4th ed. 1990), third paragraph. False statements have been defined as those which were known to be untrue at the time they were made, or made with reckless indifference as to their truth or falsity, and made with the intent to deceive. United States v. Marley, 549 F.2d 561 (8th Cir. 1977). Reckless indifference is sufficient in these cases, and a deliberate ignorance instruction, Model Instruction 7.04, should not be necessary. Mattingly v. United States, 924 F.2d 785 (8th Cir. 1991) is not applicable to these cases.

8. After November 18, 1988 a scheme to deprive another of the intangible right of honest services is covered. 18 USC 1346. It will not be necessary to define property rights in a case where it is apparent that the object of the scheme is money or tangible property.

In Carpenter v. United States, 484 U.S. 19 (1987), the Supreme Court adopted a very broad definition of property rights under the mail and wire fraud statutes. The Court stated that the statute covered intangible as well as tangible property rights and included the Wall Street Journal's right to control the use of information obtained by its reporters in the course of their duties. The Court held that the right of the Journal to decide how and when to use its confidential business information obtained by its reporters was a property right and that a scheme to deprive the Journal of this confidential business information was a scheme within the scope of the mail fraud statutes, even if no monetary loss to the Journal was caused by the scheme.

The term "property rights" as used in the mail fraud statute includes intangible as well as tangible property. Intangible property rights include any valuable right considered as a source of wealth, and include the right to exercise control over how one's money is spent.

See also United States v. Granberry, 908 F.2d 278 (8th Cir. 1990).

9. See 2 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Criminal § 47.10 (4th ed. 1990); Pereira v. United States, 347 U.S. 1, 8-9 (1954), which holds as follows:

The elements of the offense of mail fraud under 18 USC (Supp. V) § 1341 are (1) a scheme to defraud, and (2) the mailing of a letter, etc., for the purpose of executing the scheme. It is not necessary that the scheme contemplate the use of the mails as an essential element. United States v. Young, 232 U.S. 155. Here, the scheme to defraud is established, and the mailing of the check by the bank, incident to an essential part of the scheme, is established. There remains only the question whether Pereira "caused" the mailing. That question is easily answered. Where one does an act with knowledge that the use of the mails will follow in the ordinary course of business, or where such use can reasonably be foreseen, even though not actually intended, then he "causes" the mails to be used. United States v. Kenofskey, 243 U.S. 440 (1917).

This Circuit has defined "reasonably foreseeable" in a variety of contexts. In a mail fraud scheme in which an insurance company was a victim, the court stated as follows:

One who engages in carrying out a scheme to defraud is therefore responsible . . . for a use made of the mail to effect a necessary or facilitating incident thereof where such use is from the nature of the business and the incident one of such ordinary course as to constitute a matter of natural expectability. A use of the mail which is of such a general expectable occurrence is entitled to be found to be reasonably foreseeable. Thus, we observed generally . . . as to the ordinary course of such an insurance business as is here involved:

Certainly in dealing with insurance agents it will be contemplated that the mails will have to be employed in carrying on business with the different companies for whom the agent does business.

United States v. Minkin, 504 F.2d 350, 353-54 (8th Cir. 1974), cert. denied, 420 U.S. 926 (1975) (citation omitted).

In United States v. Boyd, 606 F.2d 792 (8th Cir. 1979), the court held:

Conduct is within the mail fraud statute when, as in this case, the use of the mails for the purpose of executing the flow of payoff funds is a reasonably foreseeable possibility in furthering the transaction.

606 F.2d at 794. See also United States v. Rabbitt, 583 F.2d 1014, 1022-23 (8th Cir. 1978), cert. denied, 439 U.S. 1116 (1979).

In United States v. Brown, 540 F.2d 364 (8th Cir. 1976), the court stated:

[T]hus . . . Brown was on notice that transfer of funds from Reliance to Mansion House by mail rather than by hand delivery was a reasonable possibility. This was sufficient evidence from which the jury could find that Brown caused the use of the mails to accomplish the ultimate objective of the scheme.

540 F.2d at 376.

10. United States v. Sampson, 371 U.S. 75 (1962); United States v. Brown, 540 F.2d 364, 376 (8th Cir. 1976); United States v. Tackett, 646 F.2d 1240, 1243 (8th Cir. 1981).

In Schmuck v. United States, 489 U.S. 705, 713, 109 S. Ct. 1443, 1449 (1989), the Court held that all mailings that are in any way part of the execution of the scheme will supply the mailing element of the offense even if the mailing later may turn out to be counterproductive and allow the discovery of the scheme.

11. 2 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Criminal § 47.18 (4th ed. 1990); Atkinson v. United States, 344 F.2d 97 (8th Cir.), cert. denied, 382 U.S. 867 (1965); United States v. Calvert, 523 F.2d 895, 903 n.6, 914 (8th Cir. 1975), cert. denied, 424 U.S. 911 (1976).

12. Reistroffer v. United States, 258 F.2d 379, 395 (8th Cir. 1958), cert. denied, 358 U.S. 927 (1959); United States v. Porter, 441 F.2d 1204, 1211 (8th Cir.), cert. denied, 404 U.S. 911 (1971).

13. See Eleventh Circuit Pattern Jury Instructions: Criminal (Offense) § 41.1 (1997); Fifth Circuit Pattern Jury Instructions: Criminal § 2.60 (1997); 2 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Criminal §§ 47.08, 47.09 (4th ed. 1990); Seventh Circuit Federal Jury Instructions: Criminal at 260 (1999); United States v. Joyce, 499 F.2d 9 (7th Cir.), cert. denied, 419 U.S. 1031 (1974). United States v. West, 549 F.2d 545, 552 (8th Cir.), cert. denied, 430 U.S. 956 (1977); United States v. Gross, 416 F.2d 1205, 1210 (8th Cir. 1969), cert. denied, 397 U.S. 1013 (1970); Atkinson v. United States, 344 F.2d 97, 98 (8th Cir.), cert. denied, 382 U.S. 867 (1965); United States v. Calvert, 523 F.2d 895, 912 (8th Cir. 1975), cert. denied, 424 U.S. 911 (1976) (use of mail need not be specifically nor exclusively intended).

14. United States v. Shyres, 898 F.2d 647, 658 (8th Cir. 1990); United States v. Cady, 567 F.2d 771, 775 (8th Cir. 1977), cert. denied, 435 U.S. 944 (1978); United States v. Minkin, 504 F.2d 350, 352-53 (8th Cir. 1974), cert. denied, 420 U.S. 926 (1975); United States v. Joyce, 499 F.2d 9, 17 (7th Cir.), cert. denied, 419 U.S. 1031 (1974); Bolen v. United States, 303 F.2d 870, 875 (9th Cir. 1962). Likewise mailing can be inferred from the presence of a regular postmark. United States v. Noelke, 1 Fed. 426 (C.C.N.Y. 1880). See also Model Instruction 4.13, supra, on specific inferences.

8TH CIRCUIT MODEL INSTRUCTIONS 2009

6.18.1344 BANK FRAUD
(18 USC 1344)

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

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Bank Fraud (18 USC 1344)

The crime of bank fraud, as charged in [Count of] the indictment, has three elements, which are:

One, the defendant knowingly [executed] [attempted to execute] [participated in] a scheme [to defraud a financial institution] [to obtain [monies] [funds] [credits]¹ [owned by] [under the custody and control of] a financial institution by means of material [falsehoods] [fraudulent pretenses] [false or fraudulent representations] [false or fraudulent promises]].

Two, the defendant did so with intent to defraud; and

Three, the financial institution was [chartered by the United States Government] [insured by the United States Government]².

The phrase "scheme to defraud" includes any plan or course of action intended to deceive or cheat another out of [money, property or property rights] by [employing material falsehoods] [concealing material facts] [omitting material facts]. It also means the obtaining of [money or property] from a financial institution by means of material false representations or promises.⁵

A [fact] [falsehood] [representation] [pretense] [promise] is "false" when it is untrue when made or effectively conceals or omits a material fact. A [fact] [falsehood] [representation] [pretense] [promise] is "material" if it has a natural tendency to influence, or is capable of influencing, the decision of the institution in deciding whether to engage or not to engage in a particular transaction.. [However, whether a [fact] [falsehood] [representation] [promise] is "material" does not depend on whether the institution was actually deceived.] ³

(Insert paragraph describing Government's burden of proof; see Instruction 3.09, supra.)

Notes on Use

1. The statute also covers "assets, securities or other property." 18 USC 1344(a)(2). In addition 18 USC 1346 provides: "For the purposes of this Chapter, the term 'scheme or artifice to defraud' includes a scheme or artifice to deprive another of the intangible right of honest services." This provision became effective November 18, 1988.

2. Section 1344(b) lists five types of financial institutions which can be a "federally chartered or insured financial institution."

3. The materiality element and definition are added consistent with Neder v. United States, 527 U.S. 1 (1999) and United States v. Gaudin, 515 U.S. 506, 509 (1995).

Committee Comments

See United States v. Stone, 890 F.2d 418 (8th Cir. 1989); United States v. Goldblatt, 813 F.2d 619, 624 (3d Cir. 1987); United States v. Swearingen, 858 F.2d 1555, 1556-57 (11th Cir. 1988). See also United States v. Bales, 813 F.2d 1289, 1293 (4th Cir. 1987). (Brought under sections 1004 and 1344.)

The legislative history of the 1984 bank fraud statute indicates that Congress intended that it be afforded the same broad application as the mail fraud statute. United States v. Rimell, 21 F.3d 281, 287 (8th Cir. 1994); United States v. Bonallo, 858 F.2d 1427, 1432 (9th Cir. 1988). Since the bank fraud statute was patterned after the mail and wire fraud statutes, cases interpreting those statutes may apply to the bank fraud provisions. See, e.g., United States v. Greene, 670 F. Supp. 337, 340 (M.D. Fla. 1987).

In United States v. Stone, this Circuit held that the element of "knowingly" supplied the required mens rea for a violation of 18 USC 1344.

As in the mail fraud cases, it is not necessary for the government to show that the financial institution suffered a loss or was actually defrauded or that the defendant personally benefitted from the scheme. United States v. Goldblatt, 813 F.2d at 624-25.

The term "scheme and artifice to defraud" includes any plan or pattern of conduct using false or fraudulent pretenses or representations. United States v. Swearingen, 858 F.2d at 1557. See also United States v. Whitty, 688 F. Supp. 48, 54-55 (D. Me. 1988).

Although the statute is to be afforded broad application, it does not cover a traditional "pigeon-drop" scheme where the funds that were at one time under the control of the bank were legitimately withdrawn and then given to the defendants. United States v. Blackmon, 839 F.2d 900, 904-07 (2d Cir. 1988). Each check presented to a covered financial institution in a check-kiting scheme can be a separate violation of section 1344. United States v. Poliak, 823 F.2d 371, 372 (9th Cir. 1987).

See also United States v. Taggatz, 831 F.2d 1355 (7th Cir. 1987) (check-kiting). United States v. Robichaux, 698 F. Supp. 107, 110-11 (E.D. La. 1988) (conspiracy). United States v. Spambanato, 687 F. Supp. 46 (D. Conn. 1988) (restitution), aff’d, 876 F.2d 5 (2d Cir. 1989). United States v. Carroll, 663 F. Supp. 210 (D. Md. 1986) (Federal Rules of Evidence).

(For 2008 version see below).

*******************************************************************************************************************************************

2008 Version

The crime of bank fraud, as charged in [Count of] the indictment, has three elements, which are:

One, the defendant knowingly [executed] [attempted to execute] [participated in] a scheme [to defraud a financial institution] [to obtain [monies] [funds] [credits]¹ [owned by] [under the custody and control of] a financial institution by means of material [falsehoods] [fraudulent pretenses] [false or fraudulent representations] [false or fraudulent promises]].

Two, the defendant did so with intent to defraud; and

Three, the financial institution was [chartered by the United States Government] [insured by the United States Government]².

The phrase "scheme to defraud" includes any plan or course of action intended to deceive or cheat another out of [money, property or property rights] by [employing material falsehoods] [concealing material facts] [omitting material facts]. It also means the obtaining of [money or property] from a financial institution by means of material false representations or promises.⁵

A [fact] [falsehood] [representation] [pretense] [promise] is "false" when it is untrue when made or effectively conceals or omits a material fact. A [fact] [falsehood] [representation] [pretense] [promise] is "material" if it has a natural tendency to influence, or is capable of influencing, the decision of the institution in deciding whether to engage or not to engage in a particular transaction.. [However, whether a [fact] [falsehood] [representation] [promise] is "material" does not depend on whether the institution was actually deceived.] ³

(Insert paragraph describing Government's burden of proof; see Instruction 3.09, supra.)

Notes on Use

2. Section 1344(b) lists five types of financial institutions which can be a "federally chartered or insured financial institution."

3. The materiality element and definition are added consistent with Neder v. United States, 527 U.S. 1 (1999) and United States v. Gaudin, 515 U.S. 506, 509 (1995).

Committee Comments

In United States v. Stone, this Circuit held that the element of "knowingly" supplied the required mens rea for a violation of 18 USC 1344.

(For 2006 version see below)

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2006 Version

The crime of bank fraud, as charged in [Count of] the indictment, has three elements, which are:

One, the defendant knowingly [executed] [attempted to execute] [participated in] a scheme [to defraud a financial institution] [to obtain [monies] [funds] [credits]1 [owned by] [under the custody and control of] a financial institution by means of material [falsehoods] [fraudulent pretenses] [false or fraudulent representations] [false or fraudulent promises]].

Two, the defendant did so with intent to defraud; and

Three, the financial institution was [chartered by the United States Government] [insured by the United States Government]2.

The phrase "scheme to defraud" includes any plan or course of action intended to deceive or cheat another out of [money, property or property rights] by [employing material falsehoods] [concealing material facts] [omitting material facts]. It also means the obtaining of [money or property] from a financial institution by means of material false representations or promises.5

A [fact] [falsehood] [representation] [pretense] [promise] is "false" when it is untrue when made or effectively conceals or omits a material fact. A [fact] [falsehood] [representation] [pretense] [promise] is "material" if it has a natural tendency to influence, or is capable of influencing, the decision of the institution in deciding whether to engage or not to engage in a particular transaction.. [However, whether a [fact] [falsehood] [representation] [promise] is "material" does not depend on whether the institution was actually deceived.] 3

(Insert paragraph describing Government's burden of proof; see Instruction 3.09, supra.)

Notes on Use

2. Section 1344(b) lists five types of financial institutions which can be a "federally chartered or insured financial institution."

3. The materiality element and definition are added consistent with Neder v. United States, 527 U.S. 1 (1999) and United States v. Gaudin, 515 U.S. 506, 509 (1995).

Committee Comments

In United States v. Stone, this Circuit held that the element of "knowingly" supplied the required mens rea for a violation of 18 USC 1344.

See also United States v. Taggatz, 831 F.2d 1355 (7th Cir. 1987) (check-kiting). United States v. Robichaux, 698 F. Supp. 107, 110-11 (E.D. La. 1988) (conspiracy). United States v. Spambanato, 687 F. Supp. 46 (D. Conn. 1988) (restitution). United States v. Carroll, 663 F. Supp. 210 (D. Md. 1986) (Federal Rules of Evidence).

For 2000 version see below

******************************************************************************************************************

2000 Version

The crime of bank fraud, as charged in [Count of] the indictment, has three essential elements, which are:

One, the defendant knowingly [executed] [attempted to execute] [participated in] a scheme [to defraud a financial institution] [to obtain [monies] [funds] [credits]1 [owned by] [under the custody and control of] a financial institution by means of material [falsehoods] [fraudulent pretenses] [false or fraudulent representations] [false or fraudulent promises]].

Two, the defendant did so with intent to defraud; and

Three, the financial institution was [chartered by the United States Government] [insured by the United States Government]2.

The phrase "scheme to defraud" includes any plan or course of action intended to deceive or cheat another out of [money, property or property rights] by [employing material falsehoods] [concealing material facts] [omitting material facts]. It also means the obtaining of [money or property] from a financial institution by means of material false representations or promises.5

A [fact] [falsehood] [representation] [pretense] [promise] is "false" when it is untrue when made or effectively conceals or omits a material fact. A [fact] [falsehood] [representation] [pretense] [promise] is "material" if it has a natural tendency to influence, or is capable of influencing, the decision of the institution in deciding whether to engage or not to engage in a particular transaction.. [However, whether a [fact] [falsehood] [representation] [promise] is "material" does not depend on whether the institution was actually deceived.] 3

(Insert paragraph describing Government's burden of proof; see Instruction 3.09, supra.)

Committee Comments

See United States v. Stone, 890 F.2d 418 (8th Cir. 1989); United States v. Goldblatt, 813 F.2d 619, 624 (3d Cir. 1987); United States v. Swearingen, 858 F.2d 1555, 1556-57 (11th Cir. 1988), cert. denied, 489 U.S. 1083 (1989). See also United States v. Bales, 813 F.2d 1289, 1293 (4th Cir. 1987). [Brought under sections 1004 and 1344.]

In United States v. Stone, this Circuit held that the element of "knowingly" supplied the required mens rea for a violation of 18 USC 1344.

The term "scheme and artifice to defraud" includes any plan or pattern of conduct using false or fraudulent pretenses or representations. United States v. Swearingen, 858 F.2d at 1557. See also United States v. Whitty, 688 F. Supp. 48, 54-55 (D. Me. 1988).

Although the statute is to be afforded broad application, it does not cover a traditional "pigeon-drop" scheme where the funds that were at one time under the control of the bank were legitimately withdrawn and then given to the Defendants. United States v. Blackmon, 839 F.2d 900, 904-07 (2d Cir. 1988). Each check presented to a covered financial institution in a check-kiting scheme can be a separate violation of section 1344. United States v. Poliak, 823 F.2d 371, 372 (9th Cir. 1987), cert. denied, 485 U.S. 1029 (1988).

See also United States v. Taggatz, 831 F.2d 1355 (7th Cir. 1987) (check-kiting). United States v. Robichaux, 698 F. Supp. 107, 110-11 (E.D. La. 1988) (conspiracy). United States v. Spambanato, 687 F. Supp. 46 (D. Conn. 1988) (restitution). United States v. Carroll, 663 F. Supp. 210 (D. Md. 1986) (Federal Rules of Evidence).

Notes on Use

2. Section 1344(b) lists five types of financial institutions which can be a "federally chartered or insured financial institution."

3. The materiality element and definition are added consistent with Neder v. United States, 527 U.S. 1, 119 S. Ct. 1827 (1999) and United States v. Gaudin, 515 U.S. 506, ___, 115 S. Ct. 2310, 2313 (1995).

8TH CIRCUIT MODEL INSTRUCTIONS 2009

6.18.1503A
CORRUPTLY ENDEAVORING TO INFLUENCE A JUROR
(18 USC 1503)

FORECITE National™ Materials Related To This Instruction:

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

The crime of corruptly endeavoring to influence a juror¹, as charged in [Count _____ of] the indictment, has three elements, which are:

One, (name of juror) was a [grand] juror in (describe judicial proceeding);²

Two, the defendant knew that (describe judicial proceeding) was pending; [and]

Three, the defendant corruptly endeavored³ to [influence] [intimidate] [impede] (name of juror) in the discharge of his duty as a [grand] juror[; and]

[Four, (state the sentencing fact that triggers a higher maximum sencence,⁴ e.g., the crime under consideration by the juror was (name the Class A or Class B felony charged⁵).]

The phrase "corruptly endeavored" means that the defendant voluntarily and intentionally (describe obstructive act)⁶ and that in doing so, acted with the intent⁷ to [influence (judicial) (grand jury) proceedings so as to benefit himself or another] [subvert or undermine the due administration of justice].⁸ [The endeavor need not have been successful, but it must have had at least a reasonable tendency to impede the [grand] juror in the discharge of his duties.]

(Insert paragraph describing government's burden of proof; see Instruction 3.09, supra.)

Notes on Use

1. This clause of the statute also applies to officers of the court and certain officials.

2. The instruction is designed for the usual case in which the pendency of a judicial proceeding is undisputed. If this question is disputed, it should be submitted to the jury under proper definitional instructions. See United States v. Vesich, 724 F.2d 451, 454 (5th Cir.), reh. denied, 726 F.2d 168 (5th Cir. 1984). Section 1503 typically applies "after the commencement of formal judicial proceedings." United States v. Werlinger, 894 F.2d 1015, 1016 n.3 (8^th Cir. 1990). A criminal action remains "pending" during the one-year period within which to file a motion to reduce sentence pursuant to Federal Rule of Criminal Procedure 35(b). United States v. Novak, 217 F.3d 566, 572-73 (8^th Cir. 2000), or until disposition of the defendant’s direct appeal. United States v. Johnson, 605 F.2d 729 (4^th Cir. 1979).

3. The jury should be instructed on the meaning of "corruptly endeavored" as used by the statute. As the discussion in the Committee Comments, infra, illustrates, no one definition has been agreed on and different definitions may apply to different factual situations. The court of appeals "prefer[s] instructions phrased not in abstract legalisms, but rather in concrete terms that intelligibly describe the actual evidence or contentions of the parties." United States v. Feldhacker, 849 F.2d 293, 297 (8th Cir. 1988).

A definition which best suits the case should be formulated and used. At a minimum, there should be an intent to act and knowledge that obstruction would or could result from such act. United States v. Aguilar, 515 U.S. 593, 599 (1995). For a discussion of the meaning of the phrase "knowingly . . . corruptly," as used in 18 USC 1512(b)(2)(A), see Arthur Andersen LLP v. United States, 544 U.S. 696, 706 (2005). (The Committee notes that in Fn 9 in Andersen, the Court observed that § 1503 "lack[s] the modifier ‘knowingly,’ making any analogy [to the definition of corruptly in § 151] inexact.") The Committee recommends that in formulating a definition, words such as "knowingly," "willfully" and "specific intent" not be used in favor of words which precisely describe the mental state involved. See Instructions 7.01-.03, infra.

4. Section 1503(b) creates enhanced penalties where a juror is killed, where an attempt on the life of a juror failed, or where the offense was committed against a petit juror, in a case in which a class A or B felony was charged. In Jones v. United States, 526 U.S. 227 (1999), dealing with a carjacking offense under 18 USC 2119, the Supreme Court stated, in footnote 6, "[u]nder the Due Process Clause of the Fifth Amendment and the notice and jury trial guarantees of the Sixth Amendment, any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt." The Supreme Court made clear in Apprendi v. New Jersey, 530 U.S. 466 (2000), that the principle it enunciated in Jones was a rule of constitutional law applicable to all prosecutions.

5. If a killing or attempted killing is charged, see Instructions 6.18.1111, 6.18.1112, and 8.01 (attempt).

6. See United States v. Frank, 354 F.3d 910, 921 (8^th Cir. 2004) for a discussion of whether section 1503 requires commission of an overt act.

7. The government need not prove that the defendant’s only or even main purpose was to obstruct the due administration of justice. See United States v. Machi, 811 F.2d 991, 996-97 (7^th Cir. 1987).

8. This definition is a generic one. If the circumstances of the case call for a more specific definition, the Committee Comments on the "endeavor" and "corruptly" requirements of the statute should aid in fashioning one.

Committee Comments

See 2A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 48.03 (5th ed. 2000).

The first two clauses of section 1503, covered by Instructions 6.18.1503A and B, relate to interference with or injury to actual grand jurors, petit jurors, or court officers in the discharge of their duties. United States v. Aguilar, 515 U.S. 593, 598 (1995). The third clause referred to as the "Omnibus Clause," and covered by Instruction 6.18.1503C, is a catchall provision which, inter alia, prohibits persons from corruptly endeavoring to influence, obstruct, or impede the due administration of justice. Id. These instructions apply to counts alleging that the defendant endeavored to obstruct justice, not to counts alleging actual obstruction.

The following discussion relates to all three clauses of section 1503, but most particularly to the Omnibus Clause, which, because it is the most general in nature, presents the most issues.

Pendency of judicial proceedings. Except where retaliation is charged, a prerequisite to prosecution under all clauses of section 1503 is a pending judicial proceeding. United States v. Risken, 788 F.2d 1361, 1368 (8th Cir. 1986). (In United States v. Novak, 217 F.3d 566, 572 (8^th Cir. 2000), the court questioned this prerequisite, noting that "there is nothing on the face of § 1503 requiring a pending proceeding," but assumed, arguendo, the existence of the requirement.) A grand jury proceeding is considered a pending proceeding. Riskin. The question of when a grand jury investigation commences for the purposes of section 1503 is addressed in United States v. Vesich, 724 F.2d 451, 454-55 (5th Cir. 1984), reh. denied, 726 F.2d 168 (5th Cir. 1984). See also United States v. Nelson, 852 F.2d 706, 709-11 (3d Cir. 1988); United States v. Steele, 241 F.3d 302 (3d Cir. 2001). A term of supervised release also can constitute a pending proceeding, if the obstructive conduct occurs "‘within the time after sentencing for filing a request for reduction of sentence pursuant to Rule 35(b).’" United States v. Novak, 217 F.3d at 572.

The defendant must know of the pendency of a judicial proceeding. Pettibone v. United States, 148 U.S. 197, 206-07 (1893); United States v. Vesich, 724 F.2d at 457. Such knowledge may be inferred from the circumstances and need not be detailed. Id. The defendant need not know that the proceeding is federal in nature. United States v. Ardito, 782 F.2d 358, 360-62 (2d Cir. 1986). In United States v. McKnight, 799 F.2d 443, 447 (8th Cir. 1986), the court held it was not plain error where the court had not specifically instructed the jury that the defendant must have had knowledge of the judicial proceeding. The court had instructed the jury that the defendant must have acted "knowingly." The Committee recommends that the precise knowledge be set forth in the instruction. See Element Two, supra.

"Corruptly endeavor" requirement. Although courts often define the words "corruptly" and "endeavor" separately, the Committee believes that to define them as a single phrase would result in less confusion and overlap. The following is a summary of case law as to the meaning of each word.

"Endeavor" requirement. As the Supreme Court stated in United States v. Russell, "[t]he word of the section is ‘endeavor’ and by using it the section got rid of the technicalities which might be urged as besetting the word ‘attempt’ and it describes any effort or essay to accomplish the evil purpose that the section was enacted to prevent." 255 U.S. at 143; Osborn v. United States, 385 U.S. 323, 332-33 (1966). However, the endeavor "must have a relationship in time, causation, or logic with the judicial proceedings. . . . [It] must have the ‘natural and probable effect’ of interfering with the due administration of justice." (citations omitted). United States v. Aguilar, 515 U.S. at 599. Therefore, a judge’s making of false statements to an FBI agent did not constitute obstruction in the absence of evidence the judge knew those false statements would be given to the grand jury. Id. at 600. On the other hand, submission to a sentencing judge of a false letter seeking leniency constituted obstruction, even though the government did not prove that the court’s sentencing decision was actually affected by the letter, because the letter was of the type normally received and relied upon by the judge. United States v. Collis, 128 F.3d 313 (6^th Cir. 1997).

Success is not a prerequisite to conviction under any of the clauses of section 1503. All that must be proved is that the defendant "corruptly endeavored" to obstruct justice. United States v. Aguilar, 515 U.S. 593, 599 (1995); United States v. Russell, 255 U.S. 138, 143 (1921); United States v. Jackson, 607 F.2d 1219, 1222-23 (8^th Cir. 1979); United States v. McCarty, 611 F.2d 220, 224 (8th Cir. 1979).

Endeavor defined.

The Seventh Circuit Model Instructions include the following definitions of endeavor:

Influencing - Definition of Endeavor. 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.

Obstruction of Justice Generally - Definition of Endeavor. 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.

Seventh Circuit Federal Jury Instructions Criminal (1999).

In United States v. Cioffi, 493 F.2d 1111, 1119 (2d Cir. 1974), "endeavor" was defined for the jury as "any effort or any act, however contrived, to obstruct, impede or interfere . . . ."

In United States v. Silverman, 745 F.2d 1386, 1396 n.12 (11th Cir. 1984), the definition of endeavor was altered to correspond to that case's definition of "corruptly." "[E]ndeavor means to undertake an act or to attempt to effectuate an arrangement or to try to do something, the natural and probable consequences of which is to influence, obstruct or impede the due administration of justice."

"Corruptly" requirement. The defendant must have acted "corruptly" in order to violate the first and last clauses of section 1503. "Corruptly" applies as an alternative to threats or force or threatening letter or communication. See United States v. Cioffi, 493 F.2d 1111, 1118 n.2 (2d Cir. 1974). Instruction 6.18.1503A covers corrupt endeavors to influence jurors and Instruction 6.18.1503B, infra, covers threats and force. Instruction 6.18.1503C, infra, covers conduct violating the last or "omnibus" clause of section 1503.

The "corruptly" requirement incorporates the scienter element of the statute. That said, courts have defined the mental state required by the word "corruptly" within at least four different, but often overlapping, categories: a. intent to influence or obstruct justice; b. intent to do the act which results in obstruction; c. wicked or evil purpose; and d. "per se" corruption. As the court noted in United States v. Brady, 168 F.3d 574, 578 (1^st Cir. 1999), a case involving a refusal to testify,:

The scienter element in the obstruction statute is the subject of more confusing case law than can be described in brief compass. In part, this results from the promiscuous use in the cases of the ambiguous word, "intent," which can mean either knowledge (of consequences) or purpose (to achieve them); in part, it results from the great range of varying motives that can underlie a refusal to testify (e.g., loyalty of various kinds, concern as to reputation, fear of reprisal, concern about self-incrimination.) Further, cases that purport to be setting legal standards are often instead concerned with the inferences to be drawn from particular facts.

The term "specific intent" is found in many definitions of "corruptly," including one approved by the Eighth Circuit: "In this case, the word ‘corruptly’ means willfully, knowingly and with specific intent to influence a juror to abrogate his or her legal duties as petit juror." United States v. Jackson, 607 F.2d at 1221-22. See also United States v. Quinn, 543 F.2d 640, 647 (8th Cir. 1976). But see United States v. Gage, 183 F.3d 711, 718-19 (7^th Cir. 1999) (Chief Judge Posner, concurring) (§ 1503 does not require specific intent).

The most common formulation of a definition of "corruptly" includes language that the obstructive act must be done with the intent to influence judicial or grand jury proceedings. As stated in United States v. Aguilar, 515 U.S. at 616, "[corruptly] denotes ‘[a]n act done with an intent to give some advantage inconsistent with official duty and the rights of others. . . . It includes bribery but is more comprehensive; because an act may be corruptly done though the advantage to be derived from it be not offered by another.’" (J. Scalia, joined by J. Kennedy and Thomas, concurring, in part, and dissenting, in part) (internal cites omitted).

"[I]f the defendant lacks knowledge that his actions are likely to affect the judicial proceeding, he lacks the requisite intent to obstruct." Id. Intent can be inferred where the obstruction is a natural consequence of another intended act. Pettibone v. United States, 148 U.S. at 207; United States v. Jackson, 607 F.2d at 1221.

Vol. 2A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 48.04 (5th ed. 2000), provides the following definition: "[t]o act ‘corruptly’ as that word is used in these instructions means to act voluntarily and deliberately and for the purpose of improperly influencing, or obstructing, or interfering with the administration of justice."

The Seventh Circuit has approved the following instruction:

Corruptly means to act with the purpose of obstructing justice. The United States is not required to prove that the defendant’s only or even main purpose was to obstruct the due administration of justice. The government only has to establish that the defendant should have reasonably seen that the natural and probable consequences of his acts was the obstruction of justice. Intent may be inferred from all of the surrounding facts and circumstances. Any act, by any party, whether lawful or unlawful on its face, may violate section 1503 if performed with a corrupt motive.

United States v. Cueto, 151 F.3d 620, 630-31 (7^th Cir. 1998).

(For 2008 version see below).

*******************************************************************************************************************************************

2008 Version

The crime of corruptly endeavoring to influence a juror¹, as charged in [Count _____ of] the indictment, has three elements, which are:

One, (name of juror) was a [grand] juror in (describe judicial proceeding);²

Two, the defendant knew that (describe judicial proceeding) was pending; [and]

Three, the defendant corruptly endeavored³ to [influence] [intimidate] [impede] (name of juror) in the discharge of his duty as a [grand] juror[; and]

[Four, (state the sentencing fact that triggers a higher maximum sencence,⁴ e.g., the crime under consideration by the juror was (name the Class A or Class B felony charged⁵).]

The phrase "corruptly endeavored" means that the defendant voluntarily and intentionally (describe obstructive act)⁶ and that in doing so, acted with the intent⁷ to [influence (judicial) (grand jury) proceedings so as to benefit himself or another] [subvert or undermine the due administration of justice].⁸ [The endeavor need not have been successful, but it must have had at least a reasonable tendency to impede the [grand] juror in the discharge of his duties.]

(Insert paragraph describing government's burden of proof; see Instruction 3.09, supra.)

Notes on Use

1. This clause of the statute also applies to officers of the court and certain officials.

A definition which best suits the case should be formulated and used. At a minimum, there should be an intent to act and knowledge that obstruction would or could result from such act. United States v. Aguilar, 515 U.S. 593, 599 (1995). For a discussion of the meaning of the phrase "knowingly . . . corruptly," as used in 18 USC 1512(b)(2)(A), see Arthur Andersen LLP v. United States, 544 U.S. 696, 706 (2005). (The Committee notes that in Fn 9 in Andersen, the Court observed that § 1503 "lack[s] the modifier ‘knowingly,’ making any analogy [to the definition of corruptly in § 1512] inexact.") The Committee recommends that in formulating a definition, words such as "knowingly," "willfully" and "specific intent" not be used in favor of words which precisely describe the mental state involved. See Instructions 7.01-.03, infra.

5. If a killing or attempted killing is charged, see Instructions 6.18.1111, 6.18.1112, and 8.01 (attempt).

6. See United States v. Frank, 354 F.3d 910, 921 (8^th Cir. 2004) for a discussion of whether section 1503 requires commission of an overt act.

Committee Comments

See 2A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 48.03 (5th ed. 2000).

The following discussion relates to all three clauses of section 1503, but most particularly to the Omnibus Clause, which, because it is the most general in nature, presents the most issues.

Endeavor defined.

The Seventh Circuit Model Instructions include the following definitions of endeavor:

Influencing - Definition of Endeavor. 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.

Obstruction of Justice Generally - Definition of Endeavor. 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.

Seventh Circuit Federal Jury Instructions Criminal (1999).

In United States v. Cioffi, 493 F.2d 1111, 1119 (2d Cir. 1974), "endeavor" was defined for the jury as "any effort or any act, however contrived, to obstruct, impede or interfere . . . ."