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 (6.18.1957 - 6.42.1320)

        6.18.1957          Engaging In Monetary Transactions In Property Derived From Specified Unlawful
                                  Activity (18 USC 1957)
        6.18.1962A       RICO-Participation In the Affairs Through A Pattern Of Racketeering Activity (18 USC 1962(c))
        6.18.1962B       RICO-Conspiracy (18 USC 1962(d))
        6.18.1962C       RICO-Conspiracy-Agreement Explained
        6.18.1962D       "Enterprise" Defined
        6.18.1962E       "Conduct/Participation" Defined
        6.18.1962F       RICO-Pattern Of Racketeering
        6.18.1962G       Sample Verdict Form – RICO (18 USC 1962(c))
        6.18.2113A       Bank Robbery (18 USC 2113(a)) (First Paragraph)
        6.18.2113B       Bank Robbery (18 USC 2113(d))
        6.18.2119A       Carjacking (No Serious Bodily Injury Or Death) (18 USC 2119(1))
        6.18.2119B       Carjacking (Serious Bodily Injury) (18 USC 2119(2))
        6.18.2119C       Carjacking (Death Resulting) (18 USC 2119(3))
        6.18.2252          Receipt, Possession or Distribution of Material Containing Child
                                  Pornography (18 USC2252A(a)(2)(A) and (B) and (a)(5)(B))
        6.18.2252A       "Lascivious" Explained
        6.18.2252B       "Interstate Commerce" Defined
        6.18.2252C       "Computer" Defined
        6.18.2312          Interstate Transportation Of Stolen Vehicle (18 USC 2312)
        6.18.2313          Receipt Or Sale Of A Stolen Motor Vehicle Or Aircraft (18 USC 2313)
        6.18.2314          Interstate Transportation of Stolen Property (18 USC 2314) (First Paragraph)
        6.18.2421          Transportation for Prostitution (18 USC 2421)
        6.18.2422A       Persuading or Coercing to Travel to Engage in Prostitution (18 USC 2422(a))
        6.18.2422B       Persuading or Coercing a Minor to Engage in Sexual Activity (18 USC 2422(b))
         6.18.2423A       Transportation of Minor to Engage in Criminal Sexual Activity (18 USC 2423(a))
        6.21.841A         Controlled Substances--Possession With Intent To Distribute (21 USC 841(a)(1))
        6.21.841A.1      Controlled Substances - Possession with Intent to Distribute (21 USC 841(a)(1))
                                  (Apprendi-affected Possession) (Short Version)
        6.21.841A.1      Controlled Substances - Possession with Intent to Distribute (21 USC 841(a)(1))
                                  (Apprendi-affected Possession) (Long Version)
        6.21.841A.1(a) Verdict Form; With Lesser Included Offense
        6.21.841A.1(b) Special Verdict Form (Interrogatories to Follow Finding of Guilt)
        6.21.841B         Controlled Substances--Distribution (21 USC 841(a)(1))
        6.21.843            Controlled Substances - Use Of A Communications Facility (21 USC 843(b))
        6.21.846A         Conspiracy (21 USC 846)
        6.21.846A.1     Conspiracy (21 USC 846) (Apprendi-affected Conspiracy)
        6.21.846B         Attempt (21 USC 846)
        6.21.848A         Controlled Substances --Continuing Criminal Enterprise (21 USC 848(c))
        6.21.848B         Felony Violations Of Federal Narcotic Laws (21 USC 848(c)(1))
        6.21.853           Criminal Forfeiture Of Property
        6.21.856A         Establishment of Manufacturing Operations (Maintaining Any Place For
                                  Manufacturing) 21 USC 856(a)(1)
        6.21.856B         Establishment of Manufacturing Operations (Managing or Controlling a Manufacturing Place For
                                 Compensation 21 USC 856(a)(2)
        6.26.5861         Firearms – Possession Of Unregistered Firearms (26 USC 5861(d))
        6.26.7201         Tax Evasion (26 USC 7201)
        6.26.7203         Failure To File Tax Return (26 USC 7203)
        6.26.7206         False Income Tax return (26 USC 7206(1))
        6.42.1320         Soliciting or Receiving Kickbacks in Connection with Medicare or Federal Health Care Program
                                 Payments (42 USC 1320a-7b(b)(1)(A))

8TH CIRCUIT MODEL INSTRUCTIONS 2009

6.18.1957
ENGAGING IN MONETARY TRANSACTIONS IN PROPERTY DERIVED
FROM SPECIFIED UNLAWFUL ACTIVITY(18 USC 1957)

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Unlawful Monetary Transactions--Elements (18 USC 1957)

The crime of engaging in a monetary transaction in property derived from (describe specified unlawful activity), as charged in [Count[s] ____ of] the indictment, has five elements, which are:

One, on or about (date),¹ the defendant[s] knowingly (describe the "monetary transaction," e.g., withdrew funds from an account at ABC Bank);²

Two, the (describe "monetary transaction," e.g., withdrawal) was [of] [in] property³ of a value greater than $10,000 derived from (describe "specified unlawful activity," e.g., bank fraud) as defined in Instruction No. _____;⁴

Three, the defendant[s] then knew that (describe the "monetary transaction") involved proceeds of a criminal offense;⁵

Four, the (describe the "monetary transaction") took place in (describe location of the transaction);⁶ and

Five, the (describe the "monetary transaction") in some way or degree affected interstate commerce.

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

Notes on Use

1. See Note 1, Instruction 6.18.1956A, supra. The statute became effective October 27, 1986. Anti-Drug Abuse Act of 1986, Pub. L. No. 99-570, Title I, § 1352(a), 100 Stat. 3207-21. Effective November 18, 1988, the definition of "monetary transaction" was decoupled from the definition of "monetary instrument" under 31 USC 5312 and made the same as 18 USC 1956(c)(5). Anti-Drug Abuse Act of 1988, Pub. L. No. 100-690, Title VI, §§ 6182, 6184 and 6469(a)(2), 102 Stat. 4354 and 4377. The statute was further amended, effective October 28, 1992. Pub. L. 102-550, Title XV, §§ 1526(b) and 1527(b), 106 Stat. 4065. That change decoupled the definition of "financial institution" from 31 USC 5312 and made it the same as 18 USC 1956[(c)(6)], thus requiring a consideration of not only 31 USC 5312 but its implementing regulations.

2. The term "monetary transaction" is defined in 18 USC 1957(f)(1). The section defining "monetary transaction" adopts by reference the section 1956 definition of "financial institution," which in turn adopts definitions contained in or promulgated under Title 31. Therefore, a wide variety of transactions beyond dealings with traditional financial institutions such as banks are covered by the statute. See, e.g., United States v. Kelley, 929 F.2d 582 (10th Cir. 1991) (section 1957 violated by purchase of automobile with proceeds from fraud scheme). The definition of "monetary transaction" excludes "any transaction necessary to preserve a person's right to representation as guaranteed by the Sixth Amendment to the Constitution." The Committee recommends that the "monetary transaction" be described in simple terms, e.g., "a withdraw from ABC Bank," or "purchase of an automobile," according to the allegations of the indictment and the evidence in the case. The "monetary transaction" must also, by definition, be "in or affecting interstate or foreign commerce." Cf. United States v. Kelley, 929 F.2d at 585-86 (commerce nexus jurisdictional, but not an element of the offense). See Note 4, Instruction 6.18.1956A, supra.

3. The term "property" is not defined in the statute. In some situations, it may be preferable to use a term such as "currency" to more precisely describe the property at issue in the case. In other situations, it may be helpful to include a separate paragraph defining "property" in terms of what is included or excluded in the application of the statute to the facts of the particular case. The statutory language -- "a monetary transaction in criminally derived property" -- is awkward when describing certain transactions. The Committee recommends using "of" when describing transactions such as "withdrawal of," "deposit of," etc.

4. The Government must prove that the property was, in fact, derived from "specified unlawful activity" as defined in section 1957(f)(3), which adopts the definition from section 1956. See, e.g., United States v. Hare, 49 F.3d 447, 451 (8th Cir. 1995). However, it is not necessary to prove that the defendant knew that the offense from which the property was derived was specified unlawful activity. 18 USC 1957(c). If the underlying criminal activity, e.g., bank fraud, is charged in the same indictment, a reference to the instruction defining the elements of the underlying specified unlaw activity may be included in this instruction. For example, "The withdrawal was of funds of a value greater than $10,000 derived from bank fraud as defined in Instruction No. _____." If the underlying criminal activity is not charged in the same indictment, the Government will be required to prove that the underlying criminal activity occurred by proving the elements of the underlying offense or a prior conviction of it. In such a case, the elements of the underlying offense should be spelled out as part of this instruction. See also Note 27, Instruction 6.18.1956J, supra, and Instruction 5.06C, supra.

5. The knowledge element of a section 1957 offense requires proof that the defendant knew the transaction involved "criminally derived property" as defined in section 1957(f)(2), that is, "property constituting, or derived from, proceeds obtained from a criminal offense." While reference to the definition (elements) of specified unlawful activity is recommended in all cases, any issues about whether the defendant believed that the activity generating the proceeds did not amount to a criminal offense should be dealt with in a defense theory instruction. See part 9 of this manual, Defenses and Theories of Defense. The Committee has avoided use of the statutory term "criminally derived property" in drafting this instruction since that phrase would require further definition and the statutory requirement can be explained in more understandable language.

6. There must be proof that the offense occurred within the United States or within special maritime and territorial jurisdiction. 18 USC 1957(a) and (d). Special maritime and territorial jurisdiction is defined in 18 USC 7. When the indictment alleges such a "circumstance," the court should determine whether the evidence permits a finding that the element has been established and then submit to the jury the more precise question of whether the offense, or transaction, occurred at the location alleged in the indictment. As an alternative, the Government may allege and prove that the defendant was a person defined in 18 USC 3077(2)(A), (B), (C), (E) or (F). The Committee assumes that prosecutions under the latter alternative "circumstance" will be rare, but the fourth element would have to be redrafted to fit the situation in such cases.

Committee Comments

Section 1957 of Title 18 applies to monetary transactions occurring after the completion of the underlying criminal activity. United States v. Johnson, 971 F.2d 562, 567-70 (10th Cir. 1992). Such an interpretation of the statute means that the proceeds must have been "obtained" from the underlying criminal activity before the monetary transaction prohibited by section 1957 occurs. Monetary transactions occurring simultaneously with the efforts to "obtain" proceeds of crime, that is, simultaneously with the underlying drug sale, execution of the scheme to defraud, etc., would not be covered. Id., 971 F.2d at 569.

(For 2008 version see below).

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

2008 Version

The crime of engaging in a monetary transaction in property derived from (describe specified unlawful activity), as charged in [Count[s] ____ of] the indictment, has five elements, which are:

One, on or about (date),¹ the defendant[s] knowingly (describe the "monetary transaction," e.g., withdrew funds from an account at ABC Bank);²

Two, the (describe "monetary transaction," e.g., withdrawal) was [of] [in] property³ of a value greater than $10,000 derived from (describe "specified unlawful activity," e.g., bank fraud) as defined in Instruction No. _____;⁴

Three, the defendant[s] then knew that (describe the "monetary transaction") involved proceeds of a criminal offense;⁵

Four, the (describe the "monetary transaction") took place in (describe location of the transaction);⁶ and

Five, the (describe the "monetary transaction") in some way or degree affected interstate commerce.

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

Notes on Use

Committee Comments

(For 2006 version see below)

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

2006 Version

The crime of engaging in a monetary transaction in property derived from (describe specified unlawful activity), as charged in [Count[s] ____ of] the indictment, has five elements, which are:

One, on or about (date),¹ the defendant[s] knowingly (describe the "monetary transaction," e.g., withdrew funds from an account at ABC Bank);²

Two, the (describe "monetary transaction," e.g., withdrawal) was [of] [in] property³ of a value greater than $10,000 derived from (describe "specified unlawful activity," e.g., bank fraud) as defined in Instruction No. _____;⁴

Three, the defendant[s] then knew that (describe the "monetary transaction") involved proceeds of a criminal offense;⁵

Four, the (describe the "monetary transaction") took place in (describe location of the transaction);⁶ and

Five, the (describe the "monetary transaction") in some way or degree affected interstate commerce.

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

Notes on Use

Committee Comments

For 2000 version see below

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

2000 Version

The crime of engaging in a monetary transaction in property derived from (describe specified unlawful activity), as charged in [Count[s] ____ of] the indictment, has five essential elements, which are:

One, on or about (date),1 the defendant[s] knowingly (describe the "monetary transaction," e.g., withdrew funds from an account at ABC Bank);2

Two, the (describe "monetary transaction," e.g., withdrawal) was [of] [in] property3 of a value greater than $10,000 derived from (describe "specified unlawful activity," e.g., bank fraud) as defined in Instruction No. _____;4

Three, the defendant[s] then knew that (describe the "monetary transaction") involved proceeds of a criminal offense;5

Four, the (describe the "monetary transaction") took place in (describe location of the transaction);6 and

Five, the (describe the "monetary transaction") in some way or degree affected interstate commerce.

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

Committee Comments

Notes on Use

1. See Instruction 6.18.1956A, Note 1, supra. The statute became effective October 27, 1986. Anti-Drug Abuse Act of 1986, Pub. L. No. 99-570, Title I, § 1352(a), 100 Stat. 3207-21. Effective November 18, 1988, the definition of "monetary transaction" was decoupled from the definition of "monetary instrument" under 31 USC 5312 and made the same as 18 USC 1956(c)(5). Anti-Drug Abuse Act of 1988, Pub. L. No. 100-690, Title VI, §§ 6182, 6184 and 6469(a)(2), 102 Stat. 4354 and 4377. The statute was further amended, effective October 28, 1992. Pub. L. 102-550, Title XV, §§ 1526(b) and 1527(b), 106 Stat. 4065. That change decoupled the definition of "financial institution" from 31 USC 5312 and made it the same as 18 USC 1956[(c)(6)], thus requiring a consideration of not only 31 USC 5312 but its implementing regulations.

4. The Government must prove that the property was, in fact, derived from "specified unlawful activity" as defined in section 1957(f)(3), which adopts the definition from section 1956. See, e.g., United States v. Hare, 49 F.3d 447, 451 (8th Cir. 1995). However, it is not necessary to prove that the defendant knew that the offense from which the property was derived was specified unlawful activity. 18 USC 1957(c). If the underlying criminal activity, e.g., bank fraud, is charged in the same indictment, a reference to the instruction defining the elements of the underlying specified unlaw activity may be included in this instruction. For example, "The withdrawal was of funds of a value greater than $10,000 derived from bank fraud as defined in Instruction No. _____." If the underlying criminal activity is not charged in the same indictment, the Government will be required to prove that the underlying criminal activity occurred by proving the elements of the underlying offense or a prior conviction of it. In such a case, the elements of the underlying offense should be spelled out as part of this instruction. See also Instruction 6.18.1956J, Note 27, supra, and Instruction 5.06C, supra.

5. The knowledge element of a section 1957 offense requires proof that the defendant knew the transaction involved "criminally derived property" as defined in section 1957(f)(2), that is, "property constituting, or derived from, proceeds obtained from a criminal offense." While reference to the definition (elements) of specified unlawful activity is recommended in all cases, any issues about whether defendant believed that the activity generating the proceeds did not amount to a criminal offense should be dealt with in a defense theory instruction. See part 9 of this manual, Defenses and Theories of Defense. The Committee has avoided use of the statutory term "criminally derived property" in drafting this instruction since that phrase would require further definition and the statutory requirement can be explained in more understandable language.

8TH CIRCUIT MODEL INSTRUCTIONS 2009

6.18.1962A
RICO-PARTICIPATION IN THE AFFAIRS THROUGH A
PATTERN OF RACKETEERING ACTIVITY
(18 USC 1962(c))

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Racketeer Influenced Corrupt Organizations Act (18 USC 1962(c))

The crime of participating in a racketeering enterprise¹ as charged in [Count ____] of the indictment has five elements, which are:

One, an enterprise existed as alleged in the indictment;²

Two, the enterprise [was engaged in] [had some affect on] interstate commerce;³

Three, the defendant was [associated with] [employed by]⁴ the enterprise;

Four, the defendant participated, either directly or indirectly, in the conduct of the affairs of the enterprise⁵; and

Five, the defendant’s participation was through a pattern of racketeering activity,⁶ and consisted of the [knowing] [willful]⁷commission of at least two racketeering acts.

The term "racketeering activity," as used in [the] [this] Instruction[s] includes the acts charged as separate crimes in Counts ___, ___, and ___. The element of the crimes charged in Count ___, ___, and ___ are defined in Instructions ___, ___, and ___. [If the predicate acts are not charged in separate counts, instructions on the elements of each racketeering activity must be given as part of the racketeering charge.]⁸

For you to find [a] defendant guilty of this crime the government must prove all of these elements beyond a reasonable doubt [as to that defendant]; otherwise you must find [that] [the] defendant not guilty.⁹

Notes on Use

1. If the violation of section 1962 (c) is through the collection of an unlawful debt, substitute "collection of an unlawful debt" for "pattern of racketeering activity." An unlawful debt is defined at 18 USC 1961(6). See Committee Comments, infra.

2. The jury should be instructed on the meaning of "enterprise." See infra, Instruction D.

3. The racketeering activity must have some effect on interstate commerce. However, the element may be satisfied when the predicate acts form a nexus with interstate commerce; when the interstate commerce is affected by either the enterprise or its activities. See United States v. Muskovsky , 863 F.2d 1319 (7th Cir. 1988); R.A.G.S. Couture, Inc. v. Hyatt, 774 F.2d 1350 (5th Cir. 1985); United States v. Barton, 647 F.2d 224 (2d Cir. 1981).

4. Proof of association-in-fact enterprise requires evidence that a group of persons associated together for a common purpose of engaging in a course of conduct. United States v. Turkette, 452 U.S. 576 (1981). The enterprise element may also be satisfied if the entity has a legal existence. United States v. Kirk, 844 F.2d 660 (9th Cir. 1988); United States v. Cauble, 706 F.2d 1322 (5th Cir. 1983).

5. A defendant’s participation must be in the conduct of the affairs of the enterprise which means either some participation in the operation or management of the enterprise itself. Reves v. Ernst & Young, 507 U.S. 170, (1993); United States v. Darden, 70 F.3d 1507, 1518 (8th Cir. 1995). Participation may be direct or indirect. See e.g., United States v. Martino, 648 F.2d 367 (5th Cir. 1981); United States v. Starnes, 644 F.2d 673 (7th Cir. 1981).

6. The jury should be instructed on the meaning of "pattern of racketeering." See infra, Instruction E.

7. The RICO statute does not require any mens rea beyond that necessary for the predicate acts. The Instruction should be modified to conform to the mens rea requirement contained within the statute governing the predicate act.

8. "Racketeering activity" is defined at 18 USC 1961(1).

9. The jury must be instructed that in order to convict, the government must prove beyond a reasonable doubt each element of the charge. It is recommended that the burden of proof paragraph be included in the element instruction. See United States v. Fairchild, 122 F.3d 605, 612 (8th Cir. 1997); Instruction 3.09, supra.

Committee Comments

See Fifth Circuit Pattern Jury Instructions: Criminal § 2.72 (1997); Ninth Circ. Crim. Jury Instr. 8.129, 8.130 (2000) 8.34.3, 8.34.4 (1997); Eleventh Circuit Pattern Jury Instructions: Criminal § 61.1 (1997); Modern Federal Jury Instructions, Criminal, 52-21; 2B Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 56.03 (5th ed. 2000); Federal Criminal Jury Instructions § 60.06; United States v. Ellison, 793 F.2d 942 (8th Cir. 1986).

A violation of section 1962 may occur either by a defendant engaging in a "pattern of racketeering activity" or "collection of an unlawful debt." An unlawful debt is defined in 18 USC 1961(6). See, e.g., United States v. Wong, 40 F.3d 1347 (2d Cir. 1994); United States v. Oreto, 37 F.3d 739 (1st Cir. 1994); United States v. DiSalvo, 34 F.3d 1204 (3d Cir. 1994); United States v. Aucoin, 964 F.2d 1492 (5th Cir. 1992); United States v. Tripp, 782 F.2d 38 (6th Cir. 1986).

RICO requires proof of the conduct of an enterprise effecting commerce through a pattern of racketeering activity involving two or more predicate acts. Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479 (1985); United States v. Ellison, 793 F.2d 942 (8th Cir. 1986). See also Salinas v. United States, 522 U.S. 52, __, 118 S. Ct. 469, 476 (1997) (discussing elements of substantive RICO violation). A RICO defendant does not have to be convicted of each racketeering activity before a substantive RICO offense may be charged, as long as the racketeering activity is indictable under an applicable criminal statute. Sedima, S.P.R.L. v. Imrex Co., 473 U.S. at 488. While a minimum of two predicate acts are necessary, more than two may be required to establish a RICO violation. H.J. Inc. v. Northwestern Bell Telephone Co., 492 U.S. 229 (1989). 18 USC 1961(1) describes those state and federal crimes which constitute racketeering activity.

A conviction under RICO requires no proof of a connection between organized crime and the defendant. See Bennett v. Berg, 685 F.2d 1053 (8th Cir. 1982), modified, 710 F.2d 1361 (8th Cir. 1983) (en banc); Moss v. Morgan Stanley Inc., 719 F.2d 5 (2d Cir. 1983); Schact v. Brown, 711 F.2d 1343 (7th Cir. 1983).

The RICO statute does not specify any mens rea beyond that specified in the predicate acts. United States v. Scotto, 641 F.2d 47 (2d Cir. 1980). It is recommended that the elements of the offense instruction clearly set out the mens rea requirement of the predicate acts in that portion which pertains to the predicate acts.

To prove the existence of an enterprise, the government must prove (1) a common purpose; (2) a formal or informal organization of the participants in which they function as a unit; and (3) an ascertainable structure distinct from that inherent in the conduct of a pattern of racketeering activity. United States v. Kehoe, 310 F.3d 579, 586 (8^th Cir. 2002); United States v. Darden, 70 F.3d 1507 (8th Cir. 1995); United States v. Bledsoe, 674 F.2d 647 (8th Cir. 1982). The enterprise element may be satisfied upon a showing either that the entity has a legal existence or proof of an association in fact. United States v. Turkette, 452 U.S. 576 (1981). The enterprise must have an existence entirely separate and independent of the racketeering activity. See also United States v. Console, 13 F.3d 641 (3d Cir. 1993); United States v. Masters, 924 F.2d 1362 (7th Cir. 1991); United States v. Tillett, 763 F.2d 628 (4th Cir. 1985).

Section 1962(c) requires a relationship between the pattern of racketeering and the enterprise. Conduct forms a pattern of racketeering activity if it embraces criminal acts that have the same or similar purpose, results, participants, victims or methods of commission or are inextricably intertwined and not isolated events. United States v. Ellison, 793 F.2d 942 (8th Cir. 1986). The necessary nexus only exists when the defendant’s predicate acts "rise to the level" of participation in the management or operation of the enterprise. Reves v. Ernst & Young, 507 U.S. 170 (1993). Mere participation in the predicate offenses in conjunction with a RICO enterprise may be insufficient to support a RICO charge. Bennett v. Berg, 685 F.2d 1053 (8th Cir. 1982), modified, 710 F.2d 1361 (en banc 1983). An enterprise may be "operated" or "managed" by others "associated with" the enterprise who exert control of the enterprise. Reves v. Ernst & Young, 507 U.S. 170 (1993). A person may also be liable under section 1962(c) even though he had no control of the enterprise but participated or operated in the conduct of the enterprise. United States v. Darden, 70 F.3d 1507, 1518 (8th Cir. 1995). Yet the Eighth Circuit has held that Congress did not mean for 1962(c) to penalize all who are employed by or associated with a RICO enterprise, but only those, who by virtue of their association of employment, play a part in directing the enterprise’s affairs. Handeen v. Lemaire, 112 F.3d 1339, 1347 (8th Cir. 1997). An attorney or other professional does not conduct an enterprise’s affairs through run-of-the-mill professional services. Id.

The government need not prove that the racketeering activity benefitted the enterprise but only that the predicate acts affected the enterprise. United States v. Cauble, 706 F.2d 1322 (5th Cir. 1983). The same piece of evidence may establish both pattern and enterprise elements. United States v. Darden, 70 F.3d 1507, 1521 (8th Cir. 1995).

Isolated predicate acts do not constitute a pattern. Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479 (1985). In order to prove a pattern of racketeering activity, the government must show both relationship and continuity as separate elements. H.J. Inc. v. Northwestern Bell Telephone Co., 492 U.S. 229 (1989). Generally continuity over a close period is not met when the predicate acts extend less than one year. Primary Care Investors, Seven, Inc. v. PHP Healthcare Corp., 986 F.2d 1208 (8th Cir. 1993); see also Uni*Quality, Inc. v. Infotronx, Inc., 974 F.2d 918 (7th Cir. 1992); Aldridge v. Lily-Tulip Inc. Salary Retirement Plan, 961 F.2d 224 (11th Cir. 1992); Hughes v. Consolidated Pennsylvania Coal Co., 945 F.2d 594 (3d Cir. 1991). Generally pattern requires a showing of a relationship plus continuity. However, determining what constitutes a pattern is ultimately a question of fact. Diamonds Plus, Inc. v. Kolber, 960 F.2d 765 (8th Cir. 1992); Atlas Pile Driving Co. v. DiCon Financial Co., 886 F.2d 986 (8th Cir. 1989).

Courts have provided a broad interpretation to the interstate commerce requirement. See e.g., United States v. Robertson, 514 U.S. 669 (1995) (purchase of equipment and supplies from out of state as well as employment of out of state persons to work mine constituted interstate commerce); see also United States v. Qaoud, 777 F.2d 1105 (6th Cir. 1985) (activities of United States District Court constituted interstate commerce.)

The jury must be unanimous that predicate acts had been committed and the defendant committed at least two of the predicate acts. It is recommended that the instructions require the jury to be unanimous as to which acts have specifically been committed by the defendant. United States v. Flynn, 87 F.3d 996 (8th Cir. 1996); see also United States v. Kragness, 830 F.2d 842 (8th Cir. 1987); 2B Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 56.03 (5th ed. 2000).

(For 2008 version see below).

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

2008 Version

The crime of participating in a racketeering enterprise¹ as charged in [Count ____] of the indictment has five elements, which are:

One, an enterprise existed as alleged in the indictment;²

Two, the enterprise [was engaged in] [had some affect on] interstate commerce;³

Three, the defendant was [associated with] [employed by]⁴ the enterprise;

Four, the defendant participated, either directly or indirectly, in the conduct of the affairs of the enterprise⁵; and

Five, the defendant’s participation was through a pattern of racketeering activity,⁶ and consisted of the [knowing] [willful]⁷commission of at least two racketeering acts.

The term "racketeering activity," as used in [the] [this] Instruction[s] includes the acts charged as separate crimes in Counts ___, ___, and ___. The element of the crimes charged in Count ___, ___, and ___ are defined in Instructions ___, ___, and ___. [If the predicate acts are not charged in separate counts, instructions on the elements of each racketeering activity must be given as part of the racketeering charge.]⁸

For you to find [a] defendant guilty of this crime the government must prove all of these elements beyond a reasonable doubt [as to that defendant]; otherwise you must find [that] [the] defendant not guilty.⁹

Notes on Use

2. The jury should be instructed on the meaning of "enterprise." See, infra, Instruction D.

6. The jury should be instructed on the meaning of "pattern of racketeering." See, infra, Instruction E.

8. "Racketeering activity" is defined at 18 USC 1961(1).

Committee Comments

Isolated predicate acts do not constitute a pattern. Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479 (1985). In order to prove a pattern of racketeering activity, the government must show both relationship and continuity as separate elements. H.J. Inc. v. Northwestern Bell Telephone Co., 492 U.S. 229 (1989). Generally continuity over a close period is not met when the predicate acts extend less than one year. Primary Care Investors, Seven, Inc. v. PHP Healthcare Corp., 986 F.2d 1208 (8th Cir. 1993); see also, Uni*Quality, Inc. v. Infotronx, Inc., 974 F.2d 918 (7th Cir. 1992); Aldridge v. Lily-Tulip Inc. Salary Retirement Plan, 961 F.2d 224 (11th Cir. 1992); Hughes v. Consolidated Pennsylvania Coal Co., 945 F.2d 594 (3d Cir. 1991). Generally pattern requires a showing of a relationship plus continuity. However, determining what constitutes a pattern is ultimately a question of fact. Diamonds Plus, Inc. v. Kolber, 960 F.2d 765 (8th Cir. 1992); Atlas Pile Driving Co. v. DiCon Finanical Co., 886 F.2d 986 (8th Cir. 1989).

Courts have provided a broad interpretation to the interstate commerce requirement. See e.g., United States v. Robertson, 514 U.S. 669 (1995) (purchase of equipment and supplies from out of state as well as employment of out of state persons to work mine constituted interstate commerce); see also, United States v. Qaoud, 777 F.2d 1105 (6th Cir. 1985) (activities of United States District Court constituted interstate commerce.)

The jury must be unanimous that predicate acts had been committed and the defendant committed at least two of the predicate acts. It is recommended that the instructions require the jury to be unanimous as to which acts have specifically been committed by the defendant. United States v. Flynn, 87 F.3d 996 (8th Cir. 1996); see also, United States v. Kragness, 830 F.2d 842 (8th Cir. 1987); 2B Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 56.03 (5th ed. 2000).

(For 2006 version see below)

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

2006 Version

The crime of participating in a racketeering enterprise¹ as charged in [Count ____] of the indictment has five elements, which are:

One, an enterprise existed as alleged in the indictment;²

Two, the enterprise [was engaged in] [had some affect on] interstate commerce;³

Three, the defendant was [associated with] [employed by]⁴ the enterprise;

Four, the defendant participated, either directly or indirectly, in the conduct of the affairs of the enterprise⁵; and

Five, the defendant’s participation was through a pattern of racketeering activity,⁶ and consisted of the [knowing] [willful]⁷commission of at least two racketeering acts.

The term "racketeering activity," as used in [the] [this] Instruction[s] includes the acts charged as separate crimes in Counts ___, ___, and ___. The element of the crimes charged in Count ___, ___, and ___ are defined in Instructions ___, ___, and ___. [If the predicate acts are not charged in separate counts, instructions on the elements of each racketeering activity must be given as part of the racketeering charge.]⁸

For you to find [a] defendant guilty of this crime the government must prove all of these elements beyond a reasonable doubt [as to that defendant]; otherwise you must find [that] [the] defendant not guilty.⁹

Notes on Use

2. The jury should be instructed on the meaning of "enterprise." See, infra, Instruction D.

6. The jury should be instructed on the meaning of "pattern of racketeering." See, infra, Instruction E.

8. "Racketeering activity" is defined at 18 USC 1961(1).

Committee Comments

See Fifth Circuit Pattern Jury Instructions: Criminal § 2.72 (1997); Ninth Circ. Crim. Jury Instr. 8.129, 8.130 (2000); Eleventh Circuit Pattern Jury Instructions: Criminal § 61.1 (1997); Modern Federal Jury Instructions, Criminal, 52-21; 2B Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 56.03 (5th ed. 2000); Federal Criminal Jury Instructions § 60.06; United States v. Ellison, 793 F.2d 942 (8th Cir. 1986).

Isolated predicate acts do not constitute a pattern. Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479 (1985). In order to prove a pattern of racketeering activity, the government must show both relationship and continuity as separate elements. H.J. Inc. v. Northwestern Bell Telephone Co., 492 U.S. 229 (1989). Generally continuity over a close period is not met when the predicate acts extend less than one year. Primary Care Investors, Seven, Inc. v. PHP Healthcare Corp., 986 F.2d 1208 (8th Cir. 1993); see also, Uni*Quality, Inc. v. Infotronx, Inc., 974 F.2d 918 (7th Cir. 1992); Aldridge v. Lily-Tulip Inc. Salary Retirement Plan, 961 F.2d 224 (11th Cir. 1992); Hughes v. Consolidated Pennsylvania Coal Co., 945 F.2d 594 (3d Cir. 1991). Generally pattern requires a showing of a relationship plus continuity. However, determining what constitutes a pattern is ultimately a question of fact. Diamonds Plus, Inc. v. Kolber, 960 F.2d 765 (8th Cir. 1992); Atlas Pile Driving Co. v. DiCon Finanical Co., 886 F.2d 986 (8th Cir. 1989).

Courts have provided a broad interpretation to the interstate commerce requirement. See e.g., United States v. Robertson, 514 U.S. 669 (1995) (purchase of equipment and supplies from out of state as well as employment of out of state persons to work mine constituted interstate commerce); see also, United States v. Qaoud, 777 F.2d 1105 (6th Cir. 1985) (activities of United States District Court constituted interstate commerce.)

The jury must be unanimous that predicate acts had been committed and the defendant committed at least two of the predicate acts. It is recommended that the instructions require the jury to be unanimous as to which acts have specifically been committed by the defendant. United States v. Flynn, 87 F.3d 996 (8th Cir. 1996); see also, United States v. Kragness, 830 F.2d 842 (8th Cir. 1987); 2B Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 56.03 (5th ed. 2000).

For 2000 version see below

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

2000 Version

The crime of participating in a racketeering enterprise1 as charged in [Count ____] of the indictment has five essential elements, which are:

One, an enterprise existed as alleged in the indictment;2

Two, the enterprise [was engaged in] [had some affect on] interstate commerce;3

Three, the defendant was [associated with] [employed by]4 the enterprise;

Four, the defendant participated, either directly or indirectly, in the conduct of the affairs of the enterprise5; and

Five, the defendant’s participation was through a pattern of racketeering activity,6 and consisted of the [knowing] [willful]7 commission of at least two racketeering acts.

The term "racketeering activity," as used in [the] [this] Instruction[s] includes the acts charged as separate crimes in Counts ___, ___, and ___. The element of the crimes charged in Count ___, ___, and ___ are defined in Instructions ___, ___, and ___. [If the predicate acts are not charged in separate counts, instructions on the elements of each racketeering activity must be given as part of the racketeering charge.]8

For you to find [a] defendant guilty of this crime the government must prove all of these essential elements beyond a reasonable doubt [as to that defendant]; otherwise you must find [that] [the] defendant not guilty.9

Committee Comments

See Fifth Circuit Pattern Jury Instructions: Criminal § 2.72 (1997); Ninth Circ. Crim. Jury Instr. 8.34.3, 8.34.4 (1997); Eleventh Circuit Pattern Jury Instructions: Criminal § 61.1 (1997); Modern Federal Jury Instructions, Criminal, 52-21; 2 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Criminal § 48.03 (4th ed. 1990); Federal Criminal Jury Instructions § 60.06; United States v. Ellison, 793 F.2d 942 (8th Cir.), cert. denied, 479 U.S. 937 (1986).

A violation of section 1962 may occur either by a defendant engaging in a "pattern of racketeering activity" or "collection of an unlawful debt." An unlawful debt is defined in 18 USC 1961(6). See, e.g., United States v. Wong, 40 F.3d 1347 (2d Cir. 1994), cert. denied, 516 U.S. 870 (1995); United States v. Oreto, 37 F.3d 739 (1st Cir. 1994), cert. denied, 513 U.S. 1177 (1995); United States v. DiSalvo, 34 F.3d 1204 (3d Cir. 1994); United States v. Aucoin, 964 F.2d 1492 (5th Cir. 1992), cert. denied, 506 U.S. 1023 (1992); United States v. Tripp, 782 F.2d 38 (6th Cir.), cert. denied, 475 U.S. 1128 (1986).

RICO requires proof of the conduct of an enterprise effecting commerce through a pattern of racketeering activity involving two or more predicate acts. Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479 (1985); United States v. Ellison, 793 F.2d 942 (8th Cir.), cert. denied, 479 U.S. 937 (1986). See also Salinas v. United States, 522 U.S. 52, ____, 118 S. Ct. 469, 476 (1997) (discussing elements of substantive RICO violation). A RICO defendant does not have to be convicted of each racketeering activity before a substantive RICO offense may be charged, as long as the racketeering activity is indictable under an applicable criminal statute. Sedima, S.P.R.L. v. Imrex Co., 473 U.S. at 488. While a minimum of two predicate acts are necessary, more than two may be required to establish a RICO violation. H.J. Inc. v. Northwestern Bell Telephone Co., 492 U.S. 229 (1989). 18 USC 1961(1) describes those state and federal crimes which constitute racketeering activity.

A conviction under RICO requires no proof of a connection between organized crime and the defendant. See Bennett v. Berg, 685 F.2d 1053 (8th Cir. 1982), modified, 710 F.2d 1361 (8th Cir. 1983) (en banc), cert. denied, 464 U.S. 1008 (1983); Moss v. Morgan Stanley Inc., 719 F.2d 5 (2d Cir. 1983), cert. denied, 465 U.S. 1025 (1984); Schact v. Brown, 711 F.2d 1343 (7th Cir.), cert. denied, 464 U.S. 1002 (1983).

The RICO statute does not specify any mens rea beyond that specified in the predicate acts. United States v. Scotto, 641 F.2d 47 (2d Cir. 1980), cert. denied, 452 U.S. 961 (1981). It is recommended that the elements of the offense instruction clearly set out the mens rea requirement of the predicate acts in that portion which pertains to the predicate acts.

To prove the existence of an enterprise, the government must prove (1) a common purpose; (2) a formal or informal organization of the participants in which they function as a unit; and (3) an ascertainable structure distinct from that inherent in the conduct of a pattern of racketeering activity. United States v. Darden, 70 F.3d 1507 (8th Cir. 1995), cert. denied, 517 U.S. 1149 (1996); United States v. Bledsoe, 674 F.2d 647 (8th Cir.), cert. denied, 459 U.S. 1040 (1982). The enterprise element may be satisfied upon a showing either that the entity has a legal existence or proof of an association in fact. United States v. Turkette, 452 U.S. 576 (1981). The enterprise must have an existence entirely separate and independent of the racketeering activity. See also United States v. Console, 13 F.3d 641 (3d Cir. 1993), cert. denied, 511 U.S. 1076 (1994); United States v. Masters, 924 F.2d 1362 (7th Cir.), cert. denied, 500 U.S. 919 (1991); United States v. Tillett, 763 F.2d 628 (4th Cir. 1985).

Section 1962(c) requires a relationship between the pattern of racketeering and the enterprise. Conduct forms a pattern of racketeering activity if it embraces criminal acts that have the same or similar purpose, results, participants, victims or methods of commission or are inextricably intertwined and not isolated events. United States v. Ellison, 793 F.2d 942 (8th Cir.), cert. denied, 479 U.S. 937 (1986). The necessary nexus only exists when the defendant’s predicate acts "rise to the level" of participation in the management or operation of the enterprise. Reves v. Ernst & Young, 507 U.S. 170 (1993). Mere participation in the predicate offenses in conjunction with a RICO enterprise may be insufficient to support a RICO charge. Bennett v. Berg, 685 F.2d 1053 (8th Cir. 1982), modified, 710 F.2d 1361 (en banc), cert. denied, 464 U.S. 1008 (1983). An enterprise may be "operated" or "managed" by others "associated with" the enterprise who exert control of the enterprise. Reves v. Ernst & Young, 507 U.S. 170 (1993). A person may also be liable under section 1962(c) even though he had no control of the enterprise but participated or operated in the conduct of the enterprise. United States v. Darden, 70 F.3d 1507, 1518 (8th Cir. 1995). Yet the Eighth Circuit has held that Congress did not mean for 1962(c) to penalize all who are employed by or associated with a RICO enterprise, but only those, who by virtue of their association of employment, play a part in directing the enterprise’s affairs. Handeen v. Lemaire, 112 F.3d 1339, 1347 (8th Cir. 1997). An attorney or other professional does not conduct an enterprise’s affairs through run-of-the-mill professional services. Id.

The government need not prove that the racketeering activity benefitted the enterprise but only that the predicate acts affected the enterprise. United States v. Cauble, 706 F.2d 1322 (5th Cir. 1983), cert. denied, 465 U.S. 1005 (1984). The same piece of evidence may establish both pattern and enterprise elements. United States v. Darden, 70 F.3d 1507, 1521 (8th Cir. 1995).

Isolated predicate acts do not constitute a pattern. Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479 (1985). In order to prove a pattern of racketeering activity, the government must show both relationship and continuity as separate elements. H.J. Inc. v. Northwestern Bell Telephone Co., 492 U.S. 229 (1989). Generally continuity over a close period is not met when the predicate acts extend less than one year. Primary Care Inv., Seven, Inc. v. PHP Healthcare Corp., 986 F.2d 1208 (8th Cir. 1993); see also, Uni Quality, Inc. v. Infotronx, Inc., 974 F.2d 918 (7th Cir. 1992); Aldridge v. Lily-Tulip Inc. Salary Retirement Plan, 961 F.2d 224 (11th Cir. 1992); Hughes v. Consolidated Pennsylvania Coal Co., 945 F.2d 594 (3d Cir. 1991), cert. denied, 504 U.S. 955 (1992). Generally pattern requires a showing of a relationship plus continuity. However, determining what constitutes a pattern is ultimately a question of fact. Diamonds Plus, Inc. v. Kolber, 960 F.2d 765 (8th Cir. 1992); Atlas Pile Driving Co. v. Dicon Fin. Co., 886 F.2d 986 (8th Cir. 1989).

Courts have provided a broad interpretation to the interstate commerce requirement. See e.g., United States v. Robertson, 514 U.S. 669 (1995) (purchase of equipment and supplies from out of state as well as employment of out of state persons to work mine constituted interstate commerce); see also, United States v. Qaoud, 777 F.2d 1105 (6th Cir. 1985), cert. denied, 475 U. S. 1098 (1986) (activities of United States District Court constituted interstate commerce.)

The jury must be unanimous that predicate acts had been committed and the defendant committed at least two of the predicate acts. It is recommended that the instructions require the jury to be unanimous as to which acts have specifically been committed by the defendant. United States v. Flynn, 87 F.3d 996 (8th Cir. 1996); see also, United States v. Kragness, 830 F.2d 842 (8th Cir. 1987); D & B. 48.06.

Notes on Use

2. The jury should be instructed on the meaning of "enterprise." See, infra, Instruction D.

3. The racketeering activity must have some effect on interstate commerce. However, the element may be satisfied when the predicate acts form a nexus with interstate commerce; when the interstate commerce is affected by either the enterprise or its activities. See United States v. Muskovsky , 863 F.2d 1319 (7th Cir. 1988), cert. denied, 489 U.S. 1067 (1989); R.A.G.S. Couture, Inc. v. Hyatt, 774 F.2d 1350 (5th Cir. 1985); United States v. Barton, 647 F.2d 224 (2d Cir.), cert. denied, 454 U.S. 857 (1981).

4. Proof of association-in-fact enterprise requires evidence that a group of persons associated together for a common purpose of engaging in a course of conduct. United States v. Turkette, 452 U.S. 576 (1981). The enterprise element may also be satisfied if the entity has a legal existence. United States v. Kirk, 844 F.2d 660 (9th Cir.), cert. denied, 488 U.S. 890 (1988); United States v. Cauble, 706 F.2d 1322 (5th Cir. 1983), cert. denied, 465 U.S. 1005 (1984).

5. A defendant’s participation must be in the conduct of the affairs of the enterprise which means either some participation in the operation or management of the enterprise itself. Reves v. Ernst & Young, 507 U.S. 170, (1993); United States v. Darden, 70 F.3d 1507, 1518 (8th Cir. 1995). Participation may be direct or indirect. See e.g., United States v. Martino, 648 F.2d 867 (5th Cir. 1981); United States v. Starnes, 644 F.2d 673 (7th Cir.), cert. denied, 454 U.S. 826 (1981).

6. The jury should be instructed on the meaning of "pattern of racketeering." See, infra, Instruction E.

8. "Racketeering activity" is defined at 18 USC 1961 (1).

8TH CIRCUIT MODEL INSTRUCTIONS 2009

6.18.1962B RICO - CONSPIRACY
(18 USC 1962(d))

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Racketeering Conspiracy--Elements (18 USC 1962(d))

The crime of conspiracy¹ to [invest or use income derived from racketeering activity] [acquire or maintain an interest in or control of an enterprise] [participate, directly or indirectly, in the affairs of an enterprise] through a pattern of racketeering activity as charged in [Count ____] of the indictment has five elements, which are:²

One, an enterprise existed as alleged in the indictment;³

Two, the enterprise [was engaged in] [had some effect on] interstate commerce;⁴

Three, the defendant was [associated with] [employed by] an enterprise;⁵

Four, that on or about [insert date] two [or more] persons reached an agreement or came to an understanding [to invest or use income derived from racketeering activity] [to acquire or maintain an interest in or control of an enterprise] [to conduct or participate in the affairs of an enterprise, directly or indirectly,] through a pattern of racketeering activity; ⁶and

Five, that the defendant voluntarily and intentionally joined in the agreement or understanding, either at the time it was first reached or at some later time while it was still in existence, and at the time the defendant joined in the agreement or understanding [he] [she] specifically intended to otherwise participate in the affairs of the enterprise.⁷

For you to find [a] defendant guilty of this crime the government must prove all of these elements beyond a reasonable doubt [as to that defendant]; otherwise you must find [that] [the] defendant not guilty.⁸

Notes on Use

1. The general conspiracy statute is 18 USC 371. Unlike the general conspiracy statute, the government need not prove an overt act was committed in furtherance of the conspiracy.

2. Section 1962(d) prohibits conspiring to violate any provision of § 1962 (a)(b)(c).

3. The jury should be instructed on the meaning of "enterprise." See infra, Instruction D.

4. The racketeering activity must have some effect on interstate commerce. Section 1962 (c) also provides that a pattern of racketeering activity which affects foreign commerce is unlawful. If supported by evidence, substitute foreign commerce for interstate commerce. However the element may be satisfied when the predicate acts form a nexus with interstate commerce; when the interstate commerce is affected by either the enterprise or its activities. See United States v. Muskovsky , 863 F.2d 1319 (7th Cir 1988); R.A.G.S. Couture, Inc. v. Hyatt, 774 F.2d 1350 (5th Cir. 1985); United States v. Barton, 647 F.2d 224 (2d Cir. 1981).

5. Proof of association-in-fact enterprise requires evidence that a group of persons associated together for a common purpose of engaging in a course of conduct. United States v. Turkette, 452 U.S. 576 (1981). The enterprise element may also be satisfied if the entity has a legal existence. United States v. Kirk, 844 F.2d 660 (9th Cir. 1988); United States v. Cauble, 706 F.2d 1322 (5th Cir. 1983).

6. The jury should be instructed on the meaning of "pattern of racketeering." See infra, Instruction E.

7. The government must prove that the defendant objectively manifested an agreement to participate in the affairs of the enterprise. United States v. Darden, 70 F.3d 1507, 1518 (1995). The Court’s statement in Darden regarding "objectively manifested" appears to be a comment on the amount of evidence the government must introduce to allow the jury to infer an intent to participate. The Committee does not believe that the term "objectively manifest" is an element of the offense because it would lessen the level of intent. Proof of an express agreement is not required. The government need only establish a tacit understanding between the parties and this may be shown wholly through circumstantial evidence of each defendant’s actions. Id.

8. The jury must be instructed that in order to convict, the government must prove beyond a reasonable doubt each element of the charge. It is recommended that the burden of proof paragraph be included in the element instruction. See United States v. Fairchild, 122 F.3d 605, 612 (8th Cir. 1997); Instruction 3.09, supra.

Committee Comments

Eleventh Circuit Pattern Jury Instructions: Criminal § 61.2 (1997); Modern Federal Jury Instructions, Criminal 52.29; 2B Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 56.11 (5th ed. 2000); Federal Criminal Jury Instructions § 60.12; United States v. Darden, 70 F.3d 1507, 1518 (8th Cir. 1995).

See Committee Comments and Notes on Use, Instruction 6.18.1962A, supra.

Unlike the general conspiracy statute, 18 USC 371, the RICO conspiracy statute does not require the government to either plead or prove that an overt act was committed in furtherance of the conspiracy. Salinas v. United States, 522 U.S. 52, 63 (1997); United States v. Pepe, 747 F.2d 632 (11th Cir. 1984); United States v. Barton, 647 F.2d 224 (2d Cir. 1981). Therefore the RICO conspiracy provision is more comprehensive than the general conspiracy statute, 18 USC 371. Salinas v. United States, 522 U.S. at 61. Proof of an express agreement is not required; the government need only establish a tacit understanding between the parties. United States v. Darden, 70 F.3d 1507 (8th Cir. 1995). However, mere association with a RICO enterprise, in itself, is not violative of a conspiracy under § 1962(d). See, e.g., United States v. Neapolitan, 791 F.2d 489 (7th Cir. 1986).

In order to prove a RICO conspiracy, the Government need only show that the defendant agreed to the criminal objective. Salinas v. United States, 522 U.S. at 52; United States v. Bennett, 44 F.3d 1364 (8th Cir. 1995) (it is not necessary that the defendant personally agree to commit requisite acts, but only that he agrees to join conspiracy). United States v. Leisure, 844 F.2d 1347 (8th Cir. 1988); United States v. Kragness, 830 F.2d 842 (8th Cir. 1987). In order to be guilty of conspiracy under RICO, a defendant must simply agree to the objective of the RICO violation and need not himself have committed or agreed to commit the two predicate acts. See Salinas v. United States, 522 U.S. at 52. A defendant may be acquitted of the substantive offense but still convicted of conspiracy if there is proof of an agreement to commit the substantive act. See, e.g., Salinas v. United States, 522 U.S. at 55. United States v. Alonso, 740 F.2d 862 (11th Cir. 1985).

Withdrawal from a RICO conspiracy is a permissible defense but the defendant must prove that he took affirmative steps, inconsistent with the object of the conspiracy, to disavow or to defeat the conspiratorial objectives. See United States v. Starrett, 55 F.3d 1525 (11th Cir. 1995). Further, the defendant must have made a reasonable effort to communicate these steps to his co-conspirators or disclosed their conspiracy to law enforcement authorities. See United States v. Finestone, 816 F.2d 583 (11th Cir. 1987); see also Hyde v. United States, 225 U.S. 347 (1912).

(For 2008 version see below).

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

2008 Version

The crime of conspiracy¹ to [invest or use income derived from racketeering activity] [acquire or maintain an interest in or control of an enterprise] [participate, directly or indirectly, in the affairs of an enterprise] through a pattern of racketeering activity as charged in [Count ____] of the indictment has five elements, which are:²

One, an enterprise existed as alleged in the indictment;³

Two, the enterprise [was engaged in] [had some effect on] interstate commerce;⁴

Three, the defendant was [associated with] [employed by] an enterprise;⁵

Four, that on or about [insert date] two [or more] persons reached an agreement or came to an understanding [to invest or use income derived from racketeering activity] [to acquire or maintain an interest in or control of an enterprise] [to conduct or participate in the affairs of an enterprise, directly or indirectly,] through a pattern of racketeering activity; ⁶and

Five, that the defendant voluntarily and intentionally joined in the agreement or understanding, either at the time it was first reached or at some later time while it was still in existence, and at the time the defendant joined in the agreement or understanding [he] [she] specifically intended to otherwise participate in the affairs of the enterprise.⁷

For you to find [a] defendant guilty of this crime the government must prove all of these elements beyond a reasonable doubt [as to that defendant]; otherwise you must find [that] [the] defendant not guilty.⁸

Notes on Use

1. The general conspiracy statute is 18 USC 371. Unlike the general conspiracy statute, the government need not prove an overt act was committed in furtherance of the conspiracy.

2. Section 1962(d) prohibits conspiring to violate any provision of § 1962 (a)(b)(c).

3. The jury should be instructed on the meaning of "enterprise." See, infra, Instruction D.

6. The jury should be instructed on the meaning of "pattern of racketeering." See, infra, Instruction E.

Committee Comments

See Committee Comments and Notes on Use, Instruction 6.18.1962A, supra.

(For 2006 version see below)

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

2006 Version

The crime of conspiracy¹ to [invest or use income derived from racketeering activity] [acquire or maintain an interest in or control of an enterprise] [participate, directly or indirectly, in the affairs of an enterprise] through a pattern of racketeering activity as charged in [Count ____] of the indictment has five elements, which are:²

One, an enterprise existed as alleged in the indictment;³

Two, the enterprise [was engaged in] [had some effect on] interstate commerce;⁴

Three, the defendant was [associated with] [employed by] an enterprise;⁵

Four, that on or about [insert date] two [or more] persons reached an agreement or came to an understanding [to invest or use income derived from racketeering activity] [to acquire or maintain an interest in or control of an enterprise] [to conduct or participate in the affairs of an enterprise, directly or indirectly,] through a pattern of racketeering activity; ⁶and

Five, that the defendant voluntarily and intentionally joined in the agreement or understanding, either at the time it was first reached or at some later time while it was still in existence, and at the time the defendant joined in the agreement or understanding [he] [she] specifically intended to otherwise participate in the affairs of the enterprise.⁷

For you to find [a] defendant guilty of this crime the government must prove all of these elements beyond a reasonable doubt [as to that defendant]; otherwise you must find [that] [the] defendant not guilty.⁸

Notes on Use

1. The general conspiracy statute is 18 USC 371. Unlike the general conspiracy statute, the government need not prove an overt act was committed in furtherance of the conspiracy.

2. Section 1962(d) prohibits conspiring to violate any provision of § 1962 (a)(b)(c).

3. The jury should be instructed on the meaning of "enterprise." See, infra, Instruction D.

6. The jury should be instructed on the meaning of "pattern of racketeering." See, infra, Instruction E.

Committee Comments

See Committee Comments and Notes on Use, Instruction 6.18.1962A, supra.

For 2000 version see below

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

2000 Version

The crime of conspiracy1 to [invest or use income derived from racketeering activity] [acquire or maintain an interest in or control of an enterprise] [participate, directly or indirectly, in the affairs of an enterprise] through a pattern of racketeering activity as charged in [Count ____] of the indictment has five essential elements, which are:2

One, an enterprise existed as alleged in the indictment;3

Two, the enterprise [was engaged in] [had some effect on] interstate commerce;4

Three, the defendant was [associated with] [employed by] an enterprise;5

Four, that on or about [insert date] two [or more] persons reached an agreement or came to an understanding [to invest or use income derived from racketeering activity] [to acquire or maintain an interest in or control of an enterprise] [to conduct or participate in the affairs of an enterprise, directly or indirectly,] through a pattern of racketeering activity; 6 and

Five, that the defendant voluntarily and intentionally joined in the agreement or understanding, either at the time it was first reached or at some later time while it was still in existence, and at the time the defendant joined in the agreement or understanding [he] [she] specifically intended to otherwise participate in the affairs of the enterprise.7

For you to find [a] defendant guilty of this crime the government must prove all of these essential elements beyond a reasonable doubt [as to that defendant]; otherwise you must find [that] [the] defendant not guilty.8

Committee Comments

Eleventh Circuit Pattern Jury Instructions: Criminal § 61.2 (1997); Modern Federal Jury Instructions, Criminal 52.29; 2 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Criminal § 48.11 (4th ed. 1990); Federal Criminal Jury Instructions § 60.12; United States v. Darden, 70 F.3d 1507, 1518 (8th Cir. 1995).

See Committee Notes, No. A, supra.

Unlike the general conspiracy statute, 18 USC 371, the RICO conspiracy statute does not require the government to either plead or prove that an overt act was committed in furtherance of the conspiracy. Salinas v. United States, 522 U.S. 52, ___, 118 S. Ct. 469, 476 (1997); United States v. Pepe, 747 F.2d 632 (11th Cir. 1984); United States v. Barton, 647 F.2d 224 (2d Cir.), cert. denied, 454 U.S. 857 (1981). Therefore the RICO conspiracy provision is more comprehensive than the general conspiracy statute, 18 USC 371. Salinas v. United States, 522 U.S. at ____, 118 S. Ct. at 476. Proof of an express agreement is not required; the government need only establish a tacit understanding between the parties. United States v. Darden, 70 F.3d 1507 (8th Cir. 1995). However, mere association with a RICO enterprise, in itself, is not violative of a conspiracy under § 1962(d). See, e.g., United States v. Neapolitan, 791 F.2d 489 (7th Cir.), cert. denied, 479 U.S. 939 (1986).

In order to prove a RICO conspiracy, the Government need only show that the defendant agreed to the criminal objective. Salinas v. United States, 522 U.S. 52, ___, 118 S. Ct. 469, 471 (1997; United States v. Bennett, 44 F.3d 1364 (8th Cir. 1995) (it is not necessary that defendant personally agree to commit requisite acts, but only that he agrees to join conspiracy). United States v. Leisure, 844 F.2d 1347 (8th Cir.), cert. denied, 488 U.S. 932 (1988); United States v. Kragness, 830 F.2d 842 (8th Cir. 1987). In order to be guilty of conspiracy under RICO, a defendant must simply agree to the objective of the RICO violation and need not himself have committed or agreed to commit the two predicate acts. See Salinas v. United States, 522 U.S. 52, ___, 118 S. Ct. 469, 471 (1997). A defendant may be acquitted of the substantive offense but still convicted of conspiracy if there is proof of an agreement to commit the substantive act. See, e.g., Salinas v. United States, 118 S. Ct. at 473. United States v. Alonso, 740 F.2d 862 (11th Cir.), cert. denied, 469 U.S. 1166 (1985).

Withdrawal from a RICO conspiracy is a permissible defense but the defendant must prove that he took affirmative steps, inconsistent with the object of the conspiracy, to disavow or to defeat the conspiratorial objectives. See United States v. Starrett, 55 F.3d 1525 (11th Cir. 1995). Further, the defendant must have made a reasonable effort to communicate these steps to his co-conspirators or disclosed their conspiracy to law enforcement authorities. See United States v. Finestone, 816 F.2d 583 (11th Cir.), cert. denied, 484 U.S. 948 (1987); see also Hyde v. United States, 225 U.S. 347 (1912)

Notes on Use

1. The general conspiracy statute is 18 USC 371. Unlike the general conspiracy statute, the government need not prove an overt act was committed in furtherance of the conspiracy.

2. Section 1962(d) prohibits conspiring to violate any provision of § 1962 (a)(b)(c).

3. The jury should be instructed on the meaning of "enterprise." See, infra, Instruction D.

4. The racketeering activity must have some effect on interstate commerce. Section 1962 (c) also provides that a pattern of racketeering activity which affects foreign commerce is unlawful. If supported by evidence, substitute foreign commerce for interstate commerce. However the element may be satisfied when the predicate acts form a nexus with interstate commerce; when the interstate commerce is affected by either the enterprise or its activities. See United States v. Muskovsky , 863 F.2d 1319 (7th Cir), cert. denied, 489 U.S. 1067 (1988); R.A.G.S. Couture, Inc. v. Hyatt Co., 774 F.2d 1350 (5th Cir. 1985); United States v. Barton, 647 F.2d 224 (2d Cir.), cert. denied, 454 U.S. 857 (1981).

5. Proof of association-in-fact enterprise requires evidence that a group of persons associated together for a common purpose of engaging in a course of conduct. United States v. Turkette, 452 U.S. 576 (1981). The enterprise element may also be satisfied if the entity has a legal existence. United States v. Kirk, 844 F.2d 660 (9th Cir.), cert. denied, 488 U.S. 890 (1988); United States v. Cauble, 706 F.2d 1322 (5th Cir. 1983), cert. denied, 465 U.S. 1005 (1984).

6. The jury should be instructed on the meaning of "pattern of racketeering." See, infra, Instruction E.

8TH CIRCUIT MODEL INSTRUCTIONS 2009

6.18.1962C RICO-CONSPIRACY -- AGREEMENT EXPLAINED

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: RICO (18 USC 1962)

The government must prove beyond a reasonable doubt that the defendant knowingly reached an agreement¹ or understanding with at least one other person to [invest or use income derived from racketeering activity] [acquire or maintain an interest in or control of an enterprise] [participate, directly or indirectly, in the affairs of an enterprise] through a pattern of racketeering activity.²However, you don’t have to find that any racketeering acts were actually committed.³

The agreement or understanding need not be an express or formal agreement or be in writing or cover all the details of how it is to be carried out. Nor is it necessary that the members have directly stated between themselves the details or purpose of the scheme.

You should understand that merely being present at the scene of an event, or merely acting in the same way as others or merely associating with others, does not prove that a person has joined in an agreement or understanding. A person who has no knowledge of a conspiracy but who happens to act in a way which advances some purpose of one does not thereby become a member.

But a person may join in an agreement or understanding, as required by this element, without knowing all the details of the agreement or understanding, and without knowing who all the other members are. Further it is not necessary that a person agree to play any particular part in carrying out the agreement or understanding. A person may become a member of a conspiracy even if that person agrees to play only a minor part in the conspiracy, as long as that person has an understanding of the unlawful nature of the plan and voluntarily and intentionally joins in it.

In determining whether the alleged conspiracy existed you may consider the actions and statements of all the alleged participants. The agreement may be inferred from all the circumstances and the conduct of the alleged participants. ⁴

[Acts and statements which are made before the conspiracy began or after it ended are admissible only against the person making them and should not be considered by you against any other defendant.]⁵

Notes on Use

1. Where enterprise is defined as an association in fact, proof of that enterprise may prove an unlawful agreement. United States v. Bennett, 44 F.3d 1364, 1372 (8th Cir. 1995); United States v. Pungitore, 910 F.2d 1084, 1114 (3d Cir. 1990).

2. The United States Supreme Court has held that it is not necessary that a defendant personally agreed to commit the requisite acts, but only that he agreed to join the conspiracy. Salinas v. United States, 522 U.S. 52, 65 (1997). United States v. Bennett, 44 F.3d at 1374; United States v. Kragness, 830 F.2d 842 (8th Cir. 1987).

3. A person may be liable for the RICO conspiracy even thought he was incapable of committing the substantive offense. See Salinas v. United States, 522 U.S. 52, 64 (1997).

4. For purposes of a RICO prosecution an enterprise may only be comprised of the defendants. United States v. Nabors, 45 F.3d 238, 240 (8th Cir. 1995).

5. An explicit limiting instruction must be given if evidence of acts or statements by any co-conspirator made before or after the conspiracy began or ended has been admitted. See United States v. Snider, 720 F.2d 985, 989 (8th Cir. 1983).

Committee Comments

See Model Federal Jury Instructions, Criminal 52-31, 32; Salinas v. United States, 522 U.S. 52 (1997); United States v. Bennett, 44 F.3d 1364 (8th Cir. 1995); United States v. Elliott, 571 F.2d 880 (5th Cir. 1978).

The RICO conspiracy statute is designed to facilitate prosecution of multi-faceted, highly diversified criminal activity by creating a substantive offense which ties together the diverse parties and crimes. In order to be convicted of a RICO conspiracy, an individual must have, by words or actions, objectively manifested an agreement to participate in the affairs of the enterprise. United States v. Darden, 70 F.3d 1507, 1518 (8th Cir. 1995); United States v. Bennett, 44 F.3d at 1372; see United States v. Boffa, 688 F.2d 919 (3d Cir. 1982); United States v. Winter, 663 F.2d 1120 (1st Cir. 1981). Conspiracy to commit a narcotics violation may be a proper predicate act for a conspiracy to commit RICO. United States v. Darden, 70 F.3d 1507, 1524 (8th Cir. 1995). Simple possession cannot serve as a predicate act under the RICO statute. Id. at 1525.

(For 2008 version see below).

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

2008 Version

The government must prove beyond a reasonable doubt that the defendant knowingly reached an agreement¹ or understanding with at least one other person to [invest or use income derived from racketeering activity] [acquire or maintain an interest in or control of an enterprise] [participate, directly or indirectly, in the affairs of an enterprise] through a pattern of racketeering activity.²However, you don’t have to find that any racketeering acts were actually committed.³

The agreement or understanding need not be an express or formal agreement or be in writing or cover all the details of how it is to be carried out. Nor is it necessary that the members have directly stated between themselves the details or purpose of the scheme.

You should understand that merely being present at the scene of an event, or merely acting in the same way as others or merely associating with others, does not prove that a person has joined in an agreement or understanding. A person who has no knowledge of a conspiracy but who happens to act in a way which advances some purpose of one does not thereby become a member.

But a person may join in an agreement or understanding, as required by this element, without knowing all the details of the agreement or understanding, and without knowing who all the other members are. Further it is not necessary that a person agree to play any particular part in carrying out the agreement or understanding. A person may become a member of a conspiracy even if that person agrees to play only a minor part in the conspiracy, as long as that person has an understanding of the unlawful nature of the plan and voluntarily and intentionally joins in it.

In determining whether the alleged conspiracy existed you may consider the actions and statements of all the alleged participants. The agreement may be inferred from all the circumstances and the conduct of the alleged participants. ⁴

[Acts and statements which are made before the conspiracy began or after it ended are admissible only against the person making them and should not be considered by you against any other defendant.]⁵

Notes on Use

3. A person may be liable for the RICO conspiracy even thought he was incapable of committing the substantive offense. See Salinas v. United States, 522 U.S. 52, 64 (1997).

4. For purposes of a RICO prosecution an enterprise may only be comprised of the defendants. United States v. Nabors, 45 F.3d 238, 240 (8th Cir. 1995).

Committee Comments

(For 2006 version see below)

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

2006 Version

The government must prove beyond a reasonable doubt that the defendant knowingly reached an agreement¹ or understanding with at least one other person to [invest or use income derived from racketeering activity] [acquire or maintain an interest in or control of an enterprise] [participate, directly or indirectly, in the affairs of an enterprise] through a pattern of racketeering activity.²However, you don’t have to find that any racketeering acts were actually committed.³

The agreement or understanding need not be an express or formal agreement or be in writing or cover all the details of how it is to be carried out. Nor is it necessary that the members have directly stated between themselves the details or purpose of the scheme.

You should understand that merely being present at the scene of an event, or merely acting in the same way as others or merely associating with others, does not prove that a person has joined in an agreement or understanding. A person who has no knowledge of a conspiracy but who happens to act in a way which advances some purpose of one does not thereby become a member.

But a person may join in an agreement or understanding, as required by this element, without knowing all the details of the agreement or understanding, and without knowing who all the other members are. Further it is not necessary that a person agree to play any particular part in carrying out the agreement or understanding. A person may become a member of a conspiracy even if that person agrees to play only a minor part in the conspiracy, as long as that person has an understanding of the unlawful nature of the plan and voluntarily and intentionally joins in it.

In determining whether the alleged conspiracy existed you may consider the actions and statements of all the alleged participants. The agreement may be inferred from all the circumstances and the conduct of the alleged participants. ⁴

[Acts and statements which are made before the conspiracy began or after it ended are admissible only against the person making them and should not be considered by you against any other defendant.]⁵

Notes on Use

3. A person may be liable for the RICO conspiracy even thought he was incapable of committing the substantive offense. See Salinas v. United States, 522 U.S. 52, 64 (1997).

4. For purposes of a RICO prosecution an enterprise may only be comprised of the defendants. United States v. Nabors, 45 F.3d 238, 240 (8th Cir. 1995).

Committee Comments

For 2000 version see below

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

2000 Version

The government must prove beyond a reasonable doubt that the defendant knowingly reached an agreement1 or understanding with at least one other person to [invest or use income derived from racketeering activity] [acquire or maintain an interest in or control of an enterprise] [participate, directly or indirectly, in the affairs of an enterprise] through a pattern of racketeering activity.2 However, you don’t have to find that any racketeering acts were actually committed.3 The agreement or understanding need not be an express or formal agreement or be in writing or cover all the details of how it is to be carried out. Nor is it necessary that the members have directly stated between themselves the details or purpose of the scheme.

You should understand that merely being present at the scene of an event, or merely acting in the same way as others or merely associating with others, does not prove that a person has joined in an agreement or understanding. A person who has no knowledge of a conspiracy but who happens to act in a way which advances some purpose of one does not thereby become a member.

But a person may join in an agreement or understanding, as required by this element, without knowing all the details of the agreement or understanding, and without knowing who all the other members are. Further it is not necessary that a person agree to play any particular part in carrying out the agreement or understanding. A person may become a member of a conspiracy even if that person agrees to play only a minor part in the conspiracy, as long as that person has an understanding of the unlawful nature of the plan and voluntarily and intentionally joins in it.

In determining whether the alleged conspiracy existed you may consider the actions and statements of all the alleged participants. The agreement may be inferred from all the circumstances and the conduct of the alleged participants. 4

[Acts and statements which are made before the conspiracy began or after it ended are admissible only against the person making them and should not be considered by you against any other defendant.]5

Committee Comments

See Model Federal Jury Instructions, Criminal 52-31, 32; Salinas v. United States, 522 U.S. 52, ___, 118 S. Ct. 469, 477 (1997); United States v. Bennett, 44 F.3d 1364 (8th Cir.), cert. denied, 515 U.S. 1123 (1995); United States v. Elliott, 571 F.2d 880 (5th Cir.), cert. denied, 439 U.S. 953 (1978).

The RICO conspiracy statute is designed to facilitate prosecution of multi-faceted, highly diversified criminal activity by creating a substantive offense which ties together the diverse parties and crimes. In order to be convicted of a RICO conspiracy, an individual must have, by words or actions, objectively manifested an agreement to participate in the affairs of the enterprise. United States v. Darden, 70 F.3d 1507, 1518 (8th Cir. 1995); United States v. Bennett, 44 F.3d at 1372; see United States v. Boffa, 688 F.2d 919 (3d Cir. 1982), cert. denied, 460 U.S. 1022 (1983); United States v. Melton, 689 F.2d 1120 (1st Cir. 1981); United States v. Winter, 663 F.2d 1120 (1st Cir. 1981), cert. denied, 460 U.S. 1001 (1983). Conspiracy to commit a narcotics violation may be a proper predicate act for a conspiracy to commit RICO. United States v. Darden, 70 F.3d 1507, 1524 (8th Cir. 1995), cert. denied, 517 U.S. 1149 (1996). Simple possession cannot serve as a predicate act under the RICO statute. Id. at 1525.

Notes on Use

2. The United States Supreme Court has held that it is not necessary that a defendant personally agreed to commit the requisite acts, but only that he agreed to join the conspiracy. Salinas v. United States, 522 U.S. 52, ___, 118 S. Ct. 469, 477 (1997). United States v. Bennett, 44 F.3d at 1374; United States v. Kragness, 830 F.2d 842 (8th Cir. 1987).

3. A person may be liable for the RICO conspiracy even thought he was incapable of committing the substantive offense. See Salinas v. United States, 522 U.S. 52, ___, 118 S. Ct. 469, 477 (1997).

4. For purposes of a RICO prosecution an enterprise may only be comprised of defendants. United States v. Nabors, 45 F.3d 238, 240 (8th Cir. 1995). 5. An explicit limiting instruction must be given if evidence of acts or statements by any coconspirator made before or after the conspiracy began or ended has been admitted. See United States v. Snider, 720 F.2d 985, 989 (8th Cir. 1983), cert. denied, 465 U.S. 1107 (1984).

8TH CIRCUIT MODEL INSTRUCTIONS 2009

6.18.1962D
"ENTERPRISE" DEFINED

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: RICO (18 USC 1962)

An enterprise includes any individual, partnership, corporation, association, or other legal entity, in any union or group of individuals associated in fact, although not a legal entity.¹

The term "enterprise," as used in these instructions, may include a group of people associated in fact, even though this association is not recognized as a legal entity.² A group or association of people can be an enterprise if these individuals have joined together for the purpose of engaging in a common course of conduct. This group of people, in addition to having a common purpose, must have personnel who function as a continuing unit. This group of people does not have to be a legally recognized entity, such as a partnership or corporation.³ Such an association of individuals may retain its status as an enterprise even though the membership of the association changes by adding or losing individuals during the course of its existence.

If you find that this was, in fact, a legal entity such as a partnership, corporation, or association, then you may find that an enterprise existed.⁴

The government must also prove that the association had a structure distinct from that necessary to conduct the pattern of racketeering activity.⁵

Notes on Use

1. The first paragraph of the instruction includes the entire definition of enterprise provided by Congress and found at 18 USC 1961(4).

2. United States v. Kragness, 830 F.2d 842 (8th Cir. 1987) (approved jury instruction as to definition of enterprise and RICO drug prosecution, which included the definition of the term "enterprise" as including any group of individuals associated in fact, although not a legal entity).

3. Associations, in fact, may include legal entities. See 18 USC 1961(4); United States v. Darden, 70 F.3d 1507, 1541 (8^th Cir. 1995). See also Seventh Circuit Federal Jury Instructions: Criminal at 315-23 (1999). Thus, the group may be organized for a legitimate and lawful purpose or may be organized for an unlawful purpose.

4. Courts have provided broad interpretation as to the term "legal entity" in the enterprise requirement. Courts have held that various enterprise categories listed in the RICO statute are illustrative but not exhaustive. See United States v. Aimone, 715 F.2d 822 (3d Cir. 1983). The enterprise concept can encompass a combination of entities. See, e.g., United States v. Stolfi, 889 F.2d 378 (2d Cir. 1989); United States v. Feldman, 853 F.2d 648 (9th Cir. 1988).

5. The Fourth and Eighth Circuits have held that the government must prove that the association or enterprise exists separate and apart from the pattern of racketeering in which it engages. See United States v. Leisure, 844 F.2d 1347 (8th Cir. 1988); United States v. Lemm, 680 F.2d 1193 (8th Cir. 1982).

Committee Comments

See Fifth Circuit Pattern Jury Instructions: Criminal § 2.78 (1997); Ninth Cir. Crim. Jury Instr. 8.34.3; 8.34.4 (1997); Modern Federal Jury Instructions; Criminal 52.22; 2B Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 56.04 (5th ed. 2000); Federal Criminal Jury Instructions § 60.02.

Courts have given a broad reading to the term "enterprise." Congress has mandated a liberal construction of the RICO statute in order to effectuate its remedial purpose. Therefore, courts have held that the various enterprise categories listed in the RICO statute are illustrative but not exhaustive. United States v. Aimone, 715 F.2d 822 (3d Cir. 1983). The definition of the term "enterprise" is of a necessity, a shifting one given the fluid nature of criminal associations. United States v. Swiderski, 593 F.2d 1246 (D.C. Cir. 1978).

A RICO enterprise is a group of persons associated together for a common purpose in a course of conduct. United States v. Turkette, 452 U.S. 576 (1981). A RICO enterprise must exhibit three basic characteristics: (1) a common or shared purpose; (2) some continuity of structure and personnel; and (3) an ascertainable structure distinct from that in a pattern of racketeering. United States v. Kehoe, 310 F.3d 579, 586 (8^th Cir. 2002); United States v. Nabors, 45 F.3d 238 (8th Cir. 1995); see also United States v. Perholtz, 842 F.2d 343 (D.C. Cir. 1988); United States v. Mazzei, 700 F.2d 85 (2d Cir. 1983).

The enterprise element is satisfied upon a showing that the entity has a legal existence. See, e.g., United States v. Kirk, 844 F.2d 660 (9th Cir. 1988); United States v. Cauble, 706 F.2d 1322 (5th Cir. 1984). Proof of an association in fact enterprise requires proof that a group of persons associated together for a common purpose of engaging in a course of conduct. United States v. Turkette, 452 U.S. 576 (1981). While the enterprise in existence of a racketeering activity are distinct elements of a RICO charge, the proof needed to establish either can consist of the same evidence. United States v. Turkette, 452 U.S. 576 (1981). However, more than proof of a pattern of racketeering activity is necessary to establish the existence of an enterprise. An enterprise must have an existence entirely separate and independent of the racketeering activity. See Bennett v. Berg, 685 F.2d 1053 (8th Cir.), modified, 710 F.2d 1361 (en banc 1983). The government must demonstrate that the alleged enterprise functions as a continuing unit has an ascertainable structure distinct from that inherent in the conduct of a pattern of racketeering activity and has associates who have a common or shared purpose. Id.; United States v. Bledsoe, 674 F.2d 647 (8th Cir. 1982).

Several circuits have refused to distinguish between legal and non-legal entity categories. See, e.g., United States v. Perholtz, 842 F.2d 343 (D.C. Cir. 1988); McCullough v. Suter, 757 F.2d 142 (7th Cir. 1985); United States v. Navarro-Ordas, 770 F.2d 959 (11th Cir. 1985); United States v. Aimone, 715 F.2d 822 (3d Cir. 1983); see also United States v. Turkette, 452 U.S. 576 (1981) (rejects claim that RICO only reaches entities performing illegal acts).

Actions brought under section 1962(a) or (b) do not require a separate RICO defendant and enterprise. See Bennett v. Berg, 685 F.2d 1053, modified, 710 F.2d 1361 (en banc 1983). However, section 1962(c) requires the person liable to be separate from the enterprise which has its affairs conducted through a pattern of racketeering. Atlas Pile Driving Co. v. DiCon Fin. Co., 886 F.2d 986 (8th Cir. 1989).

(For 2008 version see below).

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

2008 Version

6.18.1962D
ENTERPRISE - DEFINITION

An enterprise includes any individual, partnership, corporation, association, or other legal entity, in any union or group of individuals associated in fact, although not a legal entity.¹

The term "enterprise," as used in these instructions, may include a group of people associated in fact, even though this association is not recognized as a legal entity.² A group or association of people can be an enterprise if these individuals have joined together for the purpose of engaging in a common course of conduct. This group of people, in addition to having a common purpose, must have personnel who function as a continuing unit. This group of people does not have to be a legally recognized entity, such as a partnership or corporation.³ Such an association of individuals may retain its status as an enterprise even though the membership of the association changes by adding or losing individuals during the course of its existence.

If you find that this was, in fact, a legal entity such as a partnership, corporation, or association, then you may find that an enterprise existed.⁴

The government must also prove that the association had a structure distinct from that necessary to conduct the pattern of racketeering activity.⁵

Notes on Use

1. The first paragraph of the instruction includes the entire definition of enterprise provided by Congress and found at 18 USC 1961(4).

Committee Comments

(For 2006 version see below)

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

2006 Version

An enterprise includes any individual, partnership, corporation, association, or other legal entity, in any union or group of individuals associated in fact, although not a legal entity.¹

The term "enterprise," as used in these instructions, may include a group of people associated in fact, even though this association is not recognized as a legal entity.² A group or association of people can be an enterprise if these individuals have joined together for the purpose of engaging in a common course of conduct. This group of people, in addition to having a common purpose, must have personnel who function as a continuing unit. This group of people does not have to be a legally recognized entity, such as a partnership or corporation.³ Such an association of individuals may retain its status as an enterprise even though the membership of the association changes by adding or losing individuals during the course of its existence.

If you find that this was, in fact, a legal entity such as a partnership, corporation, or association, then you may find that an enterprise existed.⁴

The government must also prove that the association had a structure distinct from that necessary to conduct the pattern of racketeering activity.⁵

Notes on Use

1. The first paragraph of the instruction includes the entire definition of enterprise provided by Congress and found at 18 USC 1961(4).

Committee Comments

For 2000 version see below

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

2000 Version

An enterprise includes any individual, partnership, corporation, association, or other legal entity, in any union or group of individuals associated in fact, although not a legal entity.1

The term "enterprise," as used in these instructions, may include a group of people associated in fact, even though this association is not recognized as a legal entity.2 A group or association of people can be an enterprise if these individuals have joined together for the purpose of engaging in a common course of conduct. This group of people, in addition to having a common purpose, must have personnel who function as a continuing unit. This group of people does not have to be a legally recognized entity, such as a partnership or corporation.3 Such an association of individuals may retain its status as an enterprise even though the membership of the association changes by adding or losing individuals during the course of its existence.

If you find that this was, in fact, a legal entity such as a partnership, corporation, or association, then you may find that an enterprise existed.4

The government must also prove that the association had a structure distinct from that necessary to conduct the pattern of racketeering activity.5

Committee Comments

See Fifth Circuit Pattern Jury Instructions: Criminal § 2.78 (1997); Ninth Cir. Crim. Jury Instr. 8.34.3; 8.34.4 (1997); Modern Federal Jury Instructions; Criminal 52.22; 2 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Criminal § 48.04 (4th ed. 1990); Federal Criminal Jury Instructions § 60.02.

Courts have given a broad reading to the term "enterprise." Congress has mandated a liberal construction of the RICO statute in order to effectuate its remedial purpose. Therefore, courts have held that the various enterprise categories listed in the RICO statute are illustrative but not exhaustive. United States v. Aimone, 715 F.2d 822 (3d Cir. 1983), cert. denied, 468 U.S. 1217 (1984). The definition of the term "enterprise" is of a necessity, a shifting one given the fluid nature of criminal associations. United States v. Swiderski, 593 F.2d 1246 (D.C. Cir. 1978), cert. denied, 441 U.S. 933 (1979).

A RICO enterprise is a group of persons associated together for a common purpose in a course of conduct. United States v. Turkette, 452 U.S. 576 (1981). A RICO enterprise must exhibit three basic characteristics: (1) a common or shared purpose; (2) some continuity of structure and personnel; and (3) an ascertainable structure distinct from that in a pattern of racketeering. United States v. Nabors, 45 F.3d 238 (8th Cir. 1995); see also United States v. Perholtz, 842 F.2d 343 (D.C. Cir.), cert. denied, 488 U.S. 821 (1988); United States v. Mazaei, 700 F.2d 85 (2d Cir.), cert. denied, 461 U.S. 945 (1983).

The enterprise element is satisfied upon a showing that the entity has a legal existence. See, e.g., United States v. Kirk, 844 F.2d 660 (9th Cir.), cert. denied, 488 U.S. 890 (1988); United States v. Kauble, 706 F.2d 1322 (5th Cir.), cert. denied, 465 U.S. 1005 (1984). Proof of an association in fact enterprise requires proof that a group of persons associated together for a common purpose of engaging in a course of conduct. United States v. Turkette, 452 U.S. 576 (1981). While the enterprise in existence of a racketeering activity are distinct elements of a RICO charge, the proof needed to establish either can consist of the same evidence. United States v. Turkette, 452 U.S. 576 (1981). However, more than proof of a pattern of racketeering activity is necessary to establish the existence of an enterprise. An enterprise must have an existence entirely separate and independent of the racketeering activity. See Bennett v. Berg, 685 F.2d 1053 (8th Cir.), modified, 710 F.2d 1361 (en banc), cert. denied, 464 U.S. 1008 (1983). The government must demonstrate that the alleged enterprise functions as a continuing unit has an ascertainable structure distinct from that inherent in the conduct of a pattern of racketeering activity and has associates who have a common or shared purpose. Id.; United States v. Bledsoe, 674 F.2d 647 (8th Cir.), cert. denied, 459 U.S. 1040 (1982).

Several circuits have refused to distinguish between legal and non-legal entity categories. See, e.g., United States v. Perholtz, 842 F.2d 343 (D.C. Cir.), cert. denied, 488 U.S. 821 (1988); McCullough v. Suter, 757 F.2d 142 (7th Cir. 1985); United States v. Navarro-Ordas, 770 F.2d 959 (11th Cir. 1985); United States v. Aimone, 715 F.2d 822 (3d Cir. 1983), cert. denied, 455 U.S. 1016 (1986); see also, United States v. Turkette, 452 U.S. 576 (1981) (rejects claim that RICO only reaches entities performing illegal acts).

Actions brought under section 1962(a) or (b) do not require a separate RICO defendant and enterprise. See Bennett v. Berg, 685 F.2d 1053, modified, 710 F.2d 1361 (en banc), cert. denied, 464 U.S. 1008 (1983). However, section 1962(c) requires the person liable to be separate from the enterprise which has its affairs conducted through a pattern of racketeering. Atlas Pile Driving Co. v. DiCon Fin. Co., 886 F.2d 986 (8th Cir. 1989).

Notes on Use

1. The first paragraph of the instruction includes the entire definition of enterprise provided by Congress and found at 18 USC 1961(4).

3. Associations, in fact, may include legal entities. See 18 USC 1961(4); United States v. Darden, 70 F.3d 1507, 1541 (8th Cir. 1995). See also Seventh Circuit Federal Jury Instructions: Criminal at 315-23 (1999). Thus, the group may be organized for a legitimate and lawful purpose or may be organized for an unlawful purpose.

4. Courts have provided broad interpretation as to the term "legal entity" in the enterprise requirement. Courts have held that various enterprise categories listed in the RICO statute are illustrative but not exhaustive. See United States v. Aimone, 715 F.2d 822 (3d Cir. 1983), cert. denied, 468 U.S. 1217 (1984). The enterprise concept can encompass a combination of entities. See, e.g., United States v. Stolfi, 889 F.2d 378 (2d Cir. 1989); United States v. Feldman, 853 F.2d 648 (9th Cir. 1988), cert. denied, 489 U.S. 1030 (1989).

5. The Fourth and Eighth Circuits have held that the government must prove that the association or enterprise exists separate and apart from the pattern of racketeering in which it engages. See United States v. Leisure, 844 F.2d 1347 (8th Cir.), cert. denied, 488 U.S. 932 (1988); United States v. Lemm, 680 F.2d 1193 (8th Cir. 1982), cert. denied, 459 U.S. 1110 (1983).

8TH CIRCUIT MODEL INSTRUCTIONS 2009

6.18.1962E
"CONDUCT/PARTICIPATION" DEFINED

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: RICO (18 USC 1962)

A person conducts or participates in the conduct of the affairs of an enterprise if that person uses [his][her] position in, or association with¹ the enterprise, to [participate in the operation or management of the enterprise itself]² [to perform acts which are involved in some way in the operation or management of the enterprise]³ directly or indirectly, or if the person causes another to do so. [A person participates in the operation of the affairs of the enterprise if [he][she] has some part in directing those affairs.]⁴ [An enterprise may be "operated" not just by upper management but also by lower rung participants in the enterprise who are under the direction of upper management.]⁵

In order to have conducted or participated in the conduct of the affairs of an enterprise, a person need not have participated in all the activity alleged in [Count(s) ____] of the indictment.

Notes on Use

1. There must be a distinction between those who merely participate in the enterprise and those who are liable for the operation or management of the enterprise. See United States v. Darden, 70 F.3d at 1543. Liability under the statute, however, is not limited to those who are employed by the enterprise, but may also extend to those outside the enterprise, who are associated with the enterprise and who exert control over it. Reves v. Ernst & Young, 507 U.S. at 184. The committee recognizes that evidence presented at a specific trial may raise issues regarding upper and lower rung management. .

2. Liability is limited and excludes complete outsiders who do not participate in the conduct of the enterprise’s affairs, but rather their own affairs. Reves v. Ernst & Young, 507 U.S. at 185.

3. The Supreme Court in Reves v. Ernst & Young, 507 U.S. at 185, specifically defines "to conduct or participate, directly or indirectly, in the conduct of such enterprise’s affairs", as "one must participate in the operation or management of the enterprise itself." The Seventh Circuit Federal Jury Instructions: Criminal at 315-18 (1999) Conduct-Definition, defines conduct or participate, directly or indirectly, in the conduct of such enterprise’s affairs as "to perform acts which are involved in some way in the operation or management of the enterprise". The Committee takes no position as to whether the Supreme Court language is mandatory, or whether the Seventh Circuit language is sufficiently analogous.

4. The Supreme Court in Reves v. Ernst & Young, 507 U.S. at 177-79, goes into detail explaining ascertaining the meaning of the terms "conduct" and "participation." It found by finding that in order to participate, directly or indirectly, in the conduct of such enterprise’s affairs, "one must have some part in directing those affairs." The Committee believes that this definition may be helpful in certain specific cases, to assist the jury, and in such cases recommends the inclusion of the definition.

5. The committee recognizes that evidence presented at a specific trial may raise issues regarding upper and lower rung management. In such cases, the committee recommends that the bracketed language be used. The Supreme Court, while discussing the operation and management test, did not decide the extent the "ladder of operation" could apply. Reves v. Ernst & Young, 507 U.S. at 185 n.9.

Committee Comments

See Seventh Circuit Federal Jury Instructions: Criminal at 321 (1999); Eleventh Circuit Pattern Jury Instructions: Criminal § 61.1 (1997); 2B Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 56.08 (5th ed. 2000); Reves v. Ernst & Young, 507 U.S. 170 (1993); United States v. Darden, 70 F.3d 1507 (8th Cir. 1996).

An enterprise may be "operated" or "managed" by others "associated with" the enterprise who exert control of the enterprise. Reves v. Ernst & Young, 507 U.S. 170, 184-85 (1993). A person may also be liable under § 1962(c) even though he had no control of the enterprise but participated or operated in the conduct of the enterprise. United States v. Darden, 70 F.3d 1507, 1518 (8th Cir. 1995). The government need only prove that the defendant had some part in the direction, not control of the enterprise affairs. Id. (citing Reves v. Ernst & Young, 507 U.S. at 184-85). The Eighth Circuit has held that section 1962(c) does not penalize all who are employed by or associated with a RICO enterprise, but rather only those, who by virtue of their association or employment play a part in directing the enterprise’s affairs. Handeen v. Lemaire, 112 F.3d 1339, 1347 (8th Cir. 1997).

However, as noted by the Supreme Court in Reves, liability under section 1962 may not be limited to upper management, but may also be extended to lower rung participants who are under the direction of upper management. Reves v. Ernst & Young, 507 U.S. at 184.

(For 2008 version see below).

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

2008 Version

6.18.1962E
CONDUCT/PARTICIPATION -DEFINITION

A person conducts or participates in the conduct of the affairs of an enterprise if that person uses [his][her] position in, or association with¹ the enterprise, to [participate in the operation or management of the enterprise itself]² [to perform acts which are involved in some way in the operation or management of the enterprise]³ directly or indirectly, or if the person causes another to do so. [A person participates in the operation of the affairs of the enterprise if [he][she] has some part in directing those affairs.]⁴ [An enterprise may be "operated" not just by upper management but also by lower rung participants in the enterprise who are under the direction of upper management.]⁵

In order to have conducted or participated in the conduct of the affairs of an enterprise, a person need not have participated in all the activity alleged in [Count(s) ____] of the indictment.

Notes on Use

2. Liability is limited and excludes complete outsiders who do not participate in the conduct of the enterprise’s affairs, but rather their own affairs. Reves v. Ernst & Young, 507 U.S. at 185.

Committee Comments

(For 2006 version see below)

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

2006 Version

A person conducts or participates in the conduct of the affairs of an enterprise if that person uses [his][her] position in, or association with¹ the enterprise, to [participate in the operation or management of the enterprise itself]² [to perform acts which are involved in some way in the operation or management of the enterprise]³ directly or indirectly, or if the person causes another to do so. [A person participates in the operation of the affairs of the enterprise if [he][she] has some part in directing those affairs.]⁴ [An enterprise may be "operated" not just by upper management but also by lower rung participants in the enterprise who are under the direction of upper management.]⁵

In order to have conducted or participated in the conduct of the affairs of an enterprise, a person need not have participated in all the activity alleged in [Count(s) ____] of the indictment.

Notes on Use

2. Liability is limited and excludes complete outsiders who do not participate in the conduct of the enterprise’s affairs, but rather their own affairs. Reves v. Ernst & Young, 507 U.S. at 185.

Committee Comments

For 2000 version see below

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

2000 Version

A person conducts or participates in the conduct of the affairs of an enterprise if that person uses [his][her] position in, or association with1 the enterprise, to [participate in the operation or management of the enterprise itself] 2 [to perform acts which are involved in some way in the operation or management of the enterprise]3 directly or indirectly, or if the person causes another to do so. [A person participates in the operation of the affairs of the enterprise if [he][she] has some part in directing those affairs.]4 [An enterprise may be "operated" not just by upper management but also by lower rung participants in the enterprise who are under the direction of upper management.]5

In order to have conducted or participated in the conduct of the affairs of an enterprise, a person need not have participated in all the activity alleged in [Count(s) ____] of the indictment.

Committee Comments

See Seventh Circuit Federal Jury Instructions: Criminal at 321 (1999); Eleventh Circuit Pattern Jury Instructions: Criminal § 61.1 (1997); 2 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Criminal § 48.04 (4th ed. 1990); Reves & Ernst & Young, 507 U.S. 170 (1993); United States v. Darden, 70 F.3d 1507 (8th Cir.), cert. denied, 517 U.S. 1149 (1996).

An enterprise may be "operated" or "managed" by others "associated with" the enterprise who exert control of the enterprise. Reves v. Ernst & Young, 507 U.S. 170, 184-85 (1993). A person may also be liable under § 1962(c) even though he had no control of the enterprise but participated or operated in the conduct of the enterprise. United States v. Darden, 70 F.3d 1507, 1518 (8th Cir. 1995). The government need only prove that the defendant had some part in the direction, not control of the enterprise affairs. Id. (citing Reves v. Ernst & Young, 507 U.S. at 184-85). The Eighth Circuit has held that section 1962(c) does not penalize all who are employed by or associated with a RICO enterprise, but rather only those, who by virtue of their association or employment play a part in directing the enterprise’s affairs. Handeen v. Lemaire, 112 F.3d 1339, 1347 (8th Cir. 1997).

Notes on Use

2. Liability is limited and excludes complete outsiders who do not participate in the conduct of the enterprise’s affairs, but rather their own affairs. Reves v. Ernst & Young, 507 U.S. at 185.

8TH CIRCUIT MODEL INSTRUCTIONS 2009

6.18.1962F
RICO - PATTERN OF RACKETEERING

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: RICO (18 USC 1962)

In order to establish a pattern of racketeering activity, the government must prove beyond a reasonable doubt that: (1) at least two acts of racketeering, (list acts as detailed in the indictment or which are defined under 18 USC 1961(1) for which there is sufficient evidence)¹ were committed within ten years of each other;² (2) the racketeering acts [had the same or similar purpose, results, participants, victims, or methods of commission,] or [are interrelated by distinguishing characteristics and are not isolated events];³and (3) the racketeering acts themselves amount to or otherwise constitute a threat of continued activity.⁴Continued activity is sufficiently established when [predicate acts can be attributed to a defendant operating as part of a long-term association that exists for criminal purposes] [racketeering acts were a regular way of conducting the defendant’s ongoing legitimate business].⁵

Notes on Use

1. See 18 USC 1961(1) which enumerates acts which may constitute racketeering activity.

2. 18 USC 1961(5); see Thornton v. Bank of Joplin, 4 F.3d 650, 652 (8th Cir. 1993) (statute defines pattern of racketeering activity as at least two acts of racketeering, one of which occurred after RICO was enacted, and the last of which occurred within ten years after the commission of a prior act of racketeering activity.)

3. See Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479 (1985).

4. Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479 (1985); Feinstein v. Resolution Trust Corp., 942 F.2d 34 (1st Cir. 1991) (describes threat approach).

5. See H.J., Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229 (1989); United States v. Fairchild, 122 F.3d 605, 611-12 (8th Cir. 1997). Continuity is both a closed and open ended concept, referring either to a closed period of repeated conduct, or to past conduct that by its nature projects into the future with a threat of repetition. Whether predicates proved or establish a threat of continued racketeering activity depends on the specific facts of each case. Use of bracketed language, is dependent on whether the government proves a closed or open threat.

Committee Comments

See Fifth Circuit Pattern Jury Instructions: Criminal § 2.78 (1997); Ninth Cir. Crim. Jury Instr. 8.34.7 (1997); Modern Federal Jury Instructions, Criminal, 52.7; 2B Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 56.07 (5th ed. 2000); H.J., Inc. v. Northwestern Bell Telephone Co., 492 U.S. 229 (1989); Sedima, S.P.R.L. v. Imrex Co., Inc., 473 U.S. 479 (1985).

RICO requires the commission of two predicate acts constituting a pattern. In construing the pattern requirement, the Supreme Court has held that in order to prove a pattern of racketeering activity, the prosecutor must show both relationship and continuity as separate elements. H.J., Inc. v. Northwestern Bell Telephone Co., 492 U.S. 229 (1989). These elements may, however, overlap. Id. The Court has held that criminal conduct forms a pattern if it embraces criminal acts that have the same or similar purposes, results, participants, victims, or methods of commission, or otherwise are interrelated by distinguishing characteristics and are not isolated events. Id.

Continuity is proven if the government can show actual continuity during a past, close period of repeated conduct or the threat of continuity of racketeering activity in the future. Id. See also United HealthCare Corp. v. American Trade Ins. Co., Ltd., 88 F.3d 563, 571-72 (8th Cir. 1996). A pattern consists of continuity plus relationship. See Sedima S.P.R.L. v. Imrex Co., 473 U.S. 479 (1985); Diamonds Plus, Inc. v. Kolber, 960 F.2d 765 (8th Cir. 1992); Atlas Pile Driving Co. v. DiCon Financial Co., 886 F.2d 986 (8th Cir. 1989) (listing pattern factors, including length of time, number of episodes and victims, and complexity of scheme). See also Primary Care Investors, Seven, Inc. v. PHP Healthcare Corp., 986 F.2d 1208 (8th Cir. 1993) (continuity over a closed period is not met when predicate act extends less than one year); Uni*Quality, Inc. v. Infotronx, Inc., 974 F.2d 918 (7th Cir. 1992) (seven to eight months insufficient). Continuity over a closed period is generally proven by a showing of a series of related predicate acts extending over a period of time. Continuity generally is not met when the predicate acts extend less than a year. See Primary Care Investors, Seven, Inc. v. PHP Healthcare Corp., 986 F.2d at 1215; Aldridge v. Lily-Tulip, Inc. Salary Requirement Plan Benefits Committee, 953 F.2d 587, 593 (11th Cir. 1992) (six months to a year insufficient).

(For 2008 version see below).

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

2008 Version

In order to establish a pattern of racketeering activity, the government must prove beyond a reasonable doubt that: (1) at least two acts of racketeering, [list acts as detailed in the indictment or which are defined under 18 USC 1961(1) for which there is sufficient evidence]¹ were committed within ten years of each other;² (2) the racketeering acts [had the same or similar purpose, results, participants, victims, or methods of commission,] or [are interrelated by distinguishing characteristics and are not isolated events];³and (3) the racketeering acts themselves amount to or otherwise constitute a threat of continued activity.⁴Continued activity is sufficiently established when [predicate acts can be attributed to a defendant operating as part of a long-term association that exists for criminal purposes] [racketeering acts were a regular way of conducting the defendant’s ongoing legitimate business].⁵

Notes on Use

1. See 18 USC 1961(1) which enumerates acts which may constitute racketeering activity.

2. 18 USC 1961(5); see, Thornton v. Bank of Joplin, 4 F.3d 650, 652 (8th Cir. 1993) (statute defines pattern of racketeering activity as at least two acts of racketeering, one of which occurred after RICO was enacted, and the last of which occurred within ten years after the commission of a prior act of racketeering activity.)

3. See Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479 (1985).

4. Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479 (1985); Feinstein v. Resolution Trust Corp., 942 F.2d 34 (1st Cir. 1991) (describes threat approach).

Committee Comments

Continuity is proven if the government can show actual continuity during a past, close period of repeated conduct or the threat of continuity of racketeering activity in the future. Id. See also, United HealthCare Corp. v. American Trade Ins. Co., Ltd., 88 F.3d 563, 571-72 (8th Cir. 1996). A pattern consists of continuity plus relationship. See Sedima S.P.R.L. v. Imrex Co., 473 U.S. 479 (1985); Diamonds Plus, Inc. v. Kolber, 960 F.2d 765 (8th Cir. 1992); Atlas Pile Driving Co. v. DiCon Financial Co., 886 F.2d 986 (8th Cir. 1989) (listing pattern factors, including length of time, number of episodes and victims, and complexity of scheme). See also Primary Care Investors, Seven, Inc. v. PHP Healthcare Corp., 986 F.2d 1208 (8th Cir. 1993) (continuity over a closed period is not met when predicate act extends less than one year); Uni*Quality, Inc. v. Infotronx, Inc., 974 F.2d 918 (7th Cir. 1992) (seven to eight months insufficient). Continuity over a closed period is generally proven by a showing of a series of related predicate acts extending over a period of time. Continuity generally is not met when the predicate acts extend less than a year. See Primary Care Investors, Seven, Inc. v. PHP Healthcare Corp., 986 F.2d at 1215; Aldridge v. Lily-Tulip, Inc. Salary Requirement Plan Benefits Committee, 953 F.2d 587, 593 (11th Cir. 1992) (six months to a year insufficient).

(For 2006 version see below)

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

2006 Version

In order to establish a pattern of racketeering activity, the government must prove beyond a reasonable doubt that: (1) at least two acts of racketeering, [list acts as detailed in the indictment or which are defined under 18 USC 1961(1) for which there is sufficient evidence]¹ were committed within ten years of each other;² (2) the racketeering acts [had the same or similar purpose, results, participants, victims, or methods of commission,] or [are interrelated by distinguishing characteristics and are not isolated events];³and (3) the racketeering acts themselves amount to or otherwise constitute a threat of continued activity.⁴Continued activity is sufficiently established when [predicate acts can be attributed to a defendant operating as part of a long-term association that exists for criminal purposes] [racketeering acts were a regular way of conducting the defendant’s ongoing legitimate business].⁵

Notes on Use

1. See 18 USC 1961(1) which enumerates acts which may constitute racketeering activity.

3. See Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479 (1985).

4. Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479 (1985); Feinstein v. Resolution Trust Corp., 942 F.2d 34 (1st Cir. 1991) (describes threat approach).

Committee Comments

Continuity is proven if the government can show actual continuity during a past, close period of repeated conduct or the threat of continuity of racketeering activity in the future. Id. See also, United HealthCare Corp. v. American Trade Ins. Co., Ltd., 88 F.3d 563, 571-72 (8th Cir. 1996). A pattern consists of continuity plus relationship. See Sedima S.P.R.L. v. Imrex Co., 473 U.S. 479 (1985); Diamonds Plus, Inc. v. Kolber, 960 F.2d 765 (8th Cir. 1992); Atlas Pile Driving Co. v. DiCon Financial Co., 886 F.2d 986 (8th Cir. 1989) (listing pattern factors, including length of time, number of episodes and victims, and complexity of scheme). See also Primary Care Investors, Seven, Inc. v. PHP Healthcare Corp., 986 F.2d 1208 (8th Cir. 1993) (continuity over a closed period is not met when predicate act extends less than one year); Uni*Quality, Inc. v. Infotronx, Inc., 974 F.2d 918 (7th Cir. 1992) (seven to eight months insufficient). Continuity over a closed period is generally proven by a showing of a series of related predicate acts extending over a period of time. Continuity generally is not met when the predicate acts extend less than a year. See Primary Care Investors, Seven, Inc. v. PHP Healthcare Corp., 986 F.2d at 1215; Aldridge v. Lily-Tulip, Inc. Salary Requirement Plan Benefits Committee, 953 F.2d 587, 593 (11th Cir. 1992) (six months to a year insufficient).

For 2000 version see below

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

2000 Version

In order to establish a pattern of racketeering activity, the government must prove beyond a reasonable doubt that: (1) at least two acts of racketeering, [list acts as detailed in the indictment or which are defined under 18 USC 1961(1) for which there is sufficient evidence]1 were committed within ten years of each other;2 (2) the racketeering acts [had the same or similar purpose, results, participants, victims, or methods of commission,] or [are interrelated by distinguishing characteristics and are not isolated events];3 and (3) the racketeering acts themselves amount to or otherwise constitute a threat of continued activity.4 Continued activity is sufficiently established when [predicate acts can be attributed to a defendant operating as part of a long-term association that exists for criminal purposes] [racketeering acts were a regular way of conducting defendant’s ongoing legitimate business].5

Committee Comments

See Fifth Circuit Pattern Jury Instructions: Criminal § 2.78 (1997); Ninth Cir. Crim. Jury Instr. 8.34.7 (1997); Modern Federal Jury Instructions, Criminal, 52.7; 2 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Criminal § 48.07 (4th ed. 1990); H.J., Inc. v. Northwestern Bell Telephone Co., 492 U.S. 229 (1989); Sedima, S.P.R.L. v. Imrex Co., Inc., 473 U.S. 479 (1985).

Continuity is proven if the government can show actual continuity during a past, close period of repeated conduct or the threat of continuity of racketeering activity in the future. Id. See also, United Healthcare v. American Trade Ins. Co., LTD, 88 F.3d 563, 571-72 (8th Cir. 1996). A pattern consists of continuity plus relationship. See Sedima S.P.R.L. v. Imrex Co., 473 U.S. 479 (1985); Diamonds Plus, Inc. v. Kolber, 960 F.2d 765 (8th Cir. 1992); Atlas Pile Driving Co. v. DiCon Fin. Co., 886 F.2d 986 (8th Cir. 1989) (listing pattern factors, including length of time, number of episodes and victims, and complexity of scheme). See also Primary Care Inv. Seven v. PHP Healthcare, 986 F.2d 1208 (8th Cir. 1993) (continuity over a closed period is not met when predicate act extends less than one year); UniQuality, Inc. v. Infotronx, Inc., 974 F.2d 918 (7th Cir. 1992) (seven to eight months insufficient). Continuity over a closed period is generally proven by a showing of a series of related predicate acts extending over a period of time. Continuity generally is not met when the predicate acts extend less than a year. See Primary Care, Inv., Seven v. PHP Healthcare, 986 F.2d 1208, 1215 (8th Cir. 1993); Aldridge v. Lily-Tulip, Inc. Salary Requirement Plan Benefits Committee, 953 F.2d 587, 593 (11th Cir.), reh’g denied, 961 F.2d 224 (11th Cir. 1992) (six months to a year insufficient), cert. denied, 516 U.S. 1009 (1995).

Notes on Use

1. See 18 USC 1961(1) which enumerates acts which may constitute racketeering activity.

2. 18 USC 1961(5); see, Thorton v. Bank of Joplin, 4 F.3d 650, 652 (8th Cir. 1993) (statute defines pattern of racketeering activity as at least two acts of racketeering, one of which occurred after RICO was enacted, and the last of which occurred within ten years after the commission of a prior act of racketeering activity.)

3. See Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479 (1985).

4. Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479 U.S. 479 (1985); Feinstein v. Resolution Trust Corp., 942 F.2d 34 (1st Cir. 1991) (describes threat approach).

5. See H.J., Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229 (1989); United States v. Fairchild, 122 F.3d 605, 611-12 (8th Cir. 1997). Continuity is both a closed and open ended concept, referring either to a closed period of repeated conduct, or to past conduct that by its nature projects into the future with a threat of repetition. Whether predicates proved or establish a threat of continued racketeering activity depends on the specific facts of each case. Use of bracketed language, is dependent on whether the government proves a closed or open threat.

8TH CIRCUIT MODEL INSTRUCTIONS 2009

6.18.1962G
SAMPLE VERDICT FORM - RICO
(18 USC 1962(c))

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Racketeer Influenced Corrupt Organizations Act (18 USC 1962(c))

We, the jury, find Defendant (name) ______________________ (guilty/not guilty) of the crime of participating in racketeering enterprise [as charged in Count __ of the indictment] [under instruction No. ___ ]

If you find the defendant guilty of [Count ___] [under Instruction No. ___] beyond a reasonable doubt check the predicate acts you unanimously found to have been proven with respect to Defendant (name) _________________________.

Racketeering Act Number 1 (Narcotics conspiracy 1989-1991) __________

Racketeering Act Number 2 (Murder of Jane Doe) __________

Racketeering Act Number 3 (Attempted Possession of Ephedrine) __________

Racketeering Act Number 4 (Narcotics Conspiracy 1996-1998) __________

__________________________________
Foreperson

________________
Date

Notes on Use

1. See Instructions 3.09 and 3.12, supra. If the elements instructions does not refer to a count in the indictment, the verdict form should refer to the elements instruction.

Committee Comments

The jury must be unanimous that the predicate acts have been committed and the defendant committed at least two of the predicate acts. It is recommended that the instructions require the jury to be unanimous as to which acts have specifically been committed by the defendant. United States v. Flynn, 87 F.3d 996 (8th Cir. 1996); United States v. Kragness, 830 F.2d 1374 (8th Cir. 1988); see also United States v. Ham, 58 F.3d 78 (4th Cir. 1995).

Double jeopardy may not attach and retrial may not be barred should a jury fail to check a predicate act. See United States v. Petty, 62 F.3d 265, 266-67 (8th Cir. 1995); United States v. Ham, 58 F.3d 78, 85 (4th Cir. 1995). A jury’s failure to decide an issue will be treated as an implied acquittal only where the jury’s verdict necessarily resolves an issue in the defendant’s favor. See Schiro v. Farley, 510 U.S. 222, 235 (1994).

(For 2008 version see below).

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

2008 Version

We, the jury, find Defendant (name) ______________________ guilty/not guilty of the crime of participating in racketeering enterprise [as charged in Count __ of the indictment] [under instruction No. ___ ]

If you find the defendant guilty of [Count ___] [under Instruction No. ___] beyond a reasonable doubt check the predicate acts you unanimously found to have been proven with respect to Defendant (name) _________________________.

Racketeering Act Number 1 (Narcotics conspiracy 1989-1991) __________

Racketeering Act Number 2 (Murder of Jane Doe) __________

Racketeering Act Number 3 (Attempted Possession of Ephedrine) __________

Racketeering Act Number 4 (Narcotics Conspiracy 1996-1998) __________

__________________________________
Foreperson

________________
Date

Notes on Use

1. See Instructions 3.09 and 3.12, supra. If the elements instructions does not refer to a count in the indictment, the verdict form should refer to the elements instruction.

Committee Comments

(For 2006 version see below)

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

2006 Version

We, the jury, find Defendant (name) ______________________(guilty/not guilty) of the crime of participating in racketeering enterprise [as charged in Count __ of the indictment] [under instruction No. ___ ]

If you find the defendant guilty of [Count ___] [under Instruction No. ___] beyond a reasonable doubt check the predicate acts you unanimously found to have been proven with respect to Defendant (name) _________________________.

Racketeering Act Number 1 (Narcotics conspiracy 1989-1991) __________

Racketeering Act Number 2 (Murder of Jane Doe) __________

Racketeering Act Number 3 (Attempted Possession of Ephedrine) __________

Racketeering Act Number 4 (Narcotics Conspiracy 1996-1998) __________

__________________________________
Foreperson

________________
Date

Notes on Use

1. See Instructions 3.09 and 3.12, supra. If the elements instructions does not refer to a count in the indictment, the verdict form should refer to the elements instruction.

Committee Comments

For 2000 version see below

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

2000 Version

We, the jury, find the Defendant (name) ______________________ guilty/not guilty of the crime of participating in racketeering enterprise [as charged in Count __ of the indictment] [under instruction No. ___ ]

If you find the Defendant guilty of [Count ___] [under Instruction No. ___] beyond a reasonable doubt check the predicate acts you unanimously found to have been proven with respect to Defendant (name) _________________________.

Racketeering Act Number 1 (Narcotics conspiracy 1989-1991) __________

Racketeering Act Number 2 (Murder of Jane Doe) __________

Racketeering Act Number 3 (Attempted Possession of Ephedrine) __________

Racketeering Act Number 4 (Narcotics Conspiracy 1996-1998) __________

__________________________________ Foreperson ________________ Date

Committee Comments

The jury must be unanimous that the predicate acts have been committed and the defendant committed at least two of the predicate acts. It is recommended that the instructions require the jury to be unanimous as to which acts have specifically been committed by the Defendant. United States v. Flynn, 87 F.3d 996 (8th Cir. 1996); United States v. Kragness, 830 F.2d 1374 (8th Cir. 1988); see also United States v. Ham, 58 F.3d 78 (4th Cir.), cert. denied, 516 U.S. 986.

Notes on Use

1. See Instructions 3.09 and 3.12, supra. If the elements instructions does not refer to a count in the indictment, the verdict form should refer to the elements instruction.

8TH CIRCUIT MODEL INSTRUCTIONS 2009

6.18.2113A BANK ROBBERY
(18 USC 2113(a)) (First Paragraph)

FORECITE National™ Materials Related To This Instruction:

Federal Models By Offense: Robbery And Burglary (Title 18 - Sections 2111-2119)

The crime of bank robbery, as charged in [Count of] the indictment, has three elements, which are:

One, the defendant [took] [attempted to take] (describe property, money, etc.) from the [person] [presence] of [another] [(name of person)]¹, while that (describe property, money, etc.) was in the care or custody of (name of bank, etc.²).

Two, such [taking] [attempted taking] was by [force and violence] [intimidation]³; and

Three, the deposits of (name of bank, etc.) were then insured by (name insuring agency, e.g., the FDIC).⁴

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

Notes on Use

1. In certain fact situations the money may be taken from the presence of literally everyone in the bank, for example when the defendant has everyone including the bank employees lie face on the floor in middle of the bank while he enters all the tellers' drawers. In such a fact situation, the alternative "taken from the presence of another" should be used rather than inserting the names of the persons.

2. The statute also applies to robbery of any credit union or savings and loan association. Appropriate terms should be used. The terms "bank," "savings and loan association" and "credit union" are defined in sections 2113(f), (g) and (h).

3. "Intimidation" may be defined in a proper case. A concise definition of "intimidation" is as follows:

Intimidation means doing something that would make an ordinary person fear bodily harm.

Ninth Cir. Crim. Jury Instr. 8.35.1 (1997). See also Fifth Circuit Pattern Jury Instructions: Criminal § 2.79 (1997); Seventh Circuit Federal Jury Instructions: Criminal at 325 (1999); 2B Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 57.10 (5th ed. 2000). The meaning of "intimidation" is thoroughly treated in United States v. Brown, 412 F.2d 381 (8th Cir. 1969).

4. Most institutions are covered by virtue of the insurance of their deposits by some federal agency. If the institution is one which is covered by the statute for some other reason, Element Three should be modified accordingly.

Absent a stipulation between the government and the defendant, this instruction must include the element that the affected financial institution was of the nature covered by the statute. See United States v. Glidden, 688 F.2d 58 (8th Cir. 1982); United States v. Brown, 616 F.2d 844 (5th Cir. 1980).

Committee Comments

See Seventh Circuit Federal Jury Instructions: Criminal at 325 (1999).

(For 2008 version see below).

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

2008 Version

The crime of bank robbery, as charged in [Count of] the indictment, has three elements, which are:

One, the defendant [took] [attempted to take] (describe property, money, etc.) from the [person] [presence] of [another] [(name of person)]¹, while that (describe property, money, etc.) was in the care or custody of (name of bank, etc.²).

Two, such [taking] [attempted taking] was by [force and violence] [intimidation]³; and

Three, the deposits of (name of bank, etc.) were then insured by (name insuring agency, e.g., the FDIC).⁴

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

Notes on Use

3. "Intimidation" may be defined in a proper case. A concise definition of "intimidation" is as follows:

Intimidation means doing something that would make an ordinary person fear bodily harm.

Committee Comments

See Seventh Circuit Federal Jury Instructions: Criminal at 325 (1999).

(For 2006 version see below)

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

2006 Version

The crime of bank robbery, as charged in [Count of] the indictment, has three elements, which are:

One, the defendant [took] [attempted to take] (describe property, money, etc.) from the [person] [presence] of [another] [(name of person)]¹, while that (describe property, money, etc.) was in the care or custody of (name of bank, etc.²).

Two, such [taking] [attempted taking] was by [force and violence] [intimidation]³; and

Three, the deposits of (name of bank, etc.) were then insured by (name insuring agency, e.g., the FDIC).⁴

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

Notes on Use

3. "Intimidation" may be defined in a proper case. A concise definition of "intimidation" is as follows:

Intimidation means doing something that would make an ordinary person fear bodily harm.

Committee Comments

See Seventh Circuit Federal Jury Instructions: Criminal at 325 (1999).

For 2000 version see below

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

2000 Version

The crime of bank robbery, as charged in [Count of] the indictment, has three essential elements, which are:

One, the defendant [took] [attempted to take] (describe property, money, etc.) from the [person] [presence] of [another] [(name of person)]1, while that (describe property, money, etc.) was in the care or custody of (name of bank, etc.2).

Two, such [taking] [attempted taking] was by [force and violence] [intimidation]3; and

Three, the deposits of (name of bank, etc.) were then insured by (name insuring agency, e.g., the FDIC).4

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

Committee Comments

See Seventh Circuit Federal Jury Instructions: Criminal at 325 (1999).

Notes on Use

3. "Intimidation" may be defined in a proper case. A concise definition of "intimidation" is as follows:

Intimidation means doing something that would make an ordinary person fear bodily harm.

Ninth Cir. Crim. Jury Instr. 8.35.1 (1997). See also Fifth Circuit Pattern Jury Instructions: Criminal § 2.79 (1997); Seventh Circuit Federal Jury Instructions: Criminal at 325 (1999); 2 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Criminal § 49.10 (4th ed. 1990). The meaning of "intimidation" is thoroughly treated in United States v. Brown, 412 F.2d 381 (8th Cir. 1969).

Absent a stipulation between the government and the defendant, this instruction must include the element that the affected financial institution was of the nature covered by the statute. See United States v. Glidden, 688 F.2d 58 (8th Cir. 1982); United States v. Brown, 616 F.2d 844 (5th Cir. 1980).

8TH CIRCUIT MODEL INSTRUCTIONS 2009

6.18.2113B BANK ROBBERY
(18 USC 2113(d))

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Armed Or Aggravated Bank Robbery (18 USC 2113(a) & (d))

See FORECITE National™ Federal Models By Offense: Bank Robbery (Subsections (a) And (d) Alleged In Separate Counts) (18 USC 2113(a) and (d))

The crime of bank robbery, as charged in [Count of] the indictment, has four elements, which are:

One, the defendant [took] [attempted to take] (describe property, money, etc.) from the [person] [presence] of [another] [(name of person)],¹ while that (describe property, money, etc.) was in the care or custody of (name of bank, etc.²),

Two, such [taking] [attempted taking] was by [force and violence] [intimidation];

Three, the defendant [assaulted (name of victim)] [put the life of (name of victim) in jeopardy]³ by use of a dangerous [weapon] [device]⁴ while [taking] [attempting to take] (describe property, money, etc.); and

Four, the deposits of (name of bank, etc.) were then insured by (name insuring agency, e.g., the FDIC).⁵

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

Notes on Use

3. In the ordinary case where the life of the victim was actually put in jeopardy by the use of a dangerous weapon such as a loaded gun, definitions of "assault" and "put life in jeopardy" such as those that appear in Fifth Circuit Pattern Jury Instructions: Criminal § 2.79 (1997), Eleventh Circuit Pattern Jury Instructions: Criminal (Offense) § 62.2 (1997) and 2B Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal §§ 57.07-.08 (5th ed. 2000) would be appropriate.

Where the weapon was not recovered and there is no evidence whether it was operable or not, the jury may infer that the weapon was loaded and that the victim's life was placed in jeopardy. Morrow v. United States, 408 F.2d 1390, 1391 (8th Cir. 1969). See also United States v. Terry, 760 F.2d 939, 942 (9th Cir. 1985); United States v. Wardy, 777 F.2d 101, 105-06 (2d Cir. 1985).

Where the weapon is proved to be inoperable, it can still be dangerous. McLaughlin v. United States, 476 U.S. 16 (1986); United States v. York, 830 F.2d 885, 891 (8th Cir. 1987). These and subsequent opinions should be consulted in drafting definitions of "assault" and "put life in jeopardy" in this situation. The Committee has not formulated definitions to cover this situation.

4. An unloaded gun is a dangerous weapon or device within the meaning of the statute. McLaughlin v. United States, 476 U.S. at 6. The Court held:

Three reasons, each independently sufficient, support the conclusion that an unloaded gun is a "dangerous weapon." First, a gun is an article that is typically and characteristically dangerous; the use for which it is manufactured and sold is a dangerous one, and the law reasonably may presume that such an article is always dangerous even though it may not be armed at a particular time or place. In addition, the display of a gun instills fear in the average citizen; as a consequence, it creates an immediate danger that a violent response will ensue. Finally, a gun can cause harm when used as a bludgeon.

The Court noted that Congress regarded incitement of fear as sufficient to characterize an apparently dangerous article (such as a wooden gun) as "dangerous" within the meaning of the statute.

The Eighth Circuit has followed McLaughlin to hold that an inoperable gun is a "dangerous weapon." United States v. York, 830 F.2d at 891. Prior to McLaughlin, the Eighth Circuit used an "objective" standard to determine what constituted a dangerous or deadly weapon. See Morrow v. United States, 408 F.2d at 1391.

The phrase "by use of a dangerous weapon or device" modifies both the "assault" provision and the "putting in jeopardy" provision of section 2113(d). Simpson v. United States, 435 U.S. 6, 11 (1978).

5. Most institutions are covered by virtue of the insurance of their deposits by a federal agency. If the institution is one which is covered by the statute for some other reason, Element Four of the instruction should be modified accordingly.

Committee Comments

See Seventh Circuit Federal Jury Instructions: Criminal at 325 (1999).

(For 2008 version see below).

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

2008 Version

The crime of bank robbery, as charged in [Count of] the indictment, has four elements, which are:

One, the defendant [took] [attempted to take] (describe property, money, etc.) from the [person] [presence] of [another] [(name of person)],¹ while that (describe property, money, etc.) was in the care or custody of (name of bank, etc.²),

Two, such [taking] [attempted taking] was by [force and violence] [intimidation];

Three, the defendant [assaulted (name of victim)] [put the life of (name of victim) in jeopardy]³ by use of a dangerous [weapon] [device]⁴ while [taking] [attempting to take] (describe property, money, etc.); and

Four, the deposits of (name of bank, etc.) were then insured by (name insuring agency, e.g., the FDIC).⁵

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

Notes on Use

4. An unloaded gun is a dangerous weapon or device within the meaning of the statute. McLaughlin v. United States, 476 U.S. at 6. The Court held:

Three reasons, each independently sufficient, support the conclusion that an unloaded gun is a "dangerous weapon." First, a gun is an article that is typically and characteristically dangerous; the use for which it is manufactured and sold is a dangerous one, and the law reasonably may presume that such an article is always dangerous even though it may not be armed at a particular time or place. In addition, the display of a gun instills fear in the average citizen; as a consequence, it creates an immediate danger that a violent response will ensue. Finally, a gun can cause harm when used as a bludgeon.

The Court noted that Congress regarded incitement of fear as sufficient to characterize an apparently dangerous article (such as a wooden gun) as "dangerous" within the meaning of the statute.

Committee Comments

See Seventh Circuit Federal Jury Instructions: Criminal at 325 (1999).

(For 2006 version see below)

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

2006 Version

The crime of bank robbery, as charged in [Count of] the indictment, has four elements, which are:

One, the defendant [took] [attempted to take] (describe property, money, etc.) from the [person] [presence] of [another] [(name of person)],¹ while that (describe property, money, etc.) was in the care or custody of (name of bank, etc.²),

Two, such [taking] [attempted taking] was by [force and violence] [intimidation];

Three, the defendant [assaulted (name of victim)] [put the life of (name of victim) in jeopardy]³ by use of a dangerous [weapon] [device]⁴ while [taking] [attempting to take] (describe property, money, etc.); and

Four, the deposits of (name of bank, etc.) were then insured by (name insuring agency, e.g., the FDIC).⁵

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

Notes on Use

4. An unloaded gun is a dangerous weapon or device within the meaning of the statute. McLaughlin v. United States, 476 U.S. at 6. The Court held:

Three reasons, each independently sufficient, support the conclusion that an unloaded gun is a "dangerous weapon." First, a gun is an article that is typically and characteristically dangerous; the use for which it is manufactured and sold is a dangerous one, and the law reasonably may presume that such an article is always dangerous even though it may not be armed at a particular time or place. In addition, the display of a gun instills fear in the average citizen; as a consequence, it creates an immediate danger that a violent response will ensue. Finally, a gun can cause harm when used as a bludgeon.

The Court noted that Congress regarded incitement of fear as sufficient to characterize an apparently dangerous article (such as a wooden gun) as "dangerous" within the meaning of the statute.

Committee Comments

See Seventh Circuit Federal Jury Instructions: Criminal at 325 (1999).

For 2000 version see below

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

2000 Version

The crime of bank robbery, as charged in [Count of] the indictment, has four essential elements, which are:

One, the defendant [took] [attempted to take] (describe property, money, etc.) from the [person] [presence] of [another] [(name of person)],1 while that (describe property, money, etc.) was in the care or custody of (name of bank, etc.2),

Two, such [taking] [attempted taking] was by [force and violence] [intimidation];

Three, the defendant [assaulted (name of victim)] [put the life of (name of victim) in jeopardy]3 by use of a dangerous [weapon] [device]4 while [taking] [attempting to take] (describe property, money, etc.); and

Four, the deposits of (name of bank, etc.) were then insured by (name insuring agency, e.g., the FDIC).5

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

Committee Comments

See Seventh Circuit Federal Jury Instructions: Criminal at 325 (1999).

Notes on Use

3. In the ordinary case where the life of the victim was actually put in jeopardy by the use of a dangerous weapon such as a loaded gun, definitions of "assault" and "put life in jeopardy" such as those that appear in Fifth Circuit Pattern Jury Instructions: Criminal § 2.79 (1997), Eleventh Circuit Pattern Jury Instructions: Criminal (Offense) § 62.2 (1997) and 2 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Criminal §§ 49.07 and 49.08 (4th ed. 1990) would be appropriate.

Where the weapon was not recovered and there is no evidence whether it was operable or not, the jury may infer that the weapon was loaded and that the victim's life was placed in jeopardy. Morrow v. United States, 408 F.2d 1390, 1391 (8th Cir. 1969). See also United States v. Terry, 760 F.2d 939, 942 (9th Cir. 1985); United States v. Wardy, 777 F.2d 101, 105-06 (2d Cir. 1985), cert. denied, 475 U.S. 1053 (1986).

Where the weapon is proved to be inoperable, it can still be dangerous. McLaughlin v. United States, 476 U.S. 16 (1986); United States v. York, 830 F.2d 885, 891 (8th Cir. 1987), cert. denied, 484 U.S. 1074 (1988). These and subsequent opinions should be consulted in drafting definitions of "assault" and "put life in jeopardy" in this situation. The Committee has not formulated definitions to cover this situation.

4. An unloaded gun is a dangerous weapon or device within the meaning of the statute. McLaughlin v. United States, 476 U.S. at 6. The Court held:

Three reasons, each independently sufficient, support the conclusion that an unloaded gun is a "dangerous weapon." First, a gun is an article that is typically and characteristically dangerous; the use for which it is manufactured and sold is a dangerous one, and the law reasonably may presume that such an article is always dangerous even though it may not be armed at a particular time or place. In addition, the display of a gun instills fear in the average citizen; as a consequence, it creates an immediate danger that a violent response will ensue. Finally, a gun can cause harm when used as a bludgeon.

The Court noted that Congress regarded incitement of fear as sufficient to characterize an apparently dangerous article (such as a wooden gun) as "dangerous" within the meaning of the statute.

Absent a stipulation between the government and the defendant, this instruction must include the element that the affected financial institution was of the nature covered by the statute. See United States v. Glidden, 688 F.2d 58 (8th Cir. 1982); United States v. Brown, 616 F.2d 844 (5th Cir. 1980).

8TH CIRCUIT MODEL INSTRUCTIONS 2009

6.18.2119A¹ CARJACKING (No Serious Bodily Injury or Death)
(18 USC 2119(1))

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Carjacking (No Serious Bodily Injury Or Death) (18 USC 2119(1))

The crime of carjacking has four elements, which are:

One, the defendant, [took] [attempted to take] a (describe the motor vehicle, e.g., 1998 Ford Explorer, VIN #000000000000) from the [person] [presence of another];

Two, the defendant did so by means of [force and violence] [intimidation];

Three, the (describe motor vehicle) had been [transported] [shipped] [received] in [interstate] [foreign] commerce;

Four, at or during the time the defendant [took] [attempted to take] (describe the motor vehicle) (he) (she) intended to cause death or serious bodily injury². [

"Serious bodily injury" means an injury that involves [a substantial risk of death] [extreme physical pain] [long term and obvious disfigurement] [the long-term loss or impairment of a function of a bodily member or organ] [the long term loss or impairment of a mental function].

Notes on Use

1. If "serious bodily injury" resulted from the commission of the offense, Instruction 6.18.2119B should be used. If death resulted from the commission of the offense, Instruction 6.18.2119C should be used. The United States Supreme Court has held that the enhancements set out in the statute which increase penalties for "serious bodily injury" and "death" are, "distinct elements, each of which must be charged by indictment, proven beyond a reasonable doubt, and submitted to a jury for its verdict." Jones v. United States, 526 U.S. 227 (1999).

2. The statute uses the term "harm" in some places and "injury" in others, apparently interchangeably. A conditional intent to kill or cause serious bodily injury is sufficient to establish the intent requirement under the statute. "The intent requirement of section 2119 is satisfied when the Government proves that at the moment the defendant demanded or took control over the driver’s automobile the defendant possessed the intent to seriously harm or kill the driver if necessary to steal the car . . ." Holloway v. United States, 526 U.S. 1 (1999).

Committee Comments

The intent of Congress regarding the intended scope and purpose of the original 1992 version of the carjacking statute can be found in section 101(b) of Pub. L. 102-519. The statute has been subsequently amended by the Violent Crime Control and Law Enforcement Act of 1994, § 60003(a)(14), 108 Stat. 1970, and the Carjacking Correction Act of 1996, § 2, 110 Stat. 3020.

Guidance in interpretation of section 2119 may be obtained by reference to similar statutes since section 2119 tracks the language used in other federal robbery statutes (18 USC § 2111, 2113 and 2118). H.R. Rep. No. 851, 102d Cong. 2d Sess., pt. 1, at 17 (1992), U.S. Code Cong. & Admin. News 1992, p. 2834.

The term "motor vehicle" means a completely assembled automotive vehicle of some sort. United States v. Johnson, 56 F.3d 947, 957 (8^th Cir. 1995).

"Intimidation" has been defined under the bank robbery statute (18 USC 2113) as conduct reasonably calculated to put another in fear; under this test, subjective courageousness or timidity of the victim is irrelevant; the acts of the defendant must constitute an intimidation to an ordinary, reasonable person. United States v. Smith, 973 F.2d 603, 604 (8th Cir. 1992) (citing United States v. Higdon, 832 F.2d 312, 315 (5th Cir. 1987)).

The carjacking statute is a constitutional exercise of Congress' power under the Commerce Clause. United States v. Robinson, 62 F.3d 234 (8^th Cir. 1995). The "carjacking statute regulates an item of interstate commerce . . . [t]herefore fits squarely within the second category of activities regulable by Congress under the commerce clause." Also, the express findings by Congress of a direct link between carjacking and negative effects on interstate commerce provide additional support that the statute is constitutional. Robinson, 62 F.3d at 236-37. See also United States v. Harris, 25 F.3d 1275 (5^th Cir. 1994); United States v. Johnson, 32 F.3d 82 (4^th Cir. 1995); United States v. Martinez, 49 F.3d 1398, 1400-01 (9^th Cir. 1995); United States v. Overstreet, 40 F.3d 1090 (10^th Cir. 1994); United States v. Williams, 51 F.3d 1004, 1008-09 (11^th Cir. 1995).

(For 2008 version see below).

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

2008 Version

The crime of carjacking has four elements, which are:

One, the defendant, [took] [attempted to take] a (describe the motor vehicle, e.g., 1998 Ford Explorer, VIN #000000000000) from the [person] [presence of another];

Two, the defendant did so by means of [force and violence] [intimidation];

Three, the (describe motor vehicle) had been [transported] [shipped] [received] in [interstate] [foreign] commerce;

Four, at or during the time the defendant [took] [attempted to take] (describe the motor vehicle) (he) (she) intended to cause death or serious bodily injury². [

"Serious bodily injury" means an injury that involves [a substantial risk of death] [extreme physical pain] [long term and obvious disfigurement] [the long-term loss or impairment of a function of a bodily member or organ] [the long term loss or impairment of a mental function].

Notes on Use

Committee Comments

Guidance in interpretation of section 2119 may be obtained by reference to similar statutes since section 2119 tracks the language used in other federal robbery statutes (18 USC 2111, 2113 and 2118). H.R. Rep. No. 851, 102d Cong. 2d Sess., pt. 1, at 17 (1992), U.S. Code Cong. & Admin. News 1992, p. 2834.

The term "motor vehicle" means a completely assembled automotive vehicle of some sort. United States v. Johnson, 56 F. 3d 947, 957 (8^th Cir. 1995).

The carjacking statute is a constitutional exercise of Congress' power under the Commerce Clause. United States v. Robinson, 62 F. 3d 234 (8^th Cir. 1995). The "carjacking statute regulates an item of interstate commerce . . . [t]herefore fits squarely within the second category of activities regulable by Congress under the commerce clause." Also, the express findings by Congress of a direct link between carjacking and negative effects on interstate commerce provide additional support that the statute is constitutional. Robinson, 62 F.3d at 236-37. See also United States v. Harris, 25 F.3d 1275 (5^th Cir. 1994); United States v. Johnson, 32 F.3d 82 (4^th Cir. 1995); United States v. Martinez, 49 F. 3d 1398, 1400-01 (9^th Cir. 1995); United States v. Overstreet, 40 F.3d 1090 (10^th Cir. 1994); United States v. Williams, 51 F.3d 1004, 1008-09 (11^th Cir. 1995).

(For 2006 version see below)

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

2006 Version

The crime of carjacking has four elements, which are:

One, the defendant, [took] [attempted to take] a (describe the motor vehicle, e.g., 1998 Ford Explorer, VIN #000000000000) from the [person] [presence of another];

Two, the defendant did so by means of [force and violence] [intimidation];

Three, the (describe motor vehicle) had been [transported] [shipped] [received] in [interstate] [foreign] commerce;

Four, at or during the time the defendant [took] [attempted to take] (describe the motor vehicle) (he) (she) intended to cause death or serious bodily injury². [

"Serious bodily injury" means an injury that involves [a substantial risk of death] [extreme physical pain] [long term and obvious disfigurement] [the long-term loss or impairment of a function of a bodily member or organ] [the long term loss or impairment of a mental function].

Notes on Use

Committee Comments

Guidance in interpretation of section 2119 may be obtained by reference to similar statutes since section 2119 tracks the language used in other federal robbery statutes (18 USC 2111, 2113 and 2118). H.R. Rep. No. 851, 102d Cong. 2d Sess., pt. 1, at 17 (1992), U.S. Code Cong. & Admin. News 1992, p. 2834.

The term "motor vehicle" means a completely assembled automotive vehicle of some sort. United States v. Johnson, 56 F. 3d 947, 957 (8^th Cir. 1995).

The carjacking statute is a constitutional exercise of Congress' power under the Commerce Clause. United States v. Robinson, 62 F. 3d 234 (8^th Cir. 1995). The "carjacking statute regulates an item of interstate commerce . . . [t]herefore fits squarely within the second category of activities regulable by Congress under the commerce clause." Also, the express findings by Congress of a direct link between carjacking and negative effects on interstate commerce provide additional support that the statute is constitutional. Robinson, 62 F.3d at 236-37. See also United States v. Harris, 25 F.3d 1275 (5^th Cir. 1994); United States v. Johnson, 32 F.3d 82 (4^th Cir. 1995); United States v. Martinez, 49 F. 3d 1398, 1400-01 (9^th Cir. 1995); United States v. Overstreet, 40 F.3d 1090 (10^th Cir. 1994); United States v. Williams, 51 F.3d 1004, 1008-09 (11^th Cir. 1995).

For 2000 version see below

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

2000 Version

The crime of carjacking has four essential elements, which are:

One, the defendant, [took] [attempted to take] a (describe the motor vehicle, e.g., 1998 Ford Explorer, VIN #000000000000) from the [person] [presence of another];

Two, the defendant did so by means of [force and violence] [intimidation];

Three, the (describe motor vehicle) had been [transported] [shipped] [received] in [interstate] [foreign] commerce;

Four, at or during the time the defendant [took] [attempted to take] (describe the motor vehicle) (he) (she) intended to cause death or serious bodily injury2. [The intent to kill or cause serious bodily injury if necessary to steal the vehicle is sufficient.]3

"Serious bodily injury" means an injury that involves [a substantial risk of death] [extreme physical pain] [ long term and obvious disfigurement] [the long-term loss or impairment of a function of a bodily member or organ] [the long term loss or impairment of a mental function].

Committee Comments

Guidance in interpretation of section 2119 may be obtained by reference to similar statutes since section 2119 tracks the language used in other federal robbery statutes (18 USC§ 2111, 2113 and 2118). H.R. Rep. No. 851, 102d Cong. 2d Sess., pt. 1, at 17 (1992), U.S. Code Cong. & Admin. News 1992, p. 2834.

The term "motor vehicle" means a completely assembled automotive vehicle of some sort. United States v. Johnson, 56 F. 3d 947, 957 (8th Cir. 1995).

The carjacking statute is a constitutional exercise of Congress' power under the Commerce Clause. United States v. Robinson, 62 F. 3d 234 (8th Cir. 1995). The "carjacking statute regulates an item of interstate commerce . . . [t]herefore fits squarely within the second category of activities regulable by Congress under the commerce clause." Also, the express findings by Congress of a direct link between carjacking and negative effects on interstate commerce provide additional support that the statute is constitutional. Robinson, 62 F.3d at 236-37. See also United States v. Harris, 25 F.3d 1275 (5th Cir. 1994); United States v. Johnson, 32 F.3d 82 (4th Cir.), cert. denied, 513 U.S. 1050 (1995); United States v. Martinez, 49 F. 3d 1398, 1400-01 (9th Cir. 1995); United States v. Overstreet, 40 F.3d 1090 (10th Cir. 1994), cert. denied, 514 U.S. 1113 (1995); United States v. Williams, 51 F.3d 1004, 1008- 09 (11th Cir. 1995).

Notes on Use

2. The statute uses the term "harm" in some places and "injury" in others, apparently interchangeably.

3. A conditional intent to kill or cause serious bodily injury is sufficient to establish the intent requirement under the statute. "The intent requirement of § 2119 is satisfied when the Government proves that at the moment the defendant demanded or took control over the driver’s automobile the defendant possessed the intent to seriously harm or kill the driver if necessary to steal the car (or, alternatively, if unnecessary to steal the car)." Holloway v. United States, 526 U.S. 1, 119 S. Ct. 966 (1999).

8TH CIRCUIT MODEL INSTRUCTIONS 2009

6.18.2119B¹ CARJACKING (Serious Bodily Injury)
(18 USC2119(2))

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Carjacking (Serious Bodily Injury) (18 USC 2119(2))

The crime of carjacking has five elements which are:

One, the defendant, [took] [attempted to take] a (describe the motor vehicle, e.g., 1998 Ford Explorer, VIN #000000000000) from a [person];

Two, the defendant did so by means of [force and violence] [intimidation];

Three, the (describe motor vehicle) had been [transported] [shipped] [or] [received] in [interstate] [foreign] commerce;

Four, at the time the defendant [took] [attempted to take] the motor vehicle (he) (she) intended to cause death or serious bodily injury².

Five, the defendant [caused serious bodily injury to] [committed an act of [sexual abuse] [aggravated sexual abuse] upon] a person while [taking] [attempting to take] the (describe the motor vehicle).

"Serious bodily injury" means an injury that involves [a substantial risk of death] [extreme physical pain] [long-term and obvious disfigurement] [the long-term loss or impairment of a function of a bodily member or organ] [the long-term loss or impairment of a mental function].³

["Sexual abuse" means to cause another person to engage in a sexual act by threat or fear.]

["Aggravated sexual abuse" means to cause another person to engage in a sexual act by [force] [a threat of death or serious bodily injury] [a threat of kidnaping].]

Notes on Use

1. This Instruction should only be used where the indictment alleges "serious bodily injury" or the defendant committed an act of sexual abuse during the carjacking for purposes of the enhanced sentence in accordance with 18 USC 2119(2). The crime of carjacking subject to the enhanced penalties under section 2119(2) may be committed by either causing serious bodily injury as defined in 18 USC 1365 or by an act of sexual abuse during the course of the carjacking as defined in 18 USC § 2241 and 2242. There may be instances in which the indictment alleges that both an act of sexual abuse and serious bodily injury occurred, in which case both definitions should be given.

2. The statute uses the term "harm" in some places and "injury" in others, apparently interchangeably. A conditional intent to kill or cause serious bodily injury is sufficient to establish the intent requirement under the statute. "The intent requirement of section 2119 is satisfied when the Government proves that at the moment the defendant demanded or took control over the driver’s automobile the defendant possessed the intent to seriously harm or kill the driver if necessary to steal the car. . . ." Holloway v. United States, 526 U.S. 1 (1999).

3. The court should, if requested by a party, give 6.18.2119A as a lesser-included offense instruction. If a lesser-included offense instruction is given, the format in Instruction 3.10 should be used.

Committee Comments

See, generally, comments for 6.18.2119A.

"Serious bodily injury" is defined in 18 USC 1365. Serious bodily injury may include protracted impairment of mental faculties resulting from rape committed in the course of a carjacking even though evidence of extreme physical pain was lacking. United States v. Vasquez-Rivera, 135 F.3d 172 (1^st Cir. 1998). See also United States v. Lowe, 145 F.3d 45 (1^st Cir. 1998).

Sexual abuse is defined in 18 USC 2242. Aggravated sexual abuse is defined in 18 USC 2241.

(For 2008 version see below).

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

2008 Version

The crime of carjacking has five elements which are:

One, the defendant, [took] [attempted to take] a (describe the motor vehicle, e.g., 1998 Ford Explorer, VIN #000000000000) from a [person];

Two, the defendant did so by means of [force and violence] [intimidation];

Three, the (describe motor vehicle) had been [transported] [shipped] [or] [received] in [interstate] [foreign] commerce;

Four, at the time the defendant [took] [attempted to take] the motor vehicle (he) (she) intended to cause death or serious bodily injury².

Five, the defendant [caused serious bodily injury to] [committed an act of (sexual abuse) (aggravated sexual abuse) upon] a person while [taking] [attempting to take] the (describe the motor vehicle).

"Serious bodily injury" means an injury that involves [a substantial risk of death] [extreme physical pain] [ long term and obvious disfigurement] [the long-term loss or impairment of a function of a bodily member or organ] [the long term loss or impairment of a mental function].³

["Sexual abuse" means to cause another person to engage in a sexual act by threat or fear.]

["Aggravated sexual abuse" means to cause another person to engage in a sexual act by [force] [a threat of death or serious bodily injury] [a threat of kidnaping].]

Notes on Use

1. This Instruction should only be used where the indictment alleges "serious bodily injury" or the defendant committed an act of sexual abuse during the carjacking for purposes of the enhanced sentence in accordance with 18 USC 2119(2). The crime of carjacking subject to the enhanced penalties under section 2119(2) may be committed by either causing serious bodily injury as defined in 18 USC 1365 or by an act of sexual abuse during the course of the carjacking as defined in 18 USC§ 2241 and 2242. There may be instances in which the indictment alleges that both an act of sexual abuse and serious bodily injury occurred, in which case both definitions should be given.

2. The statute uses the term "harm" in some places and "injury" in others, apparently interchangeably. A conditional intent to kill or cause serious bodily injury is sufficient to establish the intent requirement under the statute. "The intent requirement of section 2119 is satisfied when the Government proves that at the moment the defendant demanded or took control over the driver’s automobile the defendant possessed the intent to seriously harm or kill the driver if necessary to steal the car. . . ." Holloway v. United States, 526 U.S. 1 (1999).

3. The court should, if requested by a party, give 6.18.2119A as a lesser included offense instruction. If a lesser include offense instruction is given, the format in Instruction 3.10 should be used.

Committee Comments

See, generally, comments for 6.18.2119A.

Sexual abuse is defined in 18 USC 2242. Aggravated sexual abuse is defined in 18 USC 2241.

(For 2006 version see below)

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

2006 Version

The crime of carjacking has five elements which are:

One, the defendant, [took] [attempted to take] a (describe the motor vehicle, e.g., 1998 Ford Explorer, VIN #000000000000) from a [person];

Two, the defendant did so by means of [force and violence] [intimidation];

Three, the (describe motor vehicle) had been [transported] [shipped] [or] [received] in [interstate] [foreign] commerce;

Four, at the time the defendant [took] [attempted to take] the motor vehicle (he) (she) intended to cause death or serious bodily injury².

Five, the defendant [caused serious bodily injury to] [committed an act of (sexual abuse) (aggravated sexual abuse) upon] a person while [taking] [attempting to take] the (describe the motor vehicle).

"Serious bodily injury" means an injury that involves [a substantial risk of death] [extreme physical pain] [ long term and obvious disfigurement] [the long-term loss or impairment of a function of a bodily member or organ] [the long term loss or impairment of a mental function].³

["Sexual abuse" means to cause another person to engage in a sexual act by threat or fear.]

["Aggravated sexual abuse" means to cause another person to engage in a sexual act by [force] [a threat of death or serious bodily injury] [a threat of kidnaping].]

Notes on Use

1. This Instruction should only be used where the indictment alleges "serious bodily injury" or the defendant committed an act of sexual abuse during the carjacking for purposes of the enhanced sentence in accordance with 18 USC 2119(2). The crime of carjacking subject to the enhanced penalties under section 2119(2) may be committed by either causing serious bodily injury as defined in 18 USC 1365 or by an act of sexual abuse during the course of the carjacking as defined in 18 USC§ 2241 and 2242. There may be instances in which the indictment alleges that both an act of sexual abuse and serious bodily injury occurred, in which case both definitions should be given.

2. The statute uses the term "harm" in some places and "injury" in others, apparently interchangeably. A conditional intent to kill or cause serious bodily injury is sufficient to establish the intent requirement under the statute. "The intent requirement of section 2119 is satisfied when the Government proves that at the moment the defendant demanded or took control over the driver’s automobile the defendant possessed the intent to seriously harm or kill the driver if necessary to steal the car. . . ." Holloway v. United States, 526 U.S. 1 (1999).

Committee Comments

See, generally, comments for 6.18.2119A.

Sexual abuse is defined in 18 USC 2242. Aggravated sexual abuse is defined in 18 USC 2241.

For 2000 version see below

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

2000 Version

The crime of carjacking has five essential elements which are:

One, the defendant, [took] [attempted to take] a (describe the motor vehicle, e.g., 1998 Ford Explorer, VIN #000000000000) from a [person];

Two, the defendant did so by means of [force and violence] [intimidation];

Three, the (describe motor vehicle) had been [transported] [shipped] [or] [received] in [interstate] [foreign] commerce;

Four, at the time the defendant [took] [attempted to take] the motor vehicle (he) (she) intended to cause death or serious bodily injury2. [The intent to kill or cause serious bodily injury if necessary to steal the vehicle is sufficient.]3

Five, the defendant [caused serious bodily injury to] [committed an act of (sexual abuse) (aggravated sexual abuse) upon] a person while [taking] [attempting to take] the (describe the motor vehicle).4

"Serious bodily injury" means an injury that involves [a substantial risk of death] [extreme physical pain] [ long term and obvious disfigurement] [the long-term loss or impairment of a function of a bodily member or organ] [the long term loss or impairment of a mental function].

["Sexual abuse" means to cause another person to engage in a sexual act by threat or fear.]

["Aggravated sexual abuse" means to cause another person to engage in a sexual act by [force] [a threat of death or serious bodily injury] [a threat of kidnaping].]

Committee Comments

See, generally, comments for 6.18.2119A.

"Serious bodily injury" is defined in 18 USC 1365. Serious bodily injury may include protracted impairment of mental faculties resulting from rape committed in the course of a carjacking even though evidence of extreme physical pain was lacking. United States v. Vasquez-Rivera, 135 F.3d 172 (1st Cir. 1998). See also United States v. Lowe, 145 F.3d 45 (1st Cir. 1998).

Sexual abuse is defined in 18 USC 2242. Aggravated sexual abuse is defined in 18 USC 2241.

Notes on Use

1. This Instruction should only be used where the indictment alleges "serious bodily injury" or the defendant committed an act of sexual abuse during the carjacking for purposes of the enhanced sentence in accordance with 18 USC 2119(2). The crime of carjacking subject to the enhanced penalties under section 2119(2) may be committed by either causing serious bodily injury as defined in 18 USC 1365 or by an act of sexual abuse during the course of the carjacking as defined in 18 USC§ 2241 and 2242. There may be instances in which the indictment alleges that both an act of sexual abuse and serious bodily injury occurred, in which case both definitions should be given.

2. The statute uses the term "harm" in some places and "injury" in others, apparently interchangeably.

4. The court should, if requested by a party, give 6.18.2119A as a lesser included offense instruction. If a lesser include offense instruction is given, the format in Instruction No. 3.10 should be used.

8TH CIRCUIT MODEL INSTRUCTIONS 2009

6.18.2119C¹ CARJACKING (Death Resulting)
(18 USC 2119(3))

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Carjacking (Death Resulting) (18 USC 2119(3))

The crime of carjacking has five elements, which are:

One, the defendant(s), [took] [attempted to take] a (describe the motor vehicle, e. g., 1998 Ford Explorer, VIN #000000000000) from a [person];

Two, the defendant did so by means of [force and violence] [intimidation];

Three, the (describe motor vehicle) had been [transported] [shipped] [or] [received] in [interstate] [foreign] commerce;

Four, at the time the defendant [took] [attempted to take] the motor vehicle (he) (she) (they) intended to cause death or serious bodily injury^{2, 3}.

Five, the death of a person resulted from [taking] [attempting to take] the (describe the motor vehicle).⁴

"Serious bodily injury" means an injury that involves [a substantial risk of death] [extreme physical pain] [ long term and obvious disfigurement] [the long-term loss or impairment of a function of a bodily member or organ] [the long term loss or impairment of a mental function].

Notes on Use

1. This Instruction should only be used where the indictment alleges that the defendant caused the death of a person for purposes of the enhanced sentence in accordance with 18 USC 2119(c).

2. The statute uses the term "harm" in some places and "injury" in others, apparently interchangeably.

3. A conditional intent to kill or cause serious bodily injury is sufficient to establish the intent requirement under the statute. "The intent requirement of section 2119 is satisfied when the Government proves that at the moment the defendant demanded or took control over the driver’s automobile the defendant possessed the intent to seriously harm or kill the driver if necessary to steal the car . . ." Holloway v. United States, 526 U.S. 1 (1999).

4. The court should, if requested by a party, give Instructions 6.18.2119A, 6.18.2119B, supra, or both, as lesser-included offense instructions. If lesser-included offense instructions are given, the format in Instruction 3.10, supra, should be used.

Committee Comments

See comments for Instruction 6.18.2119A, supra.

(For 2008 version see below).

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

2008 Version

The crime of carjacking has five elements, which are:

One, the defendant(s), [took] [attempted to take] a (describe the motor vehicle, e. g., 1998 Ford Explorer, VIN #000000000000) from a [person];

Two, the defendant did so by means of [force and violence] [intimidation];

Three, the (describe motor vehicle) had been [transported] [shipped] [or] [received] in [interstate] [foreign] commerce;

Four, at the time the defendant [took] [attempted to take] the motor vehicle (he) (she) (they) intended to cause death or serious bodily injury^{2, 3}.

Five, the death of a person resulted from [taking] [attempting to take] the (describe the motor vehicle).⁴

"Serious bodily injury" means an injury that involves [a substantial risk of death] [extreme physical pain] [ long term and obvious disfigurement] [the long-term loss or impairment of a function of a bodily member or organ] [the long term loss or impairment of a mental function].

Notes on Use

1. This Instruction should only be used where the indictment alleges that the defendant caused the death of a person for purposes of the enhanced sentence in accordance with 18 USC 2119(c).

2. The statute uses the term "harm" in some places and "injury" in others, apparently interchangeably.

4. The court should, if requested by a party, give Instructions 6.18.2119A, 6.18.2119B, supra, or both, as lesser included offense instructions. If lesser included offense instructions are given, the format in Instruction 3.10, supra, should be used.

Committee Comments

See comments for Instruction 6.18.2119A, supra.

(For 2006 version see below)

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

2006 Version

The crime of carjacking has five elements, which are:

One, the defendant(s), [took] [attempted to take] a (describe the motor vehicle, e. g., 1998 Ford Explorer, VIN #000000000000) from a [person];

Two, the defendant did so by means of [force and violence] [intimidation];

Three, the (describe motor vehicle) had been [transported] [shipped] [or] [received] in [interstate] [foreign] commerce;

Four, at the time the defendant [took] [attempted to take] the motor vehicle (he) (she) (they) intended to cause death or serious bodily injury^{2, 3}.

Five, the death of a person resulted from [taking] [attempting to take] the (describe the motor vehicle).⁴

"Serious bodily injury" means an injury that involves [a substantial risk of death] [extreme physical pain] [ long term and obvious disfigurement] [the long-term loss or impairment of a function of a bodily member or organ] [the long term loss or impairment of a mental function].

Notes on Use

1. This Instruction should only be used where the indictment alleges that the defendant caused the death of a person for purposes of the enhanced sentence in accordance with 18 USC 2119(c).

2. The statute uses the term "harm" in some places and "injury" in others, apparently interchangeably.

Committee Comments

See comments for Instruction 6.18.2119A., supra.

For 2000 version see below

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

2000 Version

The crime of carjacking has five essential elements, which are:

One, the defendant(s), [took] [attempted to take] a (describe the motor vehicle, e. g., 1998 Ford Explorer, VIN #000000000000) from a [person];

Two, the defendant did so by means of [force and violence] [intimidation];

Three, the (describe motor vehicle) had been [transported] [shipped] [or] [received] in [interstate] [foreign] commerce;

Four, at the time the defendant [took] [attempted to take] the motor vehicle (he) (she) (they) intended to cause death or serious bodily injury2. [The intent to kill or cause serious bodily injury if necessary to steal the vehicle is sufficient.].3

Five, the death of a person resulted from [taking] [attempting to take] the (describe the motor vehicle).4

"Serious bodily injury" means an injury that involves [a substantial risk of death] [extreme physical pain] [ long term and obvious disfigurement] [the long-term loss or impairment of a function of a bodily member or organ] [the long term loss or impairment of a mental function].

Committee Comments

See comments for 6.18.2119A.

Notes on Use

1. This Instruction should only be used where the indictment alleges that the defendant caused the death of a person for purposes of the enhanced sentence in accordance with 18 USC 2119(c).

2. The statute uses the term "harm" in some places and "injury" in others, apparently interchangeably.

4. The court should, if requested by a party, give 6.18.2119A, 6.18.2119B, or both, as lesser included offense instructions. If lesser included offense instructions are given, the format in Instruction No. 3.10 should be used.

8TH CIRCUIT MODEL INSTRUCTIONS 2009

6.18.2252
RECEIPT, POSSESSION OR DISTRIBUTION OF MATERIAL CONTAINING CHILD PORNOGRAPHY
(18 USC2252A(a)(2)(A) and (B) and (a)(5)(B))

The crime of [receipt] [possession] [distribution] of child pornography[, as charged in [Count ] of the indictment,] has three elements, which are:

One, that on or about (date) the defendant knowingly [received] [possessed]¹[distributed] (name of item or items, e.g., a book, magazine, periodical, film, videotape, computer disk, etc.) that [were] [contained] [a] [multiple] visual depiction(s) of child pornography;

Two, that the defendant knew that the visual depiction(s) [was] [were] of a minor engaging in sexually explicit conduct;² and

Three, that the [material containing the] visual depiction(s) [[was] [were] produced using materials that]³ had been [mailed ] [shipped] [transported] [by computer] in interstate or foreign commerce.⁴

[You have heard evidence of more than one visual depiction involved in the offense. You must agree unanimously as to which visual depiction(s) the defendant possessed.]

The term "minor" means any person under the age of eighteen years.⁵

The phrase "child pornography" means any visual depiction of a minor engaging in sexually explicit conduct, where the minor was engaged in the sexually explicit conduct during production of the depiction.⁶ The term "visual depiction"includes [a] [any] [photograph] [film] [video] [picture] [or] [computer or computer-generated image or picture], whether made or produced by electronic, mechanical, or other means. [It includes undeveloped film and videotape, and data stored on computer disk or by electronic means which is capable of conversion into a visual image.]⁷

The term "sexually explicit conduct" means actual or simulated [sexual intercourse, including [genital-genital] [oral-genital] [anal-genital] [oral-anal], whether between persons of the same or opposite sex]; [bestiality] [masturbation] [sadistic or masochistic abuse]] [lascivious exhibition of the genitals or pubic area of any person].⁸

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

Notes on Use

1. Presence of child pornography images in a computer’s temporary cache file is not sufficient to establish the defendant’s knowing possession of the images. See, e.g., United States v. Stulock, 308 F.3d 922, 925 (8^th Cir. 2002) (the district court in a bench trial held that "one cannot be guilty of possession for simply having viewed an image on a web site, thereby causing the image to be automatically stored in the browser’s cache, without having purposely saved or downloaded the image." The government did not appeal.); but see United States v. Tucker, 305 F.3d 1193, 1205 (10^th Cir. 2002) (the defendant’s knowledge that the images would be stored in the temporary cache file was sufficient to show knowing possession of the images located there).

2. The Supreme Court in United States v. X-Citement Video, Inc., 513 U.S. 64 (1992), held with respect to a different statute, 18 USC 2252(a)(1) and (2), that proof of scienter as to the age of the person depicted is required for conviction. While the phraseology of § 2252A(a) is different, in that it uses the phrase "child pornography" instead of "visual depiction involving the use of a minor," the statute also contains as an element scienter of the age of the person depicted. See United States v. Acheson, 195 F.3d 645, 653 (11^th Cir. 1999). Courts have also held that the scienter requirement extends to knowledge that the visual depictions were sexually explicit. X-Citement Video, Inc, 513 U.S. at 78 (§ 2252(a)(2)); United States v. Fabiano, 169 F.3d 1299, 1303-04 (10^th Cir. 1999); United States v. Cedelle, 89 F.3d 181, 185 (4^th Cir. 1996).

The age of the child depicted may be proved by, inter alia, language used by the defendant in correspondence; Postal Inspector’s professional and personal familiarity with child development; and a pediatrics professor’s testimony. United States v. Broyles, 37 F.3d 1314, 1317-18 (8^th Cir. 1994); United States v. Rayl, 270 F.3d 709, 714 (8^th Cir. 2001). In United States v. Vig, 167 F.3d 443, 449-50 (8^th Cir. 1999), the court found that the jury could draw its own independent conclusion as to whether real children were depicted by examining the images presented to them. But see United States v. Hilton, 363 F.3d 58, 64-65 (1^st Cir. 2004) ("the government must introduce relevant evidence in addition to the images to prove the children are real."). Finally, in United States v. Deaton, 328 F.3d 454, 455 (8^th Cir. 2003), the court held that the government is not required to introduce affirmative evidence that images of children were not computer generated.

3. This bracketed material, which refers to production using materials that had been mailed, shipped or transported in interstate commerce, is for possible inclusion only in prosecutions brought under § 2252A(a)(5)(B). If the government alleges that multiple depictions are involved, the court may consider submitting special interrogatories. See 11.03.

4. Whether the statute requires the defendant have knowledge that the item traveled in interstate commerce has not yet been resolved by the Eighth Circuit; if analyzed similarly to federal gun statutes, interstate transportation without the knowledge of the defendant is sufficient. See United States v. Robinson, 137 F.3d 652, 655 (1^st Cir. 1998) (§ 2252); but see United States v. Colavito, 19 F.3d 69, 71 (2d Cir. 1994) (§ 2252) (the defendant must know that he was receiving material through interstate commerce and that the materials contained sexually explicit depictions of minors). See 6.18.2252B for definitions of interstate commerce.

5. 18 USC 2256(1).

6. 18 USC 2256(8)(A). The Committee believes that the greatest number of prosecutions will be brought under this subsection of the statute. Section 2256(8)(B) and (C) contain two additional definitions of child pornography.

Section 2256(8)(B) was amended in response to Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002) to provide that:

such visual depiction is a digital image, computer image, or computer generated image that is, or is indistinguishable from, that of a minor engaging in sexually explicit conduct.

The Committee expresses no opinion whether this provision will be found to have the same constitutional infirmity as its predecessor.

Section 2256(8)(C) can be instructed as follows:

The phrase "child pornography" means a visual depiction that has been created, adapted, or modified to appear that an identifiable minor is engaging in sexually explicit conduct.

If this subsection is used, the following definition of "identifiable minor" should be included:

The term "identifiable minor" as used in the definition of child pornography

means a person [who was a minor at the time the visual depiction was created, adapted or modified] [whose image as a minor was used in creating, adapting, or modifying the visual depiction] and who is recognizable as an actual person by the person’s face, likeness, or other distinguishing characteristic, such as a unique birthmark or other recognizable feature. [The government is not required to prove the actual identity of the identifiable minor.]

18 USC 2256(9).

7. 18 USC § 2256(5) and (8).

8. 18 USC 2256(2)(A). If the prosecution is brought under 18 USC 2256(8)(B), the definition of sexually explicit conduct should be taken from 18 USC 2256(2)(B).

Committee Comments

This instruction has been drafted to comply with amendments made to § 2252A by the Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today (PROTECT) Act of 2003, Pub. L. No. 108-21, 117 Stat. 650 (2003). The amendments are effective April 30, 2003. If the criminal conduct occurred prior to April 30, 2003, the instruction should be revised to comply with the unamended statute.

(For 2008 version see below).

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

2008 Version

6.18.2252A
RECEIPT, POSSESSION OR DISTRIBUTION OF MATERIAL CONTAINING CHILD PORNOGRAPHY
(18 USC2252A(a)(2)(A) and (B) and (a)(5)(B))

The crime of [receipt] [possession] [distribution] of child pornography[, as charged in [Count ] of the indictment,] has three elements, which are:

One, that on or about (date) the defendant knowingly [received] [possessed]¹[distributed] (name of item or items, e.g., a book, magazine, periodical, film, videotape, computer disk, etc.) that [were] [contained] [a] [multiple] visual depiction(s) of child pornography;

Two, that the defendant knew that the visual depiction(s) [was] [were] of a minor engaging in sexually explicit conduct;² and

Three, that the [material containing the] visual depiction(s) [[was] [were] produced using materials that]³ had been [mailed ] [shipped] [transported] [by computer] in interstate or foreign commerce.⁴

[You have heard evidence of more than one visual depiction involved in the offense. You must agree unanimously as to which visual depiction(s) the defendant possessed.]

The term "minor" means any person under the age of eighteen years.⁵

The phrase "child pornography" means any visual depiction of a minor engaging in sexually explicit conduct, where the minor was engaged in the sexually explicit conduct during production of the depiction.⁶ The term "visual depiction" includes [a] [any] [photograph] [film] [video] [picture] [or] [computer or computer-generated image or picture], whether made or produced by electronic, mechanical, or other means. [It includes undeveloped film and videotape, and data stored on computer disk or by electronic means which is capable of conversion into a visual image.]⁷

The term "sexually explicit conduct" means actual or simulated [sexual intercourse, including [genital-genital] [oral-genital] [anal-genital] [oral-anal], whether between persons of the same or opposite sex]; [bestiality] [masturbation] [sadistic or masochistic abuse]] [lascivious exhibition of the genitals or pubic area of any person].⁸

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

Notes on Use

1. Presence of child pornography images in a computer’s temporary cache file is not sufficient to establish the defendant’s knowing possession of the images. See, e.g., United States v. Stulock, 308 F.3d 922, 925 (8^th Cir. 2002) (the district court in a bench trial held that "one cannot be guilty of possession for simply having viewed an image on a web site, thereby causing the image to be automatically stored in the browser’s cache, without having purposely saved or downloaded the image." The government did not appeal.); but see, United States v. Tucker, 305 F.3d 1193, 1205 (10^th Cir. 2002) (the defendant’s knowledge that the images would be stored in the temporary cache file was sufficient to show knowing possession of the images located there).

4. Whether the statute requires the defendant have knowledge that the item traveled in interstate commerce has not yet been resolved by the Eighth Circuit; if analyzed similarly to federal gun statutes, interstate transportation without the knowledge of the defendant is sufficient. See United States v. Robinson, 137 F.3d 652, 655 (1^st Cir. 1998)(§2252); but see United States v. Colavito, 19 F.3d 69, 71 (2d Cir. 1994) (§ 2252) (the defendant must know that he was receiving material through interstate commerce and that the materials contained sexually explicit depictions of minors). See 6.18.2252A (C) for definitions of interstate commerce.

5. 18 USC 2256(1).

Section 2256(8)(B) was amended in response to Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002) to provide that:

such visual depiction is a digital image, computer image, or computer generated image that is, or is indistinguishable from, that of a minor engaging in sexually explicit conduct.

The Committee expresses no opinion whether this provision will be found to have the same constitutional infirmity as its predecessor.

Section 2256(8)(C) can be instructed as follows:

The phrase "child pornography" means a visual depiction that has been created, adapted, or modified to appear that an identifiable minor is engaging in sexually explicit conduct.

If this subsection is used, the following definition of "identifiable minor" should be included:

The term "identifiable minor" as used in the definition of child pornography

means a person [who was a minor at the time the visual depiction was created, adapted or modified] [whose image as a minor was used in creating, adapting, or modifying the visual depiction] and who is recognizable as an actual person by the person’s face, likeness, or other distinguishing characteristic, such as a unique birthmark or other recognizable feature. [The government is not required to prove the actual identity of the identifiable minor.]

18 USC 2256(9).

7. 18 USC 2256(5) and (8).

8. 18 USC 2256(2)(A). If the prosecution is brought under 18 USC 2256(8)(B), the definition of sexually explicit conduct should be taken from 18 USC 2256(2)(B).

Committee Comments

(For 2006 version see below)

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

2006 Version

The crime of [receipt] [possession] [distribution] of child pornography[, as charged in [Count ] of the indictment,] has three elements, which are:

One, that on or about (date) the defendant knowingly [received] [possessed]¹[distributed] (name of item or items, e.g., a book, magazine, periodical, film, videotape, computer disk, etc.) that [were] [contained] [a] [multiple] visual depiction(s) of child pornography;

Two, that the defendant knew that the visual depiction(s) [was] [were] of a minor engaging in sexually explicit conduct;² and

Three, that the [material containing the] visual depiction(s) [[was] [were] produced using materials that]³ had been [mailed ] [shipped] [transported] [by computer] in interstate or foreign commerce.⁴

[You have heard evidence of more than one visual depiction involved in the offense. You must agree unanimously as to which visual depiction(s) the defendant possessed.]

The term "minor" means any person under the age of eighteen years.⁵

The phrase "child pornography" means any visual depiction of a minor engaging in sexually explicit conduct, where the minor was engaged in the sexually explicit conduct during production of the depiction.⁶ The term "visual depiction"includes [a] [any] [photograph] [film] [video] [picture] [or] [computer or computer-generated image or picture], whether made or produced by electronic, mechanical, or other means. [It includes undeveloped film and videotape, and data stored on computer disk or by electronic means which is capable of conversion into a visual image.]⁷

The term "sexually explicit conduct" means actual or simulated [sexual intercourse, including [genital-genital] [oral-genital] [anal-genital] [oral-anal], whether between persons of the same or opposite sex]; [bestiality] [masturbation] [sadistic or masochistic abuse]] [lascivious exhibition of the genitals or pubic area of any person].⁸

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

Notes on Use

1. Presence of child pornography images in a computer’s temporary cache file is not sufficient to establish the defendant’s knowing possession of the images. See, e.g., United States v. Stulock, 308 F.3d 922, 925 (8^th Cir. 2002) (the district court in a bench trial held that "one cannot be guilty of possession for simply having viewed an image on a web site, thereby causing the image to be automatically stored in the browser’s cache, without having purposely saved or downloaded the image." The government did not appeal.); but see, United States v. Tucker, 305 F.3d 1193, 1205 (10^th Cir. 2002) (the defendant’s knowledge that the images would be stored in the temporary cache file was sufficient to show knowing possession of the images located there).

4. Whether the statute requires the defendant have knowledge that the item traveled in interstate commerce has not yet been resolved by the Eighth Circuit; if analyzed similarly to federal gun statutes, interstate transportation without the knowledge of the defendant is sufficient. See United States v. Robinson, 137 F.3d 652, 655 (1^st Cir. 1998)(§2252); but see United States v. Colavito, 19 F.3d 69, 71 (2d Cir. 1994) (§ 2252) (the defendant must know that he was receiving material through interstate commerce and that the materials contained sexually explicit depictions of minors). See 6.18.2252A (C) for definitions of interstate commerce.

5. 18 USC 2256(1).

Section 2256(8)(B) was amended in response to Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002) to provide that:

such visual depiction is a digital image, computer image, or computer generated image that is, or is indistinguishable from, that of a minor engaging in sexually explicit conduct.

The Committee expresses no opinion whether this provision will be found to have the same constitutional infirmity as its predecessor.

Section 2256(8)(C) can be instructed as follows:

The phrase "child pornography" means a visual depiction that has been created, adapted, or modified to appear that an identifiable minor is engaging in sexually explicit conduct.

If this subsection is used, the following definition of "identifiable minor" should be included:

The term "identifiable minor" as used in the definition of child pornography

means a person [who was a minor at the time the visual depiction was created, adapted or modified] [whose image as a minor was used in creating, adapting, or modifying the visual depiction] and who is recognizable as an actual person by the person’s face, likeness, or other distinguishing characteristic, such as a unique birthmark or other recognizable feature. [The government is not required to prove the actual identity of the identifiable minor.]

18 USC 2256(9).

7. 18 USC 2256(5) and (8).

8. 18 USC 2256(2)(A). If the prosecution is brought under 18 USC 2256(8)(B), the definition of sexually explicit conduct should be taken from 18 USC 2256(2)(B).

Committee Comments

No 2000 Version

8TH CIRCUIT MODEL INSTRUCTIONS 2009

6.18.2252A
"LASCIVIOUS" EXPLAINED

Whether a visual depiction of the genitals or pubic area constitutes a lascivious exhibition requires a consideration of the overall content of the material. You may consider such factors as (1) whether the focal point of the picture is on the minor’s genitals or pubic area; (2) whether the setting of the picture is sexually suggestive, that is, in a place or pose generally associated with sexual activity; (3) whether the minor is depicted in an unnatural pose or in inappropriate attire, considering the age of the minor; (4) whether the minor is fully or partially clothed, or nude; (5) whether the picture suggests sexual coyness or a willingness to engage in sexual activity; (6) whether the picture is intended or designed to elicit a sexual response in the viewer; (7) whether the picture portrays the minor as a sexual object; and (8) the caption(s) on the picture(s).

It is for you to decide the weight or lack of weight to be given to any of these factors. A picture need not involve all of these factors to constitute a lascivious exhibition of the genitals or pubic area.

Committee Comments

Title 18, United States Code, § 2256(2). The first six factors are derived from United States v. Dost, 636 F. Supp. 828, 832 (S.D. Cal. 1986), aff’d sub. nom. United States v. Wiegand, 812 F.2d 1239, 1244 (9^th Cir. 1987) and are generally cited. See, e.g., United States v. Horn, 187 F.3d 781, 789 (8^th Cir. 1999); United States v. Carroll, 190 F.3d 290, 296 (5^th Cir. 1999); United States v. Amirault, 173 F.3d 28, 31 (1^st Cir. 1999). The seventh and eighth factors were added by the court in United States v. Arvin, 900 F.2d 1385 (9th Cir. 1990) (interpreting the definition of "lascivious" found in 18 USC 2256(2)(E) for purposes of § 2252).

The factors are "neither comprehensive nor necessarily applicable in every situation. . . [T]here may be other factors that are equally if not more important in determining whether a photograph contains a lascivious exhibition." United States v. Amirault, 173 F.3d at 32.

In United States v. Rayl, 270 F.3d 709, 714 (8th Cir. 2001), the court held that the question whether materials depict a "lascivious exhibition of the genitals" is for the finder of fact. However, the meaning of "lascivious exhibition of the genitals" is an issue of law. The district court therefore should, before submitting materials offered by the government to the jury, conduct a preliminary review of whether those materials depict sexually explicit conduct as a matter of law. Accord United States v. Horn, 187 F.3d at 789.

(For 2008 version see below).

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

2008 Version

6.18.2252A(1)
"LASCIVIOUS" EXPLAINED

Whether a visual depiction of the genitals or pubic area constitutes a lascivious exhibition requires a consideration of the overall content of the material. You may consider such factors as (1) whether the focal point of the picture is on the minor’s genitals or pubic area; (2) whether the setting of the picture is sexually suggestive, that is, in a place or pose generally associated with sexual activity; (3) whether the minor is depicted in an unnatural pose or in inappropriate attire, considering the age of the minor; (4) whether the minor is fully or partially clothed, or nude; (5) whether the picture suggests sexual coyness or a willingness to engage in sexual activity; (6) whether the picture is intended or designed to elicit a sexual response in the viewer; (7) whether the picture portrays the minor as a sexual object; and (8) the caption(s) on the picture(s).

It is for you to decide the weight or lack of weight to be given to any of these factors. A picture need not involve all of these factors to constitute a lascivious exhibition of the genitals or pubic area.

Committee Comments

(For 2006 version see below)

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

2006 Version

Whether a visual depiction of the genitals or pubic area constitutes a lascivious exhibition requires a consideration of the overall content of the material. You may consider such factors as (1) whether the focal point of the picture is on the minor’s genitals or pubic area; (2) whether the setting of the picture is sexually suggestive, that is, in a place or pose generally associated with sexual activity; (3) whether the minor is depicted in an unnatural pose or in inappropriate attire, considering the age of the minor; (4) whether the minor is fully or partially clothed, or nude; (5) whether the picture suggests sexual coyness or a willingness to engage in sexual activity; (6) whether the picture is intended or designed to elicit a sexual response in the viewer; (7) whether the picture portrays the minor as a sexual object; and (8) the caption(s) on the picture(s).

It is for you to decide the weight or lack of weight to be given to any of these factors. A picture need not involve all of these factors to constitute a lascivious exhibition of the genitals or pubic area.

Committee Comments

No 2000 Version

8TH CIRCUIT MODEL INSTRUCTIONS 2009

6.18.2252B
"INTERSTATE COMMERCE" DEFINED

The phrase "interstate commerce" means commerce between any combination of states, territories, and possessions of the United States, including the District of Columbia.¹

[The phrase "foreign commerce," as used above, means commerce between any state, territory or possession of the United States and a foreign country.]¹

[The term "commerce" includes, among other things, travel, trade, transportation and communication.]¹

[Images transmitted or received over the Internet have moved in interstate or foreign commerce.² It is for you to determine, however, if [the material containing] the visual depiction [had been transmitted or received over the Internet] [was produced using materials that had been transmitted or received over the Internet]].³

Notes on Use

1. See 6.18.1956J(2); United States v. Hampton, 260 F.3d 832 (8^th Cir. 2001); United States v. Bausch, 140 F.3d 739 (8^th Cir. 1998).

2. See United States v. Smith, 47 M.J. 588 (1997) (relying in part on United States v. Carroll, 105 F.3d 740, 742 (1^st Cir. 1997); United States v. Thomas, 74 F.3d 701, 706-07 (6^th Cir. 1996); United States v. Runyan, 290 F.3d 223, 239 (5^th Cir. 2002). Each item must be independently linked to the Internet. United States v. Henriques, 234 F.3d 263, 266 (5^th Cir. 2000); United States v. Wilson, 182 F.3d 737, 744 (10^th Cir. 1999).

3. The last bracketed portion of this sentence is applicable only in prosecutions under § 2252A(a)(5)(B).

(For 2008 version see below).

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

2008 Version

6.18.2252A(2)
"INTERSTATE COMMERCE" DEFINED

The phrase "interstate commerce" means commerce between any combination of states, territories, and possessions of the United States, including the District of Columbia.¹

[The phrase "foreign commerce," as used above, means commerce between any state, territory or possession of the United States and a foreign country.]¹

[The term "commerce" includes, among other things, travel, trade, transportation and communication.]¹

[Images transmitted or received over the Internet have moved in interstate or foreign commerce.² It is for you to determine, however, if [the material containing] the visual depiction [had been transmitted or received over the Internet] [was produced using materials that had been transmitted or received over the Internet]].³

Notes on Use

1. See 6.18.1956J(2); United States v. Hampton, 260 F.3d 832 (8^th Cir. 2001); United States v. Bausch, 140 F.3d 739 (8^th Cir. 1998).

3. The last bracketed portion of this sentence is applicable only in prosecutions under § 2252A(a)(5)(B).

(For 2006 version see below)

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

2006 Version

The phrase "interstate commerce" means commerce between any combination of states, territories, and possessions of the United States, including the District of Columbia.¹

[The phrase "foreign commerce," as used above, means commerce between any state, territory or possession of the United States and a foreign country.]¹

[The term "commerce" includes, among other things, travel, trade, transportation and communication.]¹

[Images transmitted or received over the Internet have moved in interstate or foreign commerce.² It is for you to determine, however, if [the material containing] the visual depiction [had been transmitted or received over the Internet] [was produced using materials that had been transmitted or received over the Internet]].³

Notes on Use

1. See 6.18.1956J(2); United States v. Hampton, 260 F.3d 832 (8^th Cir. 2001); United States v. Bausch, 140 F.3d 739 (8^th Cir. 1998).

3. The last bracketed portion of this sentence is applicable only in prosecutions under § 2252A(a)(5)(B).

No 2000 Version

8TH CIRCUIT MODEL INSTRUCTIONS 2009

6.18.2252C
"COMPUTER" DEFINED

The term "computer" as used in this instruction means an electronic, magnetic, optical, electrochemical, or other high speed data processing device performing logical, arithmetic, or storage functions, and includes any data storage facility or communications facility directly related to or operating in conjunction with such device, but such term does not include an automated typewriter or typesetter, a portable hand held calculator, or other similar device.

Committee Comments

See 18 USC § 1030(e), 2252A(a)(5)(B) and 2256(6).

(For 2008 version see below).

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

2008 Version

6.18.2252A(3)
"COMPUTER" DEFINED

The term "computer" as used in this instruction means an electronic, magnetic, optical, electrochemical, or other high speed data processing device performing logical, arithmetic, or storage functions, and includes any data storage facility or communications facility directly related to or operating in conjunction with such device, but such term does not include an automated typewriter or typesetter, a portable hand held calculator, or other similar device.

Committee Comments

See 18 USC§ 1030(e), 2252A(a)(5)(B) and 2256(6).

(For 2006 version see below)

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

2006 Version

The term "computer" as used in this instruction means an electronic, magnetic, optical, electrochemical, or other high speed data processing device performing logical, arithmetic, or storage functions, and includes any data storage facility or communications facility directly related to or operating in conjunction with such device, but such term does not include an automated typewriter or typesetter, a portable hand held calculator, or other similar device.

Committee Comments

See 18 USC 1030(e), 2252A(a)(5)(B) and 2256(6).

No 2000 Version

8TH CIRCUIT MODEL INSTRUCTIONS 2009

6.18.2312
INTERSTATE TRANSPORTATION OF STOLEN VEHICLE
(18 USC2312)

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Interstate Transportation Of A Stolen Motor Vehicle (18 USC 2312)

The crime of [interstate] [foreign] transportation of a stolen motor vehicle, as charged in [Count of] the indictment, has three elements, which are:

One, the (describe vehicle) was stolen;

Two, after the vehicle was stolen, the defendant [moved] [caused it to be moved] across a [state line] [United States border];

Three, at the time he [moved the vehicle][caused the vehicle to be moved] across a [state line] [United States border], the defendant knew it was stolen.

Property has been "stolen" when it has been taken with the intent to permanently or temporarily deprive the owner of the rights and benefits of ownership.

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

Committee Comments

See United States v. Harris, 528 F.2d 1327, 1330 (8th Cir. 1975); United States v. Gilliss, 645 F.2d 1269, 1279-80 n.25 (8th Cir. 1981).

"Stolen" is defined in United States v. Turley, 352 U.S. 407, 410-17 (1957).

Where a person lawfully obtains possession of a motor vehicle and later forms an intent to convert it to his own use, and in furtherance of that intention transports it across state lines, there is a violation of section 2312. United States v. Miles, 472 F.2d 1145, 1146 (8th Cir. 1973); United States v. Bruton, 414 F.2d 905 (8th Cir. 1969). In such a case, the following paragraph should be added:

It is not necessary that the taking of the vehicle be unlawful. Even if possession of the vehicle is lawfully acquired, the vehicle will be deemed 'stolen' if the defendant thereafter forms the intent to deprive the owner of the rights and benefits of ownership, and converts the vehicle to his own use.

The taking need not be done with the intent to permanently deprive the owner of the vehicle. See United States v. Bruton, 414 F.2d at 908.

The defendant must know that the vehicle in question is stolen, but need not know that it is being transported across state lines. See United States v. Spoone, 741 F.2d 680, 686 (4th Cir. 1984); United States v. Martinez, 694 F.2d 71, 72 (5th Cir. 1982).

(For 2008 version see below).

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

2008 Version

The crime of [interstate] [foreign] transportation of a stolen motor vehicle, as charged in [Count of] the indictment, has three elements, which are:

One, the (describe vehicle) was stolen;

Two, after the vehicle was stolen, the defendant [moved] [caused it to be moved] across a [state line] [United States border];

Three, at the time he [moved the vehicle][caused the vehicle to be moved] across a [state line] [United States border], the defendant knew it was stolen.

Property has been "stolen" when it has been taken with the intent to permanently or temporarily deprive the owner of the rights and benefits of ownership.

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

Committee Comments

See United States v. Harris, 528 F.2d 1327, 1330 (8th Cir. 1975); United States v. Gilliss, 645 F.2d 1269, 1279-80 n.25 (8th Cir. 1981).

"Stolen" is defined in United States v. Turley, 352 U.S. 407, 410-17 (1957).

It is not necessary that the taking of the vehicle be unlawful. Even if possession of the vehicle is lawfully acquired, the vehicle will be deemed 'stolen' if the defendant thereafter forms the intent to deprive the owner of the rights and benefits of ownership, and converts the vehicle to his own use.

The taking need not be done with the intent to permanently deprive the owner of the vehicle. See United States v. Bruton, 414 F.2d at 908.

(For 2006 version see below)

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

2006 Version

The crime of [interstate] [foreign] transportation of a stolen motor vehicle, as charged in [Count of] the indictment, has three elements, which are:

One, the (describe vehicle) was stolen;

Two, after the vehicle was stolen, the defendant [moved] [caused it to be moved] across a [state line] [United States border];

Three, at the time he [moved the vehicle][caused the vehicle to be moved] across a [state line] [United States border], the defendant knew it was stolen.

Property has been "stolen" when it has been taken with the intent to permanently or temporarily deprive the owner of the rights and benefits of ownership.

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

Committee Comments

See United States v. Harris, 528 F.2d 1327, 1330 (8th Cir. 1975); United States v. Gilliss, 645 F.2d 1269, 1279-80 n.25 (8th Cir. 1981).

"Stolen" is defined in United States v. Turley, 352 U.S. 407, 410-17 (1957).

It is not necessary that the taking of the vehicle be unlawful. Even if possession of the vehicle is lawfully acquired, the vehicle will be deemed 'stolen' if the defendant thereafter forms the intent to deprive the owner of the rights and benefits of ownership, and converts the vehicle to his own use.

The taking need not be done with the intent to permanently deprive the owner of the vehicle. See United States v. Bruton, 414 F.2d at 908.

For 2000 version see below

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

2000 Version

The crime of [interstate] [foreign] transportation of a stolen motor vehicle, as charged in [Count of] the indictment, has three essential elements, which are:

One, the (describe vehicle) was stolen;

Two, after the vehicle was stolen, the defendant [moved] [caused it to be moved] across a [state line] [United States border];

Three, at the time he [moved the vehicle][caused the vehicle to be moved] across a [state line] [United States border], the defendant knew it was stolen.

Property has been "stolen" when it has been taken with the intent to permanently or temporarily deprive the owner of the rights and benefits of ownership.

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

Committee Comments

See United States v. Harris, 528 F.2d 1327, 1330 (8th Cir. 1975); United States v. Gilliss, 645 F.2d 1269, 1279-80 n.25 (8th Cir. 1981).

"Stolen" is defined in United States v. Turley, 352 U.S. 407, 410-17 (1957).

Where a person lawfully obtains possession of a motor vehicle and later forms an intent to convert it to his own use, and in furtherance of that intention transports it across state lines, there is a violation of section 2312. United States v. Miles, 472 F.2d 1145, 1146 (8th Cir.), cert. denied, 412 U.S. 907 (1973); United States v. Bruton, 414 F.2d 905 (8th Cir. 1969). In such a case, the following paragraph should be added:

It is not necessary that the taking of the vehicle be unlawful. Even if possession of the vehicle is lawfully acquired, the vehicle will be deemed 'stolen' if the defendant thereafter forms the intent to deprive the owner of the rights and benefits of ownership, and converts the vehicle to his own use.

The taking need not be done with the intent to permanently deprive the owner of the vehicle. See United States v. Bruton, 414 F.2d at 908.

The defendant must know that the vehicle in question is stolen, but need not know that it is being transported across state lines. See United States v. Spoone, 741 F.2d 680, 686 (4th Cir. 1984), cert. denied, 469 U.S. 1162 (1985); United States v. Martinez, 694 F.2d 71, 72 (5th Cir. 1982).

8TH CIRCUIT MODEL INSTRUCTIONS 2009

6.18.2313
RECEIPT OR SALE OF A STOLEN MOTOR VEHICLE OR AIRCRAFT
(18 USC 2313)

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Receipt Of A Stolen Motor Vehicle (18 USC 2313)

The crime of [receiving] [possessing] [concealing] [storing] [selling] [disposing of] a stolen [motor vehicle] [aircraft], as charged in [Count of] the indictment, has four elements, which are:

One, the (describe vehicle or aircraft) was stolen;

Two, after it was stolen, the [vehicle] [aircraft] was moved across a [state line] [United States border];

Three, after the [vehicle] [aircraft] had been stolen and moved across a [state line] [United States border], the defendant [received] [possessed] [concealed] [stored] [sold] [disposed of]¹it; and

Four, at the time the defendant [received] [concealed] [stored] [sold] [disposed of] the [vehicle] [aircraft], he knew it had been stolen.

Property has been "stolen" when it has been taken with the intent to permanently or temporarily deprive the owner of the rights and benefits of ownership.

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

Notes on Use

1. If acts constituting both housing of stolen vehicles and disposal of stolen vehicles are charged, further instructions will be necessary to assure jury unanimity on at least one theory. See United States v. Gipson, 553 F.2d 453 (5th Cir. 1977).

Committee Comments

See 2B Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 59.06 (5th ed. 2000); United States v. Brady, 425 F.2d 309, 311 (8th Cir. 1970); Seventh Circuit Federal Jury Instructions: Criminal at 359 (1999). BUT NOTE: Those referenced instructions are all based on 18 USC 2313 prior to being amended on October 25, 1984. This instruction 6.18.2313 reflects 18 USC 2313 as amended.

Section 2313 relates to the receipt or sale of stolen motor vehicles and aircraft. Section 2315 relates to the receipt or sale of stolen money, securities, or other property. The elements of the two offenses are virtually identical except that section 2315 requires that the stolen property had a value of at least $5,000, while section 2313 contains no such requirement. "Value" means market value. United States v. Williams, 657 F.2d 199, 202 (8th Cir. 1981). If the defendant is charged under section 2315, an additional element positing a minimum value of $5,000.00 must be included in this instruction.

This statute was amended as of October 25, 1984, to provide that federal criminal jurisdiction continues over a stolen motor vehicle once it crosses a state line even after it ceases to be part of the flow of interstate commerce. Thus it is no longer necessary to prove that a vehicle stolen after October 25, 1984 was still in interstate commerce at the time of receipt, possession, etc. A similar amendment was made to section 2315 as of November 10, 1986.

With respect to stolen vehicles taken across a state line prior to October 25, 1984, the question of whether property was moving in interstate commerce at the relevant time is ordinarily for the jury. United States v. Tobin, 576 F.2d 687, 691 (5th Cir. 1978). See also United States v. Hiscott, 586 F.2d 1271, 1274 (8th Cir. 1978); United States v. Briddle, 430 F.2d 1335, 1338-39 (8th Cir. 1970).

The defendant's knowledge that the property was stolen is an element of each offense covered by sections 2312-2315. United States v. Miller, 725 F.2d 462, 468 (8th Cir. 1984); United States v. Wilson, 523 F.2d 828, 829-30 (8th Cir. 1975). Such knowledge may be established by evidence of the defendant's unexplained possession of recently stolen property. Id.; United States v. Brotherton, 427 F.2d 1286, 1288 (8th Cir. 1970). An explanation of possession or receipt by the defendant does not automatically preclude the jury from weighing the inference created by possession. United States v. Burns, 597 F.2d 939, 943-44 n.7 (5th Cir. 1979). See Instruction 4.13, supra. Knowledge of the involvement of interstate commerce is not necessary for conviction. United States v. Wilson, 523 F.2d at 829 n.2.

"Stolen" is defined in United States v. Turley, 352 U.S. 407, 410-17 (1957).

"Possession" will not ordinarily need to be defined. "Where the proof of possession is overwhelming or where ordinary laymen's concepts of possession will suffice, no legal definition is necessary." Kramer v. United States, 408 F.2d 837, 840-41 (8th Cir. 1969) and cases cited therein. Kramer does recognize that in certain factual situations it might be more desirable to define the word "possession" in order to more precisely delineate the issues. 408 F.2d at 840 n.2. See Instruction 8.02, infra.

Likewise "conceal" is to be given its ordinary meaning by the jury, although the court may illustrate or expand on that meaning. See United States v. Folsom, 479 F.2d 1, 3 (8th Cir. 1973); United States v. Sherriff, 546 F.2d 604, 608 (5th Cir. 1977), reh. denied, 549 F.2d 204 (5th Cir. 1977). Concealing does require some overt act beyond mere possession. United States v. Powell, 420 F.2d 949, 950 (6th Cir. 1970). See also United States v. Mahanna, 461 F.2d 1110, 1117 (8th Cir. 1972).

(For 2008 version see below).

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

2008 Version

The crime of [receiving] [possessing] [concealing] [storing] [selling] [disposing of] a stolen [motor vehicle] [aircraft], as charged in [Count of] the indictment, has four elements, which are:

One, the (describe vehicle or aircraft) was stolen;

Two, after it was stolen, the [vehicle] [aircraft] was moved across a [state line] [United States border];

Three, after the [vehicle] [aircraft] had been stolen and moved across a [state line] [United States border], the defendant [received] [possessed] [concealed] [stored] [sold] [disposed of]¹it; and

Four, at the time the defendant [received] [concealed] [stored] [sold] [disposed of] the [vehicle] [aircraft], he knew it had been stolen.

Property has been "stolen" when it has been taken with the intent to permanently or temporarily deprive the owner of the rights and benefits of ownership.

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

Notes on Use

Committee Comments

Section 2313 relates to the receipt or sale of stolen motor vehicles and aircraft. Section 2315relates to the receipt or sale of stolen money, securities, or other property. The elements of the two offenses are virtually identical except that section 2315 requires that the stolen property had a value of at least $5,000, while section 2313 contains no such requirement. "Value" means market value. United States v. Williams, 657 F.2d 199, 202 (8th Cir. 1981). If the defendant is charged under section 2315, an additional element positing a minimum value of $5,000.00 must be included in this instruction.

"Stolen" is defined in United States v. Turley, 352 U.S. 407, 410-17 (1957).

(For 2006 version see below)

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

2006 Version

The crime of [receiving] [possessing] [concealing] [storing] [selling] [disposing of] a stolen [motor vehicle] [aircraft], as charged in [Count of] the indictment, has four elements, which are:

One, the (describe vehicle or aircraft) was stolen;

Two, after it was stolen, the [vehicle] [aircraft] was moved across a [state line] [United States border];

Three, after the [vehicle] [aircraft] had been stolen and moved across a [state line] [United States border], the defendant [received] [possessed] [concealed] [stored] [sold] [disposed of]¹it; and

Four, at the time the defendant [received] [concealed] [stored] [sold] [disposed of] the [vehicle] [aircraft], he knew it had been stolen.

Property has been "stolen" when it has been taken with the intent to permanently or temporarily deprive the owner of the rights and benefits of ownership.

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

Notes on Use

Committee Comments

"Stolen" is defined in United States v. Turley, 352 U.S. 407, 410-17 (1957).

For 2000 version see below

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

2000 Version

The crime of [receiving] [possessing] [concealing] [storing] [selling] [disposing of] a stolen [motor vehicle] [aircraft], as charged in [Count of] the indictment, has four essential elements, which are:

One, the (describe vehicle or aircraft) was stolen;

Two, after it was stolen, the [vehicle] [aircraft] was moved across a [state line] [United States border];

Three, after the [vehicle] [aircraft] had been stolen and moved across a [state line] [United States border], the defendant [received] [possessed] [concealed] [stored] [sold] [disposed of]1 it; and

Four, at the time the defendant [received] [concealed] [stored] [sold] [disposed of] the [vehicle] [aircraft], he knew it had been stolen.

Property has been "stolen" when it has been taken with the intent to permanently or temporarily deprive the owner of the rights and benefits of ownership.

(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 § 50.06 (4th ed. 1990); United States v. Brady, 425 F.2d 309, 311 (8th Cir. 1970); Seventh Circuit Federal Jury Instructions: Criminal at 359 (1999). BUT NOTE: Those referenced instructions are all based on 18 USC 2313 prior to being amended on October 25, 1984. This instruction 6.18.2313 reflects 18 USC 2313 as amended. Section 2313 relates to the receipt or sale of stolen motor vehicles and aircraft.

Section 2315 relates to the receipt or sale of stolen money, securities, or other property. The elements of the two offenses are virtually identical except that section 2315 requires that the stolen property had a value of at least $5,000, while section 2313 contains no such requirement. "Value" means market value. United States v. Williams, 657 F.2d 199, 202 (8th Cir. 1981). If the defendant is charged under section 2315, an additional element positing a minimum value of $5,000.00 must be included in this instruction.

With respect to stolen vehicles taken across a state line prior to October 25, 1984, the question of whether property was moving in interstate commerce at the relevant time is ordinarily for the jury. United States v. Tobin, 576 F.2d 687, 691 (5th Cir.), cert. denied, 439 U.S. 1051 (1978). See also United States v. Hiscott, 586 F.2d 1271, 1274 (8th Cir. 1978); United States v. Briddle, 430 F.2d 1335, 1338-39 (8th Cir. 1970).

The defendant's knowledge that the property was stolen is an essential element of each offense covered by sections 2312-2315. United States v. Miller, 725 F.2d 462, 468 (8th Cir. 1984); United States v. Wilson, 523 F.2d 828, 829-30 (8th Cir. 1975), cert. denied, 434 U.S. 849 (1977). Such knowledge may be established by evidence of the defendant's unexplained possession of recently stolen property. Id.; United States v. Brotherton, 427 F.2d 1286, 1288 (8th Cir. 1970). An explanation of possession or receipt by defendant does not automatically preclude the jury from weighing the inference created by possession. United States v. Burns, 597 F.2d 939, 943-44 n.7 (5th Cir. 1979). See Instruction 4.13, supra. Knowledge of the involvement of interstate commerce is not necessary for conviction. United States v. Wilson, 523 F.2d at 829 n.2.

"Stolen" is defined in United States v. Turley, 352 U.S. 407, 410-17 (1957).

Likewise "conceal" is to be given its ordinary meaning by the jury, although the court may illustrate or expand on that meaning. See United States v. Folsom, 479 F.2d 1, 3 (8th Cir. 1973); United States v. Sherriff, 546 F.2d 604, 608 (5th Cir. 1977), reh. denied, 549 F.2d 204 (5th Cir. 1977). Concealing does require some overt act beyond mere possession. United States v. Powell, 420 F.2d 949, 950 (6th Cir. 1970). See also United States v. Mahanna, 461 F.2d 1110, 1117 (8th Cir. 1972).

Notes on Use

1. If acts constituting both housing of stolen vehicles and disposal of stolen vehicles are charged, further instructions will be necessary to assure jury unanimity on at least one theory. See United States v. Gipson, 553 F.2d 453 (5th Cir. 1977).

8TH CIRCUIT MODEL INSTRUCTIONS 2009

6.18.2314
INTERSTATE TRANSPORTATION OF STOLEN PROPERTY
(18 USC 2314) (First Paragraph)

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Interstate Transportation Of Stolen Property (18 USC 2314) (First Paragraph)

See FORECITE National™ Federal Models By Offense: Causing Interstate Travel In Execution Of A Scheme To Defraud (18 USC 2314) (Second Paragraph)

The crime of [interstate] [foreign] transportation of [stolen] [converted] [fraudulently taken] property,¹ as charged in [Count of] the indictment, has four elements, which are:

One, the (describe property) was [stolen] [converted] [taken by fraud];

Two, the (describe property) then had a value² of $5,000.00 or more;

Three, after the (describe property) was [stolen] [converted] [taken by fraud], the defendant [moved it] [caused it to be moved] across a [state line] [United States border]; and

Four, at the time the defendant [moved the (describe property)] [caused the (describe property) to be moved] across a [state line] [United States border], [he] [she] knew that it had been [stolen] [converted] [taken by fraud].

[Property has been "stolen" when it has been taken with the intent to permanently or temporarily deprive the owner of the rights and benefits of ownership.]

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

Notes on Use

1. The statute specifically applies to "goods, wares, merchandise, securities or money." Any of these terms may be substituted for the word "property" as is applicable. "Money" and "Securities" are defined in section 2311.

2. "Value" is defined in section 2311. If value is a disputed issue, a definition should be given to the jury. See Committee Comments, supra.

Committee Comments

See 2B Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 59.09 (5th ed. 2000). See generally Gay v. United States, 408 F.2d 923, 926-29 (8th Cir. 1969); Seventh Circuit Federal Jury Instructions: Criminal at 362 (1999).

See Committee Comments, Instructions 6.18.2312 and 6.18.2313, supra.

Knowledge that the property was stolen or taken by fraud is an element of this offense, but "specific intent" is not. United States v. Miller, 725 F.2d 462, 468 (8th Cir. 1984); United States v. Zarattini, 552 F.2d 753, 760 (7th Cir. 1977). Knowledge or foreseeability of interstate transportation is not necessary for conviction. United States v. Kibby, 848 F.2d 920, 923 (8th Cir. 1988); United States v. Ludwig, 523 F.2d 705, 707 (8th Cir. 1975).

This offense is not limited to the physical movement of tangible property from one state to another; it is a violation of Section 23144 to cause an interstate wire transfer of stolen funds. See United States v. Wright, 791 F.2d 133 (10th Cir. 1986).

"Stolen" is defined in United States v. Turley, 352 U.S. 407, 410-17 (1957).

Fraud includes false representation, dishonesty and deceit. "It may result from reckless representation even when not made with a deliberate intent to deceive." United States v. Grainger, 701 F.2d 308, 311 (4th Cir. 1983).

"Value" is defined in section 2311. Market value is ordinarily used to determine the value of stolen property. However any reasonable method may be used to ascribe a monetary value to goods which have no market value or the value of which depends on intangible components, including development and production costs, revenues, or price in a "thieves' market." See United States v. Stegora, 849 F.2d 291, 292 (8th Cir. 1988).

Separate transactions under $5,000 may be aggregated for the purpose of meeting the $5,000 limit of 18 USC 2314 provided they are substantially related and charged as a single offense. United States v. Lagerquist, 758 F.2d 1279 (8th Cir. 1985); Schaffer v. United States, 362 U.S. 511 (1960). In such a case, Element Two should be modified to include "total value."

(For 2008 version see below).

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

2008 Version

The crime of [interstate] [foreign] transportation of [stolen] [converted] [fraudulently taken] property,¹ as charged in [Count of] the indictment, has four elements, which are:

One, the (describe property) was [stolen] [converted] [taken by fraud];

Two, the (describe property) then had a value² of $5,000.00 or more;

Three, after the (describe property) was [stolen] [converted] [taken by fraud], the defendant [moved it] [caused it to be moved] across a [state line] [United States border]; and

Four, at the time the defendant [moved the (describe property)] [caused the (describe property) to be moved] across a [state line] [United States border], [he] [she] knew that it had been [stolen] [converted] [taken by fraud].

[Property has been "stolen" when it has been taken with the intent to permanently or temporarily deprive the owner of the rights and benefits of ownership.]

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

Notes on Use

2. "Value" is defined in section 2311. If value is a disputed issue, a definition should be given to the jury. See Committee Comments, supra.

Committee Comments

See Committee Comments, Instructions 6.18.2312 and 6.18.2313, supra.

This offense is not limited to the physical movement of tangible property from one state to another; it is a violation of Section 2314 to cause an interstate wire transfer of stolen funds. See United States v. Wright, 791 F.2d 133 (10th Cir. 1986).

"Stolen" is defined in United States v. Turley, 352 U.S. 407, 410-17 (1957).

(For 2006 version see below)

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

2006 Version

The crime of [interstate] [foreign] transportation of [stolen] [converted] [fraudulently taken] property,¹ as charged in [Count of] the indictment, has four elements, which are:

One, the (describe property) was [stolen] [converted] [taken by fraud];

Two, the (describe property) then had a value² of $5,000.00 or more;

Three, after the (describe property) was [stolen] [converted] [taken by fraud], the defendant [moved it] [caused it to be moved] across a [state line] [United States border]; and

Four, at the time the defendant [moved the (describe property)] [caused the (describe property) to be moved] across a [state line] [United States border], [he] [she] knew that it had been [stolen] [converted] [taken by fraud].

[Property has been "stolen" when it has been taken with the intent to permanently or temporarily deprive the owner of the rights and benefits of ownership.]

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

Notes on Use

2. "Value" is defined in section 2311. If value is a disputed issue, a definition should be given to the jury. See Committee Comments, supra.

Committee Comments

See Committee Comments, Instructions 6.18.2312 and 6.18.2313, supra.

"Stolen" is defined in United States v. Turley, 352 U.S. 407, 410-17 (1957).

For 2000 version see below

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

2000 Version

The crime of [interstate] [foreign] transportation of [stolen] [converted] [fraudulently taken] property,1 as charged in [Count of] the indictment, has four essential elements, which are:

One, the (describe property) was [stolen] [converted] [taken by fraud];

Two, the (describe property) then had a value2 of $5,000.00 or more;

Three, after the (describe property) was [stolen] [converted] [taken by fraud], the defendant [moved it] [caused it to be moved] across a [state line] [United States border]; and

Four, at the time defendant [moved the (describe property)] [caused the (describe property) to be moved] across a [state line] [United States border], [he] [she] knew that it had been [stolen] [converted] [taken by fraud].

[Property has been "stolen" when it has been taken with the intent to permanently or temporarily deprive the owner of the rights and benefits of ownership.]

(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 (4th ed. 1990). See generally Gay v. United States, 408 F.2d 923, 926-29 (8th Cir.), cert. denied, 396 U.S. 823 (1969); Seventh Circuit Federal Jury Instructions: Criminal at 362 (1999).

See Committee Comments, Instructions 6.18.2312 and 6.18.2313, supra.

Knowledge that the property was stolen or taken by fraud is an essential element of this offense, but "specific intent" is not. United States v. Miller, 725 F.2d 462, 468 (8th Cir. 1984); United States v. Zarattini, 552 F.2d 753, 760 (7th Cir.), cert. denied, 431 U.S. 942 (1977). Knowledge or foreseeability of interstate transportation is not necessary for conviction. United States v. Kibby, 848 F.2d 920, 923 (8th Cir. 1988); United States v. Ludwig, 523 F.2d 705, 707 (8th Cir. 1975), cert. denied, 423 U.S. 1076 (1976).

This offense is not limited to the physical movement of tangible property from one state to another; it is a violation of Section 2314 to cause an interstate wire transfer of stolen funds. See United States v. Wright, 791 F.2d 133 (10th Cir. 1986).

"Stolen" is defined in United States v. Turley, 352 U.S. 407, 410-17 (1957).

"Value" is defined in section 2311. Market value is ordinarily used to determine the value of stolen property. However any reasonable method may be used to ascribe a monetary value to goods which have no market value or the value of which depends on intangible components, including development and production costs, revenues, or price in a "thieves' market." See United States v. Stegora, 849 F.2d 291, 292 (8th Cir. 1988).

Separate transactions under $5,000 may be aggregated for the purpose of meeting the $5,000 limit of 18 USC 2314 provided they are substantially related and charged as a single offense. United States v. Lagerquist, 758 F.2d 1279 (8th Cir. 1985), cert. denied, 484 U.S. 955 (1987); Schaffer v. United States, 362 U.S. 511 (1960). In such a case, Element Two should be modified to include "total value."

Notes on Use

2. "Value" is defined in section 2311. If value is a disputed issue, a definition should be given to the jury. See Committee Comments, Instruction 6.18.2314, supra.

8TH CIRCUIT MODEL INSTRUCTIONS 2009

6.18.2421
TRANSPORTATION FOR PROSTITUTION
(18 USC 2421)

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Transportation For Prostitution (18 USC 2421)

The crime of [attempted] [interstate] [foreign] transportation of an individual to engage in [prostitution] [(any sexual activity for which a person can be charged with a criminal offense)]¹ as charged in [Count ____ of] the indictment has two elements, which are:

One, the defendant knowingly [transported] [attempted to transport] (name of person alleged in indictment) across a state line or across a national border; and

Two, the defendant [transported] [attempted to transport] (name of person alleged in indictment) with the intent that such person engage in [prostitution] [(describe sexual activity charged in the indictment)].

[Prostitution means (set out elements of crime of prostitution from jurisdiction in which act occurred or would have occurred).]²

[(Set out elements of applicable Federal or State law) [is] [are] [a crime] [crimes] under the laws of [the United States] [the State of (identify the state)].]³

[A person may be found guilty of an attempt if [he] [she] intended to (describe attempted act, i.e., transport Jane Doe across a state line with the intent that Jane Doe engage in prostitution) and voluntarily and intentionally carried out some act which was a substantial step⁴ toward that (describe attempted act).]⁵

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

Notes on Use

1. "Prostitution" or "any sexual activity for which a person can be charged with a criminal offense" should be defined in this instruction.

2. Use when the defendant is charged with travel or attempted travel to engage in prostitution.

3. Use when the defendant is charged with travel or attempted travel to engage in any sexual activity for which any person can be charged with a criminal offense.

4 An instruction defining "substantial step" may be given. See Instruction 8.01, Notes on Use, n.2, infra.

5. Use when the defendant is charged with an attempt. See generally, Instruction 8.01, infra.

(For 2008 version see below).

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

2008 Version

The crime of [attempted] [interstate] [foreign] transportation of an individual to engage in [prostitution] [(any sexual activity for which a person can be charged with a criminal offense)]¹ as charged in [Count ____ of] the indictment has two elements, which are:

One, the defendant knowingly [transported] [attempted to transport] (name of person alleged in indictment) across a state line or across a national border; and

Two, the defendant [transported] [attempted to transport] (name of person alleged in indictment) with the intent that such person engage in [prostitution] [(describe sexual activity charged in the indictment)].

[Prostitution means (set out elements of crime of prostitution from jurisdiction in which act occurred or would have occurred).]²

[(Set out elements of applicable Federal or State law) [is] [are] [a crime] [crimes] under the laws of [the United States] [the State of (identify the state)].]³

[A person may be found guilty of an attempt if [he] [she] intended to (describe attempted act, i.e., transport Jane Doe across a state line with the intent that Jane Doe engage in prostitution) and voluntarily and intentionally carried out some act which was a substantial step⁴ toward that (describe attempted act).]⁵

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

Notes on Use

1. "Prostitution" or "any sexual activity for which a person can be charged with a criminal offense" should be defined in this instruction.

2. Use when the defendant is charged with travel or attempted travel to engage in prostitution.

3. Use when the defendant is charged with travel or attempted travel to engage in any sexual activity for which any person can be charged with a criminal offense.

4 An instruction defining "substantial step" may be given. See Instruction 8.01, Notes on Use, n.2, infra.

5. Use when the defendant is charged with an attempt. See generally, Instruction 8.01, infra.

No 2006 Version

8TH CIRCUIT MODEL INSTRUCTIONS 2009

6.18.2422A
PERSUADING OR COERCING TO TRAVEL TO ENGAGE IN PROSTITUTION
(18 USC 2422(a))

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Persuading Or Coercing To Travel To Engage In Prostitution (18 USC 2422)

The crime of [persuading] [inducing] [enticing] [coercing] an individual to travel in [interstate] [foreign] commerce to engage in [prostitution] [(any sexual activity for which a person can be charged with a criminal offense)] as charged in [Count ______ of ] the indictment has three elements, which are:

[One, the defendant knowingly [persuaded] [induced] [enticed] [coerced] (name person alleged in indictment) to travel in [interstate] [foreign] commerce;]

[One, the defendant attempted to [persuade] [induce] [entice] [coerce] (name of person alleged in indictment) to travel in [interstate] [foreign] commerce;]¹

[Two, during such travel a [state line] [national boundary] was crossed; and]

[Two, had such travel occurred, a [state line] [national boundary] would have been crossed; and]¹

Three, the defendant [did so] [attempted to do so] with the intent that (name of person alleged in indictment) engage in [prostitution] [(any sexual activity for which a person can be charged with a criminal offense)].

[A person may be found guilty of an attempt if [he] [she] intended to (describe attempted act, i.e., persuade Jane Doe to travel in interstate commerce with the intent that Jane Doe engage in prostitution) and voluntarily and intentionally carried out some act which was a substantial step² toward that (describe attempted act).]³

[(Set out elements of applicable Federal or State law) [is] [are] [a crime] [crimes] under the laws of [the United States] [the State of (identify the state)].]⁴

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

Notes on Use

1. Use when the defendant is charged with an attempt.

2 An instruction defining "substantial step" may be given. See Instruction 8.01, Notes on Use, n.2, infra.

3. Use when the defendant is charged with an attempt. See generally, Instruction 8.01, infra.

4. Use when the defendant is charged with persuading or coercing an individual to engage in any activity for which any person can be charged with a criminal offense, or an attempt to do so.

(For 2008 version see below).

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

2008 Version

The crime of [persuading] [inducing] [enticing] [coercing] an individual to travel in [interstate] [foreign] commerce to engage in [prostitution] [(any sexual activity for which a person can be charged with a criminal offense)] as charged in [Count ______ of ] the indictment has three elements, which are:

[One, the defendant knowingly [persuaded] [induced] [enticed] [coerced] (name person alleged in indictment) to travel in [interstate] [foreign] commerce;]

[One, the defendant attempted to [persuade] [induce] [entice] [coerce] (name of person alleged in indictment) to travel in [interstate] [foreign] commerce;]¹

[Two, during such travel a [state line] [national boundary] was crossed; and]

[Two, had such travel occurred, a [state line] [national boundary] would have been crossed; and]¹

Three, the defendant [did so] [attempted to do so] with the intent that (name of person alleged in indictment) engage in [prostitution] [(any sexual activity for which a person can be charged with a criminal offense)].

[A person may be found guilty of an attempt if [he] [she] intended to (describe attempted act, i.e., persuade Jane Doe to travel in interstate commerce with the intent that Jane Doe engage in prostitution) and voluntarily and intentionally carried out some act which was a substantial step² toward that (describe attempted act).]³

[(Set out elements of applicable Federal or State law) [is] [are] [a crime] [crimes] under the laws of [the United States] [the State of (identify the state)].]⁴

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

Notes on Use

1. Use when the defendant is charged with an attempt.

2 An instruction defining "substantial step" may be given. See Instruction 8.01, Notes on Use, n.2, infra.

3. Use when the defendant is charged with an attempt. See generally, Instruction 8.01, infra.

4. Use when the defendant is charged with persuading or coercing an individual to engage in any activity for which any person can be charged with a criminal offense, or an attempt to do so.

No 2006 Version

8TH CIRCUIT MODEL INSTRUCTIONS 2009

6.18.2422B
PERSUADING OR COERCING A MINOR TO ENGAGE IN SEXUAL ACTIVITY
(18 USC 2422(b))

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Persuading Or Coercing To Travel To Engage In Prostitution (18 USC 2422)

The crime of [using the mail] [using any facility or means of [interstate] [foreign] commerce] to [persuade] [induce] [entice] [coerce] anyone under eighteen (18) years of age to engage in [prostitution] [(any sexual activity for which any person can be charged with a criminal offense)] as charged in [Count ____ of] the indictment has [ two]¹ [three]² elements, which are:

One, the defendant knowingly used [the mail] [a computer] (describe other interstate facility as alleged in the indictment) to [attempt to] [persuade] [induce] [entice] [coerce] an individual under the age of eighteen (18) years of age to engage in [prostitution] [(describe sexual activity charged in indictment)]; and

Two, the defendant believed that such individual was less than eighteen (18) years of age; [and]

[Three, that [if the sexual activity had occurred] [based upon the sexual activity that occurred], the defendant could have been charged with a criminal offense under the laws of [the United States] (identify the state)].³

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

It is not necessary for the Government to prove that the individual was, in fact, less than eighteen (18) years of age; but it is necessary for the Government to prove the defendant believed such individual to be under that age.

[It is not necessary for the Government to prove that the individual was actually [persuaded] [induced] [enticed] [coerced] to engage in [prostitution] [(describe sexual activity charged in indictment)]; but it is necessary for the Government to prove that the defendant intended to engage in [prostitution] [(some form of unlawful sexual activity)] with the individual and knowingly and willfully took some action that was a substantial step toward bringing about or engaging in [prostitution] [(describe sexual activity charged in indictment)].]⁴

[Set out elements of applicable Federal or State law) [is] [are] [a crime] [crimes] under the laws of [the United States] [the State of (identify the state)].⁵

Notes on Use

1. Use when the defendant is charged with persuading or coercing a minor to engage in prostitution.

2. Use when the defendant is charged with persuading or coercing a minor to engage in any sexual activity for which any person can be charged with a criminal offense.

3. Use when the defendant is charged with persuading or coercing a minor to engage in any sexual activity for which any person can be charged with a criminal offense.

4. Use when the defendant is charged with an attempt.

5. Use when the defendant is charged with persuading or coercing a minor to engage in any sexual activity for which any person can be charged with a criminal offense.

Committee Comments

There is no requirement that the defendant complete a sex act with the intended victim to support a conviction under this section, even if the crime is not charged as an attempt. United States v. Bailey, 228 F.3d 637, 638-39 (6^th Cir. 2000).

The defendant need not know the age of the intended victim, so long as the defendant believes that the victim is under the age of eighteen (18). United States v. Helder, 452 F.3d 751, 756 (8^th Cir. 2006); United States v. Hicks, 457 F.3d 838, 841 (8^th Cir. 2006).

An actual minor victim is not required for an attempt conviction under section 2422(b); the "victim" may, in fact, be an undercover police officer. Helder, 452 F.3d at 753-56; Hicks, 457 F.3d at 839-41.

The Eighth Circuit has upheld attempt convictions under section 2422(b) where the means of interstate communication used was the internet. See, e.g., Helder, supra; Hicks, supra; United States v. Patten, 397 F.3d 1100 (8^th Cir. 2005).

(For 2008 version see below).

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

2008 Version

The crime of [using the mail] [using any facility or means of [interstate] [foreign] commerce] to [persuade] [induce] [entice] [coerce] anyone under eighteen (18) years of age to engage in [prostitution] [(any sexual activity for which any person can be charged with a criminal offense)] as charged in [Count ____ of] the indictment has [ two]¹ [three]² elements, which are:

One, the defendant knowingly used [the mail] [a computer] (describe other interstate facility as alleged in the indictment) to [attempt to] [persuade] [induce] [entice] [coerce] an individual under the age of eighteen (18) years of age to engage in [prostitution] [(describe sexual activity charged in indictment)]; and

Two, the defendant believed that such individual was less than eighteen (18) years of age; [and]

[Three, that [if the sexual activity had occurred] [based upon the sexual activity that occurred], the defendant could have been charged with a criminal offense under the laws of [the United States] (identify the state)].³

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

It is not necessary for the Government to prove that the individual was, in fact, less than eighteen (18) years of age; but it is necessary for the Government to prove the defendant believed such individual to be under that age.

[It is not necessary for the Government to prove that the individual was actually [persuaded] [induced] [enticed] [coerced] to engage in [prostitution] [(describe sexual activity charged in indictment)]; but it is necessary for the Government to prove that the defendant intended to engage in [prostitution] [(some form of unlawful sexual activity)] with the individual and knowingly and willfully took some action that was a substantial step toward bringing about or engaging in [prostitution] [(describe sexual activity charged in indictment)].]⁴

[Set out elements of applicable Federal or State law) [is] [are] [a crime] [crimes] under the laws of [the United States] [the State of (identify the state)].⁵

Notes on Use

1. Use when the defendant is charged with persuading or coercing a minor to engage in prostitution.

2. Use when the defendant is charged with persuading or coercing a minor to engage in any sexual activity for which any person can be charged with a criminal offense.

3. Use when the defendant is charged with persuading or coercing a minor to engage in any sexual activity for which any person can be charged with a criminal offense.

4. Use when the defendant is charged with an attempt.

5. Use when the defendant is charged with persuading or coercing a minor to engage in any sexual activity for which any person can be charged with a criminal offense.

Committee Comments

No 2006 Version

8TH CIRCUIT MODEL INSTRUCTIONS 2009

6.18.2423A
TRANSPORTATION OF MINOR TO ENGAGE IN CRIMINAL SEXUAL ACTIVITY
(18 USC 2423(a))¹

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Transportation Of Minor For Prostitution (18 USC 2423)

The crime of [interstate] [foreign] transportation of anyone under eighteen (18) years of age to engage in [prostitution] [(specify sexual activity for which a person can be charged with a criminal offense)] as charged in [Count ___ of] the indictment has [three]² [four]³ elements, which are:

One, the defendant knowingly [transported] [attempted to transport] (name of person alleged in indictment) across a state line or national border;

Two, the defendant [transported] [attempted to transport] (name of person alleged in indictment) with the intent such person engage in [prostitution] [(describe sexual activity charged in indictment)]; and

Three,⁴ [(name of person alleged in indictment) was under the age of eighteen (18) years]⁵ [the defendant believed such individual was under the age of eighteen (18) years of age]^{6,
7} [; and]

[Four, (describe sexual activity charged in indictment) is a crime under the law of the State of (identify state).] ⁸

[Prostitution means (set out elements of crime of prostitution from jurisdiction in which act occurred or would have occurred).]⁹

[(Set out elements of applicable Federal or State law) [is] [are] [a crime] [crimes] under the laws of [the United States] [the State of (identify state)].]¹⁰

[A person may be found guilty of an attempt if [he] [she] intended to (describe attempted act, i.e., transport Jane Doe across a state line with the intent that Jane Doe engage in prostitution) and voluntarily and intentionally carried out some act which was a substantial step¹¹ toward that (describe attempted act).]¹²

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

[It is not necessary for the Government to prove that the defendant knew that (name of person alleged in indictment) was, in fact, less than eighteen (18) years of age.]¹³

[It is not necessary for the Government to prove that the individual was, in fact, less than eighteen (18) years of age; but it is necessary for the Government to prove the defendant believed such individual to be under that age.]¹⁴

Notes on Use

1. Title 18 USC 2423(e) authorizes the charging of an attempt or conspiracy under this statute. If a conspiracy is charged, modify instruction accordingly.

2. Use when the defendant is charged with transporting a minor to engage in prostitution.

3. Use when the defendant is charged with transporting a minor to engage in any sexual activity for which a person can be charged with a criminal offense.

4. Use when the defendant is charged with transporting a minor to engage in prostitution.

5. Use when the defendant is charged with the actual transportation of the victim.

6. Use when the defendant is charged with the attempted transportation and the "victim" is an undercover officer.

7. When the defendant is charged with transporting a minor to engage in any sexual activity for which a person can be charged with a criminal offense, and mistake of age is a defense to such offense, instruction must be modified to set out elements of that offense.

8. Use when the defendant is charged with transporting a minor to engage in any sexual activity for which a person can be charged with a criminal offense.

9. Use when the defendant is charged with transporting a minor to engage in prostitution.

10. Use when the defendant is charged with transporting a minor to engage in any sexual activity for which a person can be charged with a criminal offense.

11. An instruction defining "substantial step" should be given. See Instruction 8.01, Notes on Use, n.2, infra.

12. Use when the defendant is charged with an attempt. See generally, Instruction 8.01, infra.

13. Use when the defendant is charged with the actual transportation of the victim and the charge does not involve a sexual offense to which mistake of age is a defense.

14. Use when the defendant is charged with the attempted transportation and the "victim" is an undercover officer.

Committee Comments

Although the matter has not been decided in the Eighth Circuit, every circuit to address the issue has determined that the Government need not prove the defendant’s knowledge of the victim’s minority, rather the victim’s minor status is a fact which the prosecution must prove and for which the defendant is responsible. See United States v. Jones, 471 F.3d 535, 538-40 (4^th Cir. 2006); United States v. Griffith, 284 F.3d 338, 349-51 (2^nd Cir. 2002); United States v. Taylor, 239 F.3d 994, 996-97 (9^th Cir. 2001); United States v. Scisum, 32 F.3d 1479, 1485-86 (10^th Cir. 1994); United States v. Hamilton, 456 F.3d 171, 173 (3^rd Cir. 1972). In Gilmour v. Rogerson, 117 F.3d 368 (8^th Cir. 1997), a habeas corpus proceeding, the Eighth Circuit held that a defendant charged with the Iowa offense of sexual exploitation of a minor was not entitled to a mistake-of-age defense based on the reasonable belief that the sexually exploited victim was, in fact, an adult.

The Eighth Circuit has held that a defendant may be convicted of violating 18 USC 2423(b) if he or she travels in interstate commerce for the purpose of engaging in criminal sexual conduct with a person believed to be a minor regardless of whether such person is actually a minor. United States v. Hicks, 457 F.3d. 838, 841 (8^th Cir. 2006).

(For 2008 version see below).

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

2008 Version

The crime of [interstate] [foreign] transportation of anyone under eighteen (18) years of age to engage in [prostitution] [(any sexual activity for which a person can be charged with a criminal offense)] as charged in [Count ___ of] the indictment has [three]² [four]³ elements, which are:

One, the defendant knowingly [transported] [attempted to transport] (name of person alleged in indictment) across a state line or national border; and

Two, the defendant [transported] [attempted to transport] the person with the intent such person engage in [prostitution] [(describe sexual activity charged in indictment)]; and

[Three, [if the sexual activity had occurred] [based upon the sexual activity that occurred] the defendant could have been charged with a criminal offense under the law of (identify state); and]⁴

[Three]⁵ [Four] the defendant believed such individual was under the age of eighteen (18) years of age.

[Prostitution means (set out elements of crime of prostitution from jurisdiction in which act occurred or would have occurred).]⁶

[(Set out elements of applicable Federal or State law) [is] [are] [a crime] [crimes] under the laws of [the United States] [the State of (identify the state).]⁷

[A person may be found guilty of an attempt if [he] [she] intended to (describe attempted act, i.e., transport Jane Doe across a state line with the intent that Jane Doe engage in prostitution) and voluntarily and intentionally carried out some act which was a substantial step⁸ toward that (describe attempted act).]⁹

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

It is not necessary for the Government to prove that the individual was, in fact, less than eighteen (18) years of age; but it is necessary for the Government to prove the defendant believed such individual to be under that age.

Notes on Use

1. Title 18 USC 2423(e) authorizes the charging of an attempt or conspiracy under this statute. If a conspiracy is charged, modify instruction accordingly.

2. Use when the defendant is charged with transporting a minor to engage in prostitution.

3. Use when the defendant is charged with transporting a minor to engage in any sexual activity for which a person can be charged with a criminal offense.

4. Use when the defendant is charged with transporting a minor to engage in any sexual activity for which a person can be charged with a criminal offense.

5. Use when the defendant is charged with transporting a minor to engage in prostitution.

6. Use when the defendant is charged with transporting a minor to engage in prostitution.

7. Use when the defendant is charged with transporting a minor to engage in any sexual activity for which a person can be charged with a criminal offense.

8. An instruction defining "substantial step" may be given. See Instruction 8.01, Notes on Use, n.2, infra.

9. Use when the defendant is charged with an attempt. See generally, Instruction 8.01, infra.

Committee Comments

The Eighth Circuit has held that a defendant may be convicted of violating 18 USC 2423(b) if he or she travels in interstate commerce with the purpose of engaging in criminal sexual conduct with a person believed to be a minor regardless of whether such person is actually a minor. United States v. Hicks, 457 F.3d. 838, 841 (8^th Cir. 2006).

No 2006 Version

8TH CIRCUIT MODEL INSTRUCTIONS 2009

6.21.841A
CONTROLLED SUBSTANCES - POSSESSION WITH INTENT TO DISTRIBUTE
(21 USC 841(a)(1))

FORECITE National™ Materials Related To This Instruction:

Federal Models By Offense: Drug Abuse Prevention And Control (Title 21 - Sections 841-864)

The crime of possession of (describe substance, e.g., cocaine) with intent to distribute, as charged in [Count _____ of] the indictment, has three elements, which are:

One, the defendant was in possession of (describe substance, e.g., cocaine);¹

Two, the defendant [knew that he was] [intended to be] in possession of [a controlled substance] [(describe substance, e.g., cocaine)];² and

Three, the defendant intended to distribute³ some or all⁴ of the (describe substance, e.g., cocaine) to another person.

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

Notes on Use

1. For jury instructions involving enhanced drug offenses under Apprendi v. New Jersey, see 6.21.841A1 - 6.21.846A1.

2. The defendant need not know what the controlled substance is if he knows he has possession of some controlled substance. United States v. Sheppard, 219 F.3d 766 (8^th Cir. 2000). The alternative language which best fits the case should be used.

3. In United States v. Shurn, 849 F.2d 1090 (8th Cir. 1988), the court approved the following instruction on "intent to distribute":

I instruct you that possession of a large quantity of heroin supports an inference of an intent to distribute.

Thus, in determining whether the defendant possessed heroin with the specific intent to distribute it, you should consider whether the defendant possessed a large quantity of heroin. If you believe that he did, then you may infer that he had the specific intent to distribute.

849 F.2d at 1095 n.6.

When such an instruction is used, care must be used that the instruction not be phrased in a manner which indicates the jury must make an inference. Likewise, "specific" should be omitted as modifying intent. The Committee recommends that such an instruction be rephrased as suggested in Instruction 4.13, supra.

"Distribute" may be defined if the meaning is unclear in the context of the case. The statute also makes it unlawful to manufacture, dispense or possess with intent to manufacture, distribute or dispense. If one of these alternatives has been charged, this element should be changed accordingly.

4. It is uncertain whether, in section 841(a)(1) possession with intent to distribute cases, drugs intended only for personal use are included in the drug quantity. In United States v. Williams, 247 F.3d 353, 357 (2d Cir. 2001), the court held that such amounts are not included. The Eighth Circuit has not ruled on the precise issue; however, in United States v. Fraser, 243 F.3d 473, 476 (8^th Cir. 2001), it concluded that in determining relevant conduct under the guidelines for a section 841(a)(1) offense, drugs possessed for solely personal use should not be included. The phrase "some or all" therefore should be used with care.

Committee Comments

See 2B Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal §§ 64.01-.18 (5th ed. 2000); United States v. Hudson, 717 F.2d 1211, 1212-13 (8th Cir. 1983); United States v. Brischetto, 538 F.2d 208, 210 (8th Cir. 1976).

Any fact (other than a prior conviction) that increases the maximum penalty for a crime must be charged in the indictment, submitted to the jury, and proven beyond a reasonable doubt. Apprendi v. New Jersey, 530 U.S. 466 (2000); United States v. Aguayo-Delgado, 220 F.3d 926 (8^th Cir. 2000); United States v. Sheppard, 219 F.3d 766 (8^th Cir. 2000). Under the section 841(b) sentencing provisions, some of the facts that may raise the statutory maximum are the quantity of drugs involved in the offense, or whether death or serious bodily injury results from use of the drugs involved. For jury instructions involving such enhanced drug offenses, see 6.21.841A1 - 6.21.846A1. In Harris v. United States, 536 U.S. 545 (2002), the Supreme Court declined to extend Apprendi to facts increasing the statutory minimum sentence, reaffirming its earlier decision in McMillan v. Pennsylvania, 477 U.S. 79 (1986). Therefore, such facts need not be submitted to the jury.

The element of "possession" ordinarily does not need to be defined. Johnson v. United States, 506 F.2d 640, 643 (8th Cir. 1974). Where the government is relying on a joint possession or constructive possession theory, however, a definitional instruction may be required. See Instruction 8.02, infra; see also Ninth Cir. Crim. Jury Instr. 9.4.1 (1997); 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 16.05 (5th ed. 2000); United States v. Haynes, 653 F.2d 332, 333 (8th Cir. 1981); United States v. Weisser, 737 F.2d 729, 732 (8th Cir. 1984).

"Intent to distribute" typically is established through circumstantial evidence. United States v. Shurn, 849 F.2d 1090, 1093, 1095 (8th Cir. 1988) and cases cited therein. In particular, possession of a large quantity of a controlled substance can be sufficient evidence of an intent to distribute. United States v. Lopez, 42 F.3d 463, 467-68 (8th Cir. 1994). Other indicia of intent to distribute include "[drug] purity and presence of firearms, cash, packaging material, or other distribution paraphernalia." Id.

It is uncertain whether, in section 841(a)(1) possession with intent to distribute cases, drugs intended only for personal use are included in the drug quantity. In United States v. Williams, 247 F.3d 353, 357 (2d Cir. 2001), the court held that such amounts are not included. The Eighth Circuit has not ruled on the precise issue; however, in United States v. Fraser, 243 F.3d 473, 476 (8^th Cir. 2001), it concluded that in determining relevant conduct under the guidelines for a §841(a)(1) offense, drugs possessed for solely personal use should not be included. The phrase "some or all" therefore should be used with care.

In an appropriate case, a lesser-included offense instruction under 21 USC 844 must be given. See United States v. Brischetto, 538 F.2d 208 (8th Cir. 1976); see, e.g., United States v. Swiderski, 548 F.2d 445 (2d Cir. 1977) in which the court held that joint purchasers and possessors of a controlled substance who intend to share it between themselves may not be found guilty of distribution or possession with intent to distribute, but only of simple possession. See Instruction 3.10, supra, for a form of lesser-included offense instruction.

When distribution by a physician is charged, there must be a finding that the defendant dispensed the drug other than for a legitimate medical purpose and not in the usual course of medical practice. United States v. Green, 511 F.2d 1062, 1069-70 (7th Cir. 1975). In such a case, the defendant may be entitled to a "good faith" instruction. Green, 511 F.2d at 1071-72. See Instructions 9.05 and 9.08, infra.

The question whether something is a "controlled substance" under 21 USC 802(6) or a "narcotic drug" within the meaning of section 802(16) is a question of law. United States v. Porter, 544 F.2d 936, 940 (8th Cir. 1976).

(For 2008 version see below).

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

2008 Version

The crime of possession of (describe substance, e.g., cocaine) with intent to distribute, as charged in [Count _____ of] the indictment, has three elements, which are:

One, the defendant was in possession of (describe substance, e.g., cocaine);¹

Two, the defendant [knew that he was] [intended to be] in possession of [a controlled substance] [(describe substance, e.g., cocaine)];² and

Three, the defendant intended to distribute³ some or all⁴ of the (describe substance, e.g., cocaine) to another person.

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

Notes on Use

1. For jury instructions involving enhanced drug offenses under Apprendi v. New Jersey, see 6.21.841A1 - 6.21.846A1.

3. In United States v. Shurn, 849 F.2d 1090 (8th Cir. 1988), the court approved the following instruction on "intent to distribute":

I instruct you that possession of a large quantity of heroin supports an inference of an intent to distribute.

Thus, in determining whether the defendant possessed heroin with the specific intent to distribute it, you should consider whether the defendant possessed a large quantity of heroin. If you believe that he did, then you may infer that he had the specific intent to distribute.

849 F.2d at 1095 n.6.

Committee Comments

In an appropriate case, a lesser included offense instruction under 21 USC 844 must be given. See United States v. Brischetto, 538 F.2d 208 (8th Cir. 1976); see, e.g., United States v. Swiderski, 548 F.2d 445 (2d Cir. 1977) in which the court held that joint purchasers and possessors of a controlled substance who intend to share it between themselves may not be found guilty of distribution or possession with intent to distribute, but only of simple possession. See Instruction 3.10, supra, for a form of lesser included offense instruction.

(For 2006 version see below)

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

2006 Version

The crime of possession of (describe substance, e.g., cocaine) with intent to distribute, as charged in [Count _____ of] the indictment, has three elements, which are:

One, the defendant was in possession of (describe substance, e.g., cocaine);¹

Two, the defendant [knew that he was] [intended to be] in possession of [a controlled substance] [(describe substance, e.g., cocaine)];² and

Three, the defendant intended to distribute³ some or all⁴ of the (describe substance, e.g., cocaine) to another person.

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

Notes on Use

1. For jury instructions involving enhanced drug offenses under Apprendi v. New Jersey, see 6.21.841A1 - 6.21.846A1.

3. In United States v. Shurn, 849 F.2d 1090 (8th Cir. 1988), the court approved the following instruction on "intent to distribute":

I instruct you that possession of a large quantity of heroin supports an inference of an intent to distribute.

Thus, in determining whether the defendant possessed heroin with the specific intent to distribute it, you should consider whether the defendant possessed a large quantity of heroin. If you believe that he did, then you may infer that he had the specific intent to distribute.

849 F.2d at 1095 n.6.

4. It is uncertain whether, in section 841(a)(1) possession with intent to distribute cases, drugs intended only for personal use are included in the drug quantity. In United States v. Williams, 247 F.3d 353, 357 (2d Cir. 2001) and United States v. Rodriguez-Sanchez, 23 F.3d 1488, 1494-96 (9^th Cir. 1994), the courts held that such amounts are not included. The Eighth Circuit has not ruled on the precise issue; however, in United States v. Fraser, 243 F.3d 473, 476 (8^th Cir. 2001), it concluded that in determining relevant conduct under the guidelines for a section 841(a)(1) offense, drugs possessed for solely personal use should not be included. The phrase "some or all" therefore should be used with care.

Committee Comments

Any fact (other than a prior conviction) that increases the maximum penalty for a crime must be charged in the indictment, submitted to the jury, and proven beyond a reasonable doubt. Apprendi v. New Jersey, 530 U.S. 466 (2000); United States v. Aguayo-Delgado, 220 F.3d 926 (8^th Cir. 2000); United States v. Sheppard, 219 F.3d 766 (8^th Cir. 2000). Under the section 841(b) sentencing provisions, some of the facts that may raise the statutory maximum are the quantity of drugs involved in the offense, or whether death or serious bodily injury results from use of the drugs involved. For jury instructions involving such enhanced drug offenses, see 6.21.841A1 - 6.21.846A1. In Harris v. United States, 536 U.S. 545 (2002), the Supreme Court declined to extend Apprendi to facts increasing the statutory minimum sentence, reaffirming its earlier decision in McMillan v. Pennsylvania, 477 U.S. 79 (1986). Therefore, such facts need not be submitted to the jury.

It is uncertain whether, in section 841(a)(1) possession with intent to distribute cases, drugs intended only for personal use are included in the drug quantity. In United States v. Williams, 247 F.3d 353, 357 (2d Cir. 2001) and United States v. Rodriguez-Sanchez, 23 F.3d 1488, 1494-96 (9^th Cir. 1994), the courts held that such amounts are not included. The Eighth Circuit has not ruled on the precise issue; however, in United States v. Fraser, 243 F.3d 473, 476 (8^th Cir. 2001), it concluded that in determining relevant conduct under the guidelines for a §841(a)(1) offense, drugs possessed for solely personal use should not be included. The phrase "some or all" therefore should be used with care.

For 2000 version see below

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

2000 Version

The crime of possession of (describe substance, e.g., cocaine) with intent to distribute, as charged in [Count _____ of] the indictment, has three essential elements, which are:

One, the defendant was in possession of (describe substance, e.g., cocaine);1

Two, the defendant [knew that he was] [intended to be] in possession of [a controlled substance] [(describe substance, e.g., cocaine)];2 and

Three, the defendant intended to distribute3 some or all of the (describe substance, e.g., cocaine) to another person.

(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 §§ 54.01-54.18 (4th ed. 1990); United States v. Hudson, 717 F.2d 1211, 1212-13 (8th Cir. 1983); United States v. Brischetto, 538 F.2d 208, 210 (8th Cir. 1976).

The element of "possession" ordinarily does not need to be defined. Johnson v. United States, 506 F.2d 640, 643 (8th Cir. 1974), cert. denied, 420 U.S. 978 (1975). Where the government is relying on a joint possession or constructive possession theory, however, a definitional instruction may be required. See Instruction 8.02, infra; see also Ninth Cir. Crim. Jury Instr. 9.4.1 (1997); 1 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Civil and Criminal § 16.05 (4th ed. 1992); United States v. Haynes, 653 F.2d 332, 333 (8th Cir. 1981); United States v. Rojas, 537 F.2d 216, 220-21 (5th Cir. 1976), cert. denied, 429 U.S. 1061 (1977); United States v. Weisser, 737 F.2d 729, 732 (8th Cir. 1984), cert. denied, 469 U.S. 1158 (1985).

In an appropriate case, a lesser included offense instruction under 21 USC 844 must be given. See United States v. Brischetto, 538 F.2d 208 (8th Cir. 1976); see, e.g., United States v. Swiderski, 548 F.2d 445 (2d Cir. 1977) in which the court held that joint purchasers and possessors of a controlled substance who intend to share it between themselves may not be found guilty of distribution or possession with intent to distribute, but only of simple possession. See Instruction 3.10, supra, for a form of lesser included offense instruction.

When distribution by a physician is charged, there must be a finding that the defendant dispensed the drug other than for a legitimate medical purpose and not in the usual course of medical practice. United States v. Green, 511 F.2d 1062, 1069-70 (7th Cir.), cert. denied, 423 U.S. 1031 (1975). In such a case, the defendant may be entitled to a "good faith" instruction. Green, 511 F.2d at 1071-72. See Instructions 9.05 and 9.08, infra.

Notes on Use

1. The Anti-Drug Abuse Act of 1986 provides for progressively enhanced sentences for possession of certain quantities of controlled substances. This Circuit has held that the judge and not the jury should factually determine the quantity of a controlled substance in a particular case at the defendant's sentencing. This Circuit so held in a 2-1 decision as follows:

Our review of the language, structure and legislative history of 21 USC 841(b)(1)(A)(ii) and case law deciding the additional element of the offense/sentencing factor claims, . . . convinces us that Congress has merely deemed a particular fact relevant to sentencing and has dictated the enhancement available if the sentencing judge determines the offense so warrants.

* * * Having concluded that Congress intended that the quantity of cocaine was to be treated under Section 841(b)(1)(A)(ii) as a sentencing consideration, and not as an element of any offense, we need only mention that there is no constitutional right to jury sentencing, even where the sentence turns upon specific findings of fact.

United States v. Wood, 834 F.2d 1382, 1390 (8th Cir. 1987).

In a very similar context, in United States v. Rush, 840 F.2d 574 (8th Cir. en banc), cert. denied, 487 U.S. 1238 (1988), this Circuit determined that a defendant's prior record of convictions, which required that his sentence be enhanced under the Armed Career Criminal Act of 1984 should be determined by the district judge at sentencing, and not submitted to the jury. Four members of the Court joined in a dissenting opinion.

Four other circuits agree with this Circuit, and hold that the prior record should be determined by the Court. See United States v. Gregg, 803 F.2d 568 (10th Cir. 1986), cert. denied, 480 U.S. 920 (1987); United States v. Hawkins, 811 F.2d 210 (3d Cir.), cert. denied, 484 U.S. 833 (1987); United States v. Jackson, 824 F.2d 21 (D.C. Cir. 1987), cert. denied, 484 U.S. 1013 (1988); United States v. West, 826 F.2d 909 (9th Cir. 1987).

The Fifth Circuit has determined that the sentencing provisions of the Armed Career Criminal Act of 1984 create a new offense, and hold that the defendant's prior record therefore must be submitted to the jury for its determination of the defendant's record. United States v. Davis, 801 F.2d 754 (5th Cir. 1986).

Given the current state of law, the Committee makes no recommendation as to whether special interrogatories should be submitted to the jury on the quantity of a controlled substance, if enhanced punishment is sought by the Government. Because of the split in the circuits on the sentencing issue under the Armed Career Criminal Act, it appears that the Supreme Court will make the final determination in this matter. However, in Jones v. United States, 526 U.S. 227, 119 S. Ct. 1215 (1999), dealing with a carjacking offense under 18 USC 2119, the 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." If the quantity of drugs will affect the maximum punishment authorized, the safest approach would be to specify the quantity in the indictment and require the jury to find the quantity necessary to justify the enhanced punishment beyond a reasonable doubt.

2. The defendant need not know what the controlled substance is if he knows he has possession of some controlled substance. See, e.g., United States v. Gonzalez, 700 F.2d 196, 200-01 (5th Cir. 1983); United States v. Morales, 577 F.2d 769, 776 (2d Cir. 1978); United States v. Jewell, 532 F.2d 697, 698 (9th Cir.), cert. denied, 426 U.S. 951 (1976). The alternative language which best fits the case should be used.

3. In United States v. Shurn, 849 F.2d 1090 (8th Cir. 1988), the court approved the following instruction on "intent to distribute":

I instruct you that possession of a large quantity of heroin supports an inference of an intent to distribute.

Thus, in determining whether the defendant possessed heroin with the specific intent to distribute it, you should consider whether the defendant possessed a large quantity of heroin. If you believe that he did, then you may infer that he had the specific intent to distribute.

849 F.2d at 1095 n.6.

8TH CIRCUIT MODEL INSTRUCTIONS 2009

6.21.841A.1
CONTROLLED SUBSTANCES - POSSESSION WITH INTENT TO DISTRIBUTE
(21 USC 841(a)(1)) Apprendi-affected Possession (Short Version)

The crime of possession of (describe substance (and amount), e.g., [a controlled substance] [name of controlled substance] [500 grams or more of a mixture or substance containing methamphetamine) with intent to distribute, as charged in [Count _____ of] the indictment, has four elements, which are:

One, the defendant possessed [a controlled substance] [(describe substance, e.g., a mixture or substance containing methamphetamine)];

Two, the defendant [knew that he] [intended to] possess[ed] [a controlled substance] [(describe substance, e.g., a mixture or substance containing methamphetamine)];

Three, the defendant intended to distribute¹ [the controlled substance] [(describe substance, e.g., some or all of the mixture or substance containing methamphetamine)]²; and

Four, (describe aggravating element,³ e.g., [the amount the defendant possessed with intent to distribute was 500 grams or more of a mixture or substance containing methamphetamine] [the amount involved in the offense was 500 grams or more of a mixture or substance containing methamphetamine], [or if that is not proved, that (describe lesser-included but still aggravated crime, e.g. [the amount the defendant possessed with intent to distribute was 50 grams or more but less than 500 grams of a mixture or substance containing methamphetamine] [the amount involved in the offense was 50 grams or more but less than 500 grams of a mixture or substance containing methamphetamine]]).

If you find these four elements unanimously and beyond a reasonable doubt, [and if you find unanimously and beyond a reasonable doubt that the defendant was not [entrapped] [as defined in Instruction No. ]], then you must find the defendant guilty of the crime of (describe crime). Record your determination on the Verdict Form which will be submitted to you with these instructions.

If you do not find the defendant guilty of this crime [under Count ], go on to consider whether the defendant possessed with intent to distribute some amount of (describe controlled substance). If you find the first three elements set forth above unanimously and beyond a reasonable doubt, [and if you find unanimously and beyond a reasonable doubt that the defendant was not [entrapped] [as defined in Instruction No. ]], you must find the defendant guilty of the crime of possession with intent to distribute (describe controlled substance, e.g., a mixture or substance containing methamphetamine). Otherwise, you must find the defendant not guilty. Record your determination on the Verdict Form.

(Instruction 3.09, supra, which describes the Government’s burden of proof, has already been incorporated in this instruction and should not be repeated.)

Notes on Use

1. In United States v. Shurn, 849 F.2d 1090 (8th Cir. 1988), the court approved the following instruction on "intent to distribute."

I instruct you that possession of a large quantity of heroin supports an inference of an intent to distribute.

Thus, in determining whether the defendant possessed heroin with the specific intent to distribute it, you should consider whether the defendant possessed a large quantity of heroin. If you believe that he did, then you may infer that he had the specific intent to distribute.

849 F.2d at 1095 n.6.

2. It is uncertain whether, in section 841(a)(1) possession with intent to distribute cases, drugs intended only for personal use are included in the drug quantity. In United States v. Williams, 247 F.3d 353, 357 (2d Cir. 2001), the court held that such amounts are not i