8TH CIRCUIT MODEL INSTRUCTIONS 2009
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7.    Final Instructions: Consideration Of Mental State

        7.00     Introductory Comment
        7.01     Specific Intent
        7.02     Willfully
        7.03     Knowingly
        7.04     Deliberate Ignorance
        7.05     Proof Of Intent Or Knowledge

8TH CIRCUIT MODEL INSTRUCTIONS 2009

7.00 FINAL INSTRUCTIONS: CONSIDERATION OF MENTAL STATE
Introductory Comment

The instructions in this section relate to the jury’s consideration of the defendant’s mental state. The Committee recommends that the elements instructions address the exact mental state required by the statute. If this is done there is usually no need to further instruct the jury on the meaning of general terms such as "specific intent," "knowingly" and "willfully" except as noted in the Committee Comments in this section.

8TH CIRCUIT MODEL INSTRUCTIONS 2009

FORECITE National™ Materials Related To This Instruction:

45.2 General And Specific Intent

(No instruction recommended.)

The Committee is unaware of any federal statute which actually uses the phrase "specific intent" and accordingly recommends that it not be used in any instruction. Where a mental state is an element of an offense, that mental state must be contained in the elements instruction. See Liparota v. United States, 471 U.S. 419, 433 n.16 (1985). The verbal formulation "specific intent" need not be contained in the indictment nor submitted to the jury, as long as the required mental state is adequately conveyed to the jury. United States v. Dougherty, 763 F.2d 970, 973-74 (8^th Cir. 1985); United States v. May, 625 F.2d 186, 189-90 (8^th Cir. 1980); United States v. Galyen, 798 F.2d 331, 333 (8^th Cir. 1986). United States v. Bailey, 444 U.S. 394 (1980). The elements instructions in Section 6, supra, were drafted with this purpose in mind.

(For 2008 version see below).

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

2008 Version

[No instruction recommended.]

The Committee is unaware of any federal statute which actually uses the phrase "specific intent" and accordingly recommends that it not be used in any instruction. Where a mental state is an element of an offense, that mental state must be contained in the elements instruction. See Liparota v. United States, 471 U.S. 419, 433 n.16 (1985). The verbal formulation "specific intent" need not be contained in the indictment nor submitted to the jury, as long as the required mental state is adequately conveyed to the jury. United States v. Dougherty, 763 F.2d 970, 973-74 (8^th Cir. 1985); United States v. May, 625 F.2d 186, 189-90 (8^th Cir. 1980); United States v. Galyen, 798 F.2d 331, 333 (8^th Cir. 1986). United States v. Bailey, 444 U.S. 394 (1980). The elements instructions in Section 6, supra, were drafted with this purpose in mind.

(For 2006 version see below)

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

[No instruction recommended.]

The Committee is unaware of any federal statute which actually uses the phrase "specific intent" and accordingly recommends that it not be used in any instruction. Where a mental state is an element of an offense, that mental state must be contained in the elements instruction. See Liparota v. United States, 471 U.S. 419, 433 n.16 (1985). The verbal formulation "specific intent" need not be contained in the indictment nor submitted to the jury, as long as the required mental state is adequately conveyed to the jury. United States v. Dougherty, 763 F.2d 970, 973-74 (8th Cir. 1985); United States v. May, 625 F.2d 186, 189-90 (8th Cir. 1980); United States v. Galyen, 798 F.2d 331, 333 (8th Cir. 1986). United States v. Bailey, 444 U.S. 394 (1980). The elements instructions in Section 6, supra, were drafted with this purpose in mind.

For 2000 version see below

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

2000 Version

7.01 SPECIFIC INTENT

[No instruction recommended.]

The Committee is unaware of any federal statute which actually uses the phrase "specific intent" and accordingly recommends that it not be used in any instruction. Where a mental state is an element of an offense, that mental state must be contained in the elements instruction. See Liparota v. United States, 471 U.S. 419, 433 n.16 (1985). The verbal formulation "specific intent" need not be contained in the indictment nor submitted to the jury, as long as the required mental state is adequately conveyed to the jury. United States v. Dougherty, 763 F.2d 970, 973-74 (8th Cir. 1985); United States v. May, 625 F.2d 186, 189-90 (8th Cir. 1980); United States v. Galyen, 798 F.2d 331, 333 (8th Cir. 1986). See also Ninth Cir. Crim. Jury Instr. 4.08 (1997); Seventh Circuit Federal Jury Instructions: Criminal § 5.4 (1999); United States v. Bailey, 444 U.S. 394, 398-444 (1980); United States v. Arambasich, 597 F.2d 609, 611-13 (7th Cir. 1979). The elements instructions in Section 6, supra, were drafted with this purpose in mind.

8TH CIRCUIT MODEL INSTRUCTIONS 2009

FORECITE National™ Materials Related To This Instruction:

Chapter 46: Willfulness

(No instruction recommended except in criminal tax cases, odometer fraud cases, health care anti-kickback statute cases, certain securities cases, and failure to pay child support cases.)

The Committee recommends that the word "willfully" not be used in jury instructions in most cases. Where "willfully" does not appear in the statute, it should not be used in the indictment or the instructions. Where the word "willfully" does appear in the statute, in most cases it can be replaced with the words "voluntarily and intentionally" in the instruction and no further definition is needed. See United States v. Redfearn, 906 F.2d 352 (8^th Cir. 1990); United States v. Bettelyoun, 16 F.3d 850, 853 (8^th Cir. 1994). The elements instructions in Section 66, supra, follow this format.

"Willfully" has been given a particular meaning in criminal tax statutes. In tax prosecutions "willfully" may be used in the indictment and in the instructions and should be defined as follows: "An act is done ‘willfully’ if done voluntarily and intentionally with the purposed of violating a known legal duty." United States v. Pomponio, 429 U.S. 10, 12 (1976); United States v. Jerde, 841 F.2d 818, 821 (8^th Cir. 1988). The Supreme Court has discussed the various meanings of the term "willfulness" in the criminal tax statutes in United States v. Bishop, 412 U.S. 346 (1973); Cheek v. United States, 498 U.S. 192 (1991) ("willfully" in a tax evasion case means both that the defendant knew of his duty to pay the tax and that he voluntarily and intentionally violated that duty). This circuit has extended this definition of willfully to odometer fraud cases under 15 USC 1990c. United States v. Studna, 713 F.2d 416, 418 (8^th Cir. 1983). There may be other statutes in which "willfully" has this definition.

In Ratzlaf v. United States, 510 U.S. 135 (1994), the Court held that for the purposes of the anti-structuring statutes at 31 USC 5313(a), 5322(a) & 5324(3) – which establish criminal penalties for anyone who "willfully violated" any of the provisions in the subchapter – the term "willfully" required both knowledge of the reporting requirements and a specific purpose to disobey the law. [Footnote 1]

In United States v. Jain, 93 F.3d 436 (8^th Cir. 1996), the Eighth Circuit interpreted the term "willfully" in the health care anti-kickback statute, at 42 USC 1320a-7b, to require proof that the defendant knew his conduct was "wrongful," (a heightened mens rea burden), see Jain, 93 F.3d at 441. The trial court in Jain instructed the jury that "the word ‘willfully’ means unjustifiably and wrongfully, known to be such by Defendant Swaran Jain." Jain, 93 F.3d at 440.

In United States v. O’Hagan, 521 U.S. 642 (1997), the Court, discussing criminal liability under 10b-5 of the Securities and Exchange Act, 18 USC 78ff(a), noted that criminal liability required that the government prove that a person engaging in "insider" trading "willfully" violated the substantive provision in question and that the statute specifically prohibited imprisonment of a defendant who "proves he had no knowledge of such rule or regulation." Id. at 664. This discussion, though brief, suggests that the Court may require proof that the defendant "intentionally violated a known legal duty."

Title 18 USC 228 prohibits any willful failure to pay legal child support obligations. The legislative history of this act states that the language of the statute "willfully fails to pay" has been borrowed from the tax statutes that make willful failure to pay taxes a federal crime, and includes a requirement that the proof necessary to show a violation of the failure to pay child support statute is the element of an intentional violation of a known legal duty. United States v. Williams, 121 F.3d 615, 620-21 (11^th Cir. 1997).

Footnote 1: Congress amended 31 USC 5322(a) to eliminate the applicability of the provision’s mens rea requirement to offenses committed under section 5324, thereby superceding by statute the narrow holding in Ratzlaf.

(For 2008 version see below).

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

2008 Version

[No instruction recommended except in criminal tax cases, odometer fraud cases, health care anti-kickback statute cases, certain securities cases, and failure to pay child support cases.]

The Committee recommends that the word "willfully" not be used in jury instructions in most cases. Where "willfully" does not appear in the statute, it should not be used in the indictment or the instructions. Where the word "willfully" does appear in the statute, in most cases it can be replaced with the words "voluntarily and intentionally" in the instruction and no further definition is needed. See United States v. Redfearn, 906 F.2d 352 (8^th Cir. 1990); United States v. Bettelyoun, 16 F.3d 850, 853 (8^th Cir. 1994). The elements instructions in Section 6, supra, follow this format.

"Willfully" has been given a particular meaning in criminal tax statutes. In tax prosecutions "willfully" may be used in the indictment and in the instructions and should be defined as follows: "An act is done ‘willfully’ if done voluntarily and intentionally with the purposed of violating a known legal duty." United States v. Pomponio, 429 U.S. 10, 12 (1976); United States v. Jerde, 841 F.2d 818, 821 (8^th Cir. 1988). The Supreme Court has discussed the various meanings of the term "willfulness" in the criminal tax statutes in United States v. Bishop, 412 U.S. 346 (1973); Cheek v. United States, 498 U.S. 192 (1991) ("willfully" in a tax evasion case means both that the defendant knew of his duty to pay the tax and that he voluntarily and intentionally violated that duty). This circuit has extended this definition of willfully to odometer fraud cases under 15 USC 1990c. United States v. Studna, 713 F.2d 416, 418 (8^th Cir. 1983). There may be other statutes in which "willfully" has this definition.

In Ratzlaf v. United States, 510 U.S. 135 (1994), the Court held that for the purposes of the anti-structuring statutes at 31 USC 5313(a), 5322(a) & 5324(3) – which establish criminal penalties for anyone who "willfully violated" any of the provisions in the subchapter – the term "willfully" required both knowledge of the reporting requirements and a specific purpose to disobey the law. [FOOTNOTE 1]

In United States v. Jain, 93 F.3d 436 (8^th Cir. 1996), the Eighth Circuit interpreted the term "willfully" in the health care anti-kickback statute, at 42 USC 1320a-7b, to require proof that the defendant knew his conduct was "wrongful," (a heightened mens rea burden), see Jain, 93 F.3d at 441. The trial court in Jain instructed the jury that "the word ‘willfully’ means unjustifiably and wrongfully, known to be such by Defendant Swaran Jain." Jain, 93 F.3d at 440.

In United States v. O’Hagan, 521 U.S. 642 (1997), the Court, discussing criminal liability under 10b-5 of the Securities and Exchange Act, 18 USC 78ff(a), noted that criminal liability required that the government prove that a person engaging in "insider" trading "willfully" violated the substantive provision in question and that the statute specifically prohibited imprisonment of a defendant who "proves he had no knowledge of such rule or regulation." Id. at 664. This discussion, though brief, suggests that the Court may require proof that the defendant "intentionally violated a known legal duty."

Title 18 USC 228 prohibits any willful failure to pay legal child support obligations. The legislative history of this act states that the language of the statute "willfully fails to pay" has been borrowed from the tax statutes that make willful failure to pay taxes a federal crime, and includes a requirement that the proof necessary to show a violation of the failure to pay child support statute is the element of an intentional violation of a known legal duty. United States v. Williams, 121 F.3d 615, 620-21 (11^th Cir. 1997).

[FOOTNOTE 1: Congress amended 31 USC 5322(a) to eliminate the applicability of the provision’s mens rea requirement to offenses committed under section 5324, thereby superceding by statute the narrow holding in Ratzlaf.]

(For 2006 version see below)

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

[No instruction recommended except in criminal tax cases, odometer fraud cases, health care anti-kickback statute cases, certain securities cases, and failure to pay child support cases.]

The Committee recommends that the word "willfully" not be used in jury instructions in most cases. Where "willfully" does not appear in the statute, it should not be used in the indictment or the instructions. Where the word "willfully" does appear in the statute, in most cases it can be replaced with the words "voluntarily and intentionally" in the instruction and no further definition is needed. See United States v. Redfearn, 906 F.2d 352 (8th Cir. 1990); United States v. Bettelyoun, 16 F.3d 850, 853 (8th Cir. 1994). The elements instructions in Section 6, supra, follow this format.

"Willfully" has been given a particular meaning in criminal tax statutes. In tax prosecutions "willfully" may be used in the indictment and in the instructions and should be defined as follows: "An act is done ‘willfully’ if done voluntarily and intentionally with the purposed of violating a known legal duty." United States v. Pomponio, 429 U.S. 10, 12 (1976); United States v. Jerde, 841 F.2d 818, 821 (8th Cir. 1988). The Supreme Court has discussed the various meanings of the term "willfulness" in the criminal tax statutes in United States v. Bishop, 412 U.S. 346 (1973); Cheek v. United States, 498 U.S. 192 (1991) ("willfully" in a tax evasion case means both that the defendant knew of his duty to pay the tax and that he voluntarily and intentionally violated that duty). This circuit has extended this definition of willfully to odometer fraud cases under 15 USC 1990c. United States v. Studna, 713 F.2d 416, 418 (8th Cir. 1983). There may be other statutes in which "willfully" has this definition.

In Ratzlaf v. United States, 510 U.S. 135 (1994), the Court held that for the purposes of the anti-structuring statutes at 31 USC 5313(a), 5322(a) & 5324(3) – which establish criminal penalties for anyone who "willfully violated" any of the provisions in the subchapter – the term "willfully" required both knowledge of the reporting requirements and a specific purpose to disobey the law. [FOOTNOTE]

In United States v. Jain, 93 F.3d 436 (8th Cir. 1996), the Eighth Circuit interpreted the term "willfully" in the health care anti-kickback statute, at 42 USC 320a-7b, to require proof that the defendant knew his conduct was "wrongful," (a heightened mens rea burden), see Jain, 93 F.3d at 441. The trial court in Jain instructed the jury that "the word ‘willfully’ means unjustifiably and wrongfully, known to be such by Defendant Swaran Jain." Jain, 93 F.3d at 440.

In United States v. O’Hagan, 521 U.S. 642 (1997), the Court, discussing criminal liability under 10b-5 of the Securities and Exchange Act, 18 USC 78ff(a), noted that criminal liability required that the government prove that a person engaging in "insider" trading "willfully" violated the substantive provision in question and that the statute specifically prohibited imprisonment of a defendant who "proves he had no knowledge of such rule or regulation." Id. at 664. This discussion, though brief, suggests that the Court may require proof that the defendant "intentionally violated a known legal duty."

Title 18 USC 228 prohibits any willful failure to pay legal child support obligations. The legislative history of this act states that the language of the statute "willfully fails to pay" has been borrowed from the tax statutes that make willful failure to pay taxes a federal crime, and includes a requirement that the proof necessary to show a violation of the failure to pay child support statute is the element of an intentional violation of a known legal duty. United States v. Williams, 121 F.3d 615, 620-21 (11th Cir. 1997).

FOOTNOTE:  Congress amended 31 USC 5322(a) to eliminate the applicability of the provision’s mens rea requirement to offenses committed under section 5324, thereby superceding by statute the narrow holding in Ratzlaf.

For 2000 version see below

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

2000 Version

7.02 WILLFULLY

[No instruction recommended except in criminal tax cases and odometer fraud cases.]

The Committee recommends that the word "willfully" not be used in jury instructions in most cases. Where "willfully" does not appear in the statute, it should not be used in the indictment or the instructions. Where the word "willfully" does appear in the statute, in most cases it can be replaced with the words "voluntarily and intentionally" in the instruction and no further definition is needed. The elements instructions in Section 6, supra, follow this format.

"Willfully" has been given a particular meaning in criminal tax statutes. In tax prosecutions "willfully" may be used in the indictment and in the instructions and should be defined as follows: "An act is done 'willfully' if done voluntarily and intentionally with the purpose of violating a known legal duty." United States v. Pomponio, 429 U.S. 10, 12 (1976); United States v. Jerde, 841 F.2d 818, 821 (8th Cir. 1988). The Supreme Court has discussed the various meanings of the term "willfulness" in the criminal tax statutes in United States v. Bishop, 412 U.S. 346 (1973). This circuit has extended this definition of willfully to odometer fraud cases under 15 USC 1990c. United States v. Studna, 713 F.2d 416, 418 (8th Cir. 1983). There may be other statutes in which "willfully" has this definition.

8TH CIRCUIT MODEL INSTRUCTIONS 2009

FORECITE National™ Materials Related To This Instruction:

Chapter 47: Knowledge

(No instruction recommended.)

Although a definition of "knowingly" was provided in this section in the 1985 edition of this Manual, the Committee believes that in most cases the word "knowingly" does not need to be defined. United States v. Smith, 635 F.2d 716, 719-20 (8^th Cir. 1980); United States v. Gary, 341 F.3d 829, 834 (8^th Cir. 2003). An instruction is required only where necessary for a fair determination of the defendant’s guilt or innocence. United States v. Brown, 33 F.3d 1014, 1017 (8^th Cir. 1994).

If a definition is requested and deemed necessary, the Committee recommends the following:

The government is not required to prove that the defendant knew that [his] [her] acts or omissions were unlawful. An act is done knowingly if the defendant is aware of the act and does not act [or fail to act] through ignorance, mistake, or accident. You may consider evidence of the defendant’s words, acts, or omissions, along with all the other evidence, in deciding whether the defendant acted knowingly.

A similar instruction was approved in United States v. Dockter, 58 F.3d 1284 (8^th Cir. 1995).

In most statutes, the word "knowingly" does not require proof that the defendant knew he was violating the law. In Bryan v. United States, 524 U.S. 184 (1998), the Court explained:

[T]he term "knowingly" does not necessarily have any reference to a culpable state of mind or to knowledge of the law. As Justice Jackson correctly observed, "the knowledge requisite to knowing violation of a statute is factual knowledge as distinguished from knowledge of the law."

See, e.g., United States v. Udofot, 711 F.2d 831, 835-37 (8^th Cir. 1983) [18 USC 922(e)]; United States v. Enochs, 857 F.2d 491, 493 (8^th Cir. 1988) [18 USC 511(a)]. See also United States v. Hutzell, 217 F.3d 966, 968 (8^th Cir. 2000) (statute providing penalties for those who "knowingly" violate separate statute prohibiting possession of a firearm by one who has been convicted of misdemeanor crime of domestic violence requires government to prove only that the defendant knew of facts constituting the offense, not that he knew it was illegal for him to posses a gun; statute does not require knowledge of the law nor an intent to violate it); United States v. Sinskey, 119 F.3d 712, 715-16 (8^th Cir. 1997) (to establish that the defendant "knowingly violated" Clean Water Act (CWA) discharge limitations or condition or limitation contained in implementing permit, as basis for criminal liability, government was not required to prove that the defendant knew that his acts violated either CWA or permit, but merely that he was aware of conduct that resulted in permit’s violation); United States v. Farrell, 69 F.3d 891, 893 (8^th Cir. 1995) (to prove knowing violation of Firearms Owner’s Protection Act (FOPA) provision which prohibits transfer of possession of machine guns, as required for imposition of statutory penalty, government need only prove knowing and intentional conduct, not knowledge of the law). Nor does "knowingly" require knowledge of federal involvement. United States v. Yermian, 468 U.S. 63, 75 (1984) (18 USC 1001).

In Staples v. United States, 511 U.S. 600 (1994), the Court, interpreting the National Firearms Act, 26 USC 5861(d), which does not expressly contain any mens rea requirement in the provision criminalizing possession of a firearm that was not properly registered, held that the defendant had to "know" that his weapon possessed automatic firing capability to come within the Act. The Court emphasized a presumption in favor of a scienter requirement to statutory crimes which criminalize otherwise innocent conduct, in the absence of a clear legislative intent to the contrary. But see United States v. Barr, 32 F.3d 1320 (8^th Cir. 1994), in which the Eighth Circuit held that, with respect to possession of weapons of quasi-suspect character, such as sawed-off shotguns, "a specific jury finding of [the defendant’s] knowledge of the weapon’s incriminating characteristics is unnecessary." Id. at 1324. The Government need only prove that the defendant possessed the weapon, and had observed its characteristics. Id. Accord United States v. Otto, 64 F.3d 367, 370 (8^th Cir. 1995).

Also, in United States v. X-Citement Video, Inc., 513 U.S. 64 (1994), the Court held that the term "knowingly" applies to the requirement that the individual who is transporting sexually explicit material must know that it depicts minors in order to convict under 18 USC 2252. The Court again expressed its preference for a scienter requirement for statutes which criminalize otherwise innocent or constitutionally protected conduct.

In some statutes, however, "knowingly" has been construed to require knowledge that the defendant was breaking the law. In United States v. Marvin, 687 F.2d 1221 (8^th Cir. 1982) and Liparota v. United States, 471 U.S. 419 (1985), the word "knowingly" in 7 USC 2024(b) was interpreted as including knowledge that the defendant was violating the law. The statute reads in relevant part:

[W]hoever knowingly uses, transfers, acquires . . . possesses [food] coupons . . . in any manner not authorized by this chapter. . .

Both courts further held the jury should have been instructed that the government had to prove that "the defendant knowingly did an act which the law forbids" but not that he knew the precise law or regulation forbidding food stamp trafficking. 687 F.2d at 1227; 471 U.S. at 434.

Where the offense requires that the defendant have some particular knowledge, that knowledge should be included in the elements of instruction. The elements of instruction in Section 6, supra, were drafted with this purpose in mind.

(For 2008 version see below).

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

2008 Version

No instruction recommended.]

Although a definition of "knowingly" was provided in this section in the 1985 edition of this Manual, the Committee believes that in most cases the word "knowingly" does not need to be defined. United States v. Smith, 635 F.2d 716, 719-20 (8^th Cir. 1980); United States v. Gary, 341 F.3d 829, 834 (8^th Cir. 2003). An instruction is required only where necessary for a fair determination of the defendant’s guilt or innocence. United States v. Brown, 33 F.3d 1014, 1017 (8^th Cir. 1994).

If a definition is requested and deemed necessary, the Committee recommends the following:

The government is not required to prove that the defendant knew that [his] [her] acts or omissions were unlawful. An act is done knowingly if the defendant is aware of the act and does not act [or fail to act] through ignorance, mistake, or accident. You may consider evidence of the defendant’s words, acts, or omissions, along with all the other evidence, in deciding whether the defendant acted knowingly.

A similar instruction was approved in United States v. Dockter, 58 F.3d 1284 (8^th Cir. 1995).

In most statutes, the word "knowingly" does not require proof that the defendant knew he was violating the law. In Bryan v. United States, 524 U.S. 184 (1998), the Court explained:

[T]he term "knowingly" does not necessarily have any reference to a culpable state of mind or to knowledge of the law. As Justice Jackson correctly observed, "the knowledge requisite to knowing violation of a statute is factual knowledge as distinguished from knowledge of the law."

See, e.g., United States v. Udofot, 711 F.2d 831, 835-37 (8^th Cir. 1983) [18 USC 922(e)]; United States v. Enochs, 857 F.2d 491, 493 (8^th Cir. 1988) [18 USC 511(a)]. See also United States v. Hutzell, 217 F.3d 966, 968 (8^th Cir. 2000) (statute providing penalties for those who "knowingly" violate separate statute prohibiting possession of a firearm by one who has been convicted of misdemeanor crime of domestic violence requires government to prove only that the defendant knew of facts constituting the offense, not that he knew it was illegal for him to posses a gun; statute does not require knowledge of the law nor an intent to violate it); United States v. Sinskey, 119 F.3d 712, 715-16 (8^th Cir. 1997) (to establish that the defendant "knowingly violated" Clean Water Act (CWA) discharge limitations or condition or limitation contained in implementing permit, as basis for criminal liability, government was not required to prove that the defendant knew that his acts violated either CWA or permit, but merely that he was aware of conduct that resulted in permit’s violation); United States v. Farrell, 69 F.3d 891, 893 (8^th Cir. 1995) (to prove knowing violation of Firearms Owner’s Protection Act (FOPA) provision which prohibits transfer of possession of machine guns, as required for imposition of statutory penalty, government need only prove knowing and intentional conduct, not knowledge of the law). Nor does "knowingly" require knowledge of federal involvement. United States v. Yermian, 468 U.S. 63, 75 (1984) (18 USC 1001).

In Staples v. United States, 511 U.S. 600 (1994), the Court, interpreting the National Firearms Act, 26 USC 5861(d), which does not expressly contain any mens rea requirement in the provision criminalizing possession of a firearm that was not properly registered, held that the defendant had to "know" that his weapon possessed automatic firing capability to come within the Act. The Court emphasized a presumption in favor of a scienter requirement to statutory crimes which criminalize otherwise innocent conduct, in the absence of a clear legislative intent to the contrary. But see United States v. Barr, 32 F.3d 1320 (8^th Cir. 1994), in which the Eighth Circuit held that, with respect to possession of weapons of quasi-suspect character, such as sawed-off shotguns, "a specific jury finding of [the defendant’s] knowledge of the weapon’s incriminating characteristics is unnecessary." Id. at 1324. The Government need only prove that the defendant possessed the weapon, and had observed its characteristics. Id. Accord United States v. Otto, 64 F.3d 367, 370 (8^th Cir. 1995).

Also, in United States v. X-Citement Video, Inc., 513 U.S. 64 (1994), the Court held that the term "knowingly" applies to the requirement that the individual who is transporting sexually explicit material must know that it depicts minors in order to convict under 18 USC 2252. The Court again expressed its preference for a scienter requirement for statutes which criminalize otherwise innocent or constitutionally protected conduct.

In some statutes, however, "knowingly" has been construed to require knowledge that the defendant was breaking the law. In United States v. Marvin, 687 F.2d 1221 (8^th Cir. 1982) and Liparota v. United States, 471 U.S. 419 (1985), the word "knowingly" in 7 USC 2024(b) was interpreted as including knowledge that the defendant was violating the law. The statute reads in relevant part:

[W]hoever knowingly uses, transfers, acquires . . . possesses [food] coupons . . . in any manner not authorized by this chapter. . .

Both courts further held the jury should have been instructed that the government had to prove that "the defendant knowingly did an act which the law forbids" but not that he knew the precise law or regulation forbidding food stamp trafficking. 687 F.2d at 1227; 471 U.S. at 434.

Where the offense requires that the defendant have some particular knowledge, that knowledge should be included in the elements of instruction. The elements of instruction in Section 6, supra, were drafted with this purpose in mind.

(For 2006 version see below)

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

[No instruction recommended.]

Although a definition of "knowingly" was provided in this section in the 1985 edition of this Manual, the Committee believes that in most cases the word "knowingly" does not need to be defined. United States v. Smith, 635 F.2d 716, 719-20 (8th Cir. 1980); United States v. Gary, 341 F.3d 829, 834 (8th Cir. 2003). An instruction is required only where necessary for a fair determination of the defendant’s guilt or innocence. United States v. Brown, 33 F.3d 1014, 1017 (8th Cir. 1994).

If a definition is requested and deemed necessary, the Committee recommends the following:

The government is not required to prove that the defendant knew that [his] [her] acts or omissions were unlawful. An act is done knowingly if the defendant is aware of the act and does not act [or fail to act] through ignorance, mistake, or accident. You may consider evidence of the defendant’s words, acts, or omissions, along with all the other evidence, in deciding whether the defendant acted knowingly.

A similar instruction was approved in United States v. Dockter, 58 F.3d 1284 (8th Cir. 1995).

In most statutes, the word "knowingly" does not require proof that the defendant knew he was violating the law. In Bryan v. United States, 524 U.S. 184 (1998), the Court explained:

[T]he term "knowingly" does not necessarily have any reference to a culpable state of mind or to knowledge of the law. As Justice Jackson correctly observed, "the knowledge requisite to knowing violation of a statute is factual knowledge as distinguished from knowledge of the law."

See, e.g., United States v. Udofot, 711 F.2d 831, 835-37 (8th Cir. 1983) [18 USC 922(e)]; United States v. Enochs, 857 F.2d 491, 493 (8th Cir. 1988) [18 USC 511(a)]. See also United States v. Hutzell, 217 F.3d 966, 968 (8th Cir. 2000) (statute providing penalties for those who "knowingly" violate separate statute prohibiting possession of a firearm by one who has been convicted of misdemeanor crime of domestic violence requires government to prove only that the defendant knew of facts constituting the offense, not that he knew it was illegal for him to posses a gun; statute does not require knowledge of the law nor an intent to violate it); United States v. Sinskey, 119 F.3d 712, 715-16 (8th Cir. 1997) (to establish that the defendant "knowingly violated" Clean Water Act (CWA) discharge limitations or condition or limitation contained in implementing permit, as basis for criminal liability, government was not required to prove that the defendant knew that his acts violated either CWA or permit, but merely that he was aware of conduct that resulted in permit’s violation); United States v. Farrell, 69 F.3d 891, 893 (8th Cir. 1995) (to prove knowing violation of Firearms Owner’s Protection Act (FOPA) provision which prohibits transfer of possession of machine guns, as required for imposition of statutory penalty, government need only prove knowing and intentional conduct, not knowledge of the law). Nor does "knowingly" require knowledge of federal involvement. United States v. Yermian, 468 U.S. 63, 75 (1984) (18 USC 1001).

In Staples v. United States, 511 U.S. 600 (1994), the Court, interpreting the National Firearms Act, 26 USC 5861(d), which does not expressly contain any mens rea requirement in the provision criminalizing possession of a firearm that was not properly registered, held that the defendant had to "know" that his weapon possessed automatic firing capability to come within the Act. The Court emphasized a presumption in favor of a scienter requirement to statutory crimes which criminalize otherwise innocent conduct, in the absence of a clear legislative intent to the contrary. But see United States v. Barr, 32 F.3d 1320 (8th Cir. 1994), in which the Eighth Circuit held that, with respect to possession of weapons of quasi-suspect character, such as sawed-off shotguns, "a specific jury finding of [the defendant’s] knowledge of the weapon’s incriminating characteristics is unnecessary." Id. at 1324. The Government need only prove that the defendant possessed the weapon, and had observed its characteristics. Id. Accord United States v. Otto, 64 F.3d 367, 370 (8th Cir. 1995).

Also, in United States v. X-Citement Video, Inc., 513 U.S. 64 (1994), the Court held that the term "knowingly" applies to the requirement that the individual who is transporting sexually explicit material must know that it depicts minors in order to convict under 18 USC 2252. The Court again expressed its preference for a scienter requirement for statutes which criminalize otherwise innocent or constitutionally protected conduct.

In some statutes, however, "knowingly" has been construed to require knowledge that the defendant was breaking the law. In United States v. Marvin, 687 F.2d 1221 (8th Cir. 1982) and Liparota v. United States, 471 U.S. 419 (1985), the word "knowingly" in 7 USC 2024(b) was interpreted as including knowledge that the defendant was violating the law. The statute reads in relevant part:

[W]hoever knowingly uses, transfers, acquires . . . possesses [food] coupons . . . in any manner not authorized by this chapter. . .

Both courts further held the jury should have been instructed that the government had to prove that "the defendant knowingly did an act which the law forbids" but not that he knew the precise law or regulation forbidding food stamp trafficking. 687 F.2d at 1227; 471 U.S. at 434.

Where the offense requires that the defendant have some particular knowledge, that knowledge should be included in the elements of instruction. The elements of instruction in Section 6, supra, were drafted with this purpose in mind.

For 2000 version see below

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2000 Version

7.03 KNOWINGLY

[No instruction recommended.]

Although a definition of "knowingly" was provided in this section in the 1985 edition of this Manual, the Committee believes that in most cases the word "knowingly" does not need to be defined. United States v. Smith, 635 F.2d 716, 719-20 (8th Cir. 1980). An instruction is required only where necessary for a fair determination of the defendant’s guilt or innocence. United States v. Brown, 33 F.3d 1014, 1017 (8th Cir. 1994).

If a definition is requested and deemed necessary, the Committee recommends Ninth Cir. Crim. Jury Instr. 5.6 (1997) which does not overlap with the definition of "willfully." The Ninth Circuit instruction reads as follows:

An act is done knowingly if the defendant is aware of the act and does not act [or fail to act] through ignorance, mistake, or accident. The government is not required to prove that the defendant knew that [his] [her] acts or omissions were unlawful. You may consider evidence of the defendant's words, acts, or omissions, along with all the other evidence, in deciding whether the defendant acted knowingly.

This wording was approved in United States v. Dockter, 58 F.3d 1284 (8th Cir. 1995).

In most statutes, the word "knowingly" does not require proof that defendant knew he was violating the law. See, e.g., United States v. Udofot, 711 F.2d 831, 835-37 (8th Cir.), cert. denied, 464 U.S. 896 (1983) [18 USC 922(e)]; United States v. Fierros, 692 F.2d 1291, 1293-94 (9th Cir. 1982), cert. denied, 462 U.S. 1120 (1983) [18 USC 1324(a)]; United States v. Enochs, 857 F.2d 491, 493 (8th Cir. 1988), cert. denied, 490 U.S. 1022 (1989) [18 USC 511(a)]. Nor does it require knowledge of federal involvement. United States v. Yermian, 468 U.S. 63, 75 (1984) (18 USC 1001).

In some statutes, however, "knowingly" has been construed to require knowledge that the defendant was breaking the law. In United States v. Marvin, 687 F.2d 1221 (8th Cir. 1982), cert. denied, 460 U.S. 1081 (1983) and Liparota v. United States, 471 U.S. 419 (1985), the word "knowingly" in 7 USC 2024(b) was interpreted as including knowledge that defendant was violating the law. That statute reads in relevant part:

[W]hoever knowingly uses, transfers, acquires . . . possesses [food] coupons . . . in any manner not authorized by this chapter . . . .

Both courts further held the jury should have been instructed that the government had to prove that "the defendant knowingly did an act which the law forbids" but not that he knew the precise law or regulation forbidding food stamp trafficking. 687 F.2d at 1227; 471 U.S. at 434.

In Staples v. United States, 511 U.S. 600, 114 S. Ct. 1793 (1994), the Court, interpreting the National Firearms Act, 26 USC 5861(d), which does not expressly contain any mens rea requirement in the provision criminalizing possession of a firearm that was not properly registered, held that the defendant had to "know" that his weapon possessed automatic firing capability to come within the Act. The Court emphasized a presumption in favor of a scienter requirement to statutory crimes which criminalize otherwise innocent conduct, in the absence of a clear legislative intent to the contrary. Also, in United States v. X-Citement Video, Inc., 513 U.S. 64, 115 S. Ct. 464 (1994), the Court held that the term "knowingly" applies to the requirement that the individual who is transporting sexually explicit material must know that it depicts minors in order to convict under 18 USC 2252. The Court again expressed its preference for a scienter requirement for statutes which criminalize otherwise innocent or constitutionally protected conduct.

Where the offense requires that defendant have some particular knowledge, that knowledge should be included in the elements instruction. The elements instructions in Section 6, supra, were drafted with this purpose in mind.

8TH CIRCUIT MODEL INSTRUCTIONS 2009

FORECITE National™ Materials Related To This Instruction:

47.4 Deliberate Ignorance/Willful Blindness

You may find that the defendant [(name)]¹ acted knowingly if you find beyond a reasonable doubt that the defendant [(name)] was aware of a high probability that (state fact as to which knowledge is in question (e.g., that "drugs were contained in his suitcase")) and that [he] [she] deliberately avoided learning the truth. The element of knowledge may be inferred if the defendant [(name)] deliberately closed [his] [her] eyes to what would otherwise have been obvious to [him] [her]. [You may not find the defendant acted "knowingly" if you find he/she was merely negligent, careless or mistaken as to (state fact as to which knowledge is in question (e.g., that "drugs were contained in his suitcase")).]²

[You may not find that the defendant [(name)] acted knowingly [if you find that the defendant [(name)] actually believed that (state the proposition in the negative (e.g., that "no drugs were contained in his suitcase")).]³]

1. If there is more than one defendant and the instruction does not apply to all defendants, insert the name[s] of the defendant[s] to whom the instruction applies.

2. This language can be given if desired. It is not needed; it just emphasizes that negligence is not sufficient.

3. This clause should be included in an instruction if requested and supported by the evidence. United States v. Esquer-Gamez, 550 F.2d 1231, 1235-36 (9th Cir. 1977). Although no Eighth Circuit case states this rule, the Committee believes it to be good law and good practice. See United States v. Bailey, 955 F.2d 28, 29 (8th Cir. 1992).

See 1A Kevin F. O'Malley, et al., Federal Jury Practice and Instructions: Criminal § 17.09 (5th ed. 2000);

In United States v. Kershman, 555 F.2d 198, 200 (8th Cir. 1977), this circuit joined the Second, Sixth, Seventh and Ninth Circuits in approving the use of an instruction in which the element of knowledge may be shown by deliberate ignorance where evidence has shown a conscious purpose to avoid enlightenment.

The instruction approved in Kershman had two aspects; first, it required the jury to find that the defendant deliberately and consciously closed his eyes and second, it instructed the jury that the defendant's good faith belief in the matter in question would exonerate him. 555 F.2d at 201. The court found that the "if you find" language of the instruction prevented the instruction from assuming facts not in evidence. The court further found that the instruction did not permit the jury to convict on an objective rather than a subjective theory of knowledge requirements.

The analysis in Kershman is similar to that in United States v. Jewell, 532 F.2d 697 (9th Cir. en banc 1976). In a footnote, the Jewell court stated that a deliberate ignorance instruction should say "(1) that the required knowledge is established if the accused is aware of a high probability of the existence of the fact in question (2) unless he actually believes it does not exist." Id. at 704 n.21. In United States v. Valle-Valdez, 554 F.2d 911, 914 (9th Cir. 1977), it was held reversible error to fail to include in the instruction element (1) of the Jewell footnote; specifically, the court held that the instructions should have explained that "conscious purpose to avoid learning the truth" is culpable only where coupled with a subjective awareness of high probability of the "unknown" fact.

Subsequent to Kershman, 1A Kevin F. O'Malley, et al., Federal Jury Practice and Instructions: Criminal § 17.09 (5th ed. 2000), on the same subject matter, was approved by this circuit in United States v. Massa, 740 F.2d 629, 643 (8th Cir. 1984), and United States v. Graham, 739 F.2d 351, 352 (8th Cir. 1984):

The element of knowledge may be satisfied by inferences drawn from proof that a defendant deliberately closed his eyes to what otherwise would have been obvious to him. A finding beyond a reasonable doubt of a conscious purpose to avoid enlightenment would permit an inference of knowledge. Stated another way, a defendant's knowledge of a fact may be inferred from willful blindness to the existence of a fact. It is entirely up to you as to whether you find any deliberate closing of the eyes, and the inferences to be drawn from any such evidence. A showing of negligence or mistake is not sufficient to support a finding of willfulness of knowledge.

In Graham, this circuit adopted the reasons given in Jewell for the necessity of such an instruction as follows:

The substantive justification for the rule is that deliberate ignorance and positive knowledge are equally culpable. The textual justification is that in common understanding one "knows" facts of which he is less than absolutely certain. To act "knowingly," therefore, is not necessarily to act only with positive knowledge, but also to act with an awareness of the high probability of the existence of the fact in question. When such awareness is present, "positive" knowledge is not required.

739 F.2d at 353 (quoting from 532 F.2d at 700).

In both Graham and Massa the court found that the instruction did not allow the defendant to be convicted on the basis of negligence or mistake. See also United States v. Bussey, 942 F.2d 1241 (8th Cir. 1991).

In Bussey, this circuit again approved the giving of a willful blindness instruction to a tax fraud and false statement case where the defendant knew certain payments he received had income tax consequences but he specifically sought to avoid learning anything about the specifics of those consequences and did not provide his accountant or return preparer with any relevant information. The court noted that specific language in the instruction which informed the jury that negligence or mistake did not constitute willfulness or knowledge prevented the instruction from allowing the jury to find the defendant guilty based on simple negligence.

The instruction as drafted by the committee attempts to combine the format of the instruction approved in Kershman with the language approved in Massa/Graham, covering the essential principles required by each of these cases.

This instruction should not be given in every case where a defendant claims a lack of knowledge; rather, it is appropriate only in those cases where a defendant claims a lack of guilty knowledge and there are facts in evidence which suggest deliberate ignorance. United States v. Barnhart, 979 F.2d 647 (8th Cir. 1992); United States v. Regan, 940 F.2d 1134 (8th Cir. 1991); United States v. Hiland, 909 F.2d 1114, 1130 (8th Cir. 1990); United States v. White, 794 F.2d 367, 371 (8th Cir. 1986); United States v. Hildebrand, 152 F.3d 756, 764 (8th Cir. 1998); United States v. Gonzalez, 90 F.3d 1363, 1371 (8th Cir. 1996). Barnhart contains a good discussion of when and under what circumstances such an instruction should be given. It should be consulted when such an instruction is requested. If there is evidence supporting both actual knowledge on the part of the defendant and deliberate ignorance, this instruction is properly given. United States v. Parker, 364 F.2d 934, 946-47 (8th Cir. 2004); United States v. Florez, 368 F.3d 1042 (8^th Cir. 2004). If there is no evidence indicating that the defendant had a conscious purpose to avoid learning the truth, the instruction should not be given. United States v. White, 794 F.2d at 371. Likewise, if the evidence "points solely to either actual knowledge or no knowledge of the facts in question," the instruction should not be given. Regan; Hiland, 909 F.2d at 1130. If a statute requires actual knowledge of specific facts, this instruction should not be given. Mattingly v. United States, 924 F.2d 785, 791 (8th Cir. 1991) (26 USC 6701). In any event, "[a] deliberate ignorance instruction should not be given in every [criminal] case because there is a possibility that the jury will use a 'negligence standard and convict a defendant on the impermissible ground that he should have known [an illegal act] was taking place.’" United States v. Cunningham, 83 F.3d 218, 221 (8th Cir. 1996) (quoting United States v. Barnhart, 979 F.2d at 651.) See also United States v. Covington, 133 F.3d 639, 644-45 (8th Cir. 1998). A district court should not give the deliberate ignorance instruction "when the evidence points solely to the defendant's actual knowledge of the facts in question," but the instruction is appropriate "when the defendant denies any knowledge of a criminal scheme despite strong evidence to the contrary." United States v. King, 351 F.3d 859, 866-67 (8th Cir. 2003). See also United States v. Woodward, 315 F.3d 1000, 1003-04 (8th Cir. 2003); United States v. Marley, 549 F.2d 561 (8^th Cir. 1977).

Note that where the defendant is under a specific duty to discover facts and the facts tendered to him are suspicious, as for example, in a securities fraud prosecution, an instruction that "reckless deliberate indifference to or disregard for truth or falsity" is equivalent to knowledge, may be proper in place of the reference to "conscious purpose to avoid learning the truth." United States v. Weiner, 578 F.2d 757, 787 (9th Cir. 1978).

(For 2008 version see below).

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2008 Version

You may find that the defendant [(name)]¹ acted knowingly if you find beyond a reasonable doubt that the defendant [(name)] was aware of a high probability that (state fact as to which knowledge is in question (e.g., that "drugs were contained in his suitcase")) and that [he] [she] deliberately avoided learning the truth. The element of knowledge may be inferred if the defendant [(name)] deliberately closed [his] [her] eyes to what would otherwise have been obvious to [him] [her]. [You may not find the defendant acted "knowingly" if you find he/she was merely negligent, careless or mistaken as to (state fact as to which knowledge is in question (e.g., that "drugs were contained in his suitcase")).]²

[You may not find that the defendant [(name)] acted knowingly [if you find that the defendant [(name)] actually believed that (state the proposition in the negative (e.g., that "no drugs were contained in his suitcase")).]³]

1. If there is more than one defendant and the instruction does not apply to all defendants, insert the name[s] of the defendant[s] to whom the instruction applies.

2. This language can be given if desired. It is not needed; it just emphasizes that negligence is not sufficient.

3. This clause should be included in an instruction if requested and supported by the evidence. United States v. Esquer-Gamez, 550 F.2d 1231, 1235-36 (9th Cir. 1977). Although no Eighth Circuit case states this rule, the Committee believes it to be good law and good practice. See United States v. Bailey, 955 F.2d 28, 29 (8th Cir. 1992).

See 1A Kevin F. O'Malley, et al., Federal Jury Practice and Instructions: Criminal § 17.09 (5th ed. 2000);

In United States v. Kershman, 555 F.2d 198, 200 (8th Cir. 1977), this circuit joined the Second, Sixth, Seventh and Ninth Circuits in approving the use of an instruction in which the element of knowledge may be shown by deliberate ignorance where evidence has shown a conscious purpose to avoid enlightenment.

The instruction approved in Kershman had two aspects; first, it required the jury to find that the defendant deliberately and consciously closed his eyes and second, it instructed the jury that the defendant's good faith belief in the matter in question would exonerate him. 555 F.2d at 201. The court found that the "if you find" language of the instruction prevented the instruction from assuming facts not in evidence. The court further found that the instruction did not permit the jury to convict on an objective rather than a subjective theory of knowledge requirements.

The analysis in Kershman is similar to that in United States v. Jewell, 532 F.2d 697 (9th Cir. en banc 1976). In a footnote, the Jewell court stated that a deliberate ignorance instruction should say "(1) that the required knowledge is established if the accused is aware of a high probability of the existence of the fact in question (2) unless he actually believes it does not exist." Id. at 704 n.21. In United States v. Valle-Valdez, 554 F.2d 911, 914 (9th Cir. 1977), it was held reversible error to fail to include in the instruction element (1) of the Jewell footnote; specifically, the court held that the instructions should have explained that "conscious purpose to avoid learning the truth" is culpable only where coupled with a subjective awareness of high probability of the "unknown" fact.

Subsequent to Kershman, 1A Kevin F. O'Malley, et al., Federal Jury Practice and Instructions: Criminal § 17.09 (5th ed. 2000), on the same subject matter, was approved by this circuit in United States v. Massa, 740 F.2d 629, 643 (8th Cir. 1984), and United States v. Graham, 739 F.2d 351, 352 (8th Cir. 1984):

The element of knowledge may be satisfied by inferences drawn from proof that a defendant deliberately closed his eyes to what otherwise would have been obvious to him. A finding beyond a reasonable doubt of a conscious purpose to avoid enlightenment would permit an inference of knowledge. Stated another way, a defendant's knowledge of a fact may be inferred from willful blindness to the existence of a fact. It is entirely up to you as to whether you find any deliberate closing of the eyes, and the inferences to be drawn from any such evidence. A showing of negligence or mistake is not sufficient to support a finding of willfulness of knowledge.

In Graham, this circuit adopted the reasons given in Jewell for the necessity of such an instruction as follows:

The substantive justification for the rule is that deliberate ignorance and positive knowledge are equally culpable. The textual justification is that in common understanding one "knows" facts of which he is less than absolutely certain. To act "knowingly," therefore, is not necessarily to act only with positive knowledge, but also to act with an awareness of the high probability of the existence of the fact in question. When such awareness is present, "positive" knowledge is not required.

739 F.2d at 353 (quoting from 532 F.2d at 700).

In both Graham and Massa the court found that the instruction did not allow the defendant to be convicted on the basis of negligence or mistake. See also United States v. Bussey, 942 F.2d 1241 (8th Cir. 1991).

In Bussey, this circuit again approved the giving of a willful blindness instruction to a tax fraud and false statement case where the defendant knew certain payments he received had income tax consequences but he specifically sought to avoid learning anything about the specifics of those consequences and did not provide his accountant or return preparer with any relevant information. The court noted that specific language in the instruction which informed the jury that negligence or mistake did not constitute willfulness or knowledge prevented the instruction from allowing the jury to find the defendant guilty based on simple negligence.

The instruction as drafted by the committee attempts to combine the format of the instruction approved in Kershman with the language approved in Massa/Graham, covering the essential principles required by each of these cases.

This instruction should not be given in every case where a defendant claims a lack of knowledge; rather, it is appropriate only in those cases where a defendant claims a lack of guilty knowledge and there are facts in evidence which suggest deliberate ignorance. United States v. Barnhart, 979 F.2d 647 (8th Cir. 1992); United States v. Regan, 940 F.2d 1134 (8th Cir. 1991); United States v. Hiland, 909 F.2d 1114, 1130 (8th Cir. 1990); United States v. White, 794 F.2d 367, 371 (8th Cir. 1986); United States v. Hildebrand, 152 F.3d 756, 764 (8th Cir. 1998); United States v. Gonzalez, 90 F.3d 1363, 1371 (8th Cir. 1996). Barnhart contains a good discussion of when and under what circumstances such an instruction should be given. It should be consulted when such an instruction is requested. If there is evidence supporting both actual knowledge on the part of the defendant and deliberate ignorance, this instruction is properly given. United States v. Parker, 364 F.2d 934, 946-47 (8th Cir. 2004); United States v. Florez, 368 F.3d 1042 (8^th Cir. 2004). If there is no evidence indicating that the defendant had a conscious purpose to avoid learning the truth, the instruction should not be given. United States v. White, 794 F.2d at 371. Likewise, if the evidence "points solely to either actual knowledge or no knowledge of the facts in question," the instruction should not be given. Regan; Hiland, 909 F.2d at 1130. If a statute requires actual knowledge of specific facts, this instruction should not be given. Mattingly v. United States, 924 F.2d 785, 791 (8th Cir. 1991) (26 USC 6701). In any event, "[a] deliberate ignorance instruction should not be given in every [criminal] case because there is a possibility that the jury will use a 'negligence standard and convict a defendant on the impermissible ground that he should have known [an illegal act] was taking place.’" United States v. Cunningham, 83 F.3d 218, 221 (8th Cir. 1996) (quoting United States v. Barnhart, 979 F.2d at 651.) See also United States v. Covington, 133 F.3d 639, 644-45 (8th Cir. 1998). A district court should not give the deliberate ignorance instruction "when the evidence points solely to the defendant's actual knowledge of the facts in question," but the instruction is appropriate "when the defendant denies any knowledge of a criminal scheme despite strong evidence to the contrary." United States v. King, 351 F.3d 859, 866-67 (8th Cir. 2003). See also United States v. Woodward, 315 F.3d 1000, 1003-04 (8th Cir. 2003); United States v. Marley, 549 F.2d 561 (8^th Cir. 1977).

Note that where the defendant is under a specific duty to discover facts and the facts tendered to him are suspicious, as for example, in a securities fraud prosecution, an instruction that "reckless deliberate indifference to or disregard for truth or falsity" is equivalent to knowledge, may be proper in place of the reference to "conscious purpose to avoid learning the truth." United States v. Weiner, 578 F.2d 757, 787 (9th Cir. 1978).

(For 2006 version see below)

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You may find that the defendant [(name)]1 acted knowingly if you find beyond a reasonable doubt that the defendant [(name)] was aware of a high probability that (state fact as to which knowledge is in question (e.g., that "drugs were contained in his suitcase")) and that [he] [she] deliberately avoided learning the truth. The element of knowledge may be inferred if the defendant [(name)] deliberately closed [his] [her] eyes to what would otherwise have been obvious to [him] [her]. [You may not find the defendant acted "knowingly" if you find he/she was merely negligent, careless or mistaken as to (state fact as to which knowledge is in question (e.g., that "drugs were contained in his suitcase")).]2

[You may not find that the defendant [(name)] acted knowingly [if you find that the defendant [(name)] actually believed that (state the proposition in the negative (e.g., that "no drugs were contained in his suitcase")).]3]

1. If there is more than one defendant and the instruction does not apply to all defendants, insert the name[s] of the defendant[s] to whom the instruction applies.

2. This language can be given if desired. It is not needed; it just emphasizes that negligence is not sufficient.

3. This clause should be included in an instruction if requested and supported by the evidence. United States v. Esquer-Gamez, 550 F.2d 1231, 1235-36 (9th Cir. 1977). Although no Eighth Circuit case states this rule, the Committee believes it to be good law and good practice. See United States v. Bailey, 955 F.2d 28, 29 (8th Cir. 1992).

See 1A Kevin F. O'Malley, et al., Federal Jury Practice and Instructions: Criminal § 17.09 (5th ed. 2000);

In United States v. Kershman, 555 F.2d 198, 200 (8th Cir. 1977), this circuit joined the Second, Sixth, Seventh and Ninth Circuits in approving the use of an instruction in which the element of knowledge may be shown by deliberate ignorance where evidence has shown a conscious purpose to avoid enlightenment.

The instruction approved in Kershman had two aspects; first, it required the jury to find that the defendant deliberately and consciously closed his eyes and second, it instructed the jury that the defendant's good faith belief in the matter in question would exonerate him. 555 F.2d at 201. The court found that the "if you find" language of the instruction prevented the instruction from assuming facts not in evidence. The court further found that the instruction did not permit the jury to convict on an objective rather than a subjective theory of knowledge requirements.

The analysis in Kershman is similar to that in United States v. Jewell, 532 F.2d 697 (9th Cir. en banc 1976). In a footnote, the Jewell court stated that a deliberate ignorance instruction should say "(1) that the required knowledge is established if the accused is aware of a high probability of the existence of the fact in question (2) unless he actually believes it does not exist." Id. at 704 n.21. In United States v. Valle-Valdez, 554 F.2d 911, 914 (9th Cir. 1977), it was held reversible error to fail to include in the instruction element (1) of the Jewell footnote; specifically, the court held that the instructions should have explained that "conscious purpose to avoid learning the truth" is culpable only where coupled with a subjective awareness of high probability of the "unknown" fact.

Subsequent to Kershman, 1A Kevin F. O'Malley, et al., Federal Jury Practice and Instructions: Criminal § 17.09 (5th ed. 2000), on the same subject matter, was approved by this circuit in United States v. Massa, 740 F.2d 629, 643 (8th Cir. 1984), and United States v. Graham, 739 F.2d 351, 352 (8th Cir. 1984):

The element of knowledge may be satisfied by inferences drawn from proof that a defendant deliberately closed his eyes to what otherwise would have been obvious to him. A finding beyond a reasonable doubt of a conscious purpose to avoid enlightenment would permit an inference of knowledge. Stated another way, a defendant's knowledge of a fact may be inferred from willful blindness to the existence of a fact. It is entirely up to you as to whether you find any deliberate closing of the eyes, and the inferences to be drawn from any such evidence. A showing of negligence or mistake is not sufficient to support a finding of willfulness of knowledge.

In Graham, this circuit adopted the reasons given in Jewell for the necessity of such an instruction as follows:

The substantive justification for the rule is that deliberate ignorance and positive knowledge are equally culpable. The textual justification is that in common understanding one "knows" facts of which he is less than absolutely certain. To act "knowingly," therefore, is not necessarily to act only with positive knowledge, but also to act with an awareness of the high probability of the existence of the fact in question. When such awareness is present, "positive" knowledge is not required.

739 F.2d at 353 (quoting from 532 F.2d at 700).

In both Graham and Massa the court found that the instruction did not allow the defendant to be convicted on the basis of negligence or mistake. See also United States v. Bussey, 942 F.2d 1241 (8th Cir. 1991).

In Bussey, this circuit again approved the giving of a willful blindness instruction to a tax fraud and false statement case where the defendant knew certain payments he received had income tax consequences but he specifically sought to avoid learning anything about the specifics of those consequences and did not provide his accountant or return preparer with any relevant information. The court noted that specific language in the instruction which informed the jury that negligence or mistake did not constitute willfulness or knowledge prevented the instruction from allowing the jury to find the defendant guilty based on simple negligence.

The instruction as drafted by the committee attempts to combine the format of the instruction approved in Kershman with the language approved in Massa/Graham, covering the essential principles required by each of these cases.

This instruction should not be given in every case where a defendant claims a lack of knowledge; rather, it is appropriate only in those cases where a defendant claims a lack of guilty knowledge and there are facts in evidence which suggest deliberate ignorance. United States v. Barnhart, 979 F.2d 647 (8th Cir. 1992); United States v. Regan, 940 F.2d 1134 (8th Cir. 1991); United States v. Hiland, 909 F.2d 1114, 1130 (8th Cir. 1990); United States v. White, 794 F.2d 367, 371 (8th Cir. 1986); United States v. Hildebrand, 152 F.3d 756, 764 (8th Cir. 1998); United States v. Gonzalez, 90 F.3d 1363, 1371 (8th Cir. 1996). Barnhart contains a good discussion of when and under what circumstances such an instruction should be given. It should be consulted when such an instruction is requested. If there is evidence supporting both actual knowledge on the part of the defendant and deliberate ignorance, this instruction is properly given. United States v. Parker, 364 F.2d 934, 946-47 (8th Cir. 2004); United States v. Florez, 368 F.3d 1042 (8th Cir. 2004). If there is no evidence indicating that the defendant had a conscious purpose to avoid learning the truth, the instruction should not be given. United States v. White, 794 F.2d at 371. Likewise, if the evidence "points solely to either actual knowledge or no knowledge of the facts in question," the instruction should not be given. Regan; Hiland, 909 F.2d at 1130. If a statute requires actual knowledge of specific facts, this instruction should not be given. Mattingly v. United States, 924 F.2d 785, 791 (8th Cir. 1991) (26 USC 6701). In any event, "[a] deliberate ignorance instruction should not be given in every [criminal] case because there is a possibility that the jury will use a 'negligence standard and convict a defendant on the impermissible ground that he should have known [an illegal act] was taking place.’" United States v. Cunningham, 83 F.3d 218, 221 (8th Cir. 1996) (quoting United States v. Barnhart, 979 F.2d at 651.) See also United States v. Covington, 133 F.3d 639, 644-45 (8th Cir. 1998). A district court should not give the deliberate ignorance instruction "when the evidence points solely to the defendant's actual knowledge of the facts in question," but the instruction is appropriate "when the defendant denies any knowledge of a criminal scheme despite strong evidence to the contrary." United States v. King, 351 F.3d 859, 866-67 (8th Cir. 2003). See also United States v. Woodward, 315 F.3d 1000, 1003-04 (8th Cir. 2003); United States v. Marley, 549 F.2d 561 (8th Cir. 1977).

Note that where the defendant is under a specific duty to discover facts and the facts tendered to him are suspicious, as for example, in a securities fraud prosecution, an instruction that "reckless deliberate indifference to or disregard for truth or falsity" is equivalent to knowledge, may be proper in place of the reference to "conscious purpose to avoid learning the truth." United States v. Weiner, 578 F.2d 757, 787 (9th Cir. 1978).

For 2000 version see below

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2000 Version

7.04 DELIBERATE IGNORANCE

You may find that the defendant [(name)]1 acted knowingly if you find beyond a reasonable doubt that the defendant [(name)] was aware of a high probability that 2 and that [he] [she] deliberately avoided learning the truth. The element of knowledge may be inferred if defendant [(name)] deliberately closed [his] [her] eyes to what would otherwise have been obvious to [him] [her].

You may not find that the defendant [(name)] acted knowingly, however, [if you find that the defendant [(name)] actually believed that ,3] 4 [if you find that the defendant [(name)] was simply careless.] A showing of negligence, mistake, or carelessness is not sufficient to support a finding of knowledge.5

See 1 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Civil and Criminal § 14.09 (4th ed. 1992); Ninth Cir. Crim. Jury Instr. 5.7 (1997). See generally West Key # "Criminal Law" 20, 33, 761(6), 772 (5).

In United States v. Kershman, 555 F.2d 198, 200 (8th Cir.), cert. denied, 434 U.S. 892 (1977), this circuit joined the Second, Sixth, Seventh and Ninth Circuits in approving the use of an instruction in which the element of knowledge may be shown by deliberate ignorance where evidence has shown a conscious purpose to avoid enlightenment.

The instruction approved in Kershman had two aspects; first, it required the jury to find that the defendant deliberately and consciously closed his eyes and second, it instructed the jury that defendant's good faith belief in the matter in question would exonerate him. 555 F.2d at 201. The court found that the "if you find" language of the instruction prevented the instruction from assuming facts not in evidence. The court further found that the instruction did not permit the jury to convict on an objective rather than a subjective theory of knowledge requirements.

The analysis in Kershman is similar to that in United States v. Jewell, 532 F.2d 697 (9th Cir. en banc), cert. denied, 426 U.S. 951 (1976). In a footnote, the Jewell court stated that a deliberate ignorance instruction should say "(1) that the required knowledge is established if the accused is aware of a high probability of the existence of the fact in question (2) unless he actually believes it does not exist." Id. at 704 n.21. In United States v. Valle-Valdez, 554 F.2d 911, 914 (9th Cir. 1977), it was held reversible error to fail to include in the instruction element (1) of the Jewell footnote; specifically, the court held that the instructions should have explained that "conscious purpose to avoid learning the truth" is culpable only where coupled with a subjective awareness of high probability of the "unknown" fact.

Subsequent to Kershman, Devitt and Blackmar former § 14.09 on the same subject matter was approved by this circuit in United States v. Massa, 740 F.2d 629, 643 (8th Cir. 1984), cert. denied, 471 U.S. 1115 (1985) and United States v. Graham, 739 F.2d 351, 352 (8th Cir. 1984):

The element of knowledge may be satisfied by inferences drawn from proof that a defendant deliberately closed his eyes to what otherwise would have been obvious to him. A finding beyond a reasonable doubt of a conscious purpose to avoid enlightenment would permit an inference of knowledge. Stated another way, a defendant's knowledge of a fact may be inferred from willful blindness to the existence of a fact. It is entirely up to you as to whether you find any deliberate closing of the eyes, and the inferences to be drawn from any such evidence. A showing of negligence or mistake is not sufficient to support a finding of willfulness or knowledge.

In Graham, this circuit adopted the reasons given in Jewell for the necessity of such an instruction as follows:

The substantive justification for the rule is that deliberate ignorance and positive knowledge are equally culpable. The textual justification is that in common understanding one "knows" facts of which he is less than absolutely certain. To act "knowingly," therefore, is not necessarily to act only with positive knowledge, but also to act with an awareness of the high probability of the existence of the fact in question. When such awareness is present, "positive" knowledge is not required.

739 F.2d at 353 (quoting from 532 F.2d at 700).

In both Graham and Massa the court found that the instruction did not allow the defendant to be convicted on the basis of negligence or mistake. See also United States v. Bussey, 942 F.2d 1241 (8th Cir. 1991).

In Bussey, this circuit again approved the giving of a willful blindness instruction in a tax fraud and false statement case where the defendant knew certain payments he received had income tax consequences but he specifically sought to avoid learning anything about the specifics of those consequences and did not provide his accountant or return preparer with any relevant information. The court noted that specific language in the instruction which informed the jury that negligence or mistake did not constitute willfulness or knowledge prevented the instruction from allowing the jury to find the defendant guilty based on simple negligence.

The instruction as drafted by the committee attempts to combine the format of the instruction approved in Kershman with the language approved in Massa/Graham, covering the essential principles required by each of these cases.

Note that where the defendant is under a specific duty to discover facts and the facts tendered to him are suspicious, as for example in a securities fraud prosecution, an instruction that "reckless deliberate indifference to or disregard for truth or falsity" is equivalent to knowledge, may be proper in place of the reference to "conscious purpose to avoid learning the truth." United States v. Weiner, 578 F.2d 757, 787 (9th Cir.), cert. denied, 439 U.S. 981 (1978).

1. If there is more than one defendant and the instruction does not apply to all defendants, insert the name[s] of the defendant[s] to whom the instruction applies.

2. State the fact as to which knowledge is in question (e.g., that "drugs were contained in his suitcase").

3. State the proposition in the negative (e.g., that "no drugs were contained in his suitcase"). See, e.g., United States v. Bailey, 955 F.2d 28 (8th Cir. 1992).

4. This clause must be included in an instruction if requested. United States v. Esquer-Gamez, 550 F.2d 1231, 1235-36 (9th Cir. 1977).

5. This instruction should not be given in every case where a defendant claims a lack of knowledge; rather, it is appropriate only in those cases where defendant claims a lack of guilty knowledge and there are facts in evidence which suggest deliberate ignorance. United States v. Barnhart, 979 F.2d 647 (8th Cir. 1992); United States v. Regan, 940 F.2d 1134 (8th Cir. 1991); United States v. Hiland, 909 F.2d 1114, 1130 (8th Cir. 1990); United States v. White, 794 F.2d 367, 371 (8th Cir. 1986). Barnhart contains a good discussion of when and under what circumstances such an instruction should be given. It should be consulted when such an instruction is requested. If there is no evidence indicating that the defendant had a conscious purpose to avoid learning the truth, the instruction should not be given. United States v. White, 794 F.2d at 371. See also United States v. Rivera, 926 F.2d 1564, 1570-73 (11th Cir. 1991). Likewise, if the evidence "points solely to either actual knowledge or no knowledge of the facts in question," the instruction should not be given. Regan; Hiland, 909 F.2d at 1130. If a statute requires actual knowledge of specific facts, this instruction should not be given. Mattingly v. United States, 924 F.2d 785, 791 (8th Cir. 1991) (26 USC 6701).

8TH CIRCUIT MODEL INSTRUCTIONS 2009

FORECITE National™ Materials Related To This Instruction:

25.12.5 Proof Of Intent: Circumstantial Evidence Sufficient

[Intent or knowledge may be proved like anything else. You may consider any statements made and acts done¹ by the defendant, and all the facts and circumstances in evidence which may aid in a determination of the defendant's knowledge or intent.]

[You may, but are not required to, infer that a person intends the natural and probable consequences of acts knowingly done or knowingly omitted.]

1. If the defendant has not testified, this language may need modification to make it clear that the instruction is referring to acts done or statements made in connection with the offense and not failure to testify in court. See Committee Comments, Instruction 4.01, supra.

See 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 17.07 (5th ed. 2000); United States v. Lawson, 483 F.2d 535, 536 (8th Cir. 1973). See generally West Key # "Criminal Law" 778(6), 784(4), 784(8).

A more expanded version of both bracketed paragraphs of this instruction has been repeatedly approved by this circuit. See United States v. Lawson, 483 F.2d at 536-38 and cases cited therein approving instructions based on 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 17.07 (5th ed. 2000). See also United States v. Martin, 772 F.2d 1442, 1445 (8th Cir. 1985), in which this circuit approved the giving of the expanded instruction and expressly declined to overrule or reconsider prior opinions approving it and further held that the second paragraph was distinguishable from the presumption held unconstitutional in Sandstrom v. Montana, 442 U.S. 510 (1979). 772 F.2d at 1445-46. Likewise the Tenth Circuit has expressly recommended the use of both paragraphs of 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions, Criminal § 17.07 (5th ed. 2000), when instructing on this concept. United States v. Bohlmann, 625 F.2d 751, 753 (6th Cir. 1980).

(For 2008 version see below).

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2008 Version

[Intent or knowledge may be proved like anything else. You may consider any statements made and acts done¹ by the defendant, and all the facts and circumstances in evidence which may aid in a determination of the defendant's knowledge or intent.]

[You may, but are not required to, infer that a person intends the natural and probable consequences of acts knowingly done or knowingly omitted.]

1. If the defendant has not testified, this language may need modification to make it clear that the instruction is referring to acts done or statements made in connection with the offense and not failure to testify in court. See Committee Comments, Instruction 4.01, supra.

See 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 17.07 (5th ed. 2000); United States v. Lawson, 483 F.2d 535, 536 (8th Cir. 1973). See generally West Key # "Criminal Law" 778(6), 784(4), 784(8).

A more expanded version of both bracketed paragraphs of this instruction has been repeatedly approved by this circuit. See United States v. Lawson, 483 F.2d at 536-38 and cases cited therein approving instructions based on 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 17.07 (5th ed. 2000). See also United States v. Martin, 772 F.2d 1442, 1445 (8th Cir. 1985), in which this circuit approved the giving of the expanded instruction and expressly declined to overrule or reconsider prior opinions approving it and further held that the second paragraph was distinguishable from the presumption held unconstitutional in Sandstrom v. Montana, 442 U.S. 510 (1979). 772 F.2d at 1445-46. Likewise the Tenth Circuit has expressly recommended the use of both paragraphs of 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions, Criminal § 17.07 (5th ed. 2000), when instructing on this concept. United States v. Bohlmann, 625 F.2d 751, 753 (6th Cir. 1980).

(For 2006 version see below)

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[Intent or knowledge may be proved like anything else. You may consider any statements made and acts done1 by the defendant, and all the facts and circumstances in evidence which may aid in a determination of the defendant's knowledge or intent.]

[You may, but are not required to, infer that a person intends the natural and probable consequences of acts knowingly done or knowingly omitted.]

1. If the defendant has not testified, this language may need modification to make it clear that the instruction is referring to acts done or statements made in connection with the offense and not failure to testify in court. See Committee Comments, Instruction 4.01, supra.

See 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 17.07 (5th ed. 2000); United States v. Lawson, 483 F.2d 535, 536 (8th Cir. 1973). See generally West Key # "Criminal Law" 778(6), 784(4), 784(8).

A more expanded version of both bracketed paragraphs of this instruction has been repeatedly approved by this circuit. See United States v. Lawson, 483 F.2d at 536-38 and cases cited therein approving instructions based on 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 17.07 (5th ed. 2000). See also United States v. Martin, 772 F.2d 1442, 1445 (8th Cir. 1985), in which this circuit approved the giving of the expanded instruction and expressly declined to overrule or reconsider prior opinions approving it and further held that the second paragraph was distinguishable from the presumption held unconstitutional in Sandstrom v. Montana, 442 U.S. 510 (1979). 772 F.2d at 1445-46. Likewise the Tenth Circuit has expressly recommended the use of both paragraphs of 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions, Criminal § 17.07 (5th ed. 2000), when instructing on this concept. United States v. Bohlmann, 625 F.2d 751, 753 (6th Cir. 1980).

For 2000 version see below

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2000 Version