8TH CIRCUIT MODEL INSTRUCTIONS 2008
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8.    Final Instructions: Definitions

        8.00     Introductory Comment
        8.01     Attempt
        8.02     Possession: Actual, Constructive, Sole, Joint

8TH CIRCUIT MODEL INSTRUCTIONS 2008

8.00 FINAL INSTRUCTIONS: DEFINITIONS
Introductory Comment

In this section the Committee has included definitions of general terms found in many criminal statutes. More definitions are provided in the Instructions, Committee Comments, and Notes on Use in Sections 5, 6 and 7.

8TH CIRCUIT MODEL INSTRUCTIONS 2008

NCJIC Materials Related To This Instruction:

Chapter 66: Attempt

The crime charged in [Count _____ of] the indictment is an attempt to (describe attempted act, e.g., sell counterfeit currency.) A person may be found guilty of an attempt if [he] [she] intended to (describe attempted act, i.e., sell counterfeit currency) and voluntarily and intentionally carried out some act which was a substantial step² toward that (describe attempted act, i.e., sale).

1. This definition should follow the elements instruction for the substantive crime.

2. An instruction defining "substantial step" may be given. This circuit has held the following definition to "adequately and correctly articulate the law":

A substantial step, as used in the previous instruction, must be something more than mere preparation, yet may be less than the last act necessary before the actual commission of the substantive crime. In order for behavior to be punishable as an attempt, it need not be incompatible with innocence, yet it must be necessary to the consummation of the crime and be of such a nature that a reasonable observer, viewing it in context could conclude beyond a reasonable doubt that it was undertaken in accordance with a design to violate the statute. Crimes such as attempt to manufacture methamphetamine require a defendant to engage in numerous preliminary steps which brand the enterprise as criminal.

United States v. Wagner, 884 F.2d 1090 (8th Cir. 1989).

See 2 Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 21.03 (5th ed. 2000); Seventh Circuit Federal Jury Instructions: Criminal § 4.07 (1999); Ninth Cir. Crim. Jury Instr. 5.3 (1997). See generally West Key # "Criminal Law" 44.

There is no general statute which makes "attempt" a federal crime, and thus it may be prosecuted only where a specific statute makes attempting to do an act a crime. United States v. Manley, 632 F.2d 978 (2d Cir. 1981); United States v. York, 578 F.2d 1036 (5th Cir. 1978). In this Manual, Instructions 6.18.472, 6.18.751, 6.18.1113, 6.18.1341, 6.18.1344, 6.18.1512, 6.18.1708, 6.18.1951, 6.18.2113, 6.18.2112, and 6.21.841A and C are all based on statutes which include certain attempted acts as offenses.

This circuit has adopted the definition of "attempt" set forth in section 5.01 of the A.L.I. Model Penal Code (Proposed Official Draft 1962) as requiring (l) an intent to engage in criminal conduct, and (2) conduct constituting a "substantial" step toward commission of the intended offense which strongly corroborates the actor's criminal intent. See United States v. Joyce, 693 F.2d 838, 841 (8th Cir. 1982). At the same time, this circuit rejected a verbal formulation dividing acts of preparation from acts of attempt as not useful and for this reason language to the effect that "mere acts of preparation will not suffice," is not included. See United States v. Joyce. An attempt need not be successful to be culpable. United States v. Joyce.

"Factual impossibility," which refers to those situations in which a circumstance or condition, unknown to the defendant, makes the consummation of his intended criminal conduct impossible, is not a defense to an attempt. United States v. Frazier, 560 F.2d 884, 888 (8th Cir. 1977), noting that the "oft-recited example" is the would-be thief who attempts to pick a pocket. The attempt is still a crime even if the pocket turns out to be empty.

On the other hand "legal impossibility" is a defense to attempt but arises only in very limited circumstances. Frazier, defining "legal impossibility" as follows:

"Legal impossibility" refers to those situations in which the intended acts, even if successfully carried out, would not amount to a crime. Thus, attempt is not unlawful where success is not a crime, and this is true even though the defendant believes his scheme to be criminal.

560 F.2d at 888. Many cases cannot be reconciled with the above principles. See United States v. Berrigan, 482 F.2d 171, 188-89 (3d Cir. 1973) and other examples enumerated in the Berrigan opinion at pp. 185-86.

(For 2006 version see below)

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The crime charged in [Count _____ of] the indictment is an attempt to (describe attempted act, e.g., sell counterfeit currency.) A person may be found guilty of an attempt if [he] [she] intended to (describe attempted act, i.e., sell counterfeit currency) and voluntarily and intentionally carried out some act which was a substantial step2 toward that (describe attempted act, i.e., sale).

1. This definition should follow the elements instruction for the substantive crime.

2. An instruction defining "substantial step" may be given. This circuit has held the following definition to "adequately and correctly articulate the law":

A substantial step, as used in the previous instruction, must be something more than mere preparation, yet may be less than the last act necessary before the actual commission of the substantive crime. In order for behavior to be punishable as an attempt, it need not be incompatible with innocence, yet it must be necessary to the consummation of the crime and be of such a nature that a reasonable observer, viewing it in context could conclude beyond a reasonable doubt that it was undertaken in accordance with a design to violate the statute. Crimes such as attempt to manufacture methamphetamine require a defendant to engage in numerous preliminary steps which brand the enterprise as criminal.

United States v. Wagner, 884 F.2d 1090 (8th Cir. 1989).

See 2 Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 21.03 (5th ed. 2000); Seventh Circuit Federal Jury Instructions: Criminal § 4.07 (1999); Ninth Cir. Crim. Jury Instr. 5.3 (1997). See generally West Key # "Criminal Law" 44.

There is no general statute which makes "attempt" a federal crime, and thus it may be prosecuted only where a specific statute makes attempting to do an act a crime. United States v. Manley, 632 F.2d 978 (2d Cir. 1981); United States v. York, 578 F.2d 1036 (5th Cir. 1978). In this Manual, Instructions 6.18.472, 6.18.751, 6.18.1113, 6.18.1341, 6.18.1344, 6.18.1512, 6.18.1708, 6.18.1951, 6.18.2113, 6.18.2112, and 6.21.841A and C are all based on statutes which include certain attempted acts as offenses.

This circuit has adopted the definition of "attempt" set forth in section 5.01 of the A.L.I. Model Penal Code (Proposed Official Draft 1962) as requiring (l) an intent to engage in criminal conduct, and (2) conduct constituting a "substantial" step toward commission of the intended offense which strongly corroborates the actor's criminal intent. See United States v. Joyce, 693 F.2d 838, 841 (8th Cir. 1982). At the same time, this circuit rejected a verbal formulation dividing acts of preparation from acts of attempt as not useful and for this reason language to the effect that "mere acts of preparation will not suffice," is not included. See United States v. Joyce. An attempt need not be successful to be culpable. United States v. Joyce.

"Factual impossibility," which refers to those situations in which a circumstance or condition, unknown to the defendant, makes the consummation of his intended criminal conduct impossible, is not a defense to an attempt. United States v. Frazier, 560 F.2d 884, 888 (8th Cir. 1977), noting that the "oft-recited example" is the would-be thief who attempts to pick a pocket. The attempt is still a crime even if the pocket turns out to be empty.

On the other hand "legal impossibility" is a defense to attempt but arises only in very limited circumstances. Frazier, defining "legal impossibility" as follows:

"Legal impossibility" refers to those situations in which the intended acts, even if successfully carried out, would not amount to a crime. Thus, attempt is not unlawful where success is not a crime, and this is true even though the defendant believes his scheme to be criminal.

560 F.2d at 888. Many cases cannot be reconciled with the above principles. See United States v. Berrigan, 482 F.2d 171, 188-89 (3d Cir. 1973) and other examples enumerated in the Berrigan opinion at pp. 185-86.

For 2000 version see below

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2000 Version

8.01 ATTEMPT1

The crime charged in [Count _____ of] the indictment is an attempt to (describe attempted act, e.g., sell counterfeit currency.) A person may be found guilty of an attempt if [he] [she] intended to (describe attempted act, i.e., sell counterfeit currency) and voluntarily and intentionally carried out some act which was a substantial step2 toward that (describe attempted act, i.e., sale).

See 2 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Criminal § 21.03 (4th ed. 1990); Seventh Circuit Federal Jury Instructions: Criminal § 4.07 (1999); Ninth Cir. Crim. Jury Instr. 5.3 (1997). See generally West Key # "Criminal Law" 44.

There is no general statute which makes "attempt" a federal crime, and thus it may be prosecuted only where a specific statute makes attempting to do an act a crime. United States v. Manley, 632 F.2d 978 (2d Cir.), cert. denied, 449 U.S. 1112 (1981); United States v. York, 578 F.2d 1036 (5th Cir.), cert. denied, 439 U.S. 1005 (1978). In this Manual, Instructions 6.18.472, 6.18.751, 6.18.1113, 6.18.1341, 6.18.1344, 6.18.1512, 6.18.1708, 6.18.1951, 6.18.2113, 6.18.2112, and 6.21.841A and C are all based on statutes which include certain attempted acts as offenses.

This circuit has adopted the definition of "attempt" set forth in section 5.01 of the A.L.I. Model Penal Code (Proposed Official Draft 1962) as requiring (l) an intent to engage in criminal conduct, and (2) conduct constituting a "substantial" step toward commission of the intended offense which strongly corroborates the actor's criminal intent. See United States v. Joyce, 693 F.2d 838, 841 (8th Cir. 1982). At the same time, this circuit rejected a verbal formulation dividing acts of preparation from acts of attempt as not useful and for this reason language to the effect that "mere acts of preparation will not suffice," is not included. See United States v. Joyce. An attempt need not be successful to be culpable. United States v. Joyce.

"Factual impossibility," which refers to those situations in which a circumstance or condition, unknown to the defendant, makes the consummation of his intended criminal conduct impossible, is not a defense to an attempt. United States v. Frazier, 560 F.2d 884, 888 (8th Cir. 1977), cert. denied, 435 U.S. 968 (1978), noting that the "oft-recited example" is the would-be thief who attempts to pick a pocket. The attempt is still a crime even if the pocket turns out to be empty.

On the other hand "legal impossibility" is a defense to attempt but arises only in very limited circumstances. Frazier, defining "legal impossibility" as follows:

"Legal impossibility" refers to those situations in which the intended acts, even if successfully carried out, would not amount to a crime. Thus, attempt is not unlawful where success is not a crime, and this is true even though the defendant believes his scheme to be criminal.

560 F.2d at 888. Many cases cannot be reconciled with the above principles. See United States v. Berrigan, 482 F.2d 171, 188-89 (3d Cir. 1973) and other examples enumerated in the Berrigan opinion at pp. 185-86.

1. This definition should follow the elements instruction for the substantive crime.

2. An instruction defining "substantial step" may be given. This circuit has held the following definition to "adequately and correctly articulate the law":

A substantial step, as used in the previous instruction, must be something more than mere preparation, yet may be less than the last act necessary before the actual commission of the substantive crime. In order for behavior to be punishable as an attempt, it need not be incompatible with innocence, yet it must be necessary to the consummation of the crime and be of such a nature that a reasonable observer, viewing it in context could conclude beyond a reasonable doubt that it was undertaken in accordance with a design to violate the statute. Crimes such as attempt to manufacture methamphetamine require a defendant to engage in numerous preliminary steps which brand the enterprise as criminal.

United States v. Wagner, 884 F.2d 1090 (8th Cir. 1989).

8TH CIRCUIT MODEL INSTRUCTIONS 2008

NCJIC Materials Related To This Instruction:

Chapter 56: Possession

The law recognizes several kinds of possession. A person may have actual possession or constructive possession. A person may have sole or joint possession.

A person who knowingly has direct physical control over a thing, at a given time, is then in actual possession of it.

A person who, although not in actual possession, has both the power and the intention at a given time to exercise dominion or control over a thing, either directly or through another person or persons, is then in constructive possession of it.

If one person alone has actual or constructive possession of a thing, possession is sole. If two or more persons share actual or constructive possession of a thing, possession is joint.

Whenever the word "possession" has been used in these instructions it includes actual as well as constructive possession and also sole as well as joint possession.

See 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions, Criminal § 16.05 (5th ed. 2000); Fifth Circuit Pattern Jury Instructions: Criminal § 1.31 (1997); Eleventh Circuit Pattern Jury Instructions: Criminal (Special) § 6 (1997); United States v. Smith, 104 F.3d 145, 148 n.2 (8th Cir. 1997); United States v. Ali, 63 F.3d 710 (8th Cir. 1995); United States v. Johnson, 857 F.2d 500, 501-02 n.2 (8th Cir. 1988); United States v. Montgomery, 819 F.2d 847, 851 (8th Cir. 1987); Sewell v. United States, 406 F.2d 1289, 1293 n.3 (8th Cir. 1969). See also United States v. Henneberry, 719 F.2d 941, 945 (8th Cir. 1983) [definition of constructive possession].

(For 2006 version see below)

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

The law recognizes several kinds of possession. A person may have actual possession or constructive possession. A person may have sole or joint possession.

A person who knowingly has direct physical control over a thing, at a given time, is then in actual possession of it.

A person who, although not in actual possession, has both the power and the intention at a given time to exercise dominion or control over a thing, either directly or through another person or persons, is then in constructive possession of it.

If one person alone has actual or constructive possession of a thing, possession is sole. If two or more persons share actual or constructive possession of a thing, possession is joint.

Whenever the word "possession" has been used in these instructions it includes actual as well as constructive possession and also sole as well as joint possession.

See 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions, Criminal § 16.05 (5th ed. 2000); Fifth Circuit Pattern Jury Instructions: Criminal § 1.31 (1997); Eleventh Circuit Pattern Jury Instructions: Criminal (Special) § 6 (1997); United States v. Smith, 104 F.3d 145, 148 n.2 (8th Cir. 1997); United States v. Ali, 63 F.3d 710 (8th Cir. 1995); United States v. Johnson, 857 F.2d 500, 501-02 n.2 (8th Cir. 1988); United States v. Montgomery, 819 F.2d 847, 851 (8th Cir. 1987); Sewell v. United States, 406 F.2d 1289, 1293 n.3 (8th Cir. 1969). See also United States v. Henneberry, 719 F.2d 941, 945 (8th Cir. 1983) [definition of constructive possession].

For 2000 version see below

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

2000 Version

8.02 POSSESSION: ACTUAL, CONSTRUCTIVE, SOLE, JOINT

The law recognizes several kinds of possession. A person may have actual possession or constructive possession. A person may have sole or joint possession.

A person who knowingly has direct physical control over a thing, at a given time, is then in actual possession of it.

A person who, although not in actual possession, has both the power and the intention at a given time to exercise dominion or control over a thing, either directly or through another person or persons, is then in constructive possession of it.

If one person alone has actual or constructive possession of a thing, possession is sole. If two or more persons share actual or constructive possession of a thing, possession is joint.

Whenever the word "possession" has been used in these instructions it includes actual as well as constructive possession and also sole as well as joint possession.

See 1 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Civil and Criminal § 16.05 (4th Ed. 1992); Fifth Circuit Pattern Jury Instructions: Criminal § 1.31 (1997); Eleventh Circuit Pattern Jury Instructions: Criminal (Special) § 6 (1997); United States v. Smith, 104 F.3d 145, 148 n.2 (8th Cir. 1997); United States v. Ali, 63 F.3d 710 (8th Cir. 1995); United States v. Johnson, 857 F.2d 500, 501-02 n.2 (8th Cir. 1988); United States v. Montgomery, 819 F.2d 847, 851 (8th Cir. 1987); Sewell v. United States, 406 F.2d 1289, 1293 n.3 (8th Cir. 1969). See also United States v. Henneberry, 719 F.2d 941, 945 (8th Cir. 1983), cert. denied, 465 U.S. 1107 (1984) [definition of constructive possession].