9^TH CIRCUIT MODEL INSTRUCTIONS 2000
(Includes Additions and Revisions Through 2007)
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Responsibility

        5.1     Aiding And Abetting
        5.2     Accessory After The Fact (18 USC 3)
        5.3     Attempt
        5.4     Specific Intent – General Intent
        5.5     Willfully
        5.6     Knowingly – Defined
        5.7     Deliberate Ignorance
        5.8     Presumptions
        5.9    Advice of Counsel

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

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Chapter 64: Accomplice Liability (Aiding and Abetting, Accessory Before The Fact, Etc.)

A defendant may be found guilty of [crime charged], even if the defendant personally did not commit the act or acts constituting the crime but aided and abetted in its commission. To prove a defendant guilty of aiding and abetting, the government must prove beyond a reasonable doubt:

First, [crime charged] was committed by someone;

Second, the defendant knowingly and intentionally aided, counseled, commanded, induced or procured that person to commit each element of [crime charged]; and

Third, the defendant acted before the crime was completed.

It is not enough that the defendant merely associated with the person committing the crime, or unknowingly or unintentionally did things that were helpful to that person, or was present at the scene of the crime.

The evidence must show beyond a reasonable doubt that the defendant acted with the knowledge and intention of helping that person commit [crime charged].

The government is not required to prove precisely which defendant actually committed the crime and which defendant aided and abetted.

Comment

An aiding and abetting instruction is proper even where the indictment does not specifically charge that offense, since all indictments are read to embody that offense in each count. United States v. Vaanderling, 50 F.3d 696, 702 (9th Cir. 1995); United States v. Armstrong, 909 F.2d 1238, 1241-42 (9th Cir.), cert. denied, 498 U.S. 870 (1990); United States v. Jones, 678 F.2d 102, 104 (9th Cir. 1982). See also, United States v. Gaskins, 849 F.2d 454, 459 (9th Cir. 1988); United States v. Sayetsitty, 107 F.3d 1405, 1412 (9th Cir. 1997).

This instruction conforms to language approved in United States v. Avila-Macias, 577 F.2d 1384, 1390 n.5 (9th Cir. 1978). The language set forth in paragraphs five and six was expressly approved as adequately addressing a claim of mere presence. United States v. Burgess, 791 F.2d 676, 679 (9th Cir. 1986).

The last paragraph has been expressly approved in Vaanderling, 50 F.3d at 702. It may be unnecessary to give the last paragraph if there is no dispute as to the identity of the principal and the aider and abettor.

In United States v. Cruz-Ventura, 979 F.2d 146, 149 (9th Cir. 1992), citing Manual of Model Criminal Jury Instructions for the Ninth Circuit, § 5.01 (1992), the Ninth Circuit stated that "an aider and abetter is a person who knowingly and intentionally helps another to commit a crime."

A person may be convicted for aiding and abetting despite the prior acquittal of the principal. Standefer v. United States, 447 U.S. 10, 20 (1980); United States v. Mejia-Mesa, 153 F.3d 925, 930 (9th Cir. 1998). Moreover, the principal need not be named or identified; it is necessary only that the offense was committed by somebody and that the defendant intentionally did an act to help in its commission. Mejia-Mesa, 153 F.3d at 930 (citing Feldstein v. United States, 429 F.2d 1092, 1095 (9th Cir.), cert. denied, 400 U.S. 920 (1970). It is necessary, however, that the government prove that defendant aided and abetted in each essential element of the offense. Jones, 678 F.2d at 105-06. For example, when a defendant is charged with aiding and abetting another in carrying a firearm during and in relation to a crime of violence in violation of 18 U.S.C. § 924(c), the government must prove both that the defendant knowingly aided and abetted the use or carrying of the firearm and knowingly aided and abetted the commission of the related crime of violence. United States v. Bancalari, 110 F.3d 1427, 1429-30 (9th Cir. 1997). See Instruction 8.65 (Firearms - Using or Carrying in Commission of Drug Trafficking Crime or Crime of Violence).

Approved 3/2005 (for 2002 version see below).

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2002 Version

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2000 Version

A defendant may be found guilty of [crime charged], even if the defendant personally did not commit the act or acts constituting the crime but aided and abetted in its commission. To prove a defendant guilty of aiding and abetting, the government must prove beyond a reasonable doubt:

First, [crime charged] was committed by someone;

Second, the defendant knowingly and intentionally aided, counseled, commanded, induced or procured that person to commit [crime charged]; and

Third, the defendant acted before the crime was completed.

It is not enough that the defendant merely associated with the person committing the crime, or unknowingly or unintentionally did things that were helpful to that person, or was present at the scene of the crime.

The evidence must show beyond a reasonable doubt that the defendant acted with the knowledge and intention of helping that person commit [crime charged].

The government is not required to prove precisely which defendant actually committed the crime and which defendant aided and abetted.

This instruction conforms to language approved in United States v. Avila-Macias, 577 F.2d 1384, 1390 n.5 (9th Cir. 1978). The language set forth in paragraphs five and six was expressly approved as adequately addressing a claim of mere presence. United States v. Burgess, 791 F.2d 676, 679 (9th Cir. 1986).

The last paragraph has been expressly approved in United States v. Vaanderling, 50 F.3d 696, 702 (9th Cir. 1995). It may be unnecessary to give the last paragraph if there is no dispute as to the identity of the principal and the aider and abettor.

In United States v. Cruz-Ventura, 979 F.2d 146, 149 (9th Cir. 1992), citing Manual of Model Criminal Jury Instructions for the Ninth Circuit, § 5.01 (1992), the Ninth Circuit stated that "an aider and abetter is a person who knowingly and intentionally helps another to commit a crime."

A person may be convicted for aiding and abetting despite the prior acquittal of the principal. Standefer v. United States, 447 U.S. 10, 20 (1980); United States v. Mejia-Mesa, 153 F.3d 925, 930 (9th Cir. 1998). Moreover, the principal need not be named or identified; it is necessary only that the offense was committed by somebody and that the defendant intentionally did an act to help in its commission. Mejia-Mesa, 153 F.3d at 930 (citing Feldstein v. United States, 429 F.2d 1092, 1095 (9th Cir.), cert. denied, 400 U.S. 920 (1970). It is necessary, however, that the government prove that defendant aided and abetted in each essential element of the offense. United States v. Jones, 678 F.2d 102, 105-06 (9th Cir. 1982).

An aiding and abetting instruction is proper even where the indictment does not specifically charge that offense, since all indictments are read to embody that offense in each count. United States v. Vaanderling, 50 F.3d at 702; United States v. Armstrong, 909 F.2d 1238, 1241-42 (9th Cir.), cert. denied, 498 U.S. 870 (1990); Jones, 678 F.2d at 104.

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

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Chapter 68: Accessory After The Fact

The defendant is charged with having been an accessory after the fact to the crime of [crime charged]. In order for the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:

First, the defendant knew that [principal] had committed the crime of [crime charged]; and

Second, the defendant assisted [principal] with the intent to hinder or prevent that person's [apprehension] [trial] [or] [punishment].

When there is substantial evidence that the defendant participated in the principal offense before its completion, an instruction on this distinct offense need not be given. United States v. Panza, 612 F.2d 432, 441 (9th Cir.), cert. denied, 447 U.S. 925 (1980); United States v. Jackson, 448 F.2d 963, 971 (9th Cir. 1971), cert. denied, 405 U.S. 924 (1972).

An instruction requiring "positive knowledge in contrast to imputed or implied knowledge" is not required when the "specific purpose or design" language is used. United States v. Mills, 597 F.2d 693, 696-97 (9th Cir. 1979).

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

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Chapter 66: Attempt

Most attempt crimes require specific intent. See United States v. Gracidas-Ulibarry, 231 F.3d 1188, 1192 (9th Cir. 2000) (en banc). The crime of attempted illegal reentry is a specific intent offense. Gracidas-Ulibarry, 231 F.3d at 1190.

See Instruction 7.9 (Specific Issue Unanimity).

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

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45.2 General And Specific Intent

The Committee recommends avoiding instructions that distinguish between "specific intent" and "general intent." The Ninth Circuit has stated: "We discourage the use of generic specific intent instructions and believe district courts should 'define the precise mental state required for the particular offense charged as an element of the offense which must be proved beyond a reasonable doubt.'" United States v. Johnson, 956 F.2d 197, 199-200 (9th Cir. 1992) (quoting Manual of Model Criminal Jury Instructions for the Ninth Circuit, § 5.04 (1989)).

If the statute at issue is silent regarding the necessary mens rea of the crime, the court should examine the statute's legislative history. United States v. Nguyen, 73 F.3d 887, 891 (9th Cir. 1995). See also United States v. Barajas-Montiel,185 F.3d 947, 952 (9th Cir. 1999) (following Nguyen and holding that criminal intent is required for conviction of the felony offenses of 8 U.S.C. § 1324(a)(2)(B)). If after such examination the court perceives an ambiguity regarding Congress' intent to require a mens rea, the court should read such a requirement into the statute. Nguyen, 73 F.3d at 890-91.

Most attempt crimes require specific intent. See United States v. Gracidas-Ulibarry, 231 F.3d 1188, 1192 (9th Cir. 2000) (en banc). The crime of attempted illegal reentry is a specific intent offense. Gracidas-Ulibarry, 231 F.3d at 1190.


Rev.12/2000

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

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Chapter 46: Willfulness

The Committee recommends that no instruction defining "willfully" be given unless the word is in the statute defining the offense being tried.

The Ninth Circuit has stated that "[w]ilfulness requires that an act be done knowingly and intentionally, not through ignorance, mistake or accident." United States v. Morales, 108 F.3d 1031, 1036 (9th Cir. 1997) (citing Manual of Model Criminal Jury Instructions for the Ninth Circuit, § 5.05 (1995)) (affirming convictions for the lesser included misdemeanor offenses of wilfully making false entries).

In United States v. Sehnai, 930 F.2d 1420, 1427 (9th Cir. 1991), a prosecution for making false statements on corporate tax returns, the Ninth Circuit approved the following instruction:

An act is done wilfully if done voluntarily and intentionally with the purpose of violating a known legal duty.

See also Cheek v. United States, 498 U.S. 192, 199 (1991).

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

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Chapter 47: Knowledge

An act is done knowingly if the defendant is aware of the act and does not [act] [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.

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2000 Version

An act is done knowingly if the defendant is aware of the act and does not [act] [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 instruction was approved as an accurate statement of the law for use when the criminal statute does not involve a different state of knowledge. United States v. Gravenmeir, 121 F.3d 526, 529-30 (9th Cir. 1997).

It is reversible error to give this instruction in a money laundering case because this instruction does not also require that the government prove that the defendant knew that the funds laundered were illegally obtained. United States v. Turman, 122 F.3d 1167, 1169 (9th Cir. 1997); United States v. Stein, 37 F.3d 1407, 1410 (9th Cir. 1994), cert. denied, 513 U.S. 1181 (1995).

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

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47.4 Deliberate Ignorance/Willful Blindness

You may find that the defendant acted knowingly if you find beyond a reasonable doubt that the defendant:

1. was aware of a high probability that [e.g., drugs were in the defendant’s automobile], and

2. deliberately avoided learning the truth.

You may not find such knowledge, however, if you find that the defendant actually believed that [e.g. no drugs were in the defendant’s automobile], or if you find that the defendant was simply careless.

In United States v. Heredia, ___ F.3d ____, slip op., No. 03-10585 (9th Cir. April 30, 2007) (en banc), the Ninth Circuit revived its decision in United States v. Jewell, 532 F.2d 697 (9th Cir.) (en banc), cert. denied, 426 U.S. 951 (1976), on which the language of this instruction is based. In so doing, the en banc court reiterated that in deciding whether to give a deliberate ignorance instruction along with an instruction on actual knowledge, "the district court must determine whether the jury could rationally find willful blindness even though it has rejected the government’s evidence of actual knowledge. If so, the court may also give a Jewell instruction." Heredia at 4668.

In the event the court determines to give a Jewell instruction, "it must, at a minimum contain the two prongs of suspicion and deliberate avoidance." Heredia at 4671. As the Ninth Circuit explained:

We conclude, therefore, that the two-pronged instruction given at defendant’s trial met the requirements of Jewell and, to the extent some of our cases have suggested more is required, see page 4663 supra, they are overruled. A district judge, in the exercise of his discretion, may say more to tailor the instruction to the particular facts of the case. Here, for example, the judge might have instructed the jury that it could find Heredia did not act deliberately if it believed that her failure to investigate was motivated by safety concerns. Heredia did not ask for such an instruction and the district judge had no obligation to give it sua sponte. Even when defendant asks for such a supplemental instruction, it is within the district court’s broad discretion whether to comply.

Id. at 4664. Accordingly, the government need not prove that the reason for defendant’s deliberate avoidance was to obtain a defense against prosecution. Id.

Approved 5/2007 (For 2000 version see below).

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2000 Version

You may find that the defendant acted knowingly if you find beyond a reasonable doubt that the defendant was aware of a high probability that [e.g., drugs were in the defendant’s automobile] and deliberately avoided learning the truth.

In order for you to find that the defendant deliberately avoided learning the truth, the government must prove beyond a reasonable doubt, and by specific evidence, each of the following:

1. the defendant actually suspected that [he] [she] might be involved in criminal activity;

2. the defendant deliberately avoided taking steps to confirm or deny that suspicion;

3. at the time the defendant actually suspected such activity [he] [she] had a reasonable opportunity to abstain from, or to discontinue, the criminal activity; and

4. the reason the defendant deliberately avoided taking such steps was that [he] [she] sought to provide [himself] [herself] with a defense in the event that [he] [she] later was prosecuted.

You may not find that the defendant acted knowingly if you find that [he] [she] actually believed that the activity in which [he] [she] was involved was not criminal.

Approved 4/2006 (for 2002 version see below).

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2002 Version

You may find that the defendant acted knowingly if you find beyond a reasonable doubt that the defendant was aware of a high probability that [e.g., drugs were in the defendant’s automobile] and deliberately avoided learning the truth.

You may not find such knowledge, however, if you find that the defendant actually believed that [e.g., no drugs were in the defendant’s automobile], or if you find that the defendant was simply careless.

This instruction was approved by the Ninth Circuit in United States v. Jewell, 532 F.2d 697 (9th Cir.) (en banc), cert. denied, 426 U.S. 951 (1976).

Great caution should be exercised in the giving of this instruction. See, e.g., United States v. Baron, 94 F.3d 1312, 1318 n.3 (9th Cir.) ("We emphasize again today, as we have in the past, that a Jewell instruction is rarely appropriate.") (citation omitted), cert. denied, 519 U.S. 1047 (1996).

"The instruction should be given only when the government presents specific evidence showing that a defendant (1) actually suspected that he or she might be involved in criminal activity, (2) deliberately avoided taking steps to confirm or deny those suspicions, and (3) did so in order to provide himself or herself with a defense in the event of prosecution." Baron, 94 F.3d at 1318 n.3.

"If the parties present evidence of actual knowledge as well as deliberate ignorance, a Jewell instruction is appropriate." United States v. Shannon, 137 F.3d 1112, 1117 (9th Cir. 1998) (citation omitted).

"A district court cannot give a Jewell instruction when the evidence points only to the defendant either having knowledge or not having knowledge." Shannon, 137 F.3d at 117 (citation omitted).

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

5.8 Presumptions

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Chapter 271 Evidentiary Inferences And Presumptions

The Committee recommends that extreme caution be used in instructing the jury regarding presumptions. In Sandstrom v. Montana, 442 U.S. 510, 517 (1979), the Supreme Court found unconstitutional an instruction stating that "the law presumes that a person intends the ordinary consequences of his voluntary acts" because the instruction could be misinterpreted by the jury as an irrebuttable presumption. (emphasis added).

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

As I have explained, one element which the government must prove beyond a reasonable doubt is that defendant had the unlawful intent to [insert applicable unlawful act]. Evidence that the defendant in good faith followed the advice of counsel would be inconsistent with such an unlawful intent. Unlawful intent has not been proved if the defendant, before acting, made full disclosure of all material facts to an attorney, received the attorney's advice as to the specific course of conduct that was followed, and reasonably relied on that advice in good faith.