9^TH CIRCUIT MODEL INSTRUCTIONS 2000
(Includes Additions and Revisions Through 2007)
Go to Federal Model Instructions Table of Contents - Go to 9th Circuit Table of Contents

        Introductory Comment
        8.1       Arson (18 USC 81)
        8.2       Assault on Federal Officer or Employee [With a Deadly or Dangerous Weapon](18 USC 111(b))
        8.3       Assault On Federal Officer – Defenses
        8.4       Assault With Intent To Commit Murder Or Other Felony (18 USC 113(a)(1) and (2))
        8.5       Assault With Dangerous Weapon (18 USC 113(a)(3))
        8.6       Assault By Striking, Beating Or Wounding (18 USC 113(a)(4))
        8.7       Assault Resulting In Serious Bodily Injury (18 USC 113(a)(6))
        8.8       Bribery Of Public Official (18 USC 201(b)(1))
        8.9       Receiving Bribe By Public Official (18 USC 201(b)(2))
        8.10     Bribery Of Witness (18 USC 201(b)(3))
        8.11     Receiving Bribe By Witness (18 USC 201(b)(4))
        8.12     Illegal Gratuity To Public Official (18 USC 201(c)(1)(A))
        8.13     Receiving Illegal Gratuity By Public Official (18 USC 201(c)(1)(B))
        8.14     Illegal Gratuity To Witness (18 USC 201(c)(2))
        8.15     Receiving Illegal Gratuity By Witness (18 USC 201(c)(3))
        8.16     Conspiracy: Elements
        8.17     Multiple Conspiracies
        8.18     Conspiracy: Knowing Of And Association With Other Conspirators
        8.19     Withdrawal From Conspiracy
        8.20     Conspiracy—Liability for Substantive Offense Committed by Co-conspirator (Pinkerton Charge)
        8.21     Conspiracy: Sears Charge
        8.22     Counterfeiting (18 USC 471)
        8.23     Passing Counterfeit Obligations (18 USC 472)
        8.24     Connecting Parts Of Federal Reserve Notes (18 USC 484)
        8.25     Forgery (18 USC 495)
        8.26     Passing Forged Writing (18 USC 495)
        8.27     Forging Endorsement On Treasury Check, Bond Or Security Of United States (18 USC 510(a)(1))
        8.28     Passing Forged Endorsement On Treasury Check, Bond Or Security Of United States (18 USC 510(a)(2))
        8.29     Smuggling Goods (18 USC 545)
        8.30     Receiving, Concealing, Buying Or Selling Smuggled Property (18 USC 545)
        8.31     Theft Of Government Money Or Property (18 USC 641)
        8.32     Possession Of Stolen Government Money Or Property (18 USC 641)
        8.33     Theft, Embezzlement Or Misapplication Of Bank Funds (18 USC 656)        

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

As noted in the Introduction, this Manual is not intended to supply a set of universally applicable pattern instructions or to provide authoritative statements of law. The model instructions in the following sections are intended principally to set forth the elements of the offense in plain language consistent with the applicable statute. It is expected that judges will modify these models to adapt them to the facts and circumstances of the case before them and to take into account what is and is not in issue in the case. It may also be appropriate to supplement these instructions with some additional explanatory instructions addressed to particular evidence or contentions in the case. The model instructions, besides supplying text and form for the basic instruction on the elements, should be helpful in drafting or modifying other needed instructions in plain language and in form conducive to maximum comprehension.

Many statutes contain alternative prohibitions. Instructions to be used in a particular case should be limited to those words of the statute that apply to the facts in that case. The model instructions state the alternatives in brackets; the user should select the language in brackets appropriate to the case. The model instructions also contemplate insertion of specific descriptions based on the evidence in place of general language (e.g., gun rather than deadly weapon).

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

The defendant is charged in [Count _______ of] the indictment with [attempted] arson in violation of Section 81 of Title 18 of the United States Code. 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 [intentionally set] [intended to set] fire to or burned [e.g., a building on the Fort Ord Military Reservation]; [and]

Second, the defendant acted wrongfully and without justification[; and]

[Third, the defendant did something which was a substantial step toward committing the crime, with all of you agreeing as to what constituted the substantial step].

[Mere preparation is not a substantial step toward committing a crime.]

[If you decide that the defendant is guilty, you must then decide whether the government has proved beyond a reasonable doubt that [the building was regularly used by people as a place in which to live and sleep] [a person's life was placed in jeopardy]].

[If you decide that the defendant is guilty, you must then decide whether the defendant's act placed the life of some person in danger.]

"Special maritime and territorial jurisdiction of the United States" is defined in 18 USC 7. While federal jurisdiction over the place may be determined as a matter of law, the locus of the offense within that place is an issue for the jury. United States v. Gipe, 672 F.2d 777, 779 (9th Cir. 1982).

See Instruction 7.9 (Specific Issue Unanimity).

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

8.2 ASSAULT ON FEDERAL OFFICER OR EMPLOYEE
[WITH A DEADLY OR DANGEROUS WEAPON]

The defendant is charged in [Count _______ of] the indictment with assault on a federal [[officer] [employee]] [with a deadly or dangerous weapon] in violation of Section 111 of Title 18 of the United States Code. 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 intentionally used force in [[assaulting] [resisting] [intimidating] [interfering with]] [name of federal officer or employee]; [and]

Second, the defendant did so while [name of federal officer or employee] was engaged in, or on account of [his] [her] official duties[; and] [.]

[Third, the defendant [used a deadly or dangerous weapon] [inflicted bodily injury].]

There is a use of force when one person intentionally [strikes] [wounds] another, or when one person intentionally makes a display of force which reasonably causes a person to fear immediate bodily harm.

[A [specify weapon] is a deadly or dangerous weapon if it is used in a way that is capable of causing death or serious bodily injury.]

Comment

See 18 USC 1114 for the definition of federal officer or employee referenced in 18 USC 111.

When the assault consists of a display of force, it must actually cause reasonable apprehension of immediate bodily harm; fear is a necessary element. United States v. Skeet, 665 F.2d 983, 986 n.1 (9th Cir.1982).

There is no requirement that an assailant be aware that the victim is a federal officer. United States v. Feola, 420 U.S. 671, 684 (1975). If the defendant denies knowledge that the person assaulted was a federal officer and claims to have acted in self-defense, Instruction 8.3 (Assault on Federal Officer–Defenses) should be used.

Violation of § 111 is a general intent crime in this circuit. United States v. Jim, 865 F.2d 211, 215 (9th Cir. 1989). Among other things this means that voluntary intoxication is not a defense, id., and that the enhanced penalty in § 111(b) does not require an intent to cause the bodily injury. United States v. Garcia-Camacho, 122 F.3d 1265, 1269 (9th Cir. 1997).

Approved 4/2008; Modified 5/2008 (for 2000 version see below) 

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The defendant is charged in [Count _______ of] the indictment with assault on a federal officer [with a dangerous or deadly weapon] in violation of Section 111 of Title 18 of the United States Code. 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 intentionally used force in [[assaulting] [resisting] [intimidating] [interfering with]] [[federal officer]]; and

Second, the defendant did so while [federal officer] was engaged in, or on account of [his] [her] official duties [; and]

[Third, the defendant [used a [weapon]] [inflicted bodily injury]].

[A [weapon] is a dangerous or deadly weapon if it is used in a way that is capable of causing death or serious bodily injury.]

There is a use of force when one person intentionally [strikes] [wounds] another, or when one person intentionally makes a display of force which reasonably causes a person to fear immediate bodily harm.

A [e.g., United States Marshal] who is [e.g., trying to arrest a person] is engaged in [his] [her] official duties.

When the assault consists of a display of force, it must actually cause reasonable apprehension of immediate bodily harm; fear is a necessary element. United States v. Skeet, 665 F.2d 983, 986 n.1 (9th Cir.1982).

There is no requirement that an assailant be aware that the victim is a federal officer. United States v. Feola, 420 U.S. 671, 684 (1975). However, the last sentence of the instruction should be given only if the defendant denies knowledge that the person assaulted was a federal officer but does not claim to have acted in self-defense. If the defendant denied knowledge that the person assaulted was a federal officer and claims to have acted in self-defense, Instruction 8.3 (Assault on Federal Officer–Defenses) should be used.

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

The defendant has offered evidence of having acted in self-defense. It is a defense to the charge if (1) the defendant did not know that [federal officer] was a federal officer, (2) the defendant reasonably believed that use of force was necessary to defend oneself against an immediate use of unlawful force, and (3) the defendant used no more force than appeared reasonably necessary in the circumstances.

But force which is likely to cause death or great bodily harm is justified in self-defense only if a person reasonably believes that such force is necessary to prevent death or great bodily harm.

In addition to proving all the elements of the crime beyond a reasonable doubt, the government must also prove beyond a reasonable doubt either (1) that the defendant knew that [federal officer] was a federal officer or (2) that the defendant did not reasonably believe force was necessary to defend against an immediate use of unlawful force or (3) that the defendant used more force than appeared reasonably necessary in the circumstances.

In United States v. Feola, 420 U.S. 671, 684 (1975), the Supreme Court held that there is no "requirement that an assailant be aware that his victim is a federal officer" but went on to point out that there could be circumstances where ignorance of the official status of the person assaulted might justify a defendant acting in self-defense. "The jury charge in such a case, therefore, should include (1) an explanation of the essential elements of a claim of self-defense, and (2) an instruction informing the jury that the defendant cannot be convicted unless the government proves, beyond a reasonable doubt, either (a) that the defendant knew that the victim was a federal agent, or (b) that the defendant's use of deadly force would not have qualified as self-defense even if the agent had, in fact, been a private citizen." United States v. Alvarez, 755 F.2d 830, 847 (11th Cir.), cert. denied, 474 U.S. 905 (1985) (emphasis in original).

In United States v. Span, 970 F.2d 573 (9th Cir.1992), cert.denied, 507 U.S. 921 (1993), the Ninth Circuit upheld this instruction. The court cautioned, however, that "the model instruction would be inappropriate in a case where a defendant's theory of the case is self-defense against the use of excessive force by a federal law enforcement officer." Id. at 577 (emphasis in original). In such a case, the instruction must be modified appropriately.

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

The defendant is charged in [Count _______ of] the indictment with assault with intent to commit [felony] in violation of Section 113(a)[(1)][(2)] of Title 18 of the United States Code. 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 intentionally [struck or wounded [victim]] [used a display of force that reasonably caused [victim] to fear immediate bodily harm]; and

Second, the defendant did so with the specific intent to commit [felony].

When the assault consists of a display of force, it must actually cause reasonable apprehension of immediate bodily harm; fear is a necessary element. United States v. Skeet, 665 F.2d 983, 986 n. 1 (9th Cir.1982).

Assaults proscribed by 18 USC 113 are those committed "within the special maritime and territorial jurisdiction of the United States." An additional element should be added to the instruction if there is a dispute as to whether the alleged assault occurred within the special maritime and territorial jurisdiction of the United States.

Depending on the facts in evidence, it may be appropriate to amend this instruction with language requiring specific jury unanimity (e.g., "with all of you agreeing as to which felony the defendant intended to commit"). See Instruction 7.9 (Specific Issue Unanimity).

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

The defendant is charged in [Count _______ of] the indictment with assault with a dangerous weapon in violation of Section 113(a)(3) of Title 18 of the United States Code. 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 assaulted [name of victim] by intentionally [striking] [wounding] [him] [her] [using a display of force that reasonably caused [him] [her] to fear immediate bodily harm];

Second, the defendant acted with the specific intent to do bodily harm to [name of victim];

Third, the defendant used a dangerous weapon; and

Fourth, the assault took place on [specify place of federal jurisdiction].

[A [specify weapon] is a dangerous weapon if it is used in a way that is capable of causing death or serious bodily injury.]

See Comment to Instruction 8.2 (Assault on Federal Officer or Employee).

See United States v. Smith, 520 F.3d 1097 (9th Cir. 2008) (discussing prior version of jury instruction).

The statutory definition of assault with a dangerous weapon, 18 USC 113(a)(3), includes "without just cause or excuse." However, the existence of "just cause or excuse" is an affirmative defense, and the government does not have the burden of pleading or proving its absence. United States v. Guilbert, 692 F.2d 1340, 1343 (11th Cir. 1982).

Modified 5/2008 (for 2000 version see below).

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The defendant is charged in [Count _______ of] the indictment with assault with a dangerous weapon in violation of Section 113(a)(3) of Title 18 of the United States Code. 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 intentionally [struck or wounded [victim]] [used a display of force that reasonably caused [victim] to fear immediate bodily harm];

Second, the defendant acted with the specific intent to do bodily harm to [victim]; and

Third, the defendant used a [weapon].

[A [weapon] is a dangerous weapon if it is used in a way that is capable of causing death or serious bodily injury.]

See Comment following Instruction 8.2 (Assault on Federal Officer).

The statutory definition of assault with a dangerous weapon, 18 USC 113(a)(3), includes "without just cause or excuse." However, the existence of "just cause or excuse" is an affirmative defense, and the government does not have the burden of pleading or proving its absence. United States v. Guilbert, 692 F.2d 1340, 1342 (11th Cir. 1982), cert. denied, 460 U.S. 1016 (1983).

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

The defendant is charged in [Count _______ of] the indictment with assault by striking, beating or wounding in violation of Section 113(a)(4) of Title 18 of the United States Code. In order for the defendant to be found guilty of that charge, the government must prove beyond a reasonable doubt that the defendant intentionally [[struck] [wounded]] [[victim]].

See Comment following Instruction 8.2 (Assault on Federal Officer).

The elements of assault are not necessary when the charge is assault by striking, beating or wounding, because the crime is actually a battery. United States v. Johnson, 637 F.2d 1224, 1242 n.26 (9th Cir.1980).

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

The defendant is charged in [Count _______ of] the indictment with assault resulting in serious bodily injury in violation of Section 113(a)(6) of Title 18 of the United States Code. 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 intentionally [[struck] [wounded]] [[victim]]; and

Second, as a result, [victim] suffered serious bodily injury.

See Comment following Instruction 8.2 (Assault on Federal Officer).

"Serious bodily injury" is defined in 18 USC 113(b)(2) and 1365(g)(3).

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

The defendant is charged in [Count _______ of] the indictment with bribing a public official in violation of Section 201(b)(1) of Title 18 of the United States Code. 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 [gave] [offered] [promised] something of value to [public official]; and

Second, the defendant acted corruptly, that is, with the intent to [influence an official act by the [public official]] [persuade the [public official] to omit to do an act in violation of [public official]’s lawful duty].

See United States v. Strand, 574 F.2d 993, 996 (9th Cir.1978).

If there is any question in the case about the "official" character of the action sought by the defendant, insert a sentence following "duty" defining "official act:" "An official act is any decision or action on a question that may be brought before any public official in his official capacity." See 18 USC 201(a)(3).

Actual power to do what defendant wants is not an element. United States v. Carson, 464 F.2d 424, 431 (2d Cir.), cert. denied, 409 U.S. 949 (1972). Nor does it matter whether the official actually accepted anything from defendant or was actually influenced.

There should be some connection between the offer and the official's duties. United States v. Seuss, 474 F.2d 385, 388 (1st Cir.), cert. denied, 412 U.S. 928 (1973).

Consult each statute that uses the term "corruptly" for the meaning of the term. "Corruptly" is capable of different meanings in different connections. See United States v. Cohen, 202 F. Supp. 587, 588 (D. Conn.1962).

Depending on the facts in evidence, it may be appropriate to amend this instruction with language requiring specific jury unanimity (e.g., "with all of you agreeing as to what the defendant intended the public official to do in return for the bribe"). See Instruction 7.9 (Specific Issue Unanimity).

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

The defendant is charged in [Count _______ of] the indictment with [soliciting] [receiving] [or] [agreeing to receive] a bribe in violation of Section 201(b)(2) of Title 18 of the United States Code. 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 was [e.g., a special agent of the United States Customs Service];

Second, the defendant [solicited] [received] [agreed to receive] something of value [for being influenced in the performance of an official act] [for being persuaded [to omit] to do an act in violation of defendant's official duty]; and

Third, the defendant acted corruptly, that is, with the intent [of being influenced in the performance of an official act] [[to omit] to do an act in violation of defendant's official duty].

See Comment following Instruction 8.8 (Bribery of Public Official).

Depending on the facts in evidence, it may be appropriate to amend this instruction with language requiring specific jury unanimity (e.g., "with all of you agreeing as to what the public official intended to do in return for the bribe"). See Instruction 7.9 (Specific Issue Unanimity).

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

The defendant is charged in [Count _______ of] the indictment with bribery of a witness in violation of Section 201(b)(3) of Title 18 of the United States Code. 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, [witness] was to be a witness under oath at a [e.g., trial before the United States District Court for the District of _______];

Second, the defendant [gave] [offered] [promised] something of value to [witness]; and

Third, the defendant acted corruptly, that is, with the intent to influence [the testimony of [witness]] [[witness] to be absent from the [e.g., trial]].

See Comment following Instruction 8.8 (Bribery of Public Official).

Depending on the facts in evidence, it may be appropriate to amend this instruction with language requiring specific jury unanimity (e.g., "with all of you agreeing as to what the defendant intended the witness to do in return for the bribe"). See Instruction 7.9 (Specific Issue Unanimity).

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

The defendant is charged in [Count _______ of] the indictment with soliciting a bribe in violation of Section 201(b)(4) of Title 18 of the United States Code. 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 was to be a witness under oath at a [e.g., hearing before the National Labor Relations Board];

Second, the defendant [solicited] [received] [agreed to receive] something of value in return for [being influenced in the defendant's testimony] [being absent from the [e.g., hearing]]; and

Third, the defendant acted corruptly, that is, with the intent of [being influenced in the defendant's testimony] [absenting [himself] [herself] from the [e.g., hearing]].

See Comment following Instruction 8.8 (Bribery of Public Official).

Depending on the facts in evidence, it may be appropriate to amend this instruction with language requiring specific jury unanimity (e.g., "with all of you agreeing as to what the witness intended to do in return for the bribe"). See Instruction 7.9 (Specific Issue Unanimity).

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

The defendant is charged in [Count _______ of] the indictment with [giving] [offering] [or] [promising] an illegal gratuity in violation of Section 201(c)(1)(A) of Title 18 of the United States Code. In order for the defendant to be found guilty of that charge, the government must prove beyond a reasonable doubt that the defendant [gave] [offered] [promised] something of value to [[e.g., an agent of the Internal Revenue Service]] [[for] [because of]] an official act [performed] [to be performed] by the [e.g., agent].

See Comment following Instruction 8.8 (Bribery of Public Official).

The essential difference between a bribe and an illegal gratuity is that bribery requires the defendant to have acted "corruptly." The gratuity offenses are lesser included offenses of the parallel bribery offenses. See United States v. Crutchfield, 547 F.2d 496, 500 (9th Cir.1977); United States v. Brewster, 506 F.2d 62, 71–72 (D.C. Cir.1974).

Depending on the facts in evidence, it may be appropriate to amend this instruction with language requiring specific jury unanimity (e.g., "with all of you agreeing as to what the defendant intended the public official to do in return for the gratuity"). See Instruction 7.9 (Specific Issue Unanimity).

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

The defendant is charged in [Count _______ of] the indictment with [soliciting] [receiving] [agreeing to receive] an illegal gratuity in violation of Section 201(c)(1)(B) of Title 18 of the United States Code. 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 was [e.g., a special agent of the United States Customs Service]; and

Second, the defendant [solicited] [received] [agreed to receive] something of value for the defendant [for] [because of] an official act to be performed by the defendant.

See Comment following Instructions 8.8 (Bribery of Public Official) and 8.12 (Illegal Gratuity to Public Official).

Depending on the facts in evidence, it may be appropriate to amend this instruction with language requiring specific jury unanimity (e.g., "with all of you agreeing as to what the public official intended to do in return for the gratuity"). See Instruction 7.9 (Specific Issue Unanimity).

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

The defendant is charged in [Count _______ of] the indictment with [giving] [offering] [promising] an illegal gratuity in violation of Section 201(c)(2) of Title 18 of the United States Code. In order for the defendant to be found guilty of that charge, the government must prove beyond a reasonable doubt that the defendant [gave] [offered] [promised] something of value to [witness] [for testimony to be given for [e.g., the grand jury]] [because of testimony given before _______] [for being absent from _______ so that [he] [she] could not testify as a witness].

See Comment following Instructions 8.8 (Bribery of Public Official) and 8.12 (Illegal Gratuity to Public Official).

Depending on the facts in evidence, it may be appropriate to amend this instruction with language requiring specific jury unanimity (e.g., "with all of you agreeing as to what the defendant intended the witness to do in return for the gratuity"). See Instruction 7.9 (Specific Issue Unanimity).

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

The defendant is charged in [Count _______ of] the indictment with [soliciting] [receiving] [agreeing to receive] an illegal gratuity in violation of Section 201(c)(3) of Title 18 of the United States Code. In order for the defendant to be found guilty of that charge, the government must prove beyond a reasonable doubt that the defendant [solicited] [received] [agreed to receive] something of value from [witness]] [for testimony to be given under oath by the defendant as a witness at [e.g., a hearing before an Examiner of the National Labor Relations Board]] [because of testimony given under oath by the defendant as a witness at _______] [for being absent from _______ so that the defendant could not testify as a witness].

See Comment following Instructions 8.8 (Bribery of Public Official) and 8.12 (Illegal Gratuity to Public Official).

Depending on the facts in evidence, it may be appropriate to amend this instruction with language requiring specific jury unanimity (e.g., "with all of you agreeing as to what the witness intended to do in return for the gratuity"). See Instruction 7.9 (Specific Issue Unanimity).

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

See Instruction 7.9 (Specific Issue Unanimity).

Rev.10/2000

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

You must decide whether the conspiracy charged in the indictment existed, and, if it did, who at least some of its members were. If you find that the conspiracy charged did not exist, then you must return a not guilty verdict, even though you may find that some other conspiracy existed. Similarly, if you find that any defendant was not a member of the charged conspiracy, then you must find that defendant not guilty, even though that defendant may have been a member of some other conspiracy.

This instruction was cited approvingly in United States v. Bauer, 84 F.3d 1549, 1560–61 (9th Cir.1996), cert. denied, 519 U.S. 1131 (1997).

Absent variance between the allegations of the indictment and the evidence presented, there is no need to instruct the jury on the issue of multiple conspiracies. United States v. Zemek, 634 F.2d 1159, 1167-69 (9th Cir.1980), cert. denied, 450 U.S. 916 (1981); United States v. Mayo, 646 F.2d 369, 374 (9th Cir.), cert. denied, 454 U.S. 1127 (1981). But where there is variance, e.g., where the indictment charges a single conspiracy and the evidence indicates two or more possible conspiracies, a multiple conspiracy instruction is proper. United States v. Perry, 550 F.2d 524, 533 (9th Cir.), cert. denied, 431 U.S. 918, 434 U.S. 827 (1977) (citing United States v. Varelli, 407 F.2d 735, 746 (7th Cir.1969)).

In cases where the conspiracy charged involves only two persons, it is useful to instruct the jury that should it find either conspirator not guilty of conspiracy it must acquit both. United States v. Coven, 662 F.2d 162, 173 (2d Cir.1981), cert. denied, 456 U.S. 916 (1982); See also United States v. Glickman, 604 F.2d 625, 631–33 (9th Cir.1979) (holding that, where the indictment did not charge that the defendant and co-defendant were the only members of the conspiracy, a determination by the jury that there were other members of the conspiracy would not preclude a finding that the defendant and co-defendant were guilty of conspiracy), cert. denied, 444 U.S. 1080 (1980).

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

A conspiracy may continue for a long period of time and may include the performance of many transactions. It is not necessary that all members of the conspiracy join it at the same time, and one may become a member of a conspiracy without full knowledge of all the details of the unlawful scheme or the names, identities, or locations of all of the other members.

Even though a defendant did not directly conspire with [the other defendant] [or] [other conspirators] in the overall scheme, the defendant has, in effect, agreed to participate in the conspiracy if it is proved beyond a reasonable doubt that:

(1) the defendant directly conspired with one or more conspirators to carry out at least one of the objects of the conspiracy,

(2) the defendant knew or had reason to know that other conspirators were involved with those with whom the defendant directly conspired, and

(3) the defendant had reason to believe that whatever benefits the defendant might get from the conspiracy were probably dependent upon the success of the entire venture.

It is no defense that a person's participation in a conspiracy was minor or for a short period of time.

A person may be a member of a conspiracy even though the person does not know all of the purposes of or participants in the conspiracy. United States v. Escalante, 637 F.2d 1197, 1200 (9th Cir.), cert. denied, 449 U.S. 856 (1980); United States v. Kearney, 560 F.2d 1358, 1362 (9th Cir.), cert. denied, 434 U.S. 971 (1977).

A single conspiracy can be established even though it took place during a long period of time during which new members joined and old members dropped out. United States v. Green, 523 F.2d 229, 233 (2d Cir.1975), cert. denied, 423 U.S. 1074 (1976). See also United States v. Thomas, 586 F.2d 123, 132 (9th Cir.1978) (holding that proof that the defendant "knew he was plotting in concert with others to violate the law was sufficient to raise the necessary inference that he joined in the overall agreement"); United States v. Perry, 550 F.2d 524, 528 (9th Cir.) (holding that the law of conspiracy does not require the government "to prove that all of the defendants met together at the same time and ratified the illegal scheme"), cert. denied, 431 U.S. 918, 434 U.S. 827 (1977).

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

Once a person becomes a member of a conspiracy, that person remains a member until that person withdraws from it. One may withdraw by doing acts which are inconsistent with the purpose of the conspiracy and by making reasonable efforts to tell the co-conspirators about those acts. You may consider any definite, positive step that shows that the conspirator is no longer a member of the conspiracy to be evidence of withdrawal.

The government has the burden of proving that the defendant did not withdraw from the conspiracy before the overt act—on which you all agreed—was committed by some member of the conspiracy.

It is proper to instruct that continued participation in a conspiracy is presumed unless there is evidence of withdrawal. United States v. Krasn, 614 F.2d 1229, 1236 (9th Cir.1980). See also United States v. Basey, 613 F.2d 198, 202 (9th Cir.1979), cert. denied, 446 U.S. 919 (1980).

If requested, an instruction on the government's burden of disproving withdrawal should be given. United States v. Read, 658 F.2d 1225, 1237 (7th Cir.1981) (holding that, under the circumstances of the case, the failure to instruct the jury on the government's burden of disproving withdrawal constituted reversible error).

In the absence of a statute of limitations defense, do not use this instruction if the conspiracy charged in the indictment requires no proof of an overt act charged, since the crime is complete upon entering into the conspiracy. United States v. Grimmett, 150 F.3d 958, 961 (8th Cir. 1998). If the statute of limitations is a defense, this instruction should be modified to require the government to disprove withdrawal before the limiting date. Id. at 961.

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

The Pinkerton charge derives its name from Pinkerton v. United States, 328 U.S. 640 (1946), which held that a defendant could be held liable for a substantive offense committed by a co-conspiration as long as the offense occurred within the course of the conspiracy, was within the scope of the agreement, and could reasonably have been foreseen as a necessary or natural consequence of the unlawful agreement. United States v. Alvarez-Valenzuela, 231 F.3d 1198, 1202 (9th Cir.2000).

This instruction is based upon United States v. Alvarez-Valenzuela, 231 F.3d at 1202-1203, in which the Ninth Circuit approved of the 1997 version of Instruction 8.5.5 (Conspiracy—Pinkerton Charge), and United States v. Montgomery, 150 F.3d 983, 996-997 (9th Cir.), cert. denied, 525 U.S. 917 (1998).

This instruction is based upon United States v. Alvarez-Valenzuela, 231 F.3d 1198, 1202-1203 (9th Cir.2000), in which the Ninth Circuit approved of the 1997 version of Instruction 8.5.5 (Conspiracy—Pinkerton Charge), and United States v. Montgomery, 150 F.3d 983, 996-997 (9th Cir.), cert. denied, 525 U.S. 917 (1998).

The Pinkerton charge derives its name from Pinkerton v. United States, 328 U.S. 640 (1946).

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

Before being convicted of conspiracy, an individual must conspire with at least one co–conspirator. There can be no conspiracy when the only person with whom the defendant allegedly conspired was a government [agent] [informer] who secretly intended to frustrate the conspiracy.

This charge is based upon Sears v. United States, 343 F.2d 139, 142 (5th Cir. 1965), which held that "there can be no indictable conspiracy with a government informer who secretly intends to frustrate the conspiracy." See United States v. Montgomery, 150 F.3d 983, 995-96 (9th Cir.), cert. denied, 119 S. Ct. 267 (1998).

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

The defendant is charged in [Count _______ of] the indictment with counterfeiting in violation of Section 471 of Title 18 of the United States Code. 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 [[falsely made] [forged] [altered]] [[e.g., a ten dollar bill]]; and

Second, the defendant acted with intent to defraud.

To be counterfeit, a bill must have a likeness or resemblance to genuine currency.

For a definition of "intent to defraud," see Instruction 3.17 (Intent to Defraud–Defined).

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

The defendant is charged in [Count _______ of] the indictment with [passing] [attempting to pass] a counterfeit obligation in violation of Section 472 of Title 18 of the United States Code. 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 [passed] [intended to pass] a [[falsely made] [forged] [counterfeit] [altered]] [[obligation]];

Second, the defendant knew that the [obligation] was [falsely made] [forged] [counterfeit] [altered]; [and]

Third, the defendant acted with the intent to defraud[; and]

[Fourth, the defendant did something which was a substantial step toward committing the crime, with all of you agreeing as to what constituted the substantial step].

[Mere preparation is not a substantial step toward committing a crime.]

To be counterfeit, a bill must have a likeness or resemblance to genuine currency.

For a definition of "intent to defraud," see Instruction 3.17 (Intent to Defraud–Defined).

The government's burden of proving the defendant's knowledge is stated in United States v. Lorenzo, 570 F.2d 294, 299 (9th Cir.1978). Intent and knowledge may be inferred from defendant's actions. Id.

See Instruction 7.9 (Specific Issue Unanimity).

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

The defendant is charged in [Count _______ of] the indictment with connecting parts of two federal reserve notes in violation of Section 484 of Title 18 of the United States Code. 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 connected together parts of two federal reserve notes; and

Second, the defendant did so with the intent to defraud.

For a definition of "intent to defraud," see Instruction 3.17 (Intent to Defraud–Defined).

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

The defendant is charged in [Count _______ of] the indictment with forgery in violation of Section 495 of Title 18 of the United States Code. 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 [falsely made] [altered] [forged] [counterfeited] the name of the payee of a [e.g., United States Treasury check]; and

Second, the defendant did so with the intent that the defendant or someone else obtain money from the United States.

The requisite intent to defraud is present even if the defendant believes that someone other than the United States, e.g., a government employee, will be defrauded. It is enough to show intent to interfere with a government function, e.g., paying employees. United States v. Dimond, 445 F.2d 866 (9th Cir.1971).

Forgery is defined in United States v. Price, 655 F.2d 958, 960 (9th Cir. 1981), which also discusses the relationship of forgery to false making. It is not necessary that anyone actually received money from the United States as a result of the forgery or that anyone was actually deceived.

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

The defendant is charged in [Count _______ of] the indictment with [passing] [attempting to pass] a forged writing for the purpose of obtaining money in violation of Section 495 of Title 18 of the United States Code. 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 [passed] [attempted to pass] a [[falsely made] [altered] [forged] [counterfeited]] [[document]];

– Second, the defendant knew that the document was [falsely made] [altered] [forged] [counterfeited]; and

– Third, the defendant acted with the intent to defraud.

– [Fourth, the defendant did something which was a substantial step toward committing [crime charged], with all of you agreeing as to what constituted the substantial step. Mere preparation is not a substantial step toward the commission of [crime charged].]

The bracketed fourth element should be used when defendant is charged with attempt to pass a forged writing.

See Comment following Instruction 8.25 (Forgery).

For a definition of "intent to defraud," see Instruction 3.17 (Intent to Defraud–Defined).

For a definition of "attempt," see Instruction 5.3 (Attempt).

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

The defendant is charged in [Count ___ of] the indictment with forging or falsely making [an endorsement] [a signature] on a Treasury [check] [bond] [security] of the United States in violation of Section 510 of Title 18 of the United States Code. 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 falsely made or forged [an endorsement] [a signature] on a Treasury [check] [bond] [security] of the United States; and

Second, the defendant did so with intent to defraud.

For a definition of "intent to defraud," see Instruction 3.17 (Intent to Defraud–Defined).

See Comment to Instruction 8.25 (Forgery).

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

Second, the defendant did so with intent to defraud.

For a definition of "intent to defraud," see Instruction 3.17 (Intent to Defraud–Defined).

For a definition of "attempt," see Instruction 5.3 (Attempt).

See Comment to Instruction 8.25 (Forgery).

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

Modified 2/2003 (for 2000 version see below).

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2000 Version

The defendant is charged in [Count _______ of] the indictment with [smuggling] [attempting to smuggle] in violation of Section 545 of Title 18 of the United States Code. 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 [smuggled] [attempted to smuggle] merchandise into the United States without declaring the merchandise for invoicing as required by United States Customs law;

Second, the defendant knew that the merchandise was of a type that should have been declared; and

Third, the defendant acted willfully with intent to defraud the United States.

[Fourth, the defendant did something which was a substantial step toward committing [crime charged], with all of you agreeing as to what constituted the substantial step. Mere preparation is not a substantial step toward the commission of [crime charged].]

This instruction may be used when the defendant is charged with the crime of smuggling goods or attempting to smuggle goods. The bracketed fourth element should be used when defendant is charged with an attempt to smuggle goods.

This instruction is based upon the first paragraph of 18 USC 545. The first two paragraphs of section 545 set forth two separate offenses. Olais-Costro v. United States, 416 F.2d 1155, 1157-58 (9th Cir. 1969). Note that if the offense falls under the second paragraph of 18 USC 545, the government is not required to prove specific intent. United States v. Davis, 597 F.2d 1237, 1239 (9th Cir.1979).

The statute also provides that proof of defendant's possession of such goods, unless explained to the satisfaction of the jury, shall be deemed evidence sufficient to authorize conviction for violation of this section. See United States v. Salas-Camacho, 859 F.2d 788, 790 (9th Cir. 1988) (holding that importer must stop and declare at first opportunity).

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

The defendant is charged in [Count _______ of] the indictment with [receiving] [concealing] [buying] [selling] smuggled property in violation of Section 545 of Title 18 of the United States Code. 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, merchandise had been brought into the United States contrary to United States Customs law; and

Second, the defendant [received] [concealed] [bought] [sold] the merchandise knowing that it had been brought into the United States contrary to law.

See Comment following Instruction 8.29 (Smuggling Goods).

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

The defendant is charged in [Count _______ of] the indictment with theft of government [money] [property] in violation of Section 641 of Title 18 of the United States Code. 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 knowingly stole [money] [property of value] with the intention of depriving the owner of the use or benefit of the [money] [property];

Second, the [money] [property] belonged to the United States; and

Third, the value of the [money] [property] was more than $1,000.

Knowledge that stolen property belonged to the United States is not an element of the offense. Baker v. United States, 429 F.2d 1278, 1279 (9th Cir.), cert. denied, 400 U.S. 957 (1970).

See United States v. Campbell, 42 F.3d 1199, 1205 (9th Cir.1994), cert. denied, 514 U.S. 1091 (1995) (government must prove that defendant stole property with the intention of depriving the owner of the use or benefit of the property). See also United States v. Burton, 871 F.2d 1566, 1570 (11th Cir. 1989).

Theft of money or property having a value of $1,000 or less is a misdemeanor. 18 USC 641.

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

The defendant is charged in [Count _______ of] the indictment with possession of stolen government [money] [property] in violation of Section 641 of Title 18 of the United States Code. 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 knowingly [[received] [concealed] [retained]] [[money] [property of value]];

Second, the [money] [property] belonged to the United States;

Third, the defendant knew that the [money] [property] had been stolen from the United States; and

Fourth, the defendant intended to possess the [money] [property] for [his] [her] own use or gain; and

Fifth, the value of the [money] [property] was more than $1,000.

See Comment following Instruction 8.31 (Theft of Government Money or Property).

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

The defendant is charged in [Count _______ of] the indictment with [theft] [embezzlement] [misapplication] of bank funds in violation of Section 656 of Title 18 of the United States Code. 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 was a [e.g., teller of the [financial institution]];

Second, the defendant knowingly and willfully [stole] [embezzled] [misapplied] funds or credits belonging to the bank or entrusted to its care in excess of $1000;

Third, the defendant acted with the intent to injure or defraud the bank;

Fourth, the bank was an insured bank; and

Fifth, the amount of money taken was more than $1,000.

The fact that the defendant may have intended to repay the funds at the time they were taken is not a defense.

It is suggested that the court take judicial notice that the bank is a national or federally insured bank and so instruct the jury, unless the defendant asks that the issue be submitted to the jury. A defendant must act "willfully" in taking the money. United States v. Schoenhut, 576 F.2d 1010, 1024 (3rd Cir.), cert. denied, 440 U.S. 921 (1979). Misapplication, as distinguished from embezzlement, "does not require a showing of prior lawful possession of the funds." United States v. Hazeem, 679 F.2d 770, 772 (9th Cir.), cert. denied, 459 U.S. 848 (1982).

Although not found in the statute, "intent to injure or defraud" has been held to be an essential element of the crime. United States v. Stozek, 783 F.2d 891, 893 (9th Cir. 1986); United States v. Beattie, 594 F.2d 1327, 1329 (9th Cir.1979); Ramirez v. United States, 318 F.2d 155, 157–58 (9th Cir.1963). "Intent to injure or defraud" a bank requires that the defendant act knowingly and the result of the conduct would be to injure or defraud the bank, regardless of the motive. Schoenhut, 576 F.2d at 1024. Reckless disregard of the interests of the bank is not itself sufficient to impose criminal liability although the requisite intent under section 656 may be inferred from a defendant’s disregard of the bank’s interests. Stozek, 783 F.2d at 893.

If the amount taken is in dispute, the jury should be instructed to make a finding of whether the amount taken was more than $1,000.