9^TH CIRCUIT MODEL INSTRUCTIONS 2000
(Includes Additions and Revisions Through 2007)
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Offenses Under Title 18 (18 USC 657 - 18 USC 1001)

        8.34     Embezzlement Or Misapplication By Officer Or Employee Of Lending, Credit Or Insurance Institution (18 USC 657)
        8.35     Theft From Interstate Shipment (18 USC 659)
        8.36     Escape From Custody (18 USC 751)
        8.37     Attempted Escape (18 USC 751)
        8.38     Assisting Escape (18 USC 752)
        8.39     Threats Against The President (18 USC 871)
        8.40     Extortionate Credit Transactions (18 USC 892)
        8.41     False Impersonation Of Citizen Of United States (18 USC 911)
        8.42     False Impersonation Of Federal Officer Or Employee – Demanding Or Obtaining Money (18 USC 912)
        8.43     Firearms (18 USC 921(a)(15))
        8.44     Firearms -- Fugitive From Justice Defined (18 USC 922(a)(1)(A) and (B))
        8.45     Firearms -- Dealing, Importing Or Manufacturing Without License (18 USC 922(a)(2))
        8.46     Firearms -- Shipment Or Transportation To A Person Not Licensed As A Dealer, Importer, Manufacturer
        8.47     Firearms -- Evidence Of No License
        8.48     Firearms -- Transporting Or Receiving In State Of Residence (18 USC 922(a)(3))
        8.49     Firearms -- Unlawful Transportation Of Destructive Device, Machine Gun, Short – Barreled Shotgun Or Short – Barreled Rifle (18 USC 922(a)(4))
        8.50     Firearms – Evidence Of No Authorization
        8.51     Firearms – Unlawful Disposition By Unlicensed Dealer (18 USC 922(a)(5))
        8.52     Firearms -- False Statement Or Identification In Acquisition Or Attempted Acquisition (18 USC 922(a)(6))
        8.53     Firearms -- Unlawful Sale Or Delivery (18 USC 922(b)(1) - (3))
        8.54     Firearms -- Unlawful Sale Or Delivery Without Specific Authority (18 USC 922(b)(4))
        8.55     Firearms -- Unlawful Sale (18 USC 922(d))
        8.56     Firearms -- Delivery To Carrier Without Written Notice (18 USC 922(e))
        8.57     Firearms -- Unlawful Receipt (18 USC 922(g))
        8.58     Firearms -- Unlawful Shipment Or Transportation (18 USC 922(g))
        8.59     Firearms -- Ammunition – Unlawful Possession (18 USC 922(g))
        8.60     Firearms -- Ammunition Unlawful Possession – Justification
        8.61     Firearms -- Transportation Or Shipment Of Stolen Firearm (18 USC 922(i))
        8.62     Firearms – Transporting, Shipping Or Receiving In Commerce With Removed Or Altered Serial Number (18 USC 922(k))
        8.63     Firearms – Shipment Or Transportation By Person Under Indictment For Felony (18 USC 922(n))
        8.64     Firearms -- Receipt By Person Under Indictment For Felony (18 USC 922(n))
        8.65     Firearms -- Using Or Carrying In Commission Of Drug Trafficking Crime Or Crime Of Violence (18 USC 924(c))
        8.66     False Statement To Government Agency (18 USC 1001)

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

The Committee recommends that when a defendant is accused of embezzlement or willful misapplication in violation of 18 USC 657, Instruction 8.33 (Theft, Embezzlement or Misapplication of Bank Funds) should be used with appropriate modifications. Section 656 and Section 657 contain essentially the same elements.

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

The defendant is charged in [Count __ of] the indictment with theft from an interstate shipment in violation of Section 659 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 stole goods from a shipment in interstate commerce; and

Second, the defendant did so with the intent to deprive the owner of the use or benefit of the goods.

A shipment is in interstate commerce if it begins in one state and moves into another state. It becomes an interstate shipment as soon as it is assembled for interstate movement and remains one until it has been delivered to its destination.

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

The defendant is charged in [Count _______ of] the indictment with escape from custody in violation of Section 751 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 in custody of [e.g., the United States Bureau of Prisons]; and

Second, the defendant knowingly and voluntarily left custody without permission.

Intention of avoiding confinement is not an element of escape. United States v. Bailey, 444 U.S. 394, 408 (1980).

Whether the defendant is in custody, pursuant to process or lawful arrest, is a question of law for the court and need not be submitted to the jury in the absence of a factual dispute. See United States v. Keller, 912 F.2d 1058, 1061 & n.5 (9th Cir. 1990), cert. denied, 498 U.S. 1095 (1991).

Proof of conviction by exemplified copy of judgment and a certification of commitment is sufficient to establish the custody element. United States v. Rosas–Garduno, 427 F.2d 352, 353 (9th Cir.1970). If defendant knew he or she was under arrest, then the defendant was in custody for purpose of this offense. Tennant v. United States, 407 F.2d 52, 53 (9th Cir.1969).

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

The defendant is charged in [Count _______ of] the indictment with attempted escape in violation of Section 751 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 in the custody of [e.g., John Jones, a Deputy United States Marshal];

Second, the defendant intended to escape from custody; and

Third, the defendant did something that was a substantial step toward escaping from custody, with all of you agreeing as to what constituted the substantial step.

Mere preparation is not a substantial step toward committing the crime of escape.

See Comment following Instruction 8.36 (Escape from Custody).

See Instruction 7.9 (Specific Issue Unanimity).

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

The defendant is charged in [Count _______ of] the indictment with assisting escape in violation of Section 752 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, [[escapee]] [[left] [attempted to leave]] [[his] [her]] [[custody authorized under any federal process]] without permission;

Second, the defendant knew that [escapee] did not have permission to leave; and

Third, the defendant assisted [escapee] in [leaving] [attempting to leave].

Why the prisoner was in custody is a matter of sentencing enhancement only and need not be submitted to the jury. Cf. Alemendarez-Torres v. United States, 523 U.S. 224 (1998) (nature of defendant’s prior convictions in illegal reentry prosecution is matter of sentencing enhancement and not element of offense of illegal reentry).

Whether a prisoner was in custody pursuant to process or lawful arrest is a question of law for the court and need not be submitted to the jury in the absence of a factual dispute. United States v. Keller, 912 F.2d 1058, 1061 & n.5 (9th Cir. 1990), cert. denied, 498 U.S. 1095 (1991).

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

The defendant is charged in [Count _______ of] the indictment with making a threat against the President of the United States in violation of Section 871 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 1beyond a reasonable doubt:

First, the defendant intentionally threatened, either in writing or orally, to [kill] [injure] [kidnap] the President of the United States; and

Second, under the circumstances in which the threat was made, a reasonable person would foresee that it would be understood by persons hearing or reading it as a serious expression of an intention to [kill] [injure] [kidnap] the President of the United States.

If the defendant is charged with threatening the Vice President or another officer next in the order of succession to the office of President, the instruction should be modified accordingly.

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

The defendant is charged in [Count _______ of] the indictment with making an extortionate extension of credit in violation of Section 892 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 extended credit to [debtor]; and

Second, at the time the credit was extended, the defendant as a creditor and [debtor] as a debtor both understood that delay or failure in making repayment could result in the use of violence or other criminal means to harm the person, reputation, or property of some person.

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

The defendant is charged in [Count __ of] the indictment with misrepresenting [himself] [herself] to be a citizen of the United States. 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 represented [himself] [herself] to be a citizen of the United States;

Second, the defendant was not a citizen of the United States at that time; and

Third, the defendant made such false representation willfully, that is, the misrepresentation was voluntarily and deliberately made.

"Willfully" requires proof "that the misrepresentation was deliberate and voluntary." See Chow Bing Kew v. United States, 248 F.2d 466, 469 (9th Cir.), cert. denied, 355 U.S. 889 (1957). See also Hernandez-Robledo v. INS, 777 F.2d 536, 539 (9th Cir. 1985) (determining that willfully, as used in 8 USC 1182(a)(19), false representation of citizenship, requires proof that the misrepresentation was deliberate and voluntary); Espinoza-Espinoza v. INS, 544 F.2d 921, 925 (9th Cir. 1977) (finding that willfully, as used in 8 USC 1182(a)(19), requires proof that "the misrepresentation was voluntarily and deliberately made") (quoting Chow Bing Kew, 248 F.2d at 469.)

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

The defendant is charged in [Count _______ of] the indictment with fraud while impersonating a federal officer or employee in violation of Section 912 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 while pretending to be an officer or employee acting under the authority of the United States, the defendant demanded or obtained [money] [paper] [a document] [a thing of value].

The statute, since its amendment in 1948, no longer requires proof of specific intent to deceive. All that must be shown is that defendant by deceit sought to cause another person to act in a way other than how the person would have acted in the absence of the deceitful conduct. United States v. Robbins, 613 F.2d 688, 690–91 (8th Cir.1979). See also United States v. Bushrod, 763 F.2d 1051, 1053 (9th Cir. 1985); United States v. Mitman, 459 F.2d 451, 453 (9th Cir.), cert. denied, 409 U.S. 863 (1972).

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

Definitions of many of the terms used in the firearms statutes are found in 18 USC 921 and 26 USC 5845. The Committee recommends that definitional instructions be used sparingly. Many of the terms defined are of common significance and really require no definition. Some examples are "pistol," "rifle," "importer," and "manufacturer." While jurors will readily recognize that one who is engaged in the business of buying and selling firearms is a dealer, they probably do not know that one engaged in the business of repairing firearms is also a dealer, 18 USC 921(a)(11)(B), and in that case a definition would be necessary.

The most effective way to avoid definitions relating to firearms is to use the most specific designation available. For example, assume that a defendant is being tried for transporting a rocket having a propellant charge of more than four ounces in violation of 18 USC 922(a)(4). Examples of the ways the judge might instruct the jury on one of the elements are as follows:

(1) "The defendant transported a firearm." It will then be necessary to have an additional instruction that a rocket having a propellant charge of more than four ounces is a firearm. See 18 USC 921(a)(4)(A)(iii); or

(2) "The defendant transported a destructive device." Even here, it will then be necessary to instruct that a rocket having a propellant charge of more than four ounces is a destructive device. Id.; or

(3) "The defendant transported a rocket having a propellant charge of more than four ounces." Using the third alternative, no additional instruction is necessary.

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

A fugitive from justice is a person who has fled from any state to avoid prosecution for a crime or to avoid giving testimony in any criminal proceeding.

This instruction is appropriate when a firearms offense involves a fugitive from justice. See 18 USC 922(d) & (g).

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

The defendant is charged in [Count _______ of] the indictment with [dealing] [importing] [manufacturing] firearms without a license, in violation of Section 922(a)(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 was willfully engaged in the business of [dealing in] [importing] [manufacturing] firearms within the dates specified in the indictment; and

Second, the defendant did not have a license as a firearms [dealer] [importer] [manufacturer].

For a person to engage in the business of dealing in firearms, it is not necessary to prove that buying and selling firearms was the defendant's primary source of income, or to prove a specific number of sales, or to prove a specific dollar volume of sales.

The government must prove beyond a reasonable doubt that the defendant engaged in a greater degree of activity than the occasional sale of a hobbyist or collector, and that the defendant devoted time, attention and labor to selling firearms as a trade or business with the intent of making profits through the repeated purchase and sale of firearms. See United States v. Breier, 813 F.2d 212, 214-15 (9th Cir.1987), cert. denied, 485 U.S. 960 (1988) (citing United States v. Wilmoth, 636 F.2d 123 (5th Cir.1981). Willfully, as used in this statute, requires proof that the defendant knew that his or her conduct was unlawful, but does not require proof that the defendant knew of the federal licensing requirement. Bryan v. United States, 524 U.S. 184 (1998).

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

The defendant is charged in [Count _______ of] the indictment with the [shipment] [transportation] of a firearm to a person not licensed as a [dealer] [importer] [manufacturer] [collector] of firearms, in violation of Section 922(a)(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 a licensed firearms [dealer] [importer] [manufacturer] [collector];

Second, the defendant willfully [shipped] [transported] a [firearm] [from one state to another] [to/from a foreign nation from/to the United States]; and

Third, the defendant [shipped] [transported] the [firearm] to a person who was not licensed as a firearms [dealer] [importer] [manufacturer] [collector].

See Comment at Instruction 8.41 (False Impersonation of Citizen of United States).

While section 922(a)(2) also prohibits shipment or transportation of a firearm to a person not licensed as a firearms collector, a firearms collector's license authorizes transactions only in curio and relic firearms. See 18 USC 923(b); 27 CFR 178.41(c) & (d), 178.50 & 178.93.

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

Exhibit _______ is a certificate of the custodian of the records of the Department of Treasury of the United States of the licenses issued to firearms [dealers] [importers] [manufacturers] [collectors]. A certificate is a written statement of facts signed by a public official.

The certificate states that the custodian made a diligent search of those records and found no record that the defendant was licensed as [a dealer] [an importer] [a manufacturer] [a collector] within the dates set forth in the indictment. From this certificate you may, but need not, decide that the defendant was not licensed to [deal] [import] [manufacture] [collect] firearms.

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

The defendant is charged in [Count _______ of] the indictment with [transporting] [receiving] a firearm [into] [in] the state of his residence in violation of Section 922(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 was not licensed as a firearms [dealer] [importer] [manufacturer] [collector]; and

Second, the defendant willfully [transported into] [received in] the state in which the defendant resided a [firearm] that the defendant purchased or otherwise obtained outside that state.

See Comment at Instructions 8.43 (Firearms) and 8.46 (Shipment or Transportation to a Person Not Licensed as a Dealer, Importer, Manufacturer or Collector).

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

The defendant is charged in [Count _______ of] the indictment with the unlawful transportation of a [destructive device] [machine gun] [short-barreled shotgun] [short-barreled rifle] in violation of Section 922(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 each of the following elements beyond a reasonable doubt:

First, the defendant was not licensed as a firearms [dealer] [importer] [manufacturer] [collector];

Second, the defendant knowingly transported [e.g., a hand grenade, a machine gun, a shotgun having one or more barrels less than 18 inches in length, a shotgun modified so that its overall length is less than 26 inches, a rifle having one or more barrels less than 16 inches in length or a rifle modified so that its overall length is less than 26 inches] from [one state to another] [a foreign nation to the United States]; and

Third, that the defendant did so without specific authorization by the Secretary of the Treasury of the United States.

See Comment at Instructions 8.43 (Firearms) and 8.46 (Shipment or Transportation to a Person Not Licensed as a Dealer, Importer, Manufacturer or Collector).

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

Exhibit _______ is a certificate of the custodian of records of the Department of Treasury of the United States of those unlicensed persons specifically authorized to transport weapons [from one state to another] [from a foreign nation to the United States]. A certificate is a written statement of facts signed by a public official.

The certificate states that the custodian made a diligent search of those records and found no record that the defendant had been specifically authorized by the Secretary of the Treasury to transport a weapon in [interstate] [foreign] commerce.

From this certificate you may, but need not, decide that the defendant was not authorized to transport a weapon in [interstate] [foreign] commerce.

See 18 USC 922(a)(4).

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

The defendant is charged in [Count _______ of] the indictment with the unlawful disposition of a firearm in violation of Section 922(a)(5) 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 willfully [sold] [traded] [gave] [transported] [delivered] a [firearm] to [unlicensed dealer];

Second, neither the defendant nor [unlicensed dealer] was licensed as a firearm [dealer] [importer] [manufacturer] [collector]; and

Third, the defendant knew or had reasonable cause to believe that [unlicensed dealer] was not a resident of the same state in which the defendant resided.

See Comment at Instructions 8.43 (Firearms) and 8.46 (Shipment or Transportation to a Person Not Licensed as a Dealer, Importer, Manufacturer or Collector).

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

The defendant is charged in [Count _______ of] the indictment with [making a false statement] [giving false identification] in [acquiring] [attempting to acquire] a firearm in violation of Section 922(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, [seller] was a licensed firearms [dealer] [importer] [manufacturer] [collector];

Second, in connection with [buying] [attempting to buy] a [firearm] from [seller], the defendant [made a false statement] [furnished or exhibited false identification];

Third, the defendant knew the [statement] [identification] was false; and

Fourth, the false [statement] [identification] was intended or likely to deceive [seller] into believing that [firearm] the could be lawfully sold to the defendant.

 

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

The defendant is charged in [Count _______ of] the indictment with unlawfully [selling] [delivering] a firearm in violation of Section 922(b)[(1)][(2)][(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 was licensed as a firearms [dealer] [importer] [manufacturer] [collector];

Second, the defendant willfully [sold] [delivered] a [firearm] to [unauthorized purchaser]; and

Third, the defendant knew or had reasonable cause to believe that [[unauthorized purchaser] was less than eighteen years of age] [purchase or possession of the firearm by [unauthorized purchaser] would be in violation of [applicable state law or published ordinance]] [[unauthorized purchaser] did not reside in the same state in which the defendant's place of business was located].

See Comment at Instruction 8.43 (Firearms).

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

The defendant is charged in [Count _______ of] the indictment with [selling] [delivering] a firearm without specific authority in violation of Section 922(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 licensed as a firearms [dealer] [importer] [manufacturer] [collector];

Second, the defendant willfully [[sold] [delivered]] [[e.g., a hand grenade, a machine gun, a shotgun having one or more barrels less than 18 inches in length, a shotgun modified so that its overall length is less than 26 inches, a rifle having one or more barrels less than 16 inches in length or a rifle modified so that its overall length is less than 26 inches]] to [purchaser]; and

Third, the defendant did so without specific authorization by the Secretary of Treasury of the United States.

See Comment at Instruction 8.43 (Firearms).

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

The defendant is charged in [Count _______ of] the indictment with selling a firearm in violation of Section 922(d) 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 willfully sold a [firearm] to [unauthorized purchaser]; and

Second, the defendant knew or had reasonable cause to believe that [[unauthorized purchaser]] [[e.g., was a fugitive from justice]].

See Comment at Instruction 8.43 (Firearms).

Section 922(d) makes it unlawful "to sell or otherwise dispose" of a firearm or ammunition. The instruction is written only in terms of a sale. If the facts are that the defendant "otherwise disposed" (e.g., by gift or trade) the instruction should be modified accordingly.

Section 922(d)(1) makes it unlawful to sell or otherwise dispose of a firearm to a person who "is under indictment for, or has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year." The Committee recommends that the specific crime be stated in the instruction. Cf. Comment to Instruction 8.59 (Unlawful Possession of Ammunition). Whether a particular crime is punishable by imprisonment for a term exceeding one year is a matter of law.

For a definition of "fugitive from justice," see Instruction 8.44 (Firearms–Fugitive From Justice Defined).

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

The defendant is charged in [Count _______ of] the indictment with delivery of a firearm to a carrier without written notice in violation of Section 922(e) 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 willfully [delivered] [caused to be delivered] to [carrier] a package or other container in which there was a [firearm];

Second, the package or container was to be shipped or transported [from one state to another] [to a foreign country from the United States];

Third, the package or container was to be shipped or transported to a person who was not licensed as a firearms dealer, manufacturer, or importer; and

Fourth, the defendant did not give written notice to [carrier] that there was a [firearm] in the package or container.

See Comment at Instruction 8.43 (Firearms).

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

The defendant is charged in [Count _______ of] the indictment with receiving a firearm in violation of Section 922(g) 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 a [firearm] that had been shipped or transported from [one state to another] [a foreign nation to the United States]; and

Second, at the time the defendant received the [firearm], the defendant [e.g., was a fugitive from justice].

If a person knowingly takes possession of a firearm, he has "received" it.

See Comment at Instruction 8.43 (Firearms).

For a definition of "fugitive from justice," see Instruction 8.44 (Firearms–Fugitive From Justice Defined).

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

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

The defendant is charged in [Count _______ of] the indictment with [shipping] [transporting] a firearm in violation of Section 922(g) 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 [shipped] [transported] a [firearm] from [one state to another] [a foreign nation to the United States]; and

Second, at the time of [shipment] [transportation] the defendant [e.g., was addicted to heroin].

See Comment at Instruction 8.43 (Firearms).

For a definition of "fugitive from justice," see Instruction 8.44 (Firearms–Fugitive From Justice Defined).

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

The defendant is charged in [Count _______ of] the indictment with the possession of [a firearm] [ammunition] in violation of Section 922(g) 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 possessed [firearm or ammunition];

Second, the [firearm or ammunition] had been shipped or transported from [one state to another] [a foreign nation to the United States]; and

Third, at the time the defendant possessed the [firearm or ammunition], the defendant had been convicted of a crime punishable by imprisonment for a term exceeding one year. [[Prior felony] is a crime punishable by imprisonment for a term exceeding one year.]

[Alternatively, upon the request of the defendant:]

Third, at the time the defendant possessed the [firearm or ammunition], the defendant had been convicted of a crime punishable by imprisonment for a term exceeding one year. The defendant stipulates that on [date], the defendant was convicted of a crime punishable by imprisonment for a term exceeding one year.

Defendant may seek to stipulate to the third element of the offense rather than have evidence of the prior convictions played out before the jury. See Old Chief v. United States, 519 U.S. 172, 189 (1997) (reversible error to allow government to prove nature of prior conviction when defendant offers to stipulate to the prior conviction). If the defendant offers to stipulate to the third element without identifying the offense, unless the offense is relevant for other reasons the court must accept the stipulation even if the government refuses. United States v. Hernandez, 109 F.3d 1450, 1452 (9th Cir. 1997) (reversible error to reject defendant's offer to stipulate to prior felony and instead admit evidence of nature of prior felony). Where appropriate, the judge should instruct the jury as a matter of law that the alleged prior conviction is punishable by imprisonment for a term exceeding one year. Use the bracketed sentence in the third element if the defendant does not stipulate.

"[K]nowledge of one's felon status is not an element of the crime of being a felon in possession of a firearm or ammunition under 18 USC 922(g)(1)." United States v. Montero-Camargo, 177 F.3d 1118, amended by 183 F.3d 1172 (9th Cir. 1999) (citation omitted).

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 firearm or firearms the defendant possessed"). See Instruction 7.9 (Specific Issue Unanimity).

See United States v. Langley, 62 F.3d 602, 606 (4th Cir.1995) (not required that defendant have known the firearm traveled in interstate commerce), cert. denied, 516 U.S. 1083 (1996).

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

The defendant claims that [he] [she] was justified in committing the crime of [e.g., felon in possession of a firearm]. This defense is known as justification. The defendant is justified in committing the crime of [e.g., felon in possession of a firearm] if:

First, the defendant was under unlawful and present threat of death or serious bodily injury;

Second, the defendant did not recklessly place [himself] [herself] in a situation where he would be forced to engage in criminal conduct;

Third, the defendant had no reasonable legal alternative; and

Fourth, there was a direct causal relationship between the criminal activity and the avoidance of the threatened harm.

The defendant has the burden of proving each of the elements of the defense of justification by a preponderance of the evidence.

The defense usually arises when a defendant is charged with being a felon in possession of a firearm. It is based on the theory that criminal conduct may be justified if necessary to prevent a greater wrong. The defendant is entitled to the instruction when there is any foundation in the evidence. However, a mere scintilla of evidence supporting a theory of justification is not sufficient. United States v. Wofford, 122 F.3d 787, 789 (9th Cir. 1997). The justification instruction should be given only in the most extraordinary circumstances, United States v. Perez, 86 F.3d 735, 737 (7th Cir. 1996), as illustrated by United States v. Gomez, 92 F.3d 770 (9th Cir. 1996).

The burden is on the defendant to establish the elements of the defense. Wofford, 122 F.3d at 790; Gomez, 92 F.3d at 775; United States v. Lemon, 824 F.2d 763, 765 (9th Cir. 1987). Where the defendant is involved in illegal activities and his or her fear is a result of engaging in those activities, the justification defense is not permitted. United States v. Phillips, 149 F.3d 1026, 1030 (9th Cir. 1998), cert. denied, 119 S. Ct. 1359 (1999); Perez, 86 F.3d at 737.

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

The defendant is charged in [Count _______ of] the indictment with [transporting] [shipping] a stolen firearm in violation of Section 922(i) 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 [transported] [shipped] a _______ from [one state to another] [a foreign nation to the United States]; and

Second, the defendant knew or had reasonable cause to believe that the firearm had been stolen.

 

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

The defendant is charged in [Count _______ of] the indictment with [transporting] [shipping] [receiving] a firearm which had the serial number removed or altered in violation of Section 922(k) 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 knew that [he] [she] had [transported] [shipped] [received] [possessed] a [firearm] from [one state to another] [a foreign nation to the United States];

Second, the serial number of the [e.g., pistol] had been removed or altered; and

Third, the defendant knew that the serial number had been removed or altered.

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

The defendant is charged in [Count _______ of] the indictment with [shipping] [transporting] a firearm while under indictment for a felony in violation of Section 922(n) 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 under indictment for [felony]; and

Second, the defendant willfully [shipped] [transported] a [firearm] [from one state to another] [from/to a foreign country to/from the United States].

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

The defendant is charged in [Count _______ of] the indictment with receiving a firearm while under indictment for a felony in violation of Section 922(n) 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 under indictment for [felony]; and

Second, the defendant willfully received a [firearm] that had been shipped or transported [from one state to another] [from/to a foreign country to/from the United States].

Federal law prohibits receipt of a firearm by anyone charged with a felony, whether under state or federal law, or whether by indictment or information. See 18 USC 921(a)(14) (defining "indictment" as including information).

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

8.65 Firearms–Using or Carrying in Commission of Drug
Trafficking Crime or Crime of Violence

Instruction 8.65 is withdrawn in light of United States v.Thongsy, ___ F.3d ___, 2009 WL 2488050 (9th Cir. Aug. 17, 2009). The committee is working on a revision to the instruction. 

Withdrawn 8/2009 (For 2007 version see below).

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2007 Version

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ 117.2.1 [Federal Firearm Enhancement: Failure To Include Type Of Firearm In Indictment Is Jurisdictional Defect (18 USC 924(c))].  

See also FORECITE National™ 117.3.1 [Use Or Carrying Of A Weapon Or Firearm: Defense Theory That Mere Possession Of The Weapon Was Not "Active Employment"].

The defendant is charged in [Count ____ of] the indictment with [using] [carrying] [possessing] [brandishing] [discharging] a firearm during and in relation to a [crime of violence] [drug trafficking crime] in violation of Section 924(c) 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 committed the crime of [e.g., murder] [as charged in Count ____ of the indictment];

Second, the defendant knowingly [used] [carried] [possessed] [brandished] [discharged] a [firearm]; and

Third, the defendant [used] [carried] [possessed] [brandished] [discharged] the [firearm] during and in relation to the crime.[A defendant has "used" a firearm if he or she has actively employed the firearm in relation to [crime charged].] [Use includes any of the following:

(1) [[brandishing] [displaying] [bartering] [striking with] [firing or attempting to fire] a firearm;]

(2) [referring to a firearm in the defendant’s possession [in order to bring about a change in the circumstances of the predicate offense];]

(3) [the silent but obvious and forceful presence of a firearm in plain view].]

Carrying is not limited to carrying weapons directly on the person, but can include circumstances such as carrying in a vehicle. A defendant "carries" a firearm when [he] [she]:

(1) knowingly possesses it; and

(2) holds, moves, conveys, or transports it in some manner.

A person possesses a firearm if the person knows of its presence and has physical control of it, or knows of its presence and has the power and intention to control it.

A defendant takes such action "in relation to the crime" if the firearm facilitated or played a role in the crime.

If the crime of violence or drug trafficking is not charged in the same indictment, the elements of the crime must also be listed and the jury must be instructed that each element must be proved beyond a reasonable doubt. See United States v. Mendoza, 11 F.3d 126 (9th Cir. 1993).

Depending on the facts in evidence, it may be appropriate to amend this instruction with language requiring specific jury unanimity as to whether the firearm was possessed, brandished, or discharged. See Instruction 7.9 (Specific Issue Unanimity). In cases involving more than one firearm, the trial court should require the jury to submit a special verdict as to which firearm, or firearms, the defendant used or carried in connection with the offense. United States v. Perez, 129 F.3d 1340, 1342 (9th Cir. 1997); United States v. Alerta, 96 F.3d 1230, 1235–36 (9th Cir.1996). In addition, a special verdict may be required to determine whether the firearm was possessed, brandished or discharged.

"Carrying" and "using" are independent terms with different meanings. Bailey v. United States, 516 U.S. 137, 145 (1995) ("[A] firearm can be used without being carried, e.g., when an offender has a gun on display during a transaction, or barters with a firearm without handling it; and a firearm can be carried without being used, e.g., when an offender keeps a gun hidden in his clothing throughout a drug transaction."). See also Muscarello v. United States, 524 U.S. 125, 136 (1998) (explaining that while "use" must be construed narrowly, "carry" must be interpreted broadly to protect against the "undercutting [of] the statute’s basic objective."); United States v. Guess, 203 F.3d 1143, 1147 (9th Cir. 2000) (holding that the defendant had not "used" his gun for purposes of section 924(c)(1) because the arresting agents "were unaware of the pistol until after he was arrested"); United States v. Romero, 183 F.3d 1145 (9th Cir. 1999) (in a prosecution for use or carrying a firearm in commission of drug trafficking crime or crime of violence, where the indictment alleged only that the defendant used a firearm and proof at trial established only that the defendant carried the firearm, the proof was insufficient to sustain the conviction.)

Muscarello clarified that "carrying" requires neither on-the-person possession nor physical proximity connoting immediacy of access. Muscarello, 524 U.S. at 134. While neither Muscarello, nor any subsequent Ninth Circuit case has specifically defined "carry" for the purposes of § 924(c), other circuits have suggested that "carrying" requires (1) possession, in terms of agency and control over the firearm, and (2) either (a) possession on the person (i.e. "bearing" of the firearm), or (b) conveyance, movement, or transportation in a package or vehicle. See United States v. Garth, 188 F.3d 99, 111 (3d Cir. 1999); Napier v. United States, 159 F.3d 956, 960–61 (6th Cir. 1998) (noting that one passenger’s presence in car with a second passenger who was wearing a firearm on his person does not constitute carrying absent a "requisite amount of agency and . . . possession."); United States v. Mitchell, 104 F.3d 649, 653 (4th Cir. 1997) ("[T]he plain meaning of the term "carry" as used in § 924(c)(1) requires knowing possession and bearing, movement, conveyance, or transportation of the firearm in some manner."); United States v. Miller, 84 F.3d 1244, 1259 (10th Cir. 1996) (adopting definition of "carry" that includes elements of possession and transportation), overruled on other grounds by United States v. Holland, 116 F.3d 1353 (10th. Cir. 1997); United States v. Spring, 80 F.3d 1450, 1465 (10th Cir.1996) (carry prong requires possession "through the exercise of dominion or control; and transportation."). This approach is also supported by language used in Muscarello to distinguish "carrying" from "transportation." Muscarello, 524 U.S. at 134 (1998) ("‘Carry’ implies personal agency and some degree of possession[.]"). One Ninth Circuit case mentions a two element approach in interpreting "carry" in another context. United States v. Camper, 384 F.3d 1073, 1076 (9th Cir. 2004) ("To carry a firearm means to possess and convey it") (internal quotations omitted) (quoting and citing Muscarello).

The definition of possession is taken from Instruction 3.18 (Possession—Defined). The joint possession language from that instruction may be used if appropriate to the circumstances of the case.

The committee was unable to find a Ninth Circuit decision explicitly holding that it is always a question of law whether a crime is a "crime of violence." In practice, however, this question is decided as a matter of law. See, e.g., United States v. Amparo, 68 F.3d 1222, 1226 (9th Cir.1995) (as a matter of law, possession of an unregistered sawed-off shotgun is a crime of violence), cert. denied, 516 U.S. 1164 (1996); United States v. Mendez, 992 F.2d 1488, 1490-91 (9th Cir.1993) (as a matter of law, conspiracy to rob is a crime of violence), cert. denied, 510 U.S. 896 (1993); United States v. Springfield, 829 F.2d 860, 862–63 (9th Cir.1987) (as a matter of law, involuntary manslaughter is a crime of violence). To determine whether a crime is a crime of violence, the Ninth Circuit follows the "categorical approach," which precludes a factual inquiry into the defendant's conduct. United States v. Becker, 919 F.2d 568, 570 (9th Cir.1990), cert. denied, 499 U.S. 911 (1991); United States v. Sherbondy, 865 F.2d 996, 1007–10 (9th Cir.1988).

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2000 Version

The defendant is charged in [Count ____ of] the indictment with [using] [carrying] [possessing] [brandishing] [discharging] a firearm during and in relation to a [crime of violence] [drug trafficking crime] in violation of Section 924(c) 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 committed the crime of [e.g., murder] [as charged in Count ____ of the indictment];

Second, the defendant knowingly [used] [carried] [possessed] [brandished] [discharged] a [firearm]; and

Third, the defendant [used] [carried] [possessed] [brandished] [discharged] the [firearm] during and in relation to the crime.

[A defendant has "used" a firearm if he or she has actively employed the firearm in relation to [crime charged].] [Use includes any of the following:

(1) [[brandishing] [displaying] [bartering] [striking with] [firing or attempting to fire] a firearm;]

(2) [referring to a firearm in the offender's possession [in order to bring about a change in the circumstances of the predicate offense];]

(3) [the silent but obvious and forceful presence of a firearm in plain view].]

A defendant carries a firearm if the defendant knowingly possesses or carries the firearm. Carrying is not limited to carrying weapons directly on the person, but can include circumstances such as carrying in a vehicle or a locked compartment of a vehicle.

A defendant takes such action "in relation to the crime" if the firearm facilitated or played a role in the crime.

If the crime of violence or drug trafficking is not charged in the same indictment, the elements of the crime must also be listed and the jury must be instructed that each element must be proved beyond a reasonable doubt. See United States v. Mendoza, 11 F.3d 126 (9th Cir. 1993).

Depending on the facts in evidence, it may be appropriate to amend this instruction with language requiring specific jury unanimity as to whether the firearm was possessed, brandished, or discharged. See Instruction 7.9 (Specific Issue Unanimity). In cases involving more than one firearm, the trial court should require the jury to submit a special verdict as to which firearm, or firearms, the defendant used or carried in connection with the offense. United States v. Perez, 129 F.3d 1340, 1342 (9th Cir. 1997); United States v. Alerta, 96 F.3d 1230, 1235–36 (9th Cir.1996). In addition, a special verdict may be required to determine whether the firearm was possessed, brandished or discharged.

"Carrying" and "using" are independent terms with different meanings. Bailey v. United States, 516 U.S. 137, 145 (1995) ("[A] firearm can be used without being carried, e.g., when an offender has a gun on display during a transaction, or barters with a firearm without handling it; and a firearm can be carried without being used, e.g., when an offender keeps a gun hidden in his clothing throughout a drug transaction."). See also Muscarello v. United States, 524 U.S. 125, 136 (1998) (explaining that while "use" must be construed narrowly, "carry" must be interpreted broadly to protect against the "undercutting [of] the statute’s basic objective."); United States v. Guess, __F.3d __, 2000 WL 144389 (9th Cir. 2000) (holding that the defendant had not "used" his gun for purposes of section 924(c)(1) because the arresting agents "were unaware of the pistol until after he was arrested"); United States v. Romero, 183 F.3d 1145 (9th Cir. 1999) (in a prosecution for use or carrying a firearm in commission of drug trafficking crime or crime of violence, where the indictment alleged only that the defendant used a firearm and proof at trial established only that the defendant carried the firearm, the proof was insufficient to sustain the conviction.)

The Committee was unable to find a Ninth Circuit decision explicitly holding that it is always a question of law whether a crime is a "crime of violence." In practice, however, this question is decided as a matter of law. See, e.g., United States v. Amparo, 68 F.3d 1222, 1226 (9th Cir.1995) (as a matter of law, possession of an unregistered sawed-off shotgun is a crime of violence), cert. denied, 516 U.S. 1164 (1996); United States v. Mendez, 992 F.2d 1488, 1490-91 (9th Cir.1993) (as a matter of law, conspiracy to rob is a crime of violence), cert. denied, 510 U.S. 896 (1993); United States v. Springfield, 829 F.2d 860, 862–63 (9th Cir.1987) (as a matter of law, involuntary manslaughter is a crime of violence). To determine whether a crime is a crime of violence, the Ninth Circuit follows the "categorical approach," which precludes a factual inquiry into the defendant's conduct. United States v. Becker, 919 F.2d 568, 570 (9th Cir.1990), cert. denied, 499 U.S. 911 (1991); United States v. Sherbondy, 865 F.2d 996, 1007–10 (9th Cir.1988).

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

The Ninth Circuit has held the common law test for materiality, as reflected in the last sentence of this instruction, is the standard to use when false statement statutes such as 18 USC 1001 are charged. United States v. Peterson, __ F.3d ___, 2008 WL 3388737 (9th Cir. Aug.13, 2008) (citing United States v. Gaudin, 515 U.S. 506, 509 (1995)). "The false statement need not have actually influenced the agency, and the agency need not rely on the information in fact for it to be material." United States v. Serv. Deli Inc., 151 F.3d 938, 941 (9th Cir. 1998); see also United States v. Matsumaru, 244 F.3d 1092, 1101 (9th Cir. 2001).

Modified 8/2008 (For 2000 version see below).

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2000 Version

The defendant is charged in [Count _______ of] the indictment with knowingly and willfully [making a false statement][using a document containing a false statement] in a matter within the jurisdiction of a governmental agency or department in violation of Section 1001 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 [made a false statement] [used a writing which contained a false statement] in a matter within the jurisdiction of the [government agency or department];

Second, the defendant acted willfully, that is deliberately and with knowledge that the statement was untrue; and

Third, the statement was material to the [government agency or department] activities or decisions.

A statement is material if it could have influenced the agency's decisions or activities.

No mental state is required with respect to the fact that a matter is within the jurisdiction of a federal agency. United States v. Green, 745 F.2d 1205, 1209–10 (9th Cir.1984), cert. denied, 474 U.S. 925 (1985). There is no requirement that the defendant acted with the intention of influencing the government agency. United States v. Yermian,

468 U.S. 63, 73 & n. 13 (1984).

See United States v. Carrier, 654 F.2d 559, 561 (9th Cir.1981) (defining willful).

The statute proscribes "false, fictitious or fraudulent statements or representations." The Committee recommends that the issue be presented to the jury only in terms of a false statement because false, fictitious and fraudulent have the same meaning. See United States v. Milton, 602 F.2d 231, 233 (9th Cir.1979). Furthermore, to prove falsity, the government need only prove that the statement was known to be untrue, while proving that a statement was fraudulent requires the additional proof of an intent to deceive. Id.

It is suggested that the initial determination whether the matter is one within the jurisdiction of a department or agency of the United States—apart from the issue of materiality—be made by the court as a matter of law.

Materiality must be demonstrated by the government, United States v. Oren, 893 F.2d 1057, 1063 (9th Cir. 1990); United States v. Talkington, 589 F.2d 415, 416 (9th Cir.1978), and must be submitted to the jury. United States v. Gaudin, 515 U.S. 506 (1995). Actual reliance is not required. Talkington, 589 F.2d at 417. The materiality test applies to each allegedly false statement submitted to the jury. Id.

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 statement was false and material"). See Instruction 7.9 (Specific Issue Unanimity).