9^TH CIRCUIT MODEL INSTRUCTIONS 2000
(Includes Additions and Revisions Through 2007)
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Offenses Under Title 18 (18 USC 1014 - 18 USC 1201(d))

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

The defendant is charged in [Count __________ of] the indictment with making a false statement to a federally insured [bank] [savings and loan association] for the purpose of influencing the bank in violation of Section 1014 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 or report] [willfully overvalued any land, property or security] to a federally insured bank;

Second, the defendant made the false statement or report to the bank knowing it was false; and

Third, the defendant did so for the purpose of influencing in any way the action of the bank.

It is not necessary, however, to prove that the bank involved was, in fact, influenced or misled. What must be proved is that the defendant intended to influence the bank by the false statement.

See generally Comment to Instruction 8.66 (False Statement to Government Agency). Materiality is not an element of the crime of knowingly making a false statement to a federally insured bank in violation of 18 USC 1014. United States v. Wells, 519 U.S. 482, 496-97 (1997). Compare bank fraud under § 1344(2) where materiality is an element. United States v. Nash, 115 F.3d 1431 (9th Cir. 1997). See Instruction 8.106 (Bank Fraud–Scheme to Defraud by False Promises or Statements).

Depending on the facts in evidence, it may be appropriate to amend this instruction with language requiring specific jury unanimity. See Instruction 7.9 (Specific Issue Unanimity).

If the institution involved is not a federally insured bank or savings and loan association, this instruction should be modified to reflect the particular type of institution listed in the statute, as charged in the indictment.

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

The defendant is charged in [Count _______ of] the indictment with [production of] [use of] [trafficking in] [a] counterfeit access device[s] in violation of Section 1029(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 knowingly [used] [produced] [trafficked in] a counterfeit [access device] [specific type device, e.g., card number, plate number, code number, account number, personal identification number, etc.];

Second, the defendant acted with intent to defraud; and

Third, the defendant's conduct in some way affected commerce between one state and [an]other state[s], or between a state or the United States and a foreign country.

An "access device" means any card, plate, code, account number, electronic serial number, mobile identification number, personal identification number, or other telecommunications service, equipment, or instrument identifier, or other means of account access that can be used, alone or in conjunction with another access device, that can be used alone or in conjunction with another access device, to obtain money, goods, services, or any other thing of value, or that can be used to initiate a transfer of funds (other than a transfer originated solely by paper instrument).

[A "counterfeit access device" is any access device that is counterfeit, fictitious, altered or forged, or an identifiable component of an access device or a counterfeit access device.]

[One "produces" an access device by designing it, altering it, authenticating it, duplicating it, or assembling it.]

[One "traffics" in an access device by transferring it or otherwise disposing of it to another, or by obtaining control of it with intent to transfer or dispose of it.]

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

The legislative history of 18 USC 1029 suggests that "'[w]ith intent to defraud' means that the offender has a conscious objective, desire or purpose to 'deceive another person, and to induce such other person, in reliance upon such deception, to assume, create, transfer, alter or terminate a right, obligation or power with reference to property.' " S. Rep. No. 368, 98th Cong., 2d Sess., reprinted in, 1984 U.S.C.C.A.N. 3647, 3652; United States v. Jacobowitz, 877 F.2d 162, 166 (2d Cir.), cert. denied, 493 U.S. 866 (1989). But see H.R. Rep. No. 98–894, 98th Cong., 2d Sess. at 17 (1984) (the term "with the intent" in section 1029 should involve "the same culpable state of mind as the term 'purpose' as used in the Model Penal Code (§ 2.02).").

18 USC 1029 (e)(1), (2), (4) and (5) define terms "access device," "counterfeit,", "produce" and "traffic," respectively.

For a definition of "knowingly," see Instructions 5.6 (Knowingly–Defined) and 5.7 (Deliberate Ignorance).

Regarding a jury finding that commerce was affected, consult United States v. Gomez, 87 F.3d 1093, 1096–97 (9th Cir.1996) (discussing role of the jury in determining a fact which is both an element of the offense and a jurisdictional fact). See also United States v. Lopez, 514 U.S. 549 (1995) (regarding the "affecting" commerce requirement); United States v. Clayton, 108 F.3d 1114, 1117 (9th Cir. 1997) (applying the test in Lopez to alleged violation of section 1029). The third element of the instruction includes a definition of interstate commerce appropriate for most cases. Adjustments should be made to this element depending upon the circumstances alleged in the case (e.g., commerce involving the territories, possessions or the District of Columbia).

18 USC 1029(b)(1) and (b)(2) specify penalties for an attempt or a conspiracy to violate any subsection of § 1029(a). Where the indictment charges such an attempt or conspiracy adjust this instruction accordingly, using relevant elements from Instructions 5.3 (Attempt) or 8.16 (Conspiracy) as is appropriate.

For specific cases referring to counterfeit access devices, see the following: United States v. McCormick, 72 F.3d 1404, 1408 (9th Cir. 1995) (holding that submission of a credit card application containing false or inflated information produces a counterfeit access device); United States v. Brannan, 898 F.2d 107, 109 (9th Cir.) (submitting fictitious credit card applications to bank was functional equivalent to the manufacture of counterfeit access device), cert. denied, 498 U.S. 833 (1990); United States v. Luttrell, 889 F.2d 806, 810 (9th Cir.1989) (discussing the distinction between unauthorized and counterfeit access devices), cert. denied, 503 U.S. 959 (1992).

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

The defendant is charged in [Count _______ of] the indictment with [using] [trafficking in] an unauthorized access device [specific type of device, e.g., credit cards] during a period of one year in violation of Section 1029(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 knowingly [used] [trafficked in] a unauthorized access devices at any time during a one-year period [beginning [date], and ending [date]];

Second, by [using] [trafficking in] the unauthorized access devices during that period, the defendant obtained [anything of value worth $1,000 or more] [things of value, their value together totaling $1,000 or more] during that period;

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

Fourth, the defendant's conduct in some way affected commerce between one state and [an]other state[s], or between a state or the United States and a foreign country.

[An "unauthorized" access device is any access device that is lost, stolen, expired, revoked, canceled, or obtained with intent to defraud.]

For a definition of "intent to defraud," see Instruction 3.17 (Intent to Defraud–Defined) and comment to Instruction 8.68 (Counterfeit Access Devices–Production, Use, or Trafficking).

For a definition of "knowingly," see Instructions 5.6 (Knowingly–Defined) and 5.7 (Deliberate Ignorance).

When parties dispute the "affecting commerce" requirement, see Comment to Instruction 8.68 (Counterfeit Access Devices–Production, Use, or Trafficking).

For definitions of "access device," "traffic," and "unauthorized access device," see 18 USC 1029(e).

See Comment to Instruction 8.68 (Counterfeit Access Devices–Production, Use, or Trafficking) regarding changes to the instruction when attempt or conspiracy is alleged in violation of 18 USC 1029(a).

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

The defendant is charged in [Count _______ of] the indictment with unlawful possession of access devices [e.g., credit cards] in violation of Section 1029(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 knowingly possessed at least fifteen [counterfeit] [unauthorized] access devices at the same time;

Second, the defendant knew that the devices were [counterfeit] [unauthorized];

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

Fourth, the defendant's conduct in some way affected commerce between one state and [an]other state[s], or between a state or the United States and a foreign country

See Comment to Instruction 8.69 (Unauthorized Access Devices–Using or Trafficking).

For definitions of "access device," "counterfeit," and "unauthorized," see 18 USC 1029(e).

 9^TH CIRCUIT MODEL INSTRUCTIONS 2000

The defendant is charged in [Count _______ of] the indictment with [production] [trafficking in] [having control or custody of] [possessing] access device-making equipment in violation of Section 1029(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 knowingly [produced] [trafficked in] [had custody or control of] [possessed] device-making equipment; and

Second, the defendant acted with intent to defraud; and

Third, the defendant's conduct in some way affected commerce between one state and [an]other state[s], or between a state or the United States and a foreign country.

"Device-making equipment" is any equipment, mechanism, or impression designed or primarily used for making an access device or a counterfeit access device.

See Comment to Instruction 8.69 (Unauthorized Access Devices–Using or Trafficking).

For definitions of "access device," "counterfeit" access device, "trafficking," "produce," and "unauthorized" access device, see 18 USC 1029(e).

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

The defendant is charged in [Count _______ of] the indictment with effecting transactions with an access device issued to another person in violation of Section 1029(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, with [an access device] [access devices] issued to [another person] [other persons], the defendant knowingly effected transactions;

Second, the defendant obtained through such transactions [at any time during a one-year period beginning [date], and ending [date]] a total of at least $1000 in payment[s] or [any other thing] [other things] of value;

Third, the defendant acted with intent to defraud; and

Fourth, the defendant's conduct in some way affected commerce between one state and [an]other state[s], or between a state or the United States and a foreign country.

See Comment to Instruction 8.69 (Unauthorized Access Devices–Using or Trafficking).

Note: Between October 25, 1994 and October 11, 1996, 18 USC 1029 contained two subsections (a)(5). One subsection (a)(5) (fraudulent use of an access device) was created by the Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103–322, § 250007, 108 Stat. 2087, effective September 13, 1994. Another subsection (a)(5) (use of altered telecommunications equipment) was created by the Communications Assistance for Law Enforcement Act of 1994, Pub. L. No. 103–414, § 206, 108 Stat. 4291, effective October 25, 1994. The Economic Espionage Act of 1996, Pub. L. No. 104–294, § 601 (l), 110 Stat. 3488, 3501 (October 11, 1996), resolved this difficulty by renumbering the subsection (a)(5) created by the 1994 Communications Assistance Law Enforcement Act as 28 USC 1029(a)(7). An instruction for violations of this section is found at Instruction 8.74 (Telecommunications Instrument–Illegal Modification).

For a definition of "access device," see 18 USC 1029(e)(1).

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

The defendant is charged in [Count _______ of] the indictment with soliciting persons for the purpose of [offering] [selling information regarding] an access device in violation of Section 1029(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, that the defendant knowingly solicited a person for the purpose of [offering an access device] [selling information regarding an access device] [selling information regarding an application to obtain an access device];

Second, the defendant solicited that person without authorization of the issuer of the access device;

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

Fourth, the defendant's conduct in some way affected commerce between one state and [an]other state[s], or between a state or the United States and a foreign country.

See Comment to Instruction 8.69 (Unauthorized Access Devices–Using or Trafficking).

Note: Between October 25, 1994 and October 11, 1996, 18 USC 1029 contained two subsections (a)(6). One subsection (a)(6) (unauthorized solicitation and offer of access devices) was created by the Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103–322, § 250007, 108 Stat. 2087, effective September 13, 1994. Another subsection (a)(6) (use or possession of scanning receiver) was created by the Communications Assistance for Law Enforcement Act of 1994, Pub. L. No. 103–414, § 206, 108 Stat. 4291, effective October 25, 1994. The Economic Espionage Act of 1996, Pub. L. No. 104–294, § 601 (l), 110 Stat. 3488, 3501 (October 11, 1996), resolved this difficulty by renumbering the subsection (a)(5) created by the Communications Assistance Law Enforcement Act as 28 USC 1029(a)(8).

For a definition of "access device," see 18 USC 1029(e)(1).

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

The defendant is charged in [Count _______ of] the indictment with [use of] [production of] [trafficking in] a telecommunications instrument which had been modified to obtain unauthorized telecommunications services in violation of Section 1029(a)(7) 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 [used] [produced] [trafficked in] [had custody or control of] [possessed] a telecommunications instrument that had been modified or altered to obtain unauthorized use of telecommunications services;

Second, the defendant acted with the intent to defraud; and

Third, the defendant's conduct in some way affected commerce between one state and [an]other state[s], or between a state or the United States and a foreign country.

[One "produces" a telecommunications instrument by designing it, altering it, authenticating it, duplicating it, or assembling it.]

[One "traffics" in a telecommunications instrument by transferring it or otherwise disposing of it to another, or by obtaining control of it with intent to transfer or dispose of it.]

See Comment to Instruction 8.69 (Using or Trafficking Unauthorized Access Devices).

Note: Between October 25, 1994 and October 11, 1996, 18 USC 1029(a)(7) had been denominated as a second subsection (a)(5) of § 1029. See Economic Espionage Act of 1996, Pub. L. No. 104–294, § 601 (l), 110 Stat. 3488, 3501 (October 11, 1996) (renumbering the subsection (a)(5) created by the Communications Assistance for Law Enforcement Act as 28 USC 1029(a)(7)).

18 USC 1029 does not define the term "telecommunications instrument."

For definitions of "produce" and "traffic," see 18 USC 1029(e)(4) and (5).

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

The defendant is charged in [Count ___ of] the indictment with [using] [producing] [trafficking in] [possessing] a scanning receiver in violation of Section 1029(a)(8) 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 [used] [produced] [trafficked in] [had custody or control of] [possessed] a scanning receiver;

Second, the defendant acted with intent to defraud; and

Third, the defendant's conduct in some way affected commerce between states or between the United States and a foreign country.

[A "scanning receiver" is a device or apparatus that can be used to intercept illegally a wire or electronic communication or to intercept illegally an electronic serial number, mobile identification number, or other identifier of any telecommunications service, equipment, or instrument.]

[One "produces" a scanning receiver by designing it, altering it, authenticating it, duplicating it, or assembling it.]

[One "traffics" in a scanning receiver by transferring it or otherwise disposing of it to another, or by obtaining control of it with intent to transfer or dispose of it.]

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

For a definition of "knowingly," see Instruction 5.6 (Knowingly–Defined) and 5.7 (Deliberate Ignorance).

The Wireless Telephone Protection Act (Pub. L. No. 105-172, § 2, 112 Stat. 53 (April 24, 1998)) revised 18 USC 1029(a)(8)-(a)(10). Subsection (a)(8) previously encompassed both scanning receivers and hardware or software used to obtain telecommunications service without authorization. Congress bifurcated former section (a)(8) into (a)(8) (scanning receivers) and (a)(9) (hardware or software used to alter telecommunications instruments).

18 USC 1029(e)(7) defines the term "scanning receiver" to be a device or apparatus that can be used to intercept a wire or electronic communication in violation of 18 USC 2510-2522. 18 USC 2510(4) defines "intercept" to mean the aural or other acquisition of the contents of any wire, electronic, or oral communication through the use of any electronic, mechanical, or other device. When parties dispute whether the device involved is a "scanning receiver," the court should add the following paragraph to the instruction concerning the meaning of that term:

The government has the burden of proving beyond a reasonable doubt that [device] is a scanning receiver. A scanning receiver is a device that can be used to illegally intercept a wire, oral, or electronic telecommunication.

For cases addressing the "affecting commerce" requirement, see Comment to Instruction 8.68 (Counterfeit Access Devices–Production, Use, or Trafficking).

18 USC 1029(b)(1) and (b)(2) specify penalties for an attempt or a conspiracy to violate any subsection of Section 1029(a). Where the indictment charges an attempt or conspiracy, modify this instruction accordingly, using relevant elements from Instruction 5.3 (Attempt) or 8.16 (Conspiracy–Elements).

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

The defendant is charged in [Count _______ of] the indictment with arranging for another person to present a record of a transaction made by an access device to a credit card system for payment in violation of Section 1029(a)(9) 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, that the defendant knowingly [arranged for] [caused] another person to present, for payment to a credit card system [member] [agent], one or more [records] [evidences] of transactions made by an access device;

Second, that the defendant was not authorized by the credit card system [member] [agent] to [arrange] [cause] such a claim for payment;

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

Fourth, the defendant's conduct in some way affected commerce between one state and [an]other state[s], or between a state or the United States and a foreign country.

See Comment to Instruction 8.69 (Unauthorized Access Devices–Using or Trafficking).

A "credit card system member" is a "financial institution or other entity that is a member of a credit card system, including an entity, whether affiliated with or identical to the credit card issuer, that is the sole member of a credit card system." 18 USC 1029(e)(7).

For a definition of "access device," see 18 USC 1029(e)(1).

The word "evidences" in the first element reflects the language of section 1029(a)(9).

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

The defendant is charged in [Count _______ of] the indictment with obtaining and transmitting injurious information by computer in violation of Section 1030(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 knowingly [accessed without authorization] [exceeded authorized access to] a computer;

Second, by [accessing without authorization] [exceeding authorized access to] a computer, the defendant obtained [information that had been determined by the United States Government to require protection against disclosure for reasons of national defense or foreign relations] [data regarding the design, manufacture or use of atomic weapons];

Third, the defendant acted with the intent or reason to believe that the information or data obtained could be used to the injury of the United States or to the benefit of a foreign nation; and

Fourth, the defendant willfully [[caused to be] [[communicated] [delivered] [transmitted]] to any person not entitled to receive it] [retained and failed to deliver to an officer or employee of the United States entitled to receive it] such information or data.

For a definition of "knowingly", see Instruction 5.6 (Knowingly–Defined). For purposes of the Computer Fraud and Abuse Act, the Senate Committee reporting this provision explained that the requirement that the access to (or exceeding access to) the computer be "knowing" meant that the defendant "is aware 'that the result is practically certain to follow from his conduct, whatever his desire may be as to that result.' " S. Rep. No. 99–432, at 5–6 (1986), reprinted in 1986 U.S.C.C.A.N. 2479, 2483, quoting United States v. United States Gypsum Co., 438 U.S. 422, 425 (1978) (footnote omitted).

A defendant "exceeds authorized access" to a computer when the defendant accesses a computer with authorization but uses "such access to obtain or alter information in the computer that the accessor is not entitled so to obtain or alter." 18 USC 1030(e)(6).

The "obtaining information" element of the offense "includes mere observation of the data. Actual asportation ... need not be proved in order to establish a violation.... " S. Rep. No. 99–432, at 6–7 (1986), reprinted in 1986 U.S.C.C.A.N. 2479, 2484.

The legislative history distinguishes a charge under 18 USC 1030(a)(1) from alleged violations of other espionage laws. Under Section 1030(a)(1), "it is the use of the computer which is being proscribed, not the unauthorized possession of, access to, or control over the classified information itself." S. Rep. No. 104–357, at 6–7, 1996 WL 492169, at *16 (1996).

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

The defendant is charged in [Count _______ of] the indictment with obtaining computer information of a [financial institution] [card issuer] [consumer reporting agency] [government department or agency] in violation of Section 1030(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 intentionally [accessed without authorization] [exceeded authorized access to] a computer; and

Second, by [accessing without authorization] [exceeding authorized access to] a computer, the defendant obtained information [contained in a record of [financial institution or card issuer]] [contained in a file of [consumer reporting agency] on [consumer]] [from any department or agency of the United States].

The requirement that the defendant "intentionally" access or exceed authorized access to a computer requires "a clear intent [by the defendant] to enter, without proper authorization, computer files or data belonging to another.... ' "[I]ntentional" means more than that one voluntarily engaged in conduct or caused a result. Such conduct or the causing of the result must have been the person's conscious objective.' " S. Rep. No. 99–432, at 6 (1986), reprinted in 1986 U.S.C.C.A.N. 2479, 2484 (quoting another Senate report).

See Comment following Instruction 8.77 (Obtaining Information by Computer–Injurious to the United States or Advantageous to Foreign Nation) regarding "obtaining information" and the "exceeds authorized access" requirements.

Financial records are defined as "information derived from any record held by a financial institution pertaining to a customer's relationship with the financial institution." 18 USC 1030(e)(5). While it appears clear a record need not be on a particular customer, it must relate to a "customer's relationship" with the institution. See S. Rep. No. 99–432, supra, 1986 U.S.C.C.A.N. at 2484 (the Act concerns "financial records of all customers—individual, partnership, or corporate—of financial institutions.").

For definitions of "financial record," "financial institution," and "department of the United States," see 18 USC 1030(e)(4), (5) and (7), respectively.

Adjustments must be made to the second element of this instruction, depending on the charged offense under 18 USC 1030(a)(2):

1) When violation of Section 1030(a)(2)(A), clause one, is alleged, use the first alternative in the second element (i.e., record of financial institution or card issuer as defined by 15 USC 1602(n));

2) When violation of Section 1030(a)(2)(A), clause two, is alleged, use the second alternative in the second element (i.e., file of consumer reporting agency as defined by 15 USC 1681 et seq.);

3) When violation of Section 1030(a)(2)(B) is alleged, use the third alternative in the second element (i.e., United States department or agency); or

4) When violation of Section 1030(a)(2)(C) is alleged, do not use this instruction, but use Instruction 8.79 (Obtaining Information from Protected Computer).

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

Definitions of the terms "computer," and "exceeds authorized access" are provided by 9th Cir. Crim. Jury Instr. 8.86A (Computer Fraud & Abuse – Definitions).

While the term "protected computer" is defined by 18 U.S.C. § 1030(e)(2), that term is not used in the elements of this instruction because that definition has been incorporated into the third element of the instruction. Accordingly, it may not be necessary to provide a definition of "protected computer" because this instruction does not use that term.

See Comment following Instruction 8.78 (Obtaining Information by Computer–From Financial Institution or Government Computer) regarding the "intentionally" accessing element.

The defendant is charged in [Count _______ of] the indictment with obtaining computer information from a protected computer in violation of Section 1030(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 intentionally [accessed without authorization] [exceeded authorized access of] a computer;

Second, the defendant's access of that computer involved an interstate or foreign communication; and

Third, by [accessing without authorization] [exceeding authorized access to] a computer, the defendant obtained information from a computer [exclusively for the use of a financial institution or the United States government] [not exclusively for the use of a financial institution or the United States government, but the defendant's conduct affected the computer's use by or for the financial institution or government] [used in interstate or foreign commerce or communication].

See Comment following Instruction 8.78 (Obtaining Information by Computer–From Financial Institution or Government Computer) regarding the "intentionally" accessing element.

See Comment following Instruction 8.77 (Obtaining Information by Computer–Injurious to the United States or Advantageous to Foreign Nation) regarding the "exceeds authorized access" and the "obtaining information" requirements.

For a definition of "financial institution," see 18 USC 1030(e)(4).

Provisions of the Computer Fraud and Abuse Act are not mutually exclusive. See S. Rep. No. 104–357, at 7–8, 1996 WL 492169, *20 (1996) ("Some conduct may violate more than one subsection of Section 1030(a)(2). For example, a particular Government computer might be covered by both sections 1030(a)(2)(B) (see Instruction 8.75 (Use or Control of a Scanning Receiver)) and (a)(2)(C) (see Instruction 8.76 (Credit Card Transaction Fraud)). This overlap serves to eliminate legal issues that may arise if the provisions were mutually exclusive.").

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

The defendant is charged in [Count _______ of] the indictment with unlawful access of a computer in violation of Section 1030(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 accessed any non-public computer of [department or agency of the United States];

Second, the defendant lacked authorization to access any non-public computer of that department or agency; and

Third, the computer accessed by the defendant [was exclusively for the use of the Government of the United States] [was used non-exclusively by or for the Government, but the defendant's conduct affected that computer's use by or for the Government].

See Comment following Instruction 8.78 (Obtaining Information by Computer–From Financial Institution or Government Computer) regarding the "intentionally" accessing element.

In 1996, Congress amended the Computer Fraud and Abuse Act to limit the offense to use of "non-public" computers of the government. Congress expressed an intent to "make clear that unauthorized access is barred to any 'non-public' Federal Government computer and that a person who is permitted to access publicly available Government computers, for example, via an agency's World Wide Web site, may still be convicted under [18 USC 1030](a)(3) for accessing without authority any nonpublic Federal Government computer." S. Rep. No. 104–357, at 9, 1996 WL 492169, *21 (1996).

For a definition of "department of the United States," see 18 USC 1030(e)(7).

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

Use the fifth element of this instruction when the prosecution’s theory is that the object of the defendant’s alleged fraud was only the use of the computer and the value of that computer use was "more than $5,000 in any 1-year period".

Definitions of the terms "computer" and "exceeds authorized access" are provided by 9th Cir. Crim. Jury Instr. 8.86A (Computer Fraud & Abuse – Definitions).

While the term "protected computer" is defined by 18 U.S.C. § 1030(e)(2), that term in not used in the elements of this instruction because that definition has been incorporated into the first element of the instruction. Accordingly, it may not be necessary to provide a definition of "protected computer" because this instruction does not use that term.

Prior to the 1996 amendments, there was no crime under 18 U.S.C. § 1030(a)(4) where "the object of the fraud and the thing obtained consist[ed] only of the use of computer time." However, the 1996 amendments limited this statutory exception. Noting that hackers had broken into supercomputers for the purpose of running password cracking programs, consuming thousands of dollars in computer time, the Senate Judiciary Committee proposed a change. Congress adopted a revision to the Act so that only where the stolen computer use was less than $5,000 during any one year period would the defendant escape liability under Section 1030(a)(4).

Approved 6/2004 (for 2000 version see below).

The defendant is charged in [Count _______ of] the indictment with computer fraud in violation of Section 1030(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 knowingly [accessed without authorization] [exceeded authorized access of] a computer [that was exclusively for the use of a financial institution or the United States Government] [that was not exclusively used by a financial institution or the United States Government] [used in interstate or foreign commerce or communication];

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

Third, by [accessing the computer without authorization] [exceeding authorized access to the computer], the defendant furthered the intended fraud; [and]

Fourth, the defendant by [accessing the computer without authorization] [exceeding authorized access to the computer] obtained anything of value; [and]

[Fifth, if the use of the computer was the only object of the defendant's fraud, as well as the only thing of value the defendant obtained, the government must prove beyond a reasonable doubt that the total value of the defendant's computer use exceeded $5,000 during [any] [the] one year period [beginning [date], and ending [date]]; [ and]

[Sixth, by [accessing the computer without authorization] [exceeding authorized access to the computer] the defendant affected the use of the computer by or for a financial institution or the Government].

See Comment following Instruction 8.77 (Obtaining Information by Computer–Injurious to the United States or Advantageous to Foreign Nation) for a definition of "knowingly" for purposes of the Computer Fraud and Abuse Act and regarding the "exceeds authorized access" requirements.

For a definition of "intent to defraud," see Instruction 3.17 (Intent to Defraud–Defined). For purposes of the Computer Fraud and Abuse Act, the showing of an intent to defraud may be more rigorous than for mail fraud or wire fraud. "[A] scheme ... to defraud should [not] fall under the ambit of [1030](a)(4) merely because the offender signed onto a computer at some point near to the commission or execution of the fraud. While such a tenuous link might be covered under current law where the instrumentality used is the mails or the wires, the Committee does not consider that link sufficient with respect to computers. To be prosecuted under this subsection the use of the computer must be more directly linked to the intended fraud. That is, it must be used by an offender ... to obtain property of another, which property furthers the intended fraud." S. Rep. No. 99–432, at 9 (1986) reprinted in 1986 U.S.C.C.A.N. 2479, 2487 (emphasis added).

18 USC 1030(a)(4) concerns the use of "protected computers" which are defined by Section 1030(e)(2)(A) to include computers used by a financial institution or the United States government. In addition, computers used in "interstate or foreign commerce or communication" are also deemed "protected." 18 USC 1030(e)(2)(B).

Prior to the 1996 amendments, there was no crime under 18 USC 1030(a)(4) where "the object of the fraud and the thing obtained consist[ed] only of the use of computer time." However, the 1996 amendments limited this statutory exception. Noting that hackers had broken into supercomputers for the purpose of running password cracking programs, consuming thousands of dollars in computer time, the Senate Judiciary Committee proposed a change. Congress adopted a revision to the Act so that only where the stolen computer use was less than $5,000 during any one year period would the defendant escape liability under Section 1030(a)(4).

The bracketed sixth element of this instruction should be used when it is alleged that the computer the defendant accessed was not exclusively for the use of the government or financial institution. See 18 USC 1030(e)(2)(A).

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

For a definition of "knowingly" for purposes of the Computer Fraud and Abuse Act, see Comment following Instruction 8.77 (Obtaining Information by Computer–Injurious to the United States or Advantageous to Foreign Nation).

The fourth element covers the requirement of 18 U.S.C. § 1030(a)(5) that a "protected computer" be affected. This term is defined by 18 U.S.C. § 1030(e)(2). The second and third elements concern the requirement of 18 U.S.C. § 1030(a)(5) that "damage" occur. The term "damage" is defined by 18 U.S.C. § 1030(e)(8). See also S. Rep. No. 104–357, at 11, 1996 WL 492169, at *25 (1996) (purpose of Section 1030(a)(5) is that persons authorized access to a computer "face criminal liability only if they intend to cause damage." By contrast, those not authorized to access a computer are "punished for any intentional, reckless, or other damage they cause by their trespass.").

In United States v. Middleton, 231 F.3d 1207, 1211-12 (9th Cir.2000) the Ninth Circuit discussed the definitions of "protected computer" and "damage." However, it is uncertain that the conclusions drawn by the circuit are still applicable after amendments to § 1030 in Pub. L. 107-56, Title V, a7 506(a), Title VIII, a7 814, Oct. 26, 2001, 115 Stat. 366, 382). See 18 U.S.C. § 1030(e)(2) ("protected computer") and § 1030(e)(8) ("damage").

Definitions of the terms "computer," "person," "loss" and "government entity," are found at 9th Cir. Crim. Jury Instr. 8.86A (Computer Fraud & Abuse – Definitions). Use the appropriate definition of "financial institution" as defined by 18 U.S.C. § 1030(e)(4).

While the term "protected computer" is defined by 18 U.S.C. § 1030(e)(2), that term is not used in the elements of this instruction because that definition has been incorporated into the fourth element of the instruction. Accordingly, it may not be necessary to provide a definition of "protected computer" because this instruction does not use that term.

While the term "damage" is defined by 18 U.S.C. § 1030(e)(8), that term is not used in the elements of this instruction because that definition has been incorporated into the second element of the instruction. Accordingly, it may not be necessary to provide a definition of "damage" because this instruction does not use that term.

Approved 6/2004 (for 2002 version see below).

2000 Version

The defendant is charged in [Count _______ of] the indictment with transmitting a harmful [[program] [code] [command] [information]] to a computer [system], intending to cause damage, in violation of Section 1030(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 knowingly caused the transmission of [[a program] [a code] [a command] [information]] to a computer without authorization;

Second, as a result of the transmission, the defendant intentionally impaired the [integrity] [availability] of [data] [a program] [a system] [information];

Third, the impairment of the [data] [program] [system] [information] resulted in [losses to one or more individuals totaling at least $5,000 in value at any time during a one-year period beginning [date], and ending [date]] [modification or impairment or potential modification or impairment of one or more individual's medical examination, diagnosis, treatment or care] [physical injury to any person] [a threat to public health or safety]; and

Fourth, the computer damaged was [used exclusively by a financial institution or the United States government] [used in interstate or foreign commerce or communication] [not used exclusively by a financial institution or the United States government, but the defendant's transmission affected the computer's use by or for a financial institution or the United States government].

For a definition of "knowingly" for purposes of the Computer Fraud and Abuse Act, see Comment following Instruction 8.77 (Obtaining Information by Computer–Injurious to the United States or Advantageous to Foreign Nation).

The fourth element covers the requirement of 18 USC 1030(a)(5) that a "protected computer" be affected. This term is defined by 18 USC 1030(e)(2). The second and third elements concern the requirement of 18 USC 1030(a)(5) that "damage" occur. The term "damage" is defined by 18 USC 1030(e)(8). See also S. Rep. No. 104–357, at 11, 1996 WL 492169, at *25 (1996) (purpose of 1030(a)(5) is that persons authorized access to a computer "face criminal liability only if they intend to cause damage." By contrast, those not authorized to access a computer are "punished for any intentional, reckless, or other damage they cause by their trespass.").

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

See Comment following Instruction 8.78 (Obtaining Information by Computer–From Financial Institution or Government Computer) regarding the "intentionally accessing" requirement.

Definitions of the terms "computer," "person," "loss" and "government entity," are found at 9th Cir. Crim. Jury Instr. 8.86A (Computer Fraud & Abuse – Definitions). Use the appropriate definition of "financial institution" as defined by 18 U.S.C. § 1030(e)(4).

While the term "protected computer" is defined by 18 U.S.C. § 1030(e)(2), that term in not used in the elements of this instruction because that definition has been incorporated into the fourth element of the instruction. Accordingly, it may not be necessary to provide a definition of "protected computer" because this instruction does not use that term.

While the term "damage" is defined by 18 U.S.C. § 1030(e)(8), that term is not used in the elements of this instruction because that definition has been incorporated into the second element of the instruction. Accordingly, it may not be necessary to provide a definition of "damage" because this instruction does not use that term.

The fourth element covers the requirement of 18 U.S.C. § 1030(a)(5) that a "protected computer" be affected. This term is defined by 18 U.S.C. § 1030(e)(2). The third element reflects the requirements of 18 U.S.C. § 1030(a)(5)(B). The first and second elements reflects the requirement that reckless damage occur, as defined by 18 U.S.C. § 1030(a)(5)(A)(ii). The term "damage" is defined by 18 U.S.C. § 1030(e)(8). See also S. Rep. No. 104–357, at 11, 1996 WL 492169, at *25 (1996) (purpose of Section 1030(a)(5) is that persons authorized access to a computer "face criminal liability only if they intend to cause damage." By contrast, those not authorized to access a computer are "punished for any intentional, reckless, or other damage they cause by their trespass.").

The defendant is charged in [Count _______ of] the indictment with accessing a computer and recklessly damaging it in violation of Section 1030(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 intentionally accessed a computer without authorization;

Second, as a result of the defendant's access, the defendant recklessly impaired the [integrity] [availability] of [data] [program] [a system] [information];

Third, the impairment of the [data] [program] [system] [information] resulted in [losses to one or more individuals totaling at least $5,000 in value at any time during a one-year period beginning [date], and ending [date]] [modification or impairment or potential modification or impairment of one or more individual's medical examination, diagnosis, treatment or care] [physical injury to any person] [a threat to public health or safety]; and

Fourth, the computer damaged was [used exclusively by a financial institution or the United States government] [used in interstate or foreign commerce or communication] [not used exclusively by a financial institution or the United States government, but the defendant's access affected the computer's use by or for a financial institution or the United States government].

See Comment following Instruction 8.78 (Obtaining Information by Computer–From Financial Institution or Government Computer) regarding the "intentionally accessing" requirement.

See Comment following Instruction 8.82 (Intentional Damage to a Protected Computer) regarding the "protected" computer and the "damage" requirements.

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

See Comment following Instruction 8.77 (Obtaining Information by Computer–Injurious to the United States or Advantageous to Foreign Nation) regarding the "intentionally accessing" requirement.

Definitions of the terms "computer," "person," and "loss" are found at 9th Cir. Crim. Jury Instr. 8.86A (Computer Fraud & Abuse – Definitions). Use the appropriate definition of "financial institution" as defined by 18 U.S.C. § 1030(e)(4).

While the term "protected computer" is defined by 18 U.S.C. § 1030(e)(2), that term is not used in the elements of this instruction because that definition has been incorporated into the fourth element of the instruction. Accordingly, it may not be necessary to provide a definition of "protected computer" because this instruction does not use that term.

While the term "damage" is defined by 18 U.S.C. § 1030(e)(8), that term is not used in the elements of this instruction because that definition has been incorporated into the second element of the instruction. Accordingly, it may not be necessary to provide a definition of "damage" because this instruction does not use that term.

The fourth element covers the requirement of 18 U.S.C. § 1030(a)(5) that a "protected computer" be affected. This term is defined by 18 U.S.C. § 1030(e)(2). The third element reflects the requirements of 18 U.S.C. § 1030(a)(5)(B). The first and second elements reflects the requirement that reckless damage occur, as defined by 18 U.S.C. § 1030(a)(5)(A)(ii). The term "damage" is defined by 18 U.S.C. § 1030(e)(8). See also S. Rep. No. 104–357, at 11, 1996 WL 492169, at *25 (1996) (purpose of Section 1030(a)(5) is that persons authorized access to a computer "face criminal liability only if they intend to cause damage." By contrast, those not authorized to access a computer are "punished for any intentional, reckless, or other damage they cause by their trespass.").

The defendant is charged in [Count _______ of] the indictment with accessing a computer [system] which resulted in its damage in violation of Section 1030(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 intentionally accessed a computer without authorization;

Second, as a result of the defendant's access, the defendant caused the impairment of the [integrity] [availability] of [data] [program] [a system] [information];

Third, the impairment of the [data] [program] [system] [information] resulted in [losses to one or more individuals totaling at least $5,000 in value at any time during a one-year period beginning [date], and ending [date]] [modification or impairment or potential modification or impairment of one or more individual's medical examination, diagnosis, treatment or care] [physical injury to any person] [a threat to public health or safety]; and

Fourth, the computer damaged was [used exclusively by a financial institution or the United States government] [used in interstate or foreign commerce or communication] [not used exclusively by a financial institution or the United States government, but the defendant's access affected the computer's use by or for a financial institution or the United States government].

See Comment following Instruction 8.77 (Obtaining Information by Computer–Injurious to the United States or Advantageous to Foreign Nation) regarding the "intentionally accessing" requirement.

See Comment following Instruction 8.82 (Intentional Damage to a Protected Computer) regarding the "protected" computer and the "damage" requirements.

18 USC 1030(c)(5)(C) is intended to cover "outside hackers into a computer who negligently or accidentally cause damage." S. Rep. No. 104–357, at 10–11, 1996 WL 492169, *25 (1996).

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

The defendant is charged in [Count _______ of] the indictment with trafficking in [a] password[s] or similar information through which a computer may be accessed without authorization, in violation of Section 1030(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 knowingly [transferred to another] [disposed of to another] [and/or] [obtained control of with intent to transfer or dispose of] [a] password[s] or similar information through which a computer may be accessed without authorization;

Second, the defendant acted with the intent to defraud; and

Third, [the defendant's conduct in some way affected commerce between one state and [an]other state[s] or between a state or the United States and a foreign country] [or] [the computer was used by or for the government of the United States].

For a definition of "knowingly" for purposes of the Computer Fraud and Abuse Act, see Comment following Instruction 8.77 (Obtaining Information by Computer–Injurious to the United States or Advantageous to Foreign Nation).

For a definition of "intent to defraud," see Comment following Instruction 8.81 (Computer Fraud–Use of "Protected" Computer).

For a definition of "traffic," see 18 USC 1029(e)(5).

While not defined by the Computer Fraud and Abuse Act, the Senate Committee reporting the legislation noted that it should be "clear that 'password' ... does not mean only a single word that enables one to access a computer. The Committee recognizes that a 'password' may actually be comprised of a set of instructions or directions for gaining access to a computer and intends that the word 'password' be construed broadly enough to encompass both single words and longer more detailed explanations on how to access others' computers." S. Rep. No. 99–432, at 13 (1986), reprinted in 1986 U.S.C.C.A.N. 2479, 2491.

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

The second element covers the requirement of 18 U.S.C. § 1030(a)(5) that a "protected computer" be affected. This term is defined by 18 U.S.C. § 1030(e)(2).

The third element places the definition of "person," as found in 18 U.S.C. § 1030(e)(12), into the element set out by 18 U.S.C. § 1030(a)(7) that the defendant act "with intent to extort from any person any money or other thing of value."

Definitions for the terms "computer," and "government entity," are taken from 18 U.S.C. § 1030(e)(1) & (12), respectively. For definition of "financial institution" see 18 U.S.C. § 1030(e)(4).

The defendant is charged in [Count _______ of] the indictment with transmitting a threat to damage a computer, in violation of Section 1030(a)(7) 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 beyond a reasonable doubt:

First, the defendant transmitted in interstate or foreign commerce a communication containing any threat to cause damage to a computer;

Second, the defendant threatened to damage a computer that was [used exclusively by a financial institution or the United States government] [used in interstate or foreign commerce or communication] [not used exclusively by a financial institution or the United States government, but the defendant's transmission affected the computer's use by or for a financial institution or the United States government]; and

Third, the defendant acted with intent to extort money or any other thing of value from any person, firm, association, educational institution, financial institution, government entity or other legal entity.

The second element covers the requirement of 18 USC 1030(a)(5) that a "protected computer" be affected. This term is defined by 18 USC 1030(e)(2).

18 USC 1030(a)(7) covers "computer-age blackmail" involving any "interstate or international transmission of threats against computers, computer networks, and their data and programs whether the threat is received by mail, a telephone call, electronic mail, or through a computerized messaging service." S. Rep. No. 104–357, at 12, 1996 WL 492169, at *29 (1996).

The threats proscribed by Section 1030(a)(7) include those to interfere "in any way with the normal operation of the computer or system ... such as denying access to authorized users, erasing or corrupting data or programs, slowing down the operation of the computer or system, or encrypting data and then demanding money for the key." Id.

For definitions of "financial institution" and "government entity," see 18 USC 1030(e).

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

8.86A Computer Fraud and Abuse Act–Definitions 

(18 USC 1030(e))

For purposes of [instruction [insert instruction number]] [these instructions], the term[s]:

["computer" means an electronic, magnetic, optical, electrochemical, or other high speed data processing device performing logical, arithmetic, or storage functions, and includes any data storage facility or communications facility directly related to or operating in conjunction with such device, but such term does not include an automated typewriter or typesetter, a portable hand held calculator, or other similar device.]

["damage" means any impairment to the integrity or availability of data, a program, a system, or information.]

["department of the United States" means the legislative or judicial branch of the United States Government or one of the executive departments.]

["exceeds authorized access" means to access a computer with authorization and to use such access to obtain or alter information in the computer that the accesser is not entitled so to obtain or alter.]

["financial record" means information derived from any record held by a financial institution pertaining to a customer’s relationship with the financial institution.]

["government entity" includes the Government of the United States, any State or political subdivision of the United States, any foreign country, and any state, province, municipality, or other political subdivision of a foreign country.]

["loss" means any reasonable cost to any victim, including the cost of responding to an offense, conducting a damage assessment, and restoring the data, program, system, or information to its condition prior to the offense, and any revenue lost, cost incurred, or other consequential damages incurred because of interruption of service.]

["person" means any individual, firm, corporation, educational institution, financial institution, governmental entity, or legal or other entity.]

Comment

These definitions are derived from:

The Computer Fraud and Abuse Act also provides definitions for the terms "protected computer" (18 U.S.C. § 1030(e)(2)), "State" (18 U.S.C. § 1030(e)(3)), "financial institution" (18 U.S.C. § 1030(e)(4)), and "conviction" (18 U.S.C. § 1030(e)(10)), but these terms are not defined here because the instructions were written to incorporate those concepts, but not to use that particular terminology.

Approved 6/2004 

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

The defendant is charged in [Count _______ of] the indictment with concealing a person from arrest in violation of Section 1071 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, a warrant had been issued for the arrest of [person];

Second, the defendant knew that a warrant had been issued for the arrest of [person]; and

Third, the defendant knowingly concealed [person] with the intent to prevent arrest.

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

The defendant is charged in [Count _______ of] the indictment with concealing an escaped prisoner in violation of Section 1072 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, [prisoner] escaped from [the custody of [e.g., a Deputy U.S. Marshal]] [a federal penal or correctional institution]; and

Second, the defendant thereafter knowingly [[harbored] [concealed]] [prisoner].

A defendant is in "federal custody" for the purposes of this statute if he or she is confined under the authority of the Attorney General. It does not matter that the prisoner is not physically confined in a federal institution, nor that actual federal officials supervise custody. United States v. Eaglin, 571 F.2d 1069, 1072-73 (9th Cir. 1977).

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

The defendant is charged in [Count _______ of] the indictment with murder in the first degree in violation of Section 1111 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 unlawfully killed [victim];

Second, the defendant killed [victim] with malice aforethought;

Third, the killing was premeditated; and

Fourth, the killing occurred at [location stated in indictment].

To kill with malice aforethought means to kill either deliberately and intentionally or recklessly with extreme disregard for human life.

Premeditation means with planning or deliberation. The amount of time needed for premeditation of a killing depends on the person and the circumstances. It must be long enough, after forming the intent to kill, for the killer to have been fully conscious of the intent and to have considered the killing.

The elements for first degree murder are discussed in United States v. Free, 841 F.2d 321, 325 (9th Cir. 1988) ("The essential elements of first-degree murder are: (1) the act . . . of killing a human being; (2) doing such act . . . with malice aforethought; and (3) doing such act . . . with premeditation."); United States v. Warren, 984 F.2d 325, 327 (9th Cir. 1993) (locus of offense is issue for jury).

Whether the crime alleged occurred at a particular location is a question of fact. Whether the location is within the special maritime and territorial jurisdiction of the United States or a federal prison is a question of law. See United States v. Gipe, 672 F.2d 777, 779 (9th Cir. 1982).

In United States v. Houser, 130 F.3d 867, 872 (9th Cir. 1997), the Ninth Circuit approved the use of a jury instruction which defined malice aforethought as "either deliberately and intentionally or recklessly with extreme disregard for human life."

This instruction is only for situations where no special circumstances (poison, lying in wait, arson, rape, burglary, robbery, etc.) are charged in the indictment so as to constitute felony murder.

If there is evidence that the defendant acted in self-defense or with some other justification or excuse, a fifth element may be added. For example, "Fifth, the defendant did not act in self-defense," as is appropriate.

Killing with "extreme disregard" refers not only to acts endangering the public at large, but also to acts directed solely to the person killed. United States v. Houser, 130 F.3d 867, 890 (9th Cir. 1997). In addition, extreme caution should be exercised regarding the "troublesome issue" of providing a permissive inference instruction on malice aforethought. Id. at 869-71.

The trial judge may be obligated to give an instruction on involuntary manslaughter in a murder case even when the defense does not offer the instruction. In United States v. Anderson, ___ F.3d ___, 2000 WL 52461 (9th Cir. 2000), the court of appeals concluded it was plain error for the court not to instruct the jury on involuntary manslaughter, even though the defendant had not requested such an instruction, because there was evidence in the record to support the theory that the killing was accidental. According to the court of appeals, "[e]ven when the evidence is conflicting, if any construction of the evidence and testimony would rationally support a jury's conclusion that the killing was unintentional or accidental, an involuntary manslaughter instruction must be given. When the defendant maintains that the killing was unintentional, the instruction is necessary even when there is also testimony by others that the defendant stated his intention to kill the deceased."

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

The defendant is charged in [Count _______ of] the indictment with murder in the second degree in violation of Section 1111 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 unlawfully killed [victim];

Second, the defendant killed [victim] with malice aforethought; and

Third, the killing occurred at [location stated in indictment].

To kill with malice aforethought means to kill either deliberately and intentionally or recklessly with extreme disregard for human life.

See Comment following Instruction 8.89 (Murder–First Degree). Because the difference between first and second degree murder is the element of premeditation, United States v. Quintero, 21 F.3d 885, 890 (9th Cir. 1994), most comments to Instruction 8.89 (Murder–First Degree) are applicable to second degree murder.

This instruction is derived from several sources. It is primarily based upon Ornelas v. United States, 236 F.2d 392, 394 (9th Cir. 1956) (defendant could be convicted of second degree at most, when premeditation not part of murder charge). See also Quintero, 21 F.3d at 890. In addition, the standard of malice was approved in United States v. Houser, 130 F.3d 867, 871 (9th Cir. 1997) (in second degree murder prosecution, malice aforethought means "to kill either deliberately and intentionally or recklessly with extreme disregard for human life"). That a jurisdiction element is necessary is suggested by United States v. Warren, 984 F.2d 325, 327 (9th Cir. 1993). The necessity for an additional element if a defense is raised is considered in United States v. Lesina, 833 F.2d 156, 160 (9th Cir. 1987) (when defendant raised defense of accident to second degree murder charge, government bore burden of proving lack of heat of passion).

If there is evidence that the defendant acted in self-defense, a fourth element should be added. For example, "fourth, the defendant did not act in self-defense."

Evidence that the defendant acted upon a sudden quarrel or heat of passion "acts in the nature of a defense to the murder charge . . . . Once such evidence is raised, the burden is on the government to prove . . . the absence of sudden quarrel or heat of passion before a conviction for murder can be sustained." United States v. Quintero, 21 F.3d 885, 890 (9th Cir. 1994). The following language might be added to address such circumstances:

The defendant claims to have acted in sudden quarrel or in the heat of passion caused by adequate provocation, and therefore without malice aforethought. Heat of passion may be provoked by fear, rage, anger or terror. Provocation, in order to be adequate, must be such as might arouse a reasonable and ordinary person to kill someone.

In order to show that the defendant acted with malice aforethought, the government must prove the absence of heat of passion beyond a reasonable doubt.

The heat of passion standard set forth in the above paragraph is suggested by United States v. Roston, 986 F.2d 1287, 1291 (9th Cir. 1993) (quoting United States v. Wagner, 834 F.2d 1475, 1487 (9th Cir. 1987). But see Roston, 986 F.2d at 1294 (concurring view on how the standard articulated in Roston may differ from the standard used in earlier versions of the circuit instructions).

The circuit has recently noted that heat of passion is not the only condition which might serve as a defense to a murder charge and reduce the offense to manslaughter. In Kleeman v. United States Parole Commission, 125 F.3d 725 (9th Cir. 1997), the circuit suggested that an "extremely irrational and paranoid state of mind which severely impairs a defendant's capacity for self control" may also negate the malice attached to an intentional killing. If such a defense is raised, it may be appropriate to instruct the jury regarding the effect of such a theory.

In Warren, 984 F.2d at 330, the Ninth Circuit found that an instruction similar to Instruction 8.89 (Murder–First Degree), particularly its treatment of the premeditation element, focused "on the nature of 'premeditation' rather than upon what must be premeditated . . . ." Accordingly, the appellate court concluded that if the jury indicates confusion about what must be premeditated, the judge should provide a direct answer to their question.

Manslaughter is a lesser included offense within second degree murder. United States v. Celestine, 510 F.2d 457, 460 (9th Cir. 1975). Second degree murder is reduced to voluntary manslaughter if the unlawful killing is done upon a sudden quarrel or in the heat of passion caused by adequate provocation. United States v. Roston, 986 F.2d 1287, 1290-91 (9th Cir. 1993).

Whether the crime alleged occurred at a particular location is a question of fact. Whether the location is within the special maritime and territorial jurisdiction of the United States or a federal prison is a question of law. See United States v. Gipe, 672 F.2d 777, 779 (9th Cir. 1982).

The trial judge may be obligated to give an instruction on involuntary manslaughter in a murder case even when the defense does not offer the instruction. In United States v. Anderson, ___ F.3d ___ , 2000 WL 52461 (9th Cir. 2000), the court of appeals concluded it was plain error for the court not to instruct the jury on involuntary manslaughter, even though the defendant had not requested such an instruction, because there was evidence in the record to support the theory that the killing was accidental. According to the court of appeals, "[e]ven when the evidence is conflicting, if any construction of the evidence and testimony would rationally support a jury's conclusion that the killing was unintentional or accidental, an involuntary manslaughter instruction must be given. When the defendant maintains that the killing was unintentional, the instruction is necessary even when there is also testimony by others that the defendant stated his intention to kill the deceased."

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

The defendant is charged in [Count _______ of] the indictment with voluntary manslaughter in violation of Section 1112 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 unlawfully killed [victim];

Second, while in a sudden quarrel or heat of passion, caused by adequate provocation:

a) the defendant intentionally killed [victim]; or

b) the defendant killed [victim] recklessly with extreme disregard for human life; and

Third, the killing occurred at [location stated in indictment].

Heat of passion may be provoked by fear, rage, anger or terror. Provocation, in order to be adequate, must be such as might arouse a reasonable and ordinary person to kill someone.

Comment

The United States Code defines manslaughter as an "unlawful killing of a human being without malice." 18 USC 1112. Such killing is voluntary manslaughter when it occurs "[u]pon a sudden quarrel or heat of passion." Id. However, noting tension between the common law and the boundaries of these statutory definitions, the circuit suggested that courts have leeway to reconcile the "apparent language" of the statute with the common law of homicide. See United States v. Quintero, 21 F.3d 885, 890-91 (9th Cir. 1994) (intent without malice, not heat of passion was essential element of voluntary manslaughter, despite "apparent" statutory language). But see United States v. Paul, 37 F.3d 496, 499 n.1 (9th Cir. 1994) (suggesting language from Quintero that intent to kill is necessary element of voluntary manslaughter is dicta; while most voluntary manslaughter cases involve intent to kill, it is possible that a defendant who killed unintentionally but recklessly with extreme disregard for human life may have acted in a heat of passion with adequate provocation, so as to commit voluntary manslaughter).

Regardless of whether the mental state of a defendant was to kill intentionally or to kill with extreme recklessness, the circuit has explained that acting under a heat of passion serves to negate the malice that otherwise would attach to an intentional or extremely reckless killing. Untied States v. Roston, 986 F.2d 1287, 1291 (9th Cir. 1993) (defendant's showing of heat of passion is said to negate the presence of malice); Paul, 37 F.3d at 499 n.1 (finding of heat of passion and adequate provocation negates the malice that would otherwise attach if a defendant killed with the mental state required for murder–intent to kill or extreme recklessness–so that it would not be murder but manslaughter); United States v. Quintero, 21 F.3d at 890-91 (sudden quarrel or heat of passion are not essential elements of voluntary manslaughter, but may demonstrate that the defendant acted without malice).

Heat of passion is not the only condition which might serve as a defense to a murder charge and reduce the offense to manslaughter. In Kleeman v. United States Parole Commission, 125 F.3d 725 (9th Cir. 1997), the circuit suggested that an "extremely irrational and paranoid state of mind which severely impairs a defendant's capacity for self control" may also negate the malice attached to an intentional killing.

If there is evidence that the defendant acted in self-defense, a fourth element should be added. For example, "fourth, the defendant did not act in self-defense."

If there is evidence of justification or excuse, the following language should be added: "A killing is unlawful within the meaning of this instruction if it was [not justifiable] [not excusable] [neither justifiable nor excusable]."

The heat of passion standard found in the last paragraph of this instruction was suggested by Roston, 986 F.2d at 1291.

Manslaughter is a lesser included offense within second degree murder. United States v. Celestine, 510 F.2d 457 (9th Cir. 1975). Second degree murder is reduced to voluntary manslaughter if the unlawful killing is done upon a sudden quarrel or heat of passion caused by adequate provocation. See United States v. Quintero, 21 F.3d at 890-91, regarding the government's burden on voluntary manslaughter as a lesser included offense.

Whether the crime alleged occurred at a particular location is a question of fact. Whether the location is within the special maritime and territorial jurisdiction of the United States or a federal prison is a question of law. See United States v. Gipe, 672 F.2d 777, 779 (9th Cir. 1982).

The trial judge may be obligated to give an instruction on involuntary manslaughter in a murder case even when the defense does not offer the instruction. In United States v. Anderson, ___ F.3d ___, 2000 WL 52461 (9th Cir. 2000), the court of appeals concluded it was plain error for the court not to instruct the jury on involuntary manslaughter, even though the defendant had not requested such an instruction, because there was evidence in the record to support the theory that the killing was accidental. According to the court of appeals, "[e]ven when the evidence is conflicting, if any construction of the evidence and testimony would rationally support a jury's conclusion that the killing was unintentional or accidental, an involuntary manslaughter instruction must be given. When the defendant maintains that the killing was unintentional, the instruction is necessary even when there is also testimony by others that the defendant stated his intention to kill the deceased."

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

The defendant is charged in [Count _______ of] the indictment with involuntary manslaughter in violation of Section 1112 of Title 18 of the United States Code. [Involuntary manslaughter is the unlawful killing of a human being without malice aforethought and without an intent to kill.] 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 an unlawful act not amounting to a felony, or committed a lawful act, done either in an unlawful manner or with wanton or reckless disregard for human life, which might produce death;

Second, the defendant's act was the proximate cause of the death of the victim. A proximate cause is one which played a substantial part in bringing about the death, so that the death was the direct result or a reasonably probable consequence of the defendant's act;

Third, the killing was unlawful;

Fourth, the defendant either knew that such conduct was a threat to the lives of others or knew of circumstances that would reasonably cause the defendant to foresee that such conduct might be a threat to the lives of others; and

Fifth, the killing occurred at [location stated in indictment].

See United States v. Main, 113 F.3d 1046, 1049 (9th Cir.1997) (criticizing 1992 version of Ninth Circuit Model Criminal Jury Instruction 8.92 (Involuntary Manslaughter) (then titled 8.24D)); United States v. Shortman, 91 F.3d 80, 82 (9th Cir.1996); United States v. Paul, 37 F.3d 496, 499 (9th Cir.1994).

The trial judge may be obligated to give an instruction on involuntary manslaughter in a murder case even when the defense does not offer the instruction. In United States v. Anderson, ___ F.3d ___, 2000 WL 52461 (9th Cir. 2000), the court of appeals concluded it was plain error for the court not to instruct the jury on involuntary manslaughter, even though the defendant had not requested such an instruction, because there was evidence in the record to support the theory that the killing was accidental. According to the court of appeals, "[e]ven when the evidence is conflicting, if any construction of the evidence and testimony would rationally support a jury's conclusion that the killing was unintentional or accidental, an involuntary manslaughter instruction must be given. When the defendant maintains that the killing was unintentional, the instruction is necessary even when there is also testimony by others that the defendant stated his intention to kill the deceased."

While the fourth element is not in the statute, it is required by United States v. Keith, 605 F.2d 462, 463 (9th Cir.1979).

Use the bracketed language if you are giving this instruction as a lesser included offense.

If there is evidence of justification or excuse, the following language should be included:

"A killing is unlawful within the meaning of this instruction if it was [not justifiable] [not excusable] [neither justifiable nor excusable]."

Whether the crime alleged occurred at a particular location is a question of fact. Whether the location is within the special maritime and territorial jurisdiction of the United States or a federal prison is a question of law. See United States v. Gipe, 672 F.2d 777, 779 (9th Cir. 1982).

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

The defendant is charged in [Count __________ of] the indictment with attempted murder in violation of Section 1113 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 did something that was a substantial step toward killing [intended victim], with all of you agreeing as to what constituted the substantial step; and

Second, when the defendant took that substantial step, the defendant intended to kill [intended victim].

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

See Instruction 7.9 (Specific Issue Unanimity).

See Braxton v. United States, 500 U.S. 344, n.351 (1991) ("Although a murder may be committed without an intent to kill, an attempt to commit murder requires a specific intent to kill." (citing 4 C. Torcia, Wharton's Criminal Law § 743, p. 572 (14th ed. 1982).) Although one acting "recklessly with extreme disregard for human life" can be convicted of murder if a killing results (see Instruction 8.89 (Murder–First Degree) and 8.90 (Murder–Second Degree)), that same recklessness cannot support a conviction of attempted murder if, fortuitously, no one is killed. See United States v. Kwong, 14 F.3d 189, 194-95 (2nd Cir. 1994) (under 18 USC 1113, attempted murder conviction requires proof of specific intent to kill; recklessness and wanton conduct, grossly deviating from a reasonable standard of care such that defendant was aware of the serious risk of death, would not suffice as proof of an intent to kill.).

See United States v. Snell, 627 F.2d 186, 187 (9th Cir. 1990) (attempt liability requires that the "substantial step towards commission of the crime . . . strongly corroborate[] that intent" to commit the crime).

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

If a defendant is charged with murder, manslaughter, attempted murder, or attempted manslaughter of an officer or employee of the United States in violation of 18 USC 1114, the appropriate murder instruction (8.89, Murder–First Degree or 8.90, Murder–Second Degree), manslaughter instruction (8.91, Manslaughter–Voluntary or 8.92, Involuntary Manslaughter) or attempted murder instruction (8.93, Attempted Murder) should be used but modified to require the jury to find that the victim was a federal officer or employee. The fourth element of Instruction 8.89 (Murder–First Degree) is not necessary here.

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

The defendant is charged in [Count _______ of] the indictment with kidnapping in violation of Section 1201(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 [kidnapped] [seized] [confined] [kidnapped person];

Second, the defendant held [kidnapped person] for ransom, reward or other benefit; and

Third, the defendant intentionally transported [kidnapped person] across state lines.

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

The defendant is charged in [Count _______ of] the indictment with kidnapping [kidnapped person] within the special maritime and territorial jurisdiction of the United States in violation of Section 1201(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 [[kidnapped] [seized] [confined]] [kidnapped person] within [special maritime or territorial jurisdiction]; and

Second, the defendant held [kidnapped person] for ransom, reward or other benefit.

"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).

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

The defendant is charged in [Count _______ of] the indictment with kidnapping [a foreign official] [an internationally protected person] [an official guest] in violation of Section 1201(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 [seized] [confined] [kidnapped] [kidnapped person];

Second, [kidnapped person] was [e.g., the Prime Minister of Canada]; and

Third, the defendant held [kidnapped person] for ransom, reward or other benefit.

"Foreign official," "internationally protected person," and "official guest" are defined in 18 USC 1116(b).

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

The defendant is charged in [Count _______ of] the indictment with kidnapping a federal officer or employee in violation of Section 1201(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 [seized] [confined] [kidnapped] [kidnapped person];

Second, at the time [kidnapped person] was [federal office or employment position];

Third, the defendant acted while [kidnapped person] was engaged in, or on account of, the performance of official duties; and

Fourth, the defendant held [kidnapped person] for ransom, reward or other benefit.

Federal officers or employees who may be the victim of a kidnapping are listed in 18 USC 1114.

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

The defendant is charged in [Count _______ of] the indictment with attempting to kidnap [a foreign official] [an official guest] [an internationally protected person] in violation of Section 1201(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 intended to [seize] [confine] [kidnap] and hold [a foreign official] [an official guest] [an internationally protected person] for ransom, reward or other benefit; and

Second, the defendant did something that 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.

See Comment following Instruction 8.97 (Kidnapping Foreign Official or Official Guest).

See Instruction 7.9 (Specific Issue Unanimity).

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

The defendant is charged in [Count _______ of] the indictment with attempting to kidnap a federal officer or employee in violation of Section 1201(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 intended to [seize] [confine] [kidnap] and to hold a federal officer, on account of or during the performance of official duties, for ransom, reward or other benefit; and

Second, the defendant did something that 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.

See Comment following Instruction 8.98 (Kidnapping Federal Officer or Employee).

See Instruction 7.9 (Specific Issue Unanimity).