9^TH CIRCUIT MODEL INSTRUCTIONS 2000
(Includes Additions and Revisions Through 2007)
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        9.31     Firearms--Possession Of Unregistered Firearm (26 USC 5861(d))
        9.32     Firearms--Destructive Devices--Component Parts (26 USC 5861(d))
        9.33     Firearms--Evidence Of No Registration
        9.34     Firearms--Possession Without Serial Number (26 USC 5861(I))
        9.35     Income Tax Evasion (26 USC 7201)
        9.36     Failure To Pay Tax Or File Tax Return (26 USC 7203)
        9.37     Filing False Tax Return (26 USC 7206(1))
        9.38     Aiding Or Advising False Income Tax Return (26 USC 7206(2))
        9.39     Filing False Tax Return (26 USC 7207)
        9.40     Forcible Rescue Of Seized Property (26 USC 7212(b))
        9.41     Failure To Report Exporting Or Importing Monetary Instruments (31 USC 5316(a))

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

The defendant is charged in [Count _______ of] the indictment with possession of an unregistered firearm in violation of Section 5861(d) of Title 26 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 [e.g., a shotgun having a barrel or barrels of less than 18 inches in length]; and

Second, the [firearm] was not registered to the defendant in the National Firearms Registration and Transfer Record.

For a definition of "firearm," see 26 USC 5845(a).

The government must prove that the defendant knew of those features which brought the firearm within the scope of the statute. See Staples v. United States, 511 U.S. 600, 619 (1994) ("to obtain a conviction, the Government should have been required to prove that petitioner knew of the features of his AR-15 that brought it within the scope of the Act"). See also United States v. Gergen, 172 F.3d 719, 724 (9th Cir. 1999) (mens rea requirement that the defendant know of the particular characteristics of the firearm which bring it within the scope of the statute is "an essential element of a § 5861(d) violation).

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

The defendant is charged in [Count _______ of] the indictment with possession of an unregistered firearm—specifically, components from which a destructive device such as a bomb, grenade or mine can be readily assembled—in violation of Section 5861(d) of Title 26 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 components that could be readily assembled into a destructive device such as a bomb, grenade or mine;

Second, the defendant intended to use the components as a weapon; and

Third, the components were not registered to the defendant in the National Firearms Registration and Transfer Record.

The statutory definition of "destructive device" includes "any combination of parts either designed or intended for use in converting any device into a destructive device ... and from which a destructive device may be readily assembled." 26 USC 5845(f). For unassembled components to qualify as a "firearm" there must be proof beyond a reasonable doubt that the components were intended for use as a weapon. United States v. Fredman, 833 F.2d 837, 839 (9th Cir.1987).

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

The defendant is charged in [Count _______ of] the indictment with possession of a firearm without a serial number in violation of Section 5861(i) of Title 26 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 a [firearm]; and

Second, there was no serial number on the [firearm].

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

For a definition of "firearm," see 26 USC 5845(a).

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

The defendant is charged in [Count _______ of] the indictment with income tax evasion in violation of Section 7201 of Title 26 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 owed more federal income tax for the calendar year [specify year] than was declared due on the defendant's income tax return;

Second, the defendant knew that more federal income tax was owed than was declared due on the defendant's income tax return;

Third, the defendant made an affirmative attempt to evade or defeat an income tax; and

Fourth, in attempting to evade or defeat such additional tax, the defendant acted willfully.

Comment

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

The elements of tax evasion are stated in United States v. Mal, 942 F.2d 682, 685 (9th Cir.1991).

Sections 7201–7207 of the tax code use the term "willfully." In Cheek v. United States, 498 U.S. 192, 201 (1991), the Supreme Court set forth the following definition: "Willfulness, as construed by our prior decisions in criminal tax cases, requires the Government to prove that the law imposed a duty on the defendant, that the defendant knew of this duty, and that he voluntarily and intentionally violated that duty." This same definition applies equally to all tax offenses, misdemeanors and felonies alike. United States v. Pomponio, 429 U.S. 10, 12 (1976) (citing United States v. Bishop, 412 U.S. 346, 359–60 (1973)).

The government has the burden of "negating a defendant's claim of ignorance of the law or a claim that because of a misunderstanding of the law, he had a good-faith belief that he was not violating any of the provisions of the tax laws." Cheek, 498 U.S. at 202. Such belief need not be reasonable; subjective good faith is sufficient for the defendant to prevail. Id.; United States v. Powell, 955 F.2d 1206, 1208 (9th Cir.1991). If there is evidence that the defendant had a good faith belief that he was not violating the provisions of the tax laws, add the following element to the government's burden of proof: "Fourth, the defendant did not have a good faith belief that [he] [she] was complying with the provisions of [the tax laws] [applicable provision of the tax laws]. A belief may be in good faith even if it is unreasonable."

Willfulness is a state of mind that may be established by evidence of fraudulent acts. United States v. Voorhies, 658 F.2d 710, 715 (9th Cir.1981); United States v. Conforte, 624 F.2d 869, 875 (9th Cir.), cert. denied, 449 U.S. 1012 (1980).

The tax deficiency need not be "substantial." United States v. Marashi, 913 F.2d 724, 735 (9th Cir.1990).

A defendant accused of tax evasion is not entitled to a lesser included offense instruction based on Section 7203 where the act constituting evasion was the filing of a false return. Sansone v. United States, 380 U.S. 343 (1965). However, where the evidence supports beyond a reasonable doubt a willful failure to pay tax but does not support beyond a reasonable doubt that the defendant acted with the specific intent to evade payment, the defendant may be found guilty of the lesser Section 7203 offense. United States v. DeTar, 832 F.2d 1110, 1113 (9th Cir.1987). For the instruction on lesser included offense, see Instruction 3.15 (Lesser Included Offense).

"[T]he statute of limitations for evasion of assessment begins to run from the occurrence of the last act necessary to complete the offense, normally, a tax deficiency." United States v. Carlson, 235 F.3d 466, 470 (9th Cir. 2000) (citations omitted) ("While it might have been preferable to instruct the jury that at least part of [defendant's] conduct must fall within the statute of limitations," failure to do so did not constitute reversible error on the facts presented). Id. at 471.

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2000 Version

The defendant is charged in [Count _______ of] the indictment with income tax evasion in violation of Section 7201 of Title 26 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 owed more federal income tax for the calendar year [specify year] than was declared due on the defendant's income tax return;

Second, the defendant knew that more federal income tax was owed than was declared due on the defendant's income tax return;

Third, the defendant made an affirmative attempt to evade or defeat an income tax; and

Fourth, in attempting to evade or defeat such additional tax, the defendant acted willfully.

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

The elements of tax evasion are stated in United States v. Mal, 942 F.2d 682, 685 (9th Cir.1991).

Sections 7201–7207 of the tax code use the term "willfully." In Cheek v. United States, 498 U.S. 192, 201 (1991), the Supreme Court set forth the following definition: "Willfulness, as construed by our prior decisions in criminal tax cases, requires the Government to prove that the law imposed a duty on the defendant, that the defendant knew of this duty, and that he voluntarily and intentionally violated that duty." This same definition applies equally to all tax offenses, misdemeanors and felonies alike. United States v. Pomponio, 429 U.S. 10, 12 (1976) (citing United States v. Bishop, 412 U.S. 346, 359–60 (1973)).

The government has the burden of "negating a defendant's claim of ignorance of the law or a claim that because of a misunderstanding of the law, he had a good-faith belief that he was not violating any of the provisions of the tax laws." Cheek, 498 U.S. at 202. Such belief need not be reasonable; subjective good faith is sufficient for the defendant to prevail. Id.; United States v. Powell, 955 F.2d 1206, 1208 (9th Cir.1991). If there is evidence that the defendant had a good faith belief that he was not violating the provisions of the tax laws, add the following element to the government's burden of proof: "Fourth, the defendant did not have a good faith belief that [he] [she] was complying with the provisions of [the tax laws] [applicable provision of the tax laws]. A belief may be in good faith even if it is unreasonable."

Willfulness is a state of mind that may be established by evidence of fraudulent acts. United States v. Voorhies, 658 F.2d 710, 715 (9th Cir.1981); United States v. Conforte, 624 F.2d 869, 875 (9th Cir.), cert. denied, 449 U.S. 1012 (1980).

The tax deficiency need not be "substantial." United States v. Marashi, 913 F.2d 724, 735 (9th Cir.1990).

A defendant accused of tax evasion is not entitled to a lesser included offense instruction based on Section 7203 where the act constituting evasion was the filing of a false return. Sansone v. United States, 380 U.S. 343 (1965). However, where the evidence supports beyond a reasonable doubt a willful failure to pay tax but does not support beyond a reasonable doubt that the defendant acted with the specific intent to evade payment, the defendant may be found guilty of the lesser Section 7203 offense. United States v. DeTar, 832 F.2d 1110, 1113 (9th Cir.1987). For the instruction on lesser included offense, see Instruction 3.15 (Lesser Included Offense).

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

The defendant is charged in [Count _______ of] the indictment with failure [to pay tax] [to file a tax return] in violation of Section 7203 of Title 26 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 [owed income tax] [had a gross income of more than [dollar amount]] for the calendar year ending December 31, [year];

Second, the defendant failed to [pay the tax] [file an income tax return] by April 15, [year]; and

Third, the defendant acted for the purpose of evading [his] [her] duty under the tax laws and not as a result of accident or negligence.

See Comment following Instruction 9.35 (Income Tax Evasion).

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

The defendant is charged in [Count _______ of] the indictment with filing a false tax return in violation of Section 7206(1) of Title 26 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 and signed a tax return for the year [year] that he knew contained false information as to a material matter;

Second, the return contained a written declaration that it was being signed subject to the penalties of perjury; and

Third, in filing the false tax return, the defendant acted willfully.

The false information was material if it had a natural tendency to influence or was capable of influencing or affecting the ability of the IRS to audit or verify the accuracy of the tax return or a related return. See United States v. Gaudin, 515 U.S. 506, 509 (1995) (material statement has a "natural tendency to influence, or [be] capable of influencing, the decision of the decision making body to which it was addressed") (quoting Kungys v. United States, 485 U.S. 759, 770 (1988)); United States v. Greenberg, 735 F.2d 29, 31 (2nd Cir.1984); United States v. Fawaz, 881 F.2d 259, 263 (6th Cir.1989).

Materiality is a question of fact for the jury. United States v. Uchimura, 125 F.3d 1282, 1284 (9th Cir.1997), cert. denied, 119 S. Ct. 151 (1998).

See Comment to Instruction 9.35 (Income Tax Evasion) regarding willfulness.

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

The defendant is charged in [Count _______ of] the indictment with aiding or advising the preparation of a false income tax return in violation of Section 7206(2) of Title 26 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 assisted or advised [person] in the preparation of an income tax return that was false; and

Second, the return was false as to something necessary to a determination of whether income tax was owed.

A person acts "willfully" by voluntarily and intentionally assisting or advising another to do something that the person knows disobeys or disregards the law. [A person does not act "willfully" if the person acts as a result of a good faith misunderstanding of the requirements of the law.]

The government is not required to prove that the taxpayer knew that the return was false.

[It is not a defense that the defendant believed the income tax laws are wrong or unconstitutional.]

See Comment following Instruction 9.35 (Income Tax Evasion).

To establish aiding the filing of a false tax return, "there must exist some affirmative participation which at least encourages the perpetrator." United States v. Graham, 758 F.2d 879, 885 (3d Cir.), cert. denied, 474 U.S. 901 (1985). There is an exception to the "willfulness" element for a good faith misunderstanding of the law. United States v. Callery, 774 F.2d 1456, 1458 (9th Cir.1985). See also Cheek v. United States, 498 U.S. 192, 202 (1991); Richey v. United States, 9 F.3d 1407 (9th Cir. 1993) (subjective good faith is sufficient). However, there is a distinction between misunderstanding the requirements of the law and believing that a law is unconstitutional or wrong. A belief that the law that includes wages in income is wrong or unconstitutional does not negate willfulness. United States v. Mueller, 778 F.2d 539, 541 (9th Cir.1985).

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

The defendant is charged in [Count _______ of] the indictment with filing a false tax return in violation of Section 7207 of Title 26 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 filed a tax return knowing that it contained false information as to any material matter; and

Second, the defendant acted for the purpose of evading the defendant's duty under the tax laws and not as a result of accident or negligence.

See Comment following Instruction 9.35 (Income Tax Evasion).

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

The defendant is charged in [Count _______ of] the indictment with forcibly rescuing seized property in violation of Section 7212(b) of Title 26 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, someone authorized to do so under the Internal Revenue Code had seized [property];

Second, defendant knew that the property had been seized by one authorized to do so under the Internal Revenue Code; and

Third, the defendant forcibly retook the property without the consent of the United States.

"Forcibly" is not limited to force against persons, but includes any force that enables the defendant to retake the seized property.

To "forcibly rescue" property is to forcibly retake it. See United States v. Hardaway, 731 F.2d 1138, 1139 (5th Cir.), cert. denied, 469 U.S. 865 (1984).

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

The defendant is charged in [Count _______ of] the indictment with failure to report [exporting] [importing] monetary instruments in violation of Section 5316(a) of Title 31 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] [received] more than $10,000 in [e.g., currency] [from a place in the United States to or through a place outside the United States] [to a place in the United States from or through a place outside the United States];

Second, the defendant knew that a report of the amount transported was required to be filed with the Secretary of Treasury; and

Third, the defendant willfully failed to file such report.

As used in the statute, the word "willful" means that the act was done "deliberately and with knowledge." United States v. Carrier, 654 F.2d 559, 561 (9th Cir.1981). But see Ratzlaf v. United States, 510 U.S. 135, 138–39 (1994) (In the context of 31 USC 5324, the "willfulness" requirement means that the defendant must have known his or her actions were illegal.).