PATTERN CRIMINAL JURY INSTRUCTIONS – FEDERAL JUDICIAL CENTER – 1988
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Part 2    Elements Of Specific Crimes

        A. Title 18 Offenses 

        60     Assaulting A Federal Officer 18 USC 111
        61     Deprivation Of Rights Under Color Of Law (18 USC 242)
        62     Conspiracy 18 USC 371
        63     Withdrawal From Conspiracy
        64     Multiple Conspiracies (Various Principal Offenses)
        65     Counterfeiting 18 USC 471
        66     Passing Counterfeit Obligations Or Securities 18 USC 472
        67     Forgery 18 USC 495
        68     Smuggling 18 USC 545
        69     Theft Of Government Property 18 USC 641
        70     Theft Or Embezzlement By Bank Officer Or Employee 18 USC 656
        71     Theft From Interstate Shipment 18 USC 659
        72     Possession Of Goods Stolen From Interstate Shipment 18 USC 659
        73     Escape 18 USC 751(a)
        74     Instigating Or Assisting Escape 18 USC 752(a)
        75     Threats Against The President 18 USC 871
        76     Mailing Threatening Communications 18 USC 876
        77     Misrepresentation Of Citizenship 18 USC 911
        78     Dealing In Firearms Without A License 18 USC 922(a)(1)
        79     False Statement To A Firearms Dealer 18 USC 922(a)(6)
        80     False Statement To A Federal Agency 18 USC 1001
        81     False Statement In Bank Records 18 USC 1005
        82     False Statement To A Bank 18 USC 1014
        83     Transmission Of Wagering Information 18 USC 1084
        84     Kidnapping 18 USC 1201(a)(1)
        85     Mail Fraud 18 USC 1341
        86     Wire Fraud 18 USC 1343
        87     Mailing Obscene Materials 18 USC 1461
        88     Interstate Transportation Of Obscene Materials 18 USC 1462
        89     Interstate Transportation Of Obscene Materials For Sale Or Distribution 18 USC 1465
        90     Tampering With A Juror (18 USC 1503)
        91     Tampering With A Witness 18 USC 1512(b)
        92     Using A False Visa 18 USC 1546
        93     Involuntary Servitude And Peonage 18 USC 1581, 1584
        94     False Statement Before A Grand Jury 18 USC 1623
        95     Obstruction Of Correspondence 18 USC 1702
        96     Delay Or Destruction Of Mail By Postal Employee 18 USC 1703
        97     Theft Of Mail 18 USC 1708
        98     Unlawful Possession Of Stolen Mail 18 USC 1708
        99     Theft Of Mail By Postal Employee 18 USC 1709
        100   Hobbs Act Extortion--Under Color Of Official Right 18 USC 1951
        101   Travel Act 18 USC 1952(a)(3) & (b)(l)
        102   Interstate Transportation Of Betting Materials 18 USC 1953
        103   Illegal Gambling Business 18 USC 1955
        104   Rico 18 USC 1962
        105   Bank Robbery 18 USC 2113(a), (d)
        106   Interstate Transportation Of A Stolen Vehicle (Dyer Act) 18 USC 2312
        107   Receiving A Stolen Vehicle (Dyer Act) 18 USC 2313
        108   Interstate Transportation Of Stolen Goods 18 USC 2314
        109   Receiving Stolen Goods 18 USC 2315
        110   Bail Jumping 18 USC 3146

PATTERN CRIMINAL JURY INSTRUCTIONS – FEDERAL JUDICIAL CENTER – 1988

See FORECITE National™ Federal Models By Offense: Assaulting A Federal Officer (Without Use Of A Deadly Weapon) (18 USC 111(a)(1))

Footnote 1: Include where the defendant is charred under § 111's deadly or dangerous weapon subsection. If an instruction on a lesser included offense is needed, see Instruction 48. If a gun is used, whether loaded or unloaded, it is apparently a deadly or dangerous weapon as a matter of law. See Mclaughlin v. United States, 106 S.Ct. 1677 (1986).

Footnote 2: This sentence should be omitted when self-defense and no knowledge are raised as a defense.

Section 111 uses the language "Whoever forcibly assaults ... any person designated [as a federal officer] in § 1114." There is no language explicitly requiring that the defendant have known that the person assaulted was a federal officer. United States v. Feola, 420 U.S. 671 (1975), expressly held that the "federal officer" requirement is only jurisdictional and that scienter here is not a necessary element under section 111. "All the statute requires is an intent to assault. not an intent to assault a federal officer." Id. at 684.

The identity of the officer may be at issue in some self-defense cases. For example, in United States v. Young, 464 F.2d 160, 163-64 (5th Cir. 1972), the conviction was reversed for failure to instruct the jury that it could not convict if it found that the defendant acted out of a reasonable belief that FBI agents were strangers who intended to harm the defendant. See also United States v. Danehy, 680 F.2d 1311, 1314-15 (11th Cir. 1982) (reversing for the same reason). These cases, of course, simply state the basic rule that the use of force is not a crime when it is based upon a reasonable belief of a legitimate self-defense claim.

PATTERN CRIMINAL JURY INSTRUCTIONS – FEDERAL JUDICIAL CENTER – 1988

61 Deprivation of Rights under Color of Law (18 USC 242)

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See FORECITE National™ Federal Models By Offense: Deprivation Of Civil Rights (18 USC 242)

The defendant, ___________ is accused of [e.g,: hitting Frank Jones, an inmate at the Stateville Correctional facility]. It is against federal law for a [e.g.. state correctional officer] to violate someone else's rights while carrying out his official duties. For you to find ________ guilty of this crime. You must be convinced that the government has proved each of these things beyond a reasonable doubt:

First, that ______ [hit Frank Jones when Jones was in the Stateville Correctional facility.

Second, that when _______ did this, he intentionally deprived [Jones] of his right [e.g.: to be free from cruel and unusual punishment].

Third, that _______ was acting as a [state correctional officer] and abused or exceeded his authority when the incident happened.

1 Fourth, that [Jones] died as a result of the [assault].

Footnote 1: Include where the defendant is charged with causing the victim's death.

The principally litigated issue in § 42 involves how the jury should be instructed on the scienter element. Section 242 states in part. "Whoever ... willfully subjects any inhabitant ... to the deprivation of any rights." The leading case, Screws v. United States, 325 U.S. 91, 101-07 (1945), held that the term "willfully" in the statute meant a purposeful deprivation of a federal constitutional right, and that failure to instruct accordingly was reversible error. Later cases have made clear that "willfully" must refer to the deprivation of constitutional rights and not merely to wrongful acts or general bad purposes. See, e.g. United States v. Harrison. 671 F.2d 1159, 1161-62 (8th Cir.), cert. denied, 459 U.S. 847 (1982); United States v. Stokes, 506 F.2d 771, 776-77 (5th Cir. 1975); Pullen v. United States, 164 F.2d 756, 759-60 (5th Cir. 1947); United States v. Shafer, 384 F. Supp. 496, 499-503 (N.D. Ohio 1974).

Under § 242's express language, a "deprivation of rights" is a broad concept, encompassing any federal constitutional right, including statutory implementations of such rights and decisions interpreting them. Screws v. United States, 325 U.S. at 104; United States v. Stokes, 506 F.2d at 774-75.

These instructions do not use the statutory term "under color of law." Instead, the defendant's official position is specifically referred to. Where a private citizen is charged as a participant with a public official, the jury must be specifically instructed. See United States v. Price, 383 U.S. 787, 794-96 (1966).

PATTERN CRIMINAL JURY INSTRUCTIONS – FEDERAL JUDICIAL CENTER – 1988

62 Conspiracy (18 USC 371)

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Federal Models By Offense: Conspiracy (Title 18, Chapter 19, Sections 371-373).

The defendants, _________, _______ and _______ are accused of conspiring to [e.g.: sell forged government bonds]. It is against federal law to agree with someone to commit the crime of [selling forged government bonds], even if that crime is never actually committed.

For you to find any of the defendants guilty of the crime of conspiracy, you must be convinced that the government has proved each of these things beyond a reasonable doubt:

First, that [e.g.: during the summer of 1985], an agreement existed between at least two people to commit a federal crime. This does not have to be a formal agreement or plan in which everyone who was involved sat down together and worked out all the details. It is enough that the government prove beyond a reasonable doubt that there was a common understanding among those who were involved to commit the crime of selling forged government bonds]. So the first thing that must be shown is the existence of an agreement.

Second, the government must prove that the defendant intentionally joined in this agreement. Again, it is not necessary to find that he agreed specifically to all the details of the crime. You must consider each defendant separately. (Add if appropriate: Even if any defendant was not part of the agreement at the very start, he can be found guilty of conspiracy if the government proves that he intentionally joined the agreement later.) So the second thing that must be shown is that the defendant was a part of the conspiracy.

1 Third, the government must show that one of the persons involved in the conspiracy did something for the purpose of carrying out the conspiracy. This something is referred to as an overt act. The government must show that one of the persons involved in the conspiracy did one of the overt acts in order to carry out the conspiracy. You will receive a copy of the indictment, which describes the charged overt acts.2

In summary, for any defendant to be convicted of the crime of conspiracy, the government must prove three (two) things beyond a reasonable doubt: First, that [during the summer of 1985], there was an agreement to commit the crime of [selling forged government bonds], second that the defendant intentionally joined in that agreement; and third, that one of the persons involved in the conspiracy did one of the overt acts charged.

Footnote 1: This material should he omitted if no overt act is required (E.g., 18 USC 286, 21 USC 846)

Footnote 2: The trial judge may wish to read the overt acts if the indictment is not given to the jury.

Commentary

Three main goals have influenced the drafting of this instruction (as well as others): to make the charge as straightforward and comprehensible as possible, to tailor the charge to the facts of the case, and to avoid giving the jurors information they do not need to know. As a consequence, this basic conspiracy instruction is stripped of references to such usual points as mere presence, lawful versus unlawful overt acts, and crimes committed in furtherance of the conspiracy. In appropriate cases, further instructions may be necessary.

This beginning conspiracy instruction is designed only to inform the jurors that the government must demonstrate that the defendants purposefully became members of an unlawful conspiracy and -- where needed -- some conspirator committed an act in furtherance of the pact. See Blumenthal v. United States, 332 U.S. 539, 556-57 (1947) (all details need not be known); United States v. Albert, 675 F.2d 712, 715-16 (5th Cir. 1982) (common plan requirement); United States v. Velez, 652 F.2d 258, 261-62 (2d Cir. 1981) (willful membership); United States v. Solis, 612 F.2d 930, 934 (5th Cir. 1980) (criminal intent element).

Formerly, conspiracy instructions advised jurors that they could consider only the acts and statements of each individual conspirator. This statement made sense when the jurisprudence permitted a jury to consider the admissibility of coconspirator acts and declarations. See United States v. Apollo, 476 F.2d 156, 163 (5th Cir. 1973), overruled by United States v. James, 590 F.2d 575, 577-78 (5th Cir.) (en banc), cert. denied, 442- U.S. 917 (1979). Today, however, most courts find that the trial judge determines whether sufficient independent evidence has been offered to show that a statement was made by a conspirator during the course and in furtherance of the conspiracy. See FRE 104, 801(d)(2)(E). At that point the jurors can consider all such statements and circumstantial evidence against the defendant. United States v. Santiago, 582 F.2d 1128, 1130-36 (7th Cir. 1978).

PATTERN CRIMINAL JURY INSTRUCTIONS – FEDERAL JUDICIAL CENTER – 1988

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83.3.11 Conspiracy: Withdrawal As Defense Theory

Federal Models By Offense: Conspiracy (Title 18, Chapter 19, Sections 371-373).

You have heard evidence that _______ withdrew from the conspiracy charged in the indictment before any overt act was committed.1

To withdraw from the conspiracy, _______ must have done something to interfere with the successful completion of [e.g.: the bank robbery] before any overt act was committed. So you may find ___________ guilty only if the government has proved beyond a reasonable doubt that he was a member of the conspiracy at the time an overt act was committed.

Footnote 1: In the statute of limitations situations, the particular overt act at issue must be explained to the jury.

Commentary

Withdrawal is a defense to a conspiracy charge under certain circumstances. If a conspiracy has been formed, a defendant can withdraw only if he does so before an overt act has been committed; once any such overt act is committed, the crime of conspiracy Is complete and the defendant cannot withdraw. United States v. Nicoll, 664 F.2d 1308. 1315-16 (5th Cir.), cert. denied, 457 U.S. 1118 (1982).

While case law on withdrawal is clear where an overt act is required (such as 18 USC 371), there is little case law dealing with conspiracies where no overt act is required (such as 21 U.S.C. 846). Since in the latter situation the crime is complete when the defendant joins a conspiracy, the concept of withdrawal would appear to be inapplicable.

The requirement that the defendant do "something to interfere" with the completion of the conspiracy is used in this instruction because more than mere failure to continue participating in the conspiracy is necessary. "Affirmative acts inconsistent with the object of the conspiracy and communicated in a manner reasonably calculated to reach co-conspirators" may evidence withdrawal. United States v. United States Gypsum Co., 438 U.S. 422, 464-65 (1978). So may "the making of a clean breast to the authorities." United States v. Borelli, 336 F.2d 376, 388 (2d Cir. 1964), cert. denied, 379 U.S. 960 (1965).

The statute of limitations has traditionally been viewed as an affirmative defense to any criminal charge. The statute of limitations begins to run as to a withdrawing conspirator on the date of an effective withdrawal. If the defendant withdraws from a conspiracy that is completed, because an overt act has already been committed or none is required, he is not bound by any later acts of his coconspirators for statute of limitations purposes. However, the defendant is still responsible for the earlier agreement and for any overt acts he or his coconspirators committed before the withdrawal date for purposes of the statute of limitations.

Traditionally, the burden of proving withdrawal has been placed on the defendant, since this was viewed as an affirmative defense. In United States v. Read, 658 F.2d 1225, 1232-36 (7th Cir. 1981), however, the Seventh Circuit held that where a defendant raises withdrawal as an issue, the prosecution has the burden of disproving it. This is because all elements of a conspiracy, including participation within the limitations period, must be proved beyond a reasonable doubt, and because withdrawal is not a true affirmative defense. See also United States v. Greichunos, 572 F.Supp. 220, 226-27 (N.D.Ill.1983).

PATTERN CRIMINAL JURY INSTRUCTIONS – FEDERAL JUDICIAL CENTER – 1988

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83.3.8 Multiple Conspiracy: Defense Theories

Federal Models By Offense: Conspiracy (Title 18, Chapter 19, Sections 371-373).

The defendant, _________ , is accused of agreeing with ________ and ________ to commit the crime of [describe crime]. For you to find _________ guilty of the crime of conspiracy, you must be convinced beyond a reasonable doubt that he intentionally joined in that agreement to commit [describe crime]. It is not enough for you to believe that _________ agreed with other persons to commit some other crime. If you are not convinced beyond a reasonable doubt that _______ became a part of the agreement to commit the crime of [describe crime], you must find ________ not guilty.

This instruction deals with one type of multiple conspiracy problem, agreements to commit various crimes.

PATTERN CRIMINAL JURY INSTRUCTIONS – FEDERAL JUDICIAL CENTER – 1988

65 Counterfeiting (18 USC 471)

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See FORECITE National™ Federal Models By Offense: Counterfeiting (18 USC 471)

The defendant, _________ is accused of making counterfeit money. It is against federal law to make counterfeit money. For you to find ________ guilty of this crime, you must be convinced that the government has proved each of these things beyond a reasonable doubt:

First, that ________ counterfeited [e.g.: Federal Reserve notes].

Second, that ______ did so with intent to defraud, that is, intending that someone would be cheated. (Add if appropriate: It does not matter whether anyone was actually defrauded.)

Commentary

Under § 471 a defendant must falsely make, forge, counterfeit, or alter any "obligation or other security of the United States," which is comprehensively defined by 18 USC 18. Whether the obligation or security involved falls within § 8 is a question of law. United States v. Anzalone, 626 F.2d 239 242 (2d Cir. 1980). Almost all cases involve money.

Section 471 governs making counterfeit securities and obligations. Fraudulent endorsements are covered by 18 USC 495, the forgery section. Prussian v. United States, 282 U.S. 675.677-80 (1931).

PATTERN CRIMINAL JURY INSTRUCTIONS – FEDERAL JUDICIAL CENTER – 1988

66 Passing Counterfeit Obligations or Securities (18 USC 472)

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See FORECITE National™ Federal Models By Offense: Passing Counterfeit Securities Or Obligations (18 USC 472)

The defendant, _________, is accused of passing counterfeit money. It is against federal law to use counterfeit money to attempt to buy anything. For you to find _______ guilty of this crime, you must be convinced that the government has proved each of these things beyond a reasonable doubt:

First, that ________ offered [e.g: Ace Television] counterfeit money to buy [a television set].

Second, that _______ did so with intent to defraud, that is, intending that [Ace Television] would be cheated. (Add if appropriate: It does not matter whether anyone was actually defrauded.)

Commentary

Case law holds that the defendant must have knowledge that the obligation he is passing is counterfeit. E.g., United States v. De Filippis, 637 F.2d 1370. 1373 (9th Cir. 1981); United States v. Slone, 601 F.2d 800, 803 (5th Cir. 1979); see also United States v. Combs, 672 F.2d 574, 575 n.1 (6th Cir.) (similar rule in possession case), cert. denied. 458 U.S. 1111 (1982). Intent to defraud or cheat subsumes the element of knowledge.

PATTERN CRIMINAL JURY INSTRUCTIONS – FEDERAL JUDICIAL CENTER – 1988

67 Forgery (18 USC 495)

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See FORECITE National™ Federal Models By Offense: Forgery Against The United States (18 USC 495) (First Paragraph)

See FORECITE National™ Federal Models By Offense: Forgery (Endorsement Of Government Check) (18 USC 495 (First Paragraph)) Or (18 USC 510(a)(1)) (Having A Face Value Of $500 Or More)

See FORECITE National™ Federal Models By Offense: Uttering A Forged Writing To Defraud The United States (18 USC 495) (Second Paragraph)

The defendant, ___________, is accused of [e.g.: forging the signature of Betty Jones on a United States government check]. It is against federal law to forge someone else's signature on [a United States government check]. For you to find _________ guilty of this crime, you must be convinced that the government has proved each of these things beyond a reasonable doubt:

First, that _________ [wrote the signature of Betty Jones on the check 1 without her permission].

Second, that he did so for the purpose of receiving money when he knew he had no right to have it. (Add if appropriate: It does not matter whether _______ actually received any money.)

Footnote 1: Include the reference to absence of permission only if permission is an issue.

Commentary

While § 495 does not explicitly require a finding of intent for a forgery conviction (compare with the portion of the section discussing uttering), the courts consistently mandate the intent element. See, e.g., United States v. Jones, 648 F.2d 215, 217 (5th Cir. Unit B June 1981) (per curiam); United States v. Hester, 598 F.2d 247, 248-9 (D.C. Cir. 1979).

PATTERN CRIMINAL JURY INSTRUCTIONS – FEDERAL JUDICIAL CENTER – 1988

68 Smuggling (18 U.S.C § 545)

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See FORECITE National™ Federal Models By Offense: Smuggling (18 USC 545) (First Paragraph)

See FORECITE National™ Federal Models By Offense: Illegal Importation (18 USC 545) (Second Paragraph)

The defendant, _________, is accused of smuggling [describe merchandise] into the United States. It is against federal law to smuggle [describe merchandise] into the United States. For you to find ________ guilty of this crime, you must be convinced that the government has proved each of these things beyond a reasonable doubt:

First, that _________ brought [describe merchandise] into the United States.

Second, that _______ knew the [describe merchandise] should have been reported to customs authorities as required by law.

Third, that _________, intending to avoid the United States customs laws, did not report the [describe merchandise] to the customs authorities.

Commentary

The first and second paragraphs of § 545 involve essentially the same elements and have been incorporated in one instruction.

In line with current authority. there Is no instruction on § 545's statutory presumption of knowledge and intent to defraud from the mere fact of unexplained possession of undeclared goods. Presumption instructions are generally disapproved. See generally Devitt & Blackmar § 15.03, notes (1977 & Supp. 1986). The statuary presumption in § 545 has been held unconstitutional. United States v. Kenaan, 496 F.2d 181, 183-84 (1st Cir. 1974).

The phrase "intent to defraud the United States" in the first paragraph of section 545 means intent to avoid and defeat the United States customs laws. United States v. Boggus, 411 F.2d 110, 111 (9th Cir.), cert. denied, 396 U.S. 919 (1969).

PATTERN CRIMINAL JURY INSTRUCTIONS – FEDERAL JUDICIAL CENTER – 1988

69 Theft of Government Property (18 USC 641)

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See FORECITE National™ Federal Models By Offense: Theft Of Government Money Or Property (18 USC 641)

The defendant, ________, is accused of stealing [e.g.: U.S. Army typewriters]. It is against federal law to steal government property. For you to find _________ guilty of this crime, you must be convinced that the government has proved each of these things beyond a reasonable doubt:

First, that ________ took the [typewriters] without authority to do so.

Second, that the [typewriters] were the property of the United States Government at the time that he took them. (Add if lack of knowledge is asserted: It does not matter whether he knew that the [typewriters] belonged to the United States Government, only that he knew they did not belong to him.)

Third, that ________ took the [typewriters] for the purpose of keeping them from their owner when he knew he had no right to do so.

1 Fourth, that the value of the property was more than $100.

Footnote 1: This element should be omitted when a misdemeanor is charged.

Commentary

Courts that have considered the issue recently have found that the defendant need not know that the property belongs to the government so long as he knows it is not his. United States v. Baker, 693 F.2d 183, 185-86 (D.C. Cir. 1982); United States v. Speir, 564 F.2d 934, 937-38 (10th Cir. 1977) (en banc), cert denied, 4359 (7th Cir. 1973), cert. Denied, 416 U.S. 994 (1074). Where the indictment refers only to common law embezzlement, the instruction must specify the elements.

This instruction encompasses the common law larceny element of intent to permanently deprive the owner of his property. See United States v. Kemble, 197 F.2d 316, 320-22 (3d Cir. 1952) (theft from interstate shipment). This may not be necessary in al] circuits. See United States v. Waronek, 582 F.2d 1158 (7th Cir. 1978).

PATTERN CRIMINAL JURY INSTRUCTIONS – FEDERAL JUDICIAL CENTER – 1988

70 Theft or Embezzlement by Bank Officer or Employee (18 USC 656)

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See FORECITE National™ Federal Models By Offense: Theft Or Embezzlement By Bank Officer Or Employee (18 USC 656)

The defendant, _______ is accused of [e.g.: embezzling money from the First Bank of Chicago when he was an employee of the bank]. It is against federal law for an employee to embezzle money from a [e.g.: federally insured bank]. For you to find ____________ guilty of this crime, you must be convinced that the government has proved each of these things beyond a reasonable doubt:

First, that ________ took from [the First Bank of Chicago] money that had come into his possession as an (employee) (officer) of the bank.

Second, that ________ took the money for the purpose of keeping it from the bank when he knew he had no right to do so.

Third, that at that time, [e.g.: the deposits of the First Bank of Chicago were insured by the Federal Deposit Insurance Corporation].

1 Fourth, that the amount of money taken was more than $100.

Footnote 1: This element should be omitted when a misdemeanor is charged.

Commentary

This instruction deals only with embezzlement and does not apply to theft or misapplication.

The principal issue under § 656 involves the required and permissible scope of the scienter element. Section 656 states none. Case law, and existing instructions, have long held that the present section, although omitting the "intent to injure or defraud" language of its predecessor, requires this as an essential element. United States v. Scheper, 520 F.2d 1355, 1357-58 (4th Cir. 1975); United States v. Tidwell, 559 F.2d 262, 265 & n. 2 (5th Cir. 1977). cert. denied, 435 U.S. 942 (1978); United States v. Docherty. 468 F.2d 989, 994-95 (9d Cir 1972); Ramirez v. United States, 318 F.2d 155, 157-58 (9th Cir. 1963). The second element of this instruction incorporates the intent to defraud requirement.

This instruction encompasses the common law larceny element of intent to permanently deprive the owner of his property. See United States v. Kemble, 197 F.2d 316, 320-22 (3d Cir. 1952) (theft from interstate shipment). This may not be necessary in all circuits. See United States v. Waronek, 582 F.2d 1158 (7th Cir. 1978).

PATTERN CRIMINAL JURY INSTRUCTIONS – FEDERAL JUDICIAL CENTER – 1988

71 Theft from Interstate Shipment (18 USC 659)

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See FORECITE National™ Federal Models By Offense: Theft From Interstate Shipment (18 USC 659) (First Paragraph)

See FORECITE National™ Federal Models By Offense: Buying Or Receiving Goods Stolen From Interstate Shipment (18 USC 659) (Second Paragraph)

Footnote 1: Further definition of "being shipped" may be needed in cases in which property is taken either very early or very late in the shipping process. See United States v. Bizanowicz, 745 F.2d 120, 122-223 (1st Cir. 1984).

Footnote 2: This element should be omitted when a misdemeanor is charged.

This instruction encompasses the common law larceny element of intent to permanently deprive the owner of his property. See United States v. Kemble, 197 F.2d 316, 320-22 (3d Cir. 1952). This may not be necessary in all circuits. See United States v. Waronek, 582 F.2d 1158 (7th Cir. 1978)

PATTERN CRIMINAL JURY INSTRUCTIONS – FEDERAL JUDICIAL CENTER – 1988

72 Possession of Goods Stolen from Interstate Shipment

(18 USC 659)

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See FORECITE National™ Federal Models By Offense: Theft From Interstate Shipment (18 USC 659) (First Paragraph)

See FORECITE National™ Federal Models By Offense: Buying Or Receiving Goods Stolen From Interstate Shipment (18 USC 659) (Second Paragraph)

Footnote 1: Further definition of "being shipped" may be needed in cases in which property is taken either very early or very late in the shipping process. See United States v. Bizanowicz, 745 F.2d 120. 122-23 (1st Cir. 1984).

Footnote 2: This element should be omitted when a misdemeanor is charged.

Where the charge is possession of stolen goods, § 659 requires knowledge that goods possessed were stolen. Not required is knowledge that the stolen goods were part of an interstate shipment. United States v. Polesti, 489 F.2d 822, 824 (7th Cir. 1973), cert. denied, 420 U.S. 990 (1975).

If constructive possession is an issue, see Instruction 47B.

PATTERN CRIMINAL JURY INSTRUCTIONS – FEDERAL JUDICIAL CENTER – 1988

73 Escape (18 USC 751(a))

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See FORECITE National™ Federal Models By Offense: Escape (18 USC 751(a))

The defendant, _________ , is accused of [e.g., attempting to escape from the Metropolitan Correctional Center in New York]. It is against federal law to (attempt to) escape from federal custody. For you to find _______ guilty of this crime, you must be convinced that the government has proved each of these beyond a reasonable doubt:

First, that on [date], _________ was in federal custody at the Metropolitan Correctional Center in New York].

Second, that he was in custody because [e.g.: he had been arrested for the crime of bank robbery].

Third, that ________ left (attempted to leave) [the Metropolitan Correctional Center] without. permission.

Fourth, that _______ knew he did not have permission to leave.

Commentary

In United States v. Bailey, 444 U.S. 394 (1980), the Court held At "the prosecution fulfills its burden under § 751(a) if it demonstrates that an escapee knew his actions would result in his leaving physical confinement without permission." 444 U.S. at 408.

Several circuits have had that § 751(a) requires proof not only of the fact of custody, but also of the nature of the custody since the statute provides for dual penalties. See United States v. Edrington, 726 F.2d 1029, 1031 (5th Cir. 1984); United States v. Richardson, 687 F.2d 952, 954-55 (7th Cir. 1982). The present instruction includes this necessary element.

The principal issue in cases actually tried under § 751(a) is the defense of necessity. On this issue, see United States v. Bailey, 444 U.S. 394, 409-11 (1980); United States v. McCue, 643 F.2d 394, 395-96 (6th Cir.), cert. denied, 451 U.S. 992 (1981).

PATTERN CRIMINAL JURY INSTRUCTIONS – FEDERAL JUDICIAL CENTER – 1988

74 Instigating or Assisting Escape (18 USC 752(a))

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See FORECITE National™ Federal Models By Offense: Aiding An Escape (18 USC 752(a))

The defendant,_________, is accused of [e.g: helping John Doe escape from the Metropolitan Correctional Center in New York]. It is against federal law to help someone else (attempt to) escape from federal custody. For you to find _________ guilty of this crime, you must be convinced that the government has proved each of these things beyond a reasonable doubt:

First, that on [date], [John Doe] was in federal custody at [the Metropolitan Correctional Center in New York].

Second, that he was in custody because [e g. he had been arrested for the crime of bank robbery].

Third, that he left (attempted to leave) the Metropolitan Correctional Center] without permission.

Fourth, that he knew he did not have permission to leave.

Fifth, that _______ knew that [Doe] was (escaping) (attempting to escape) and intentionally helped him do so.

See Commentary to Instruction 73.

PATTERN CRIMINAL JURY INSTRUCTIONS – FEDERAL JUDICIAL CENTER – 1988

75 Threats Against the President (18 USC 871)

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Threats Against the President (18 USC 871)

The defendant,_________, is accused of [e.g.: making a threat to kill the President of the United States]. It is against federal law to threaten [to kill the President. For you to find ______ guilty of this crime, you must be convinced that the government has proved each of these things beyond a reasonable doubt:

First, that _______ (said) (wrote) the words that threatened to kill the [President.

Second, that ________ (said) (wrote) the words intending them to be taken as a serious threat and not merely as a joke or exaggeration. It is not necessary that he intended to carry out the threat.

Commentary

This instruction may not be adequate in all circuits. See the discussion below.

Issues involving § 871 center on two points: what constitutes a "threat," and the meaning of "knowingly and willfully" in the context of this statutory provision.

While § 871 contains only the term "threat," both the Devitt & Blackmar and Fifth Circuit instructions contain the term "true threat," reflecting the Supreme Court's holding in Watts v. United States, 394 U.S. 705 (1969) (per curiam). In discussing constitutionally protected speech, the Court there held that a threat must be a "true threat" as distinguished from other statements such as "political hyperbole," which is often "vituperative, abusive, and inexact." Id. at 708. Whether the threat is a serious one, as opposed to a hyperbole or jest, may depend on the context and the circumstances under which it was made.

The more difficult, and hence more commonly litigated, issue involves the meaning of "knowingly and willfully." The Supreme Court in Watts observed, without deciding the issue, that "[t]he judges in the Court of Appeals differed over whether or not the `willfulness' requirement of the statute implied that a defendant must have intended to carry out his `threat'." The Court then expressed its "grave doubts" that willfulness required merely an "apparent determination" to carry out the threat, but did not discuss the issue further. Id. at 707-08. In Rogers v. United States, 422 U.S. 35 (1975), the Court granted certiorari to resolve apparent conflicts between the circuits as to the elements of a section 871 offense, but ultimately decided the case on procedural grounds.

In United States v. Patillo 438 F.2d 13 (4th Cir. 1971) (en banc), the Fourth Circuit held that a threat is covered by the statute either if it is made with an intent to carry it out or if it is made with an intent "to disrupt presidential activity." Id. at 15-16 The court stated that the latter intent could be found from the nature of the publication of the threat. the question being whether the defendant could reasonably anticipate that the threat would be transmitted to law enforcement officers and others charged with presidential security. Id. at 16. Under this interpretation, the statute applies to any threat that is intended to be carried out, but a threat not intended to be carried out is covered only if made in circumstances in which it is likely to be communicated to those charged with protecting the President.

Other circuits that have considered the matter have rejected the Patillo view, holding that any "true threat"--a threat not intended as a joke or exaggeration--is punishable. United States v. Merrill, 746 F.2d 458, 462-63 (9th Cir. 1984). cert. denied, 469 U.S. 1165 (1985); United States v. Rogers, 488 F.2d 512 514 (5th Cir. 1974) (threat hr intoxicated defendant), reversed on other grounds, 422 U.S. 35 (1975); United States v. Hart. 457 F.2d 1087, 1090 (10th Cir.) ( threat made to Secret Service agent, but Patillo specifically rejected), cert.denied, 409 U.S. 861 (1972). But see United States v. Lincoln, 462 F. 2d 1368-69 (6th Cir.) (Per curiam) (distinguishing Patillo on the facts), cert. denied, 409 U.S. 952 (1972).

The ultimate issue, therefore, is what view of the statute correctly espouses legislative in tent, admittedly sketchy, without running afoul of First Amendment considerations. The present instruction takes the view that the First Amendment concerns are abated by the requirement that the threat be intended "to be taken as a serious threat and not merely as a joke or exaggeration."

PATTERN CRIMINAL JURY INSTRUCTIONS – FEDERAL JUDICIAL CENTER – 1988

76 Mailing Threatening Communications (18 USC 876)

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Interstate Transmission Of Extortionate Communication (18 USC 875(b))

See FORECITE National™ Federal Models By Offense: Mailing Threatening Communications (18 USC 876)

The defendant, _______ is accused of [e.g.: mailing threatening letter to Judge John Doe in New York City]. It is against federal law to mail a threatening letter. For you to find _________ guilty of this crime, you must be convinced that the government has proved ch of these things beyond a reasonable doubt:

First, that _______ mailed a letter (arranged to have a letter mailed), addressed to [Judge John Doe], containing a threat to (kidnap) (injure) [name person].

(For offense charged under third paragraph of § 876: Second, that ______ intended the threat to be taken seriously and not merely as a joke or exaggerated it is not necessary that he intended to carry out threat.)

(For offense charged under second paragraph of § 876: Second, that _______ mailed the letter (arranged to have the letter mailed) with the intention of extorting money (or other things of value) from another son. Extorting means getting money (or something e of value) by threatening to harm someone unless it paid).

Commentary

Section 876 involves four separate situations: ransom letters (paragraph 1), extortion letters (paragraph 2), threatening letter (paragraph 3), and extortion letters involving threats to property or reputation (paragraph 4). Of these, only threatening letters extortion are commonly alleged.

Most instructions generally characterize the threatening letters paragraph of section 876 as having two elements: (1) that the defendant knowingly caused the letter to be forwarded by the United States mail, United States v. Lincoln, 589 F.2d 379, 381 (8th Cir. 1979) (per curiam); United States v. De Shazo, 565 F.2d 894-95 (5th Cir.) (per curiam), cert. denied. 435 U.S 953 (1978); United States v. Sirhan, 504 F.2d 818, 819 (9th Cir. 1974) (per curiarn); and (2) that the letter contained a threat. It is not necessary that the defendant have the ability to carry out the threat. Martin V United States, 691 F.2d 1235, 1240 (8th Cir. 1982), cert. denied, 459 U.S. 1211 (1983); id. at 1241-42 (concurring opinion).

It is unclear whether, under the threatening letters paragraph, the Fourth Circuit would follow United States v. Patillo, 438 F.2d 13 (4th Cir. 1971) (en banc), interpreting 18 USC 871. See Commentary to Instruction 75.

Where an extortionate letter is charged, § 876 expressly requires an intent to extort money or other thing of value. The definition of extortion in the present instruction should adequately cover the common situations.

PATTERN CRIMINAL JURY INSTRUCTIONS – FEDERAL JUDICIAL CENTER – 1988

77 Misrepresentation of Citizenship (18 USC 911)

FORECITE National™ Materials Related To This Instruction:

PATTERN CRIMINAL JURY INSTRUCTIONS – FEDERAL JUDICIAL CENTER – 1988

78 Dealing in Firearms Without a License (18 USC 922(a)(1))

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Dealing In Firearms Without A License (18 USC 922(a)(1))

The defendant,_________ is accused of [e.g.: engaging in the business of dealing in firearms without having a dealer's license]. It is against federal law to be in the business of [dealing in firearms] without a proper federal license. For you to find __________ guilty of this crime, you must be convinced that the government has proved each of these things beyond a reasonable doubt:

First, that ________ was in the business of [dealing in guns] on [date]. By "business" I mean he was engaged in the activity of buying and selling [guns] from time to time and that his main reason for doing so was to make money.

Second, that __________ was not licensed under federal law to [deal in guns] at that time.

Commentary

18 USC 921(a)(21)(C), as added by Pub.L. No.99-305. 100 Stat. 449, 450 (1986), effective November 15, 1986, defines "engaged in business" as "a person who devotes time, attention, and labor to dealing in firearms as a regular course of trade or business with the principal objective of livelihood and profit through the repetitive purchase and resale of firearms," and contains an explicit exclusion for hobbyists. Section 921(a)(22), added by Pub.L. No.99-308 and amended by Pub.L. No.99-360, 100 Stat. 776 (1986), states that the phrase "with the principal objective of livelihood and profit" means that the "intent underlying the sale or disposition of firearms is predominantly one of obtaining livelihood and pecuniary gain ...." except that proof of a profit motive is not required if a person "engages in the regular and repetitive purchase and disposition of firearms for criminal purposes or terrorism." The first element of the present instruction seeks to capture these definitions in language that will be adequate for most cases.

The 1986 amendments overrule cases holding that a profit motive is not required for a person to be in the "business of dealing in" firearms. E.g., United States v. Swinton, 521 F.2d 1255, 1258-59 (10th Cir. 1975), cert. denied, 424 U.S. 915 (1976).

Case law has made clear that specific intent to violate the law need not be alleged or proved under § 922(a)(1). United States v. Miller, 644 F.2d 1241, 1245 (8th Cir.), cert. denied, 454 U.S. 850 (1981); United States v. Huffman, 515 F.2d 80, 81 (4th Cir.) (per curiam); cert. denied, 423 U.S. 864 (1975); United States v. Ruisi, 460 F.2d 153, 156 (2d Cir.), cert. denied, 409 U.S. 914 (1972).

PATTERN CRIMINAL JURY INSTRUCTIONS – FEDERAL JUDICIAL CENTER – 1988

79 False Statement to a Firearms Dealer (18 USC 922(a)(6))

FORECITE National™ ALERT: See also FORECITE National™ 103.7.2.4 [Mail Theft And Mail Fraud: Materiality Is An Element].

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: False Statement To A Firearms Dealer (18 USC 922(a)(6))

The defendant,__________ is accused of [e.g.: falsely stating to a licensed firearms dealer, from whom he bought a firearm, that he had never been convicted of a felony]. It is against federal law to make false statements to a [firearms dealer] in order to buy a [firearm]. For you to find _______guilty of this crime, you must be convinced that the government has proved each of the following things beyond a reasonable doubt:

First, that ________ made a false statement (furnished false identification) while acquiring (attempting to acquire) a [firearm] from [name of dealer], a [licensed dealer].

Second, that ______ knew the statement (identification) was false.

Third, that the statement (identification) was intended or likely to deceive [name of dealer].

(Add if appropriate: If you find that the government has proved these things, you do not need to consider whether the false statement was a material false statement. even though that language is used in the indictment. That is not a question you need to be concerned about.)

Commentary

Judges in the Ninth and Tenth Circuits are cautioned that materiality may be a jury issue in these circuits and that an instruction on materiality may be needed. Both circuits have held materiality to be a jury issue under 18 USC 1001 (false statements to federal agencies). United States v. Irwin, 654 F.2d 671, 677 n. 8 (10th Cir. 1981), cert. denied, 455 U.S. 1016 (1982); United States v. Valdez, 594 F.2d 725, 729 (9th Cir. 1979). In the Ninth Circuit, materiality is apparently also a jury issue under 18 USC 1341 (mail fraud). See United States v. Halbert, 712 F.2d 388, 390 (9th Cir. 1983) (holding that a jury was correctly instructed), cert. denied, 465 U.S. 1005 (1984). But both circuits treat materiality as an issue for the court under 18 USC 1623 (false statement before grand jury) and 26 USC 7206(1) (false statement on tax return). United States v. Larranaga, 757 F. 2d 489, 494 (10th Cir. 1986); United States v. Prantil, 764 F.2d 548, 557 (9th Cir. 1985); United States v. Flake, 746 F.2d 535, 537-38 (9th Cir. 1984), cert. denied, 469 U.S. 1225 (1985); United States v. Strand, 617 F.2d 571, 573-75 (10th Cir.), cert. denied. 449 U.S. 841 (1980).

The present instruction reflects the prevailing view that materiality is always to be decided by the court. See United States v. Brantley, 786 F.2d 1322, 1327 (7th Cir.) (under 18 USC 1001), cert. denied. 106 S.Ct. 3284 (1986), and cases cited therein. Evidence bearing solely on materiality should be taken outside of the jury's hearing; the judge should make a finding of materiality on the record.

Section 922(a)(6) expressly requires a "knowing" false statement. The statute only requires proof that the defendant knowingly made a false statement, that he understood the facts, not that he knowingly violated the law. Cody v. United States, 460 F.2d 34, 37-38 (8th Cir.), cert. denied, 409 U.S. 1010 (1972); United States v. Beebe, 467 F.2d 222, 226 (10th Cir. 1972), cert. denied, 416 U.S. 904 (1974). The "intended or likely to deceive" disjunctive language is supported by current decisions. United States v. Schmitt, 748 F.2d 249, 253-54 (5th Cir. 1984), cert. denied, 471 U.S. 1104 (1985); United States v. Harrelson, 705 F.2d 733, 736 (5th Cir. 1983), cert. denied, 106 S.Ct. 599 (1985); United States v. Behenna, 552 F.2d 573, 575 (4th Cir. 1977).

PATTERN CRIMINAL JURY INSTRUCTIONS – FEDERAL JUDICIAL CENTER – 1988

80 False Statement to a Federal Agency (18 USC 1001)

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: False Statements To Federal Agencies And Agents (18 USC 1001)

The defendant,__________, is accused of [e.g.: giving false work bills and expense vouchers to the Department of the Army]. It is against federal law to make a false statement (give a false document) to a department or agency of the United States government. For you to find ________ guilty of this crime, you must be convinced that the government has proved each of the following things beyond a reasonable doubt:

First that _______ made a false statement (gave a false document) to [the Department of the Army].

Second, that he knew the statement (document) was false.

Third, that he made the false statement (gave the false document) for the purpose of misleading the Department of the Army]

(Add if appropriate: If you find that the government has proved these things, you do not need to consider whether the false statement was a material false statement, even though that language is used in the indictment. That is not a question you need to be concerned about.)

Commentary

Judges in the Ninth and Tenth Circuits are cautioned that materiality is a jury issue in those circuits and that an instruction on materiality will be needed. United States v. Irwin, 654 F.2d 671, 677 n. 8 (10th Cir. 1981), cert. denied, 455 U.S. 1016 (1982); United States v. Valdez, 594 F.2d 725, 729 (9th Cir. 1979). The present instruction reflects the prevailing view that materiality is to be decided by the court. See United States v. Brantley, 786 F.2d 1322, 1327 (7th Cir.), cert. denied, 106 S.Ct. 3284 (1986'), and cases cited therein. Evidence bearing solely on materiality should be taken outside of the jury's hearing; the judge should make the finding of materiality on the record.

Section 1001 requires only knowledge of the statement's falsity; knowledge that the statement involved a matter within the jurisdiction of a federal agency is not required. United States v. Yermian, 468 U.S. 63, 68-75 (1984).

PATTERN CRIMINAL JURY INSTRUCTIONS – FEDERAL JUDICIAL CENTER – 1988

81 False Statement in Bank Records (18 USC 1005)

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See FORECITE National™ Federal Models By Offense: False Statement In Bank Records (18 USC 1005)

The defendant, _________ is accused of [e.g.: accepting a false loan application while he was vice president of the Main Street Bank, and causing a false entry to be made in the bank's books]. It is against federal law to cause a false entry to be made (make a false entry) in the records of a [e.g.: federally insured bank] in order to (deceive) (defraud) (injure) the bank. For you to find _______ guilty of this crime, you must be convinced that the government has proved each of these things beyond a reasonable doubt:

First, that ________ was an employee of [the Main Street Bank], which was a [federally insured bank].

Second, that __________[purposely accepted a false loan application which resulted in a false entry being made in the books] of [the Main Street Bank].

Section 1005, unlike § 1001, does not make materiality an element of the crime. The present instruction does not list it as an element, and no case law does, although other pattern instructions do. However, even if materiality is viewed as an element, it is in most circuits a question of law for the court. See Commentary to Instruction 79.

Case law holds that defrauding, injuring, and deceiving are separate acts with their own requirements. E.g., United States v. Docherty, 468 F.2d 989, 995 (2d Cir. 1972). Since it is possible, for example, to intend to deceive without intending to defraud, all three possibilities are included in the instruction.

PATTERN CRIMINAL JURY INSTRUCTIONS – FEDERAL JUDICIAL CENTER – 1988

82 False Statement to a Bank (18 USC 1014)

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Making A False Statement Or Report (18 USC 1014)

The defendant, __________, is accused of [e.g: falsely stating his assets and liabilities on a loan application to the State Street Bank]. It is against federal Jaw to make a false statement [on a loan application to a federally insured bank]. For you to find _________ guilty of this crime, you must be convinced that the government has proved each of these things beyond a reasonable doubt:

First, that [the State Street Bank] was a bank [whose deposits were insured by the Federal Deposit Insurance Corporation].

Second, that _______ made a false statement to [the State Street Bank], knowing it was false.

Third, that _______ did so for the purpose of [e.g.: convincing the bank to give him a loan. (Add if appropriate: It does not matter whether the loan was actually made, or whether the bank lost money on the loan.)]

Commentary

Section 1014 does not use the term "material," and it is unclear whether materiality is an element of this offense. If materiality is an element, it may be a jury question in the Ninth and Tenth Circuits. See Commentary to Instruction 79.

Cases supporting the view that materiality is an element include United States v. Thompson, 811 F.2d 841, 843 (5th Cir. 1987); United States v. Whaley, 786 F.2d 1229, 1231-32 (4th Cir. 1986) (materiality held an issue for the court); United States v. Scott, 701 F.2d 1340, 1345 (11th Cir.), cert. denied, 464 U.S. 856 (1983) (materiality assumed to be an element); United States v. Kostoff. 585 F.2d 378, 380 (9th Cir. 1978) (per curiam) (materiality assumed to be an element); United States v. Kramer, 500 F.2d 1185, 1187 (10th Cir. 1974) (dictum) (listing materiality as an element). The Second Circuit suggested that materiality is not an element in United States v. Cleary, 565 F.2d 43. 46 (2d Cir. 1977), cert. denied, 435 U.S. 915 (1978). The question was explicitly left unresolved in United States v. Norberg, 612 F.2d 1, 1 n. 3 (1st Cir. 1979), and United States v. Thurnhuber, 572 F.2d 1307, 1308-09 (9th Cir. 1977).

The statute requires only an intent to influence the bank's action. Not required is an intent to harm the bank or to bring financial gain to the defendant. Reliance by the bank is also not a requirement. United States v. Ronnette, 663 F.2d 495, 498 (4th Cir. 1981), cert. denied. 445 U.S. 951 1982); United States v. Nladsen, 620 F.2d 233, 234-35 (10th Cir. 1980); United States v. Norberg, 612 F.2d 1, 4-6 (1st Cir. 1979).

PATTERN CRIMINAL JURY INSTRUCTIONS – FEDERAL JUDICIAL CENTER – 1988

83 Transmission of Wagering Information (18 USC 1084)

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Transmission Of Wagering Information (18 USC 1084)

The defendant, _______ is accused of [e.g: using the telephone to send betting information from Atlanta, Georgia, to Seattle, Washington]. It is against federal law to [make telephone calls to another state (receive telephone calls from another state) in carrying on a betting business. For you to find _______ guilty of this crime, you must be convinced that the government has proved each of these things beyond a reasonable doubt:

First, that ________ was in the betting business. By "betting business," I mean he was prepared on a regular basis to accept bets placed by others--that is, that he was a "bookie."

Second, that ______, as part of that business, purposely used [a telephone] to send (receive) bets (betting information) on [e.g.: the football game between the Dallas Cowboys and Oakland Raiders held on October 16, 1983].

Third, that the call was made between [Georgia] and [Washington]. It does not matter whether knew the call was made from one state to another.

Commentary

Judges in the First Circuit are cautioned that in United States v. Southard, 700 F.2d 1, 24-25 (1st Cir), cert. denied, 464 U.S. 823 (1983), the court stated that the defendant's knowledge of the interstate character of the telephone call was an essential element of a § 1084 charge.

This instruction was drafted for the cases involving bookies receiving bets. It must be modified where the defendant is charged with laying off bets to others.

PATTERN CRIMINAL JURY INSTRUCTIONS – FEDERAL JUDICIAL CENTER – 1988

84 Kidnapping (18 USC 1201(a)(1))

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See FORECITE National™ Federal Models By Offense: Kidnapping (18 USC 1201(a)(1))

The defendant, __________ is accused of [e.g.: kidnaping John Smith and moving him from Des Moines, Iowa, to Milwaukee, Wisconsin, to get a ransom]. It is against federal law to kidnap someone for [ransom] and move him from one state to another. For you to find ______ guilty of this crime, you must be convinced that the government has proved each of these things beyond a reasonable doubt:

First, that __________ kidnaped [John Smith] against his will for the purpose of obtaining a [ransom].

Second, that __________ intentionally moved [Smith] from [Iowa] to [Wisconsin], but it is not necessary for the government to prove that ______ knew he was crossing a state line.

Commentary

Case law holds that the defendant need only intend to transport the victim, not intend to transport the victim between two states. United States v. Bankston, 603 F.2d 528. 532 (5th Cir. 1979).

The statute proscribes holding for "ransom or reward or otherwise." A profit motive is not required. The Supreme Court has held that the term "otherwise," added by amendment in 1934, means "for any other reason," and has rejected the argument that the purpose for the kidnaping must be an illegal one. United States v. Healy, 376 U.S. 75, 81-83 (1964).

Section 1201(b) creates a statutory presumption of interstate transportation where a victim has been detained over twenty-four hours. The Second Circuit in United States v. Moore, 571 F.2d 76, 83-87 (2d Cir. 1978), held this section unconstitutional on due process grounds and revised where the jury was so instructed. In light of this case, and the constitutional problems with presumptions in criminal cases generally, no such instruction should be given.

PATTERN CRIMINAL JURY INSTRUCTIONS – FEDERAL JUDICIAL CENTER – 1988

85 Mail Fraud (18 USC 1341)

FORECITE National™ ALERT: See also FORECITE National™ 103.7.2.4 [Mail Theft And Mail Fraud: Materiality Is An Element].

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Mail Fraud (18 USC 1341)

The defendant, __________, is accused of [e.g.: planning to get money by giving false information to Sarah Stone and Rubin Ross] and using the mail in connection with this plan. It is against federal law to cheat someone if the mail is used. For you to find ______ guilty of this crime, you must be convinced that the government has proved each of these things beyond a reasonable doubt:

First, that _______ made a plan [e.g.: to obtain money based on giving false information about the Apex Corporation to Sarah Stone and Rubin Ross].

Second, that when _______ made the plan, he knew the information he was giving was false.

Third, that _______ mailed something (caused another person to mail something) for the purpose of carrying out this plan.

It does not matter whether this plan succeeded, or whether _______ made money from this plan. Nor does it matter whether the false information was contained in the material that was mailed. However for you to decide that _______ is guilty, you must find, beyond a reasonable doubt, that _______ made this plan intending to deceive [Stone and Ross] and to make money from the plan and that the mail was used to carry out the plan. Each separate use of the mail luring the carrying out of a scheme to defraud is a separate offense.

Commentary

Because of the wide variety of factual patterns to which § 1341 can be applied, this instruction covers only a limited number of cases. The instruction will need to be tailored to deal with the particular fact situations in other cases.

At least in the Ninth and Tenth Circuits, materiality of the false information is an element of the offense. United States v. White, 673 F.2d 299, 302 (10th Cir. 1982); United States v. Halbert, 640 F.2d 1000, 1007-08 (9th Cir. 1981). Judges in these circuits are cautioned that materiality may be a jury issue and that an instruction on it may be needed. See United States v. Halbert, 712 F.2d 388, 390 (9th Cir. 1983) (approving an instruction on materiality), cert. denied, 465 U.S. 1005 (1984). See also Commentary to Instruction 79.

PATTERN CRIMINAL JURY INSTRUCTIONS – FEDERAL JUDICIAL CENTER – 1988

86 Wire Fraud (18 USC 1343)

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Wire Fraud (18 USC 1343)

The defendant,__________, is accused of [e.g.: planning to get money by giving false information to Sarah Stone and Rubin Ross] and using the telephone in connection with this plan. It is against federal law to cheat someone if a telephone call is made from one state to another. For you to find ________ guilty of this crime, you must be convinced that the government has proved each of these things beyond a reasonable doubt:

First, that _______ made a plan [e.g.: to obtain money based on giving false information about the Apex Corporation to Sarah Stone and Rubin Ross].

Second, that when _______ made the plan, he knew the information he was giving was false.

Third, that _______ made a telephone call (caused another person to use the telephone) from [name state] to [name state] for the purpose of carrying out this plan.

It does not matter whether this plan succeeded, or whether _______ made money from this plan. Nor is it necessary that the false information was given over the telephone. However, for you to decide that _______ is guilty, you must find, beyond a reasonable doubt, that _______ made this plan intending to deceive [Stone and Ross] and to make money from the plan and that a telephone call was made from one state to another to carry out the plan. Each such telephone call made to carry out a scheme to defraud is a separate offense.

Commentary

See the discussion of materiality in the Commentary to Instruction 85.

Section 1343 requires a scheme to defraud and use of an interstate telephone call in furtherance of the scheme. Case law has made clear that neither the victim's loss nor the defendant's gain is a required element. United States v. Condolon, 600 F.2d 7, 8-9 (4th Cir. 1979). There is also no requirement that the intended victim of the scheme to defraud be a recipient of a telephone communication. United States v. Wise, 553 F.2d 1173, 1174 (8th Cir. 1977) (per curiam); United States v. Freeman, 524 F.2d 337, 339 (7th Cir. 1975),cert. denied, 424 U.S. 920 (1976). There is no requirement that the defendant have placed the calls himself. United States v. Johnson, 700 F.2d 163, 177 (5th Cir.), aff'd in pertinent part and rev'd in part. 718 F.2d 1317 (5th Cir. 1983) (en banc).

Most important, the statute does not require that the defendant knew that an interstate call was made. United States v. Blassingame, 427 F.2d 329, 330-31 (2d Cir. 1970), cert. denied, 402 U.S. 945 (1971).

Finally, the interstate telephone call need not actually further the scheme to defraud; the statute only requires that the purpose of the call be to execute the scheme. United States v. Hammond, 598 F.2d 1008, 1010-11 (5th Cir.), amended on rehearing, 605 F.2d 862 (1979).

Many cases charge both wire and mail fraud. In such cases, the judge may wish to combine the two charges. However, the interstate requirement applies to wire fraud and not to mail fraud.

PATTERN CRIMINAL JURY INSTRUCTIONS – FEDERAL JUDICIAL CENTER – 1988

87 Mailing Obscene Materials (18 USC 1461)

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See FORECITE National™ Federal Models By Offense: Mailing Obscene Material (18 USC 1461)

The defendant,__________, is accused of [e.g.: using the mail to send obscene photographs]. It is against federal law to use the United States mail to send obscene materials. For you to find __________ guilty of this crime, you must be convinced that the government has proved each of these things beyond a reasonable doubt:

First, that _______ used the mail (caused the mail to be used) to send [photographs].

Second, that _______ knew the general nature of the [photographs].

The third thing the government must prove beyond a reasonable doubt is that the [photographs] were obscene. For you to decide this, there are three questions you must ask yourself. You should find the materials obscene only if your answers to all three questions are yes.

1. Would the average person, applying current community standards and viewing the [photographs] as a whole, find that the [photograph] appeal mainly to a morbid, degrading, or unhealthy interest in sex?

2. Would the average person, applying current community standards and viewing the [photographs] as a whole, find that the [photographs] show or describe sexual conduct in an obviously offensive way?

3. Would a reasonable person, viewing the [photographs] as a whole, find that they lack serious literary, artistic, political, or scientific value?

Commentary

This instruction is principally based on the Supreme Court's decision in Miller v. California, 413 U.S. 15, 24 (1973), as elaborated in Pope v. Illinois, 107 S.Ct. 1918 (1987).

The difficulty with any jury instruction in this area is the complexity of the case law defining "obscenity." Accordingly, the present instruction is kept as simple as possible under the circumstances by incorporating the basic steps of the Miller obscenity test into the elements instruction itself.

Where the materials are intended to appeal to the prurient interest of members of a clearly defined deviant sexual group, rather than the average public at large, the prurient appeal requirement is met if the materials as a whole in fact appeal to members of that group. Mishkin v. New York, 383 U.S. 502, 508-09 (1966). When evidence supports it, the basic instruction must be modified accordingly.

The requisite level of knowledge necessary is a frequently litigated issue. It is required only that the defendant have "knowledge of the contents" and knowledge of the "character and nature of the materials" he mailed. Hamling v. United States, 418 U.S. 87, 122-24 1974).

There is no requirement that the defendant knew the materials were obscene. Id. at 119-21. Nor is there a requirement that the defendant knew the community standards where the materials were distributed. United States v. Battista, 646 F.2d 237, 242 (6th Cir.), cert. denied, 454 U.S. 1046 (1981).

PATTERN CRIMINAL JURY INSTRUCTIONS – FEDERAL JUDICIAL CENTER – 1988

88 Interstate Transportation of Obscene Materials (18 USC 1462)

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Interstate Transportation Of Obscene Material (By Common Carrier) (18 USC 1462)

The defendant, __________, is accused of [e.g.: transporting obscene photographs on a trucking service from New Hampshire to Vermont]. It is against federal law for someone to [use a trucking service] to ship obscene materials from one state to another. For you to find ________ guilty of this crime, you must be convinced that the government has proved each of these things beyond a reasonable doubt:

First, that ________ used [a trucking service] (caused [a trucking service] to be used) to ship [photographs] from [New Hampshire] to [Vermont].

Second, that _______ knew the general nature of the [photographs].

The third thing the government must prove beyond a reasonable doubt is that the [photographs] were obscene. For you to decide this, there are three questions you must ask yourself. You should find the materials obscene only if your answers to all three questions are yes.

1. Would the average person, applying current community standards and viewing the [photographs] as a whole, find that the [photographs] appeal mainly to a morbid, degrading, or unhealthy interest in sex?

2. Would the average person, applying current community standards and viewing the [photographs] as a whole, find that the [photographs] show or describe sexual conduct in an obviously offensive way?

3. Would a reasonable person, viewing the [photographs] as a whole, find that they lack serious literary, artistic, political, or scientific value?

Commentary

The basis for the obscene materials definition is the Miller test, discussed in the Commentary to Instruction 87. The present instruction contains the identical definition.

PATTERN CRIMINAL JURY INSTRUCTIONS – FEDERAL JUDICIAL CENTER – 1988

89 Interstate Transportation of Obscene Materials for Sale or Distribution (18 USC 1465)

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See FORECITE National™ Federal Models By Offense: Interstate Transportation Of Obscene Material (For Purpose Of Sale Or Distribution) (18 USC 1465)

The defendant, _________ is accused of [e.g: sending obscene photographs from New Hampshire to New York for sale]. It is against federal law to [send] obscene materials from one state to another for sale or distribution. For you to find __________ guilty of this crime, you must be convinced that the government has proved each of these things beyond a reasonable doubt:

First, that __________ [sent photographs (caused photographs to be sent)] from [New Hampshire] to New York].

Second, that __________ [sent the photographs caused the photographs to be sent) ] for the purpose of selling or distributing them, as opposed to keeping them for his own use.

Third, that __________ knew the general nature of the [photographs].

The fourth thing the government must prove beyond a reasonable doubt is that the [phonographs] were obscene. For you to decide this, there are three questions you must ask yourself. You should find the materials obscene only if your answers to all three questions are yes.

1. Would the average person, applying current community standards and viewing the [photographs] as a whole, find that the [photographs] appeal mainly to a morbid, degrading, or unhealthy interest in sex?

2. Would the average person, applying current community standards and viewing the [photographs] as a whole, find that the [photographs] show or describe sexual conduct in an obviously offensive way?

3. Would a reasonable person, viewing the [photographs] as a whole, find that they lack serious literary, artistic, political, or scientific value?

The basis for the obscene materials definition is the Mil1er test, discussed in the Commentary to Instruction 87. The present instruction contains the identical definition.

Paragraph 2 of § 1465 creates a rebuttable presumption of a sale or distribution purpose when the transportation involves two or more copies of any publication or article. In United States v. Manarite, 448 F.2d 583, 594 ( 2d Cir.), cert. denied, 404 U.S. 947 (1971), the court observed that the "presumption is clearly valid as applied to this case" (which involved multiple deliveries involving thousands of magazines). In United States v. Knight, 395 F.2d 971, 975 (2d Cir. 1968), cert. denied, 395 U.S. 930 (1969), the court rejected a claim that the presumption had been rebutted as a matter of law by defense evidence, but did not address directly any issue of the statute's constitutionality If a presumption instruction is requested, the following could be given: "If you find that _______ transported two or more copies of this publication, you may, but are not required, to find that he intended to sell or distribute them."

PATTERN CRIMINAL JURY INSTRUCTIONS – FEDERAL JUDICIAL CENTER – 1988

90 Tampering with a Juror (18 USC 1503)

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See FORECITE National™ Federal Models By Offense: Obstructing Due Administration Of Justice (18 USC 1503)

See FORECITE National™ Federal Models By Offense: Corruptly Influencing A Juror (18 USC 1503)

The defendant, __________, is accused of [e.g: sending threatening letter to John Smith, who at the time as a grand juror in the United States District Court for the District of Vermont]. It is against federal law try to improperly influence a juror in a federal court. For you to find __________ guilty of this crime, you must be convinced that the government has proved each of these things beyond a reasonable doubt:

First, that on [date], [John Smith] was a juror in the United States District Court for the [district].

Second, that ________ tried to influence [Smith] in the performance of his duties as a juror by sending him a threatening letter].

Third, that _______ did so intending to affect the, [grand jury proceedings] at which [Smith] was a juror.

In 1982 Congress enacted 18 U.S.C § 1512-1515 and deleted references to witnesses in § 1503. Victim and Witness Protection Act of 1982, Pub.L. No. 97-291, § 4, 98 Stat. 1248, 1249-53. In light of these changes, the present instruction covers only tampering with a juror under amended § 1503. Instruction 91 covers tampering with a witness under the new § 1512(b).

The statutory requirement that the act be done "corruptly" has been held satisfied by a deliberate act to influence a juror. United States v. Ogle, 613 F.2d 233, 23-39 (10th Cir. 1979), cert. denied, 449 U.S. 825 (1980); see United States v. Haas, 583 F.2d 216, 220 (5th Cir. 1978), cert. denied, 440 U.S. 981 (1979). This concept is incorporated into the third element of the present instruction.

PATTERN CRIMINAL JURY INSTRUCTIONS – FEDERAL JUDICIAL CENTER – 1988

91 Tampering with a Witness (18 USC 1512(b))

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See FORECITE National™ Federal Models By Offense: Tampering With A Witness (18 USC 1512(b))

The defendant, _______, is accused of [e.g.: threatening Joan Williams, who at the time was scheduled to be a witness in a case before the United States District Court for the District of Vermont, to cause her not to testify]. It is against federal law to threaten a witness in a case so that he will not testify]. For you to find __________ guilty of this crime, you must be convinced that the government has proved each of these things beyond a reasonable doubt:

First, that [Joan Williams] was [e.g.: scheduled to be a witness in the case of Jones v. Smith].

Second, that ________[threatened] [Williams].

Third, that __________did so intending to cause [Williams] not to testify].

See Commentary to Instruction 90. This instruction is drafted to cover the usual situation, but there need be no underlying case pending to prosecute under this section. 18 USC 1512(d)(1).

PATTERN CRIMINAL JURY INSTRUCTIONS – FEDERAL JUDICIAL CENTER – 1988

92 Using a False Visa (18 USC 1546)

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See FORECITE National™ Federal Models By Offense: Using A False Visa (18 USC 1546)

PATTERN CRIMINAL JURY INSTRUCTIONS – FEDERAL JUDICIAL CENTER – 1988

93 Involuntary Servitude and Peonage (18 USC 1581, 1584)

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See FORECITE National™ Federal Models By Offense: Involuntary Servitude And Peonage (18 USC 1581 and 1584)

Footnote 1: Include when a violation of 18 U.S.C.§ 1581(a) is charged.

Commentary

18 USC 1581-1584 are implementing statutes intended to eradicate not only the system of slavery prohibited by the Thirteenth Amendment, but also any twentieth century form of compelled servitude. United States v. Booker, 655 F.2d 562, 564-66 (4th Cir. 1981).

The statutory phrase "involuntary servitude" has been defined as occurring if "the defendant has placed [the victim] in such fear of physical harm that the victim is afraid to leave, regardless of the victim's opportunities for escape." United States v. Bibbs, 564 F.2d 1165, 1168 (5th Cir. 1977), cert. denied, 435 U.S. 1007 (1978). The Second Circuit, in United States v. Shackney, 333 F.2d 4755, 485-87 (2d Cir. 1964), held that the threat to the victim must be sufficient to cause the victim to believe he has no choice but to continue in the service of the master (and concluded that a threat to have the victim deported was not sufficient coercion under § 1584).

The phrase "for any term" in § 1584 has not been defined in case law. The Fifth Circuit instruction defines it as any period "not wholly insubstantial or insignificant."

PATTERN CRIMINAL JURY INSTRUCTIONS – FEDERAL JUDICIAL CENTER – 1988

94 False Statement Before a Grand Jury (18 USC 1623)

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See FORECITE National™ Federal Models By Offense: False Declaration Before Grand Jury Or Court (18 USC 1623)

The defendant, _______ is accused of [e.g.: saying to the grand jury under oath that he had never received money from John Smith, when he knew what he said was false]. It is against federal law for someone to make a false statement under oath to a grand jury. For you to find ________ guilty of this crime, you must be convinced that the government has proved each of these things beyond a reasonable doubt:

First, that ________ testified under oath before the grand jury of the United States District Court for the [name district].

Second, that during his testimony, __________gave a false answer to any of the questions as charged in the indictment.

Third, that _______ knew the answer he gave was false. (Add if appropriate: If you find that the government has proved these things, you do not need to consider whether the false statement was a material false statement, even though that language is used in the indictment. That is not a question you need to be concerned about.)

Commentary

Materiality is to be decided by the court under § 1623, even in the two circuits that hold materiality to be a jury question under some statutes. United States v. Larranaga, 787 F.2d 489, 494 (10th Cir. 1986); United States v. Prantil, 764 F.2d 548, 557 (9th Cir. 1985). Evidence bearing solely on materiality should be taken outside of the jury's hearing; the judge should make the finding of materiality on the record.

In Bronston v. United States, 409 U.S. 352, 357-62 (1973), the Supreme Court held that a literally true answer, if unresponsive to the question asked, cannot be the basis for a perjury conviction under § 1621, the general perjury statute. The same reasoning would logically apply to § 1623. Where there is an issue whether an answer was literally true, the jury should upon request be instructed that questions must be viewed in context. United States v. Kehoe, 562 F.2d 65, 68 n. 2 (1st Cir. 1977).

Where a question is ambiguous and could reasonably be interpreted in two ways, courts have taken two views Some hold that the defendant's understanding of the question is a jury question; others take the view that an ambiguous question, where the answer to one of the interpretations was truthful, cannot support a perjury conviction. See United States v. Bell, 623 F.2d 1132, 1135-36 & n. 5 (5th Cir. 1980), for cases on both propositions.

PATTERN CRIMINAL JURY INSTRUCTIONS – FEDERAL JUDICIAL CENTER – 1988

95 Obstruction of Correspondence (18 USC 1702)

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See FORECITE National™ Federal Models By Offense: Obstruction Of Correspondence (Taking Of Mail) (18 USC 1702)

The defendant, ________ , is accused of [e.g.: taking a letter addressed to James Hill from the United States mail]. It is against federal law to take United States mail from [e.g.: a mailbox] for the purpose of interfering with its proper delivery. For you to find _______ guilty of this crime, you must be convinced that the government has proved each of these things beyond a reasonable doubt:

First, that ______ took a [letter] from a [United States mailbox].

Second, that _______ did so intending to interfere with the proper delivery of that mail.

Third, that when ______did so, that [letter had not been actually received by the person to whom the [letter] was addressed.1

Footnote 1: In some cases "receiving" may need to be defined, as in situations in which the victim has not yet picked up the mail from his mailbox.

Commentary

"Delivery" under the statute means actual delivery of the mail into the manual possession of the person to whom the mail is addressed. United States v. Maxwell, 137 F.Supp. 298, 303 (W.D.Mo.1955), aff'd, 235 F.2d 930 (8th Cir.), cert. denied, 352 U.S. 943 (1956). Until a letter is physically delivered to the addressee, the protection of the statute continues. In this regard, § 1702 may have a broader reach than § 1708. See United States v. Patterson, 664 F.2d 1346 (9th Cir. 1982); United States v. Ashford, 530 F.2d 792, 795-96 (8th Cir. 1976). However, some circuits have given § 1708 a similarly broad reach. United States v. Lavin, 567 F.2d 579, 582-83 (3d Cir. 1977); United States v. Davis, 461 F.2d 83, 89-90 (5th Cir.), cert. denied, 409 U.S. 921 (1972).

The intent element is directed only to intentionally preventing or retarding the delivery of the mail to the addressee. Hence, it is unnecessary to show that the defendant intended to misappropriate the contents of the letter, typically checks. United States v. Porter, 581 F.2d 1312, 1313 (8th Cir. 1978) (per curiam).

PATTERN CRIMINAL JURY INSTRUCTIONS – FEDERAL JUDICIAL CENTER – 1988

96 Delay or Destruction of Mail by Postal Employee (18 USC 1703)

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See FORECITE National™ Federal Models By Offense: Delay Or Destruction Of Mail By Postal Employee (18 USC 1703)

The defendant, __________, is accused of [e.g.: unlawfully opening a letter in the United States mail when he was a letter carrier]. It is against federal law for a Postal Service employee to [open a letter] that has been mailed unless he has proper authority to do so. For you to find ________ guilty of this crime, you must be convinced that the government has proved each of these things beyond a reasonable doubt:

First, that __________ deliberately [opened a letter] that had been mailed.

Second, that he knew he did not have authority to do this.

Third, that he was an employee of the United States Postal Service when this happened.

Section 1703 has generated little appellate case law. There are few cases on what constitutes "unlawfully," although most cases involve taking letters with checks or money, where the unlawful purpose was readily apparent. This is clearly a question of fact. Williams v. United States, 273 F.2d 469, 470 (10th Cir. 1959) (per curiam). A detention of the mail alone, without proof of an unlawful purpose, such as when a "mail cover" is used, is not violation of the statute. United States v. Costello, 255 F.2d 876, 881-82 (2d Cir.), cert. denied, 357 U.S. 937 (1958).

PATTERN CRIMINAL JURY INSTRUCTIONS – FEDERAL JUDICIAL CENTER – 1988

97 Theft of Mail (18 USC 1708)

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See FORECITE National™ Federal Models By Offense: Theft Of Mail Matter (18 USC 1708) (First Paragraph)

See FORECITE National™ Federal Models By Offense: Possession Of Stolen Mail (18 USC 1708) (Third Paragraph)

PATTERN CRIMINAL JURY INSTRUCTIONS – FEDERAL JUDICIAL CENTER – 1988

98 Unlawful Possession of Stolen Mail (18 USC 1708)

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See FORECITE National™ Federal Models By Offense: Theft Of Mail Matter (18 USC 1708) (First Paragraph)

See FORECITE National™ Federal Models By Offense: Possession Of Stolen Mail (18 USC 1708) (Third Paragraph)

The defendant, ________ is accused of unlawfully possessing stolen mail. It is against federal law to possess [e.g: checks] that have been stolen from the United States mail. For you to find ________ guilty of this crime, you must be convinced that the government has p roved each of these things beyond a reasonable doubt:

First, that _______ had [a check] in his possession.

Second, that the [check] had been stolen from a [e.g.: United States mailbox].

Third, that __________knew that the [check] had been stolen, but it does not matter whether he knew it was stolen from the mail.

Commentary

If constructive possession is an issue, see Instruction 47B.

PATTERN CRIMINAL JURY INSTRUCTIONS – FEDERAL JUDICIAL CENTER – 1988

99 Theft of Mail by Postal Employee (18 USC 1709)

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Embezzlement/theft Of Mail Matter By Postal Service Employee (18 USC 1709)

The defendant, __________, is accused of [e.g.: stealing letter that was in the United States mail, when he was a Postal Service employee]. It is against federal law for a Postal Service employee to steal mail. For you to find ________guilty of this crime, you must be convinced that the government has proved each of these things beyond a reasonable doubt:

First, that ________ deliberately took a [letter] that had been mailed.

Second, that ________ knew he had no authority to take [the letter].

Third, that _______ was a United States Postal Service employee when he took {the letter].

Commentary

Whether the particular letter or package was "intended to be conveyed by mail" has been the subject of substantial litigation, particularly in the decoy letter and test parcel situations. Courts today use an objective standard: If a reasonable person who saw the letter would think it was intended to be carried in the mail, it falls within the protection of § 1709. United States v. Hergenrader, 529 F.2d 83, 84-85 (8th Cir.), cert. denied. 426 U.S. 23 (1976); United States v. Rupert, 510 F.Supp. 821, 822-24 (M.D. Pa.1981). Hence, § 1709 covers all matters placed in any part of he mail handling process, including decoy and test mail with fictitious addresses. United States v. Rodriguez. 613 F.2d 28 (2d :ir.) (per curiam), cert. denied, 446 U.S. 967 (1980); United States Kent, 449 F.2d 751, 752 (5th Cir. 1971), cert. denied, 405 U.S. 994 1972).

PATTERN CRIMINAL JURY INSTRUCTIONS – FEDERAL JUDICIAL CENTER – 1988

100 Hobbs Act Extortion--Under Color of Official Right (18 USC 1951)

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See FORECITE National™ Federal Models By Offense: Interference With Commerce By Robbery Or Extortion (Hobbs Act) (18 USC 1951)

Footnote 1: The alternative language in the second element should be used in the Second Circuit.

Commentary

The two essential requirements of a Hobbs Act violation are interference with interstate commerce and extortion of property, either through fear or under color of official right. Stirone v. United States, 361 U.S. 212, 218 (1960). If the extortion is under color of official right, there need be no proof of fear, threats, or coercion. United States v. O'Malley, 707 F.2d 1240, 1248-49 (11th Cir. 1983).

Extortion under color of official right occurs when a public official uses his position to induce someone to give him money or property not due him or his office. United States v. Margiotta, 688 F.2d 108, 132-33 (2d Cir. 1982), cert. denied, 461 U.S. 913 (1983); United States v. Dozier, 672 F.2d 531, 536-37 (5th Cir.), cert. denied, 459 U.S. 943 (1982).

The extorted party must have a reasonable belief that the defendant has official power to do or withhold from doing that which is the reason for the extortion payment. United States v. Brown 540 F.2d 364, 372 (8th Cir. 1976). The victim's state of mind is therefore an essential element of the crime, and the prosecution must show that the victim made the payment because the defendant's official position. United States v. Adcock, 558 2d 397, 403-04 (8th Cir.), cert. denied. 434 U.S. 921 (1977). The motivation for the payment must focus on the defendant's office. United States v. Braasch, 505 F.2d 139, 151 (7th Cir. 1974), cert. denied, 421 U.S. 910 (1975).

The Second Circuit has recently added a more express inducement requirement. In United States v. O'Grady, 742 F.2d 682, 687-91 (2d Cir. 1984) (en banc), that circuit held that there must be me proof that a public official did something to induce the payment of money. While this need not be a direct demand, there must be some inducement, however subtle, to distinguish conduct violating the act from conduct that is merely accepting an unsolicited gratuity. A similar conclusion was reached on the basis of somewhat different reasoning in United States v. Aguon, 813 F.2d 1413, 1414-18 (9th Cir. 1987). Several other circuits have rejected the reasoning of O'Grady and do not require inducement. See United States v. Spitler, 800 F.2d 1267, 1274-75 (4th Cir. 1986); United States v. Jannotti, 673 F.2d 578, 594-95 (3d Cir.) (en banc), cert. denied, 457 U.S. 1106 (1982); United States v. Butler, 618 2d 411, 417-19 (6th Cir.), cert. denied, 447 U.S. 927 (1980); United States v. Hedman, 630 F.2d 1184, 1195 (7th Cir. 1980), cert. denied, 450 U.S. 965 (1981).

Hobbs Act jurisdiction is based on the commerce clause. The any way or degree" language in the statute requires only that the extortion involved affects interstate commerce to a de minimis degree. United States v. Angelilla, 660 F.2d 23, 35 (2d Cir. 1981), cert. denied, 455 U.S. 910 (1982); United States v. Summers, 598 F.2d 450, 454 (5th Cir. 1979). Some cases go so far as to hold that the effect can be a potential one. United States v. Staszcuk, 517 F.2d 53, 59-60 (7th Cir. (en banc), cert. denied, 423 U.S. 837 (1975).

The usual method of showing an effect on commerce in cases involving extortion under color of official right is the "depletion of assets" theory, since the victim's payment of money correspondingly reduces his ability to purchase goods and materials from interstate commerce. United States v. Elders, 569 F.2d 1020, 1025 (7th Cir. 1978).

PATTERN CRIMINAL JURY INSTRUCTIONS – FEDERAL JUDICIAL CENTER – 1988

101 Travel Act (18 USC 1952(a)(3) & (b)(l))

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See FORECITE National™ Federal Models By Offense: Travel Act (18 USC 1952(a)(3) & (b)(l))

The defendant, ________, is accused of [e.g.: traveling from Iowa to Minnesota to operate an illegal gambling business]. It is against federal law to travel between states to run a [gambling] business that is illegal under state law. For you to find ________ guilty of this crime, you must be convinced that the government has proved each of these things beyond a reasonable doubt:

First, that ________ traveled (caused someone else to travel) from [Iowa] to [Minnesota] for the purpose of [carrying on an illegal gambling business].

Second, that this [gambling] operation was a regular course of business conduct or transaction that is a violation of [Minnesota] law. Under [Minnesota] law, a [gambling business] is [define state crime].

Third, that _______ knew that the [gambling business] violated the laws of [Minnesota].

Fourth, that after traveling from [Iowa] to [Minnesota], ________ purposely did something to [carry on] his unlawful activity.

The nature of the interstate commerce requirement, "use of any facility in interstate commerce," has generated substantial case law. The interstate travel need not be continuous, United States v. Kaiser, 660 F.2d 724, 731 (9th Cir. 1981), cert. denied. 455 U.S. 956 (1982), nor need it be in furtherance of the illegal activity, since the language of § 1952 is much broader than the mail fraud statute. United States v. Salsbury, 430 F.2d 1045, 1048 (4th Cir. 1970). The commerce requirement is met if there is some ravel in interstate commerce, but this travel need not be substantial or integral to the illegal activity. United States v. Le Faivre, 507 F.2d 1288, 1296-97 (4th Cir. 1974), cert. denied, 420 U.S. 1004 (1975). On the other hand, there must be some connection between the travel and the unlawful activity which can be reasonably foreseen. United States v. Barbieri, 614 F.2d 715, 717-18 (10th Cir. 1980). So long as the travel is in part motivated by an illegal purpose. the commerce requirement is met. Id.; United States v. Walsh. 700 F.2d 846, 854 (2d Cir.), cert. denied, 464 U.S. 825 (1983).

In United States v. Riccardelli, 794 F.2d 829 (2d Cir. 1986), it was held that the interstate commerce element need not be established where the defendant is charged under § 1952 with use of the mail.

Using the telephone to make an interstate call violates the statute. United States v. Garrett, 716 F.2d 257, 265-66 (5th Cir. 1983), cert. denied, 466 U.S. 937 (1984); United States v. Pecora, 693 F.2d 421.423-24 (5th Cir. 1982). cert. denied, 462 U.S. 1119 (1983); United States v. Villano, 529 F.2d 1046, 1052 n. 6 (10th Cir.), cert. denied. 426 U.S. 953 (1976). In addition, the interstate travel need not be by the defendant. The statute is satisfied if the defendant causes someone else to travel interstate or use an interstate facility such as a telephone. United States v. Briggs, 700 F.2d 408. 417 (7th Cir.), cert. denied, 462 U.S. 1110 (1983). However, the Supreme Court has held that the statute does not reach mere bettors who travel interstate to place bets. Rewis v. United States. 401 U.S. 808, 811-12 (1971).

Judges in the Sixth Circuit are cautioned that, at least in the aiding and abetting situation, the jury must find that the defendant had knowledge of the interstate travel or communication. See United States v. Alsobrook, 620 F.2d 139, 144 (6th Cir.), cert. denied. 449 U.S. 843 (1980); see also United States v. Gallo, 763 F.2d 1504, 1521 n. 25 (6th Cir.) (expressing doubt about the rule), modified on rehearing sub nom. United States v. Graewe, 774 F.2d 106 (1985), cert. denied. 106 S.Ct. 826, 828, 1200 (1986). Other courts have not required such knowledge. E.g.. United States v. Villano. 529 F.2d 1046. 1054 (10th Cir. 1976).

The "business enterprise" language of § 1952(b)(1) does not apply to § 1952(b)(2). Marshall v. United States, 355 F.2d 999, 1002 (9th Cir.), cert. denied, 385 U.S. 815 (1966). The enterprise must be engaged in a continuous course of conduct, rather than sporadic casual involvement in the unlawful activity. United States v. Davis, 666 F.2d 195, 199 & n. 5 (5th Cir. 1982); United States v. Zizzo. 338 F.2d 577.580 (7th Cir. 1964), cert. denied, 381 U.S. 915 (1965).

The statute requires an intent to commit a violation of state or federal law. Where the indictment charges a violation of state law, the prosecution must show that the defendant intended to violate the state law and that he did or could have violated that law; a defense available under state law may therefore be asserted. United States v. Bertman, 686 F.2d 772,774 (9th Cir. 1982). The state crime need not actually be fully accomplished, but the defendant must have done or planned something prohibited by state law. United States v. Goldfarb, 643 F.2d 422, 426 (6th Cir.), cert. denied, 454 U.S. 827 (1981).

PATTERN CRIMINAL JURY INSTRUCTIONS – FEDERAL JUDICIAL CENTER – 1988

102 Interstate Transportation of Betting Materials (18 USC 1953)

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See FORECITE National™ Federal Models By Offense: Interstate Transportation Of Wagering Paraphernalia (Bookmaking) (18 USC 1953)

PATTERN CRIMINAL JURY INSTRUCTIONS – FEDERAL JUDICIAL CENTER – 1988

103 Illegal Gambling Business (18 USC 1955)

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See FORECITE National™ Federal Models By Offense: Illegal Gambling Business (18 USC 1955)

The defendant, ________, is accused of [e.g: operating a bookmaking business]. It is against federal law [operate a bookmaking business] that violates [name state] law. For you to find ________ guilty of this crime, you must be convinced that the government has proved each of these things beyond a reasonable doubt:

First, that ________[conducted] what he knew was [bookmaking business] in [name state]. Under [name state] law, a [bookmaking business] is [define state crime].

Second, that five or more persons took part in the operation of this business.

Third, that this business (was operating for more than 30 days at the time) (received total bets that amounted to $2,000 or more on any day).

Commentary

Section 1955 has generated a great deal of case law since its enactment as part of the Omnibus Crime Act of 1970. In large part this has been caused by the section’s general language, and he circuits have differed in several respects in their interpretation of the statute.

Section 1955 requires that the gambling business be in violation of state law. Intent to violate state law is not necessary. United States v. Hawes, 529 F.2d 472.481 (5th Cir. 1976). The question of what state law is applicable is a question of law. United States v. Clements, 588 F.2d 1030, 1037 (5th Cir.), cert. denied, 440 U.S. 982, 441 U.S. 936 (1979). This instruction takes the view that the jury should not be instructed on matters of law, a position consistent with the other instructions.

The most frequently litigated issue is the definition of the "involves five or more persons" element. This instruction does not define this element, and the judge may need to develop additional language that addresses the particular facts involved. The circuits are in agreement, derived from legislative history, that mere bettors or customers are not included. United States v. Alfonso, 552 F.2d 605, 621 (5th Cir.), cert. denied, 434 U.S. 857 (1977); United States v. Smaldone, 485 F.2d 1333, 1351 (10th Cir. 1973), cert. denied, 416 U.S. 936 (1974). It is also well established that anyone who works in the gambling business, from owner down to low-level employees, can be counted in the "five or more" requirement. United States v. Boyd, 566 F.2d 929, 935 (5th Cir. 1978); United States v. Manson, 494 F.2d 804, 807 (7th Cir.), cert. denied, 419 U.S. 994 (1974); United States v. Meese, 479 F.2d 41, 43 (8th Cir. 1973).

The requirement of "substantially continuous operation" for over thirty days has also generated some case law. The Seventh Circuit has held that this does not mean daily operation, only such a regular schedule as to remove it from a casual, nonbusiness category. United States v. Nerone, 563 F.2d 836, 843-44 (7th Cir. 1977), cert. denied. 435 U.S. 951 (1978). The same five persons need not be involved for thirty days, nor need the defendant be involved for that entire time period. The only requirements are that a gambling business be in substantially continuous operation for over thirty days, that it involve five or more persons during the entire thirty-day period, and that the defendant knowingly was involved. United States v. Gresko, 632 F.2d 1128, 1132-33 (4th Cir. 1980); United States v. Marrifield, 515 F.2d 877, 880-81 (5th Cir.), cert. denied. 423 U.S. 1021 (1975).

In the statutory definition of illegal gambling business, the phrase "gross revenue of $2,000" is used. This term is not itself defined, and several different constructions are possible. This instruction refers to "bets" of $2,000.

PATTERN CRIMINAL JURY INSTRUCTIONS – FEDERAL JUDICIAL CENTER – 1988

104 RICO (18 USC 1962)

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: RICO (18 USC 1962)

The defendant, ________, is accused of [e.g: being an employee of the ABC Company and helping that company conduct illegal narcotics transactions]. It is against federal law to participate in the operation of an organization by engaging in racketeering activities that violate state or federal law. For you to find ___ ____ guilty of this crime, you must be convinced that the government has proved each of these things beyond a reasonable doubt:

First, that _______ was [employed by the ABC Company].

Second, that ________ committed (helped commit) at least two of the following crimes: [List the alleged predicate offenses]. The two crimes must have been connected to each other by a common scheme or plan, and not been merely separate or disconnected acts. The two crimes must have been committed within ten years of each other. You must unanimously agree on which two crimes the defendant committed (helped commit).

Third, that ________, when committing (helping commit) these two or more crimes, was participating in the operation of [the ABC Company].

Fourth, that [the ABC Company] [e.g., purchased supplies to be delivered from the State of New York to the State of New Jersey].

If the predicate offenses are charged separately in the indictment, the elements of those offenses will be the subject of the charges on the separate counts. If the predicate offenses are not charged in the indictment, it may be necessary to instruct the jury on their elements to provide a basis for consideration of the RICO charge.

In Sedima. S.P.R.L. v. Imrex Co., 473 U.S. 479, 496 n. 14 (1985), the Supreme Court said in dictum that the predicate acts must be connected in some way to constitute a "pattern of racketeering activity." The Court suggested that the definition of "pattern" in the last sentence of 18 USC 3575(e) might be useful in interpreting § 1962. The limited number of appellate decisions since Sedima suggest that the second element of the present instruction should be the subject of considerable caution. This element as drafted would apparently be unacceptable in the Eighth Circuit under Superior Oil Co. v. Fulmer, 785 F.2d 252, 254-57 (8th Cir. 1986 (multiple acts in furtherance of a single scheme do not constitute a pattern). It would apparently be acceptable in the Second Circuit under United States v. Ianniello, 808 F.2d 184 (2d Cir. 1986}, cert. denied, 107 S.Ct. 3229, 3230 (1987), but probably does not cover every situation that the Second Circuit would regard as constituting a pattern.

PATTERN CRIMINAL JURY INSTRUCTIONS – FEDERAL JUDICIAL CENTER – 1988

105 Bank Robbery (18 USC 2113(a), (d))

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Federal Models By Offense: Robbery And Burglary (Title 18 - Sections 2111-2119).

Footnote 1: Add this element when the defendant is charged with armed bank robbery under § 2113(d).

The federally insured status of the bank is an essential element on which the jury should be instructed. United States v. Brown, 616 F.2d 844, 846 (5th Cir. 1980).

Judges in the Second and District of Columbia Circuits are cautioned that the jury should be instructed that the defendant intended a wrongful taking of the money. United States v. Howard, 506 F.2d 1131, 1133 (2d Cir. 1974); Richardson v. United States, 403 F.2d 574, 57-76 (D.C.Cir. 1968) (street robbery under D.C.Code). Most circuits appear to take the view expressed in United States v. DeLeo, 422 F.2d 487, 490-91 (1st Cir.), cert. denied, 397 U.S. 1037 (1970), that wrongful intent to take the money is not a required element under the first paragraph of § 2113. United States v. Lewis. 628 F.2d 1276. 1278-79 (10th Cir. 1980) (semble ), cert. denied. 450 U.S. 924 (1981); United States v. Brown, 547 F.2d 36, 38-39 (3d Cir. 1976), cert. denied, 431 U.S. 905 (1977); United States v. Johnston, 543 F.2d 55, 57-58 (8th Cir. 1976); United States v. Klare, 545 F.2d 93 (9th Cir. 1976), cert. denied, 431 U.S. 905 (1977). The present instruction uses the phrase "intentionally took money" as being the most logical definition of and place for the scienter requirement.

The Supreme Court in Simpson v. United States, 435 U.S. 6, 11 n. 6 (1978), held that the phrase "by use of a dangerous weapon or device" modifies both the "assault" and "puts in jeopardy" language of section 2113(d). The present instruction is drafted to reflect this holding.

In McLaughlin v. United States, 106 S.Ct. 1677 (1986), the Supreme Court held that an unloaded gun is a dangerous weapon. One of the three reasons given for this conclusion, each of which the Court characterized as "independently sufficient," id. at 1678, was that the display of a gun instills fear in the average citizen and creates an immediate danger of a violent response. This rationale would appear to support the conclusion that a fake bomb is a dangerous weapon, a question on which the circuits have been in conflict. See Bradley v. United States, 447 F.2d 264, 272-75 (8th Cir. 1971) (actual ability to harm required), vacated as moot, 404 U.S. 567 (1972); United States v. Cooper, 462 F.2d 1343 (5th Cir.), cert. denied, 409 U.S 1009 (1972) (apparent ability sufficient); United States v. Beasley, 438 F.2d 1279, 1282-83 (6th Cir.) (apparent ability sufficient), cert. denied. 404 U.S. 866 (1971).

Although a gun, loaded or unloaded, is apparently a dangerous weapon as a matter of law under McLaughlin, the question whether some other weapon is dangerous is generally a question of fact for the jury. The alternative statements in the fourth element of the present instruction reflect that situation. In a case involving a fake weapon. it may be appropriate to fashion an instruction based on McLaughlin.

PATTERN CRIMINAL JURY INSTRUCTIONS – FEDERAL JUDICIAL CENTER – 1988

106 Interstate Transportation of a Stolen Vehicle (Dyer Act) (18 USC 2312)

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See FORECITE National™ Federal Models By Offense: Interstate Transportation Of A Stolen Motor Vehicle (18 USC 2312)

Footnote 1: For use when it is alleged, as in car rental thefts, that the original possession was lawful and the defendant failed to return the car.

PATTERN CRIMINAL JURY INSTRUCTIONS – FEDERAL JUDICIAL CENTER – 1988

107 Receiving a Stolen Vehicle (Dyer Act) (18 USC 2313)

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See FORECITE National™ Federal Models By Offense: Receipt Of A Stolen Motor Vehicle (18 USC 2313)

The defendant, ________, is accused of [e.g.: possessing a car that he knew had been stolen]. It is against federal law to [possess] a [car] that is known to be stolen if the [car] was moved from one state to another. For you to find ________ guilty of this crime, you must be convinced that the government has proved each of these things beyond a reasonable doubt:

First, that [e.g.: a 1980 Ford Mustang] was stolen.

Second, that the [car] was moved from one state to another after it was stolen.

Third, that _____[has possession of] the [car].

Fourth, that _______ knew the [car] was stolen when he [possessed] it.

This instruction reflected the 1984 amendment to § 2313, under which "possession" was added to the enumeration of prohibited activities and the jurisdictional language was broadened to encompass vehicles that may no longer be in the stream of commerce.

If constructive possession is an issue, see Instruction 47B.

PATTERN CRIMINAL JURY INSTRUCTIONS – FEDERAL JUDICIAL CENTER – 1988

108 Interstate Transportation of Stolen Goods (18 USC 2314)

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PATTERN CRIMINAL JURY INSTRUCTIONS – FEDERAL JUDICIAL CENTER – 1988

109 Receiving Stolen Goods (18 USC 2315)

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See FORECITE National™ Federal Models By Offense: Receipt Of Stolen Property--Elements (18 USC 2315)

See FORECITE National™ Federal Models By Offense: Receipt, Possession, Or Sale Of Stolen Property (18 USC 2315) (First Paragraph)

The defendant, _______, is accused of [e.g., possessing goods that he knew had been stolen]. It is against federal law to [possess] goods that are known to be stolen, if the goods were moved from one state to another. For you to find ________ guilty of this crime, you must be convinced that the government has proved each of these things beyond a reasonable doubt:

First, that [an IBM computer] was stolen.

Second, that the [computer] was moved from one state to another after it was stolen.

Third, that ________ [had possession of] the [computer].

Fourth, that _______ knew the [computer] was stolen when he [possessed] it..

Fifth, that the value of the [computer] was $5,000 or more.

Section 2315 was amended in 1986 to make it parallel to § 2313 as amended in 1984. Pub.L. No.99-646, § 76, 100 Stat. 3592, 3618 (1986). See Commentary to Instruction 107.

If constructive possession is an issue, see Instruction 47B.

PATTERN CRIMINAL JURY INSTRUCTIONS – FEDERAL JUDICIAL CENTER – 1988

110 Bail Jumping (18 USC 3146)

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See FORECITE National™ Federal Models By Offense: Failure To Appear (18 USC 3146)