PATTERN CRIMINAL JURY INSTRUCTIONS OF THE SEVENTH

PATTERN CRIMINAL JURY INSTRUCTIONS

OF THE SEVENTH CIRCUIT

(2012 Ed.)

(plus 2015-2017 and 2018 changes)

_____________________________

Prepared by the Committee on Federal Criminal Jury

Instructions of the Seventh Circuit

INTRODUCTION

To: Judges and Criminal Law Practitioners of the District Courts of the

Seventh Circuit

From: The Committee on Federal Criminal Jury Instructions of the Seventh

Circuit

The Committee on Federal Criminal Jury Instructions of the Seventh Circuit

is pleased to present the 2012 edition of this Circuit’s Pattern Criminal Jury

Instructions, to be used in connection with criminal trials in the District Courts

in the Seventh Circuit. These instructions and their accompanying commentary

have been approved in principle by the Seventh Circuit Judicial Council. That

means that, although they have not been approved for use in any specific case,

the Council has authorized the publication of these Pattern Instructions as an

aid to judges and lawyers practicing criminal law in those courts.

The instructions are presented in three sections. The initial section, entitled

“General Instructions,” includes instructions generally applicable to the trial

process, as well as instructions addressing common legal theories of liability and

certain defense theories (including affirmative defenses). The second and much

larger section, entitled “Statutory Instructions,” contains instructions tied to

specific statutory provisions located in Title 18 and in other parts of the United

States Code. This section is organized in order of statutory cite. Finally, the

Committee has drafted a set of pattern preliminary instructions to be used at the

outset of a criminal trial.

In drafting these instructions, the Committee tried to continue the work of

prior committees in reducing the use of legalisms, in order to produce instruc-

tions that will be as understandable as possible to lay jurors. The changes we

have made in this respect reflect the experiences of the Committee’s members,

comments we received and even some academic study of the efficacy of specific

language. One example of this type of change is the use of the word “believability”

in several instructions related to the jury’s evaluation of the testimony of

witnesses. The word has in some instructions replaced more ungainly phrases

like “truthfulness and accuracy” (which itself replaced the more technical-

sounding “credibility” in the 1999 revision). In general, the Committee has tried

to reduce the number of words used in instructions, except where adding a word

or phrase would make an instruction clearer.

Addressing a related concern, the Committee has also been mindful of the

need to avoid giving juries instructions about issues that are unnecessary to

their deliberations, as well as the need to avoid making simple concepts unnec-

essarily complex. We have tried to adhere to this principle on both a micro and

macro level. For example, the 1999 revision eliminated the use of the word “ex-

pert” in the body of the instruction addressing opinion testimony (though it left

it in the title) and replaced it with reference to a witness’ “specialized know-ledge

or skill.” In an effort to further streamline the information being imparted to

juries in this instruction, new instruction 3.13 now refers only to a witness giving

“opinions and testimony” about certain subjects, while inviting the trial judge to

specify what those subjects were. But some instructions turned out to need more

information, rather than less. For example, the Committee has tried to follow the

advice in United States v. Hill, 252 F.3d 919, 923 (7th Cir. 2001) concerning

former (1999) pattern instruction 1.09, which ad-dressed the relative number of

witnesses called by each side. Consistent with the view expressed in Hill that

instructions generally work better when they give the jury the reasons underlying

their admonition, new instruction 2.04 now includes some explanation for why

jurors need not give greater weight to the testimony of a larger number of

witnesses over the testimony of a smaller number.

On a broader level, we also agree with the statement in Hill that “[u]nless it is

necessary to give an instruction, it is necessary not to give it, so that the im-

portant instructions stand out and are remembered.” 252 F.3d at 923. While

judges should not hesitate to instruct a jury on any issue it ought to know about

to decide the case, we recommend against giving instructions that are not needed

for that purpose. In particular, we advise against giving an instruction simply

because the court sees no reason not to do so, in order to avoid diluting the

impact of necessary instructions and potentially injecting unnecessary issues

into the jury’s deliberations. Trial judges should have an affirmative and case-

specific reason for giving any instruction, whether it is a pattern instruction or

otherwise. As Hill points out, a set of pattern instructions “offers model

instructions for occasions when they are appropriate but does not identify those

occasions.” Id. Needless to say (although Hill also said it), no instruction should

be given simply because it is included among these pattern instructions.

We commend to the users of these instructions the Committee Comments,

which reflect a great deal of effort on the part of the Committee’s members and

continue to be a valuable source of authority and general advice regarding when

an instruction might or might not be given. That said, the Comments are not

intended to be authoritative on such a question in and of themselves. Whether

an instruction is appropriate for a given case is always a case-specific decision,

and the Committee could not have had any specific case solely in mind in

drafting or commenting on an instruction. Indeed, one of the principal values of

the Comments is their citations of cases, which we hope will serve as useful and

time-saving starting points, but not substitutes, for judges’ and lawyers’ own

research and analysis on the issue of whether the relevant instruction is right

for the case they are trying.

We also address several technical points. Regarding the gender of personal

pronouns, the Committee has avoided as cumbersome supposedly gender-

neutral forms such as “he/she” or “him/her.” With no chauvinism intended, we

iii

adopted masculine pronouns for general use, but judges using these in-

structions should of course feel free to use any pronoun forms appropriate for

the particular case before them. Each pattern instruction has a title for the

convenience of the judges and lawyers who will use them, but we recommend

against including those titles in the instructions actually given to juries. We

continue to recommend against reading the texts of statutes to juries. In several

places we also continue to recommend against instructing on certain issues,

including defining reasonable doubt. More often than in past editions, we

recommend that judges adapt pattern instructions very specifically to the cases

before them; for example, we advise in connection with several instructions that

judges describe for jurors exactly what the “limited purpose” for admitting

certain evidence was. And we continue to recommend that juries receive a copy

or copies of the instructions for use during their deliberations.

The Committee is pleased to present these instructions, and hopes that they

will be of material assistance to the judges and lawyers who practice criminal

law in our Circuit.

GENERAL, STATUTORY, AND PRELIMINARY INSTRUCTIONS

TABLE OF CONTENTS

PAGE

INTRODUCTION .............................................................................................. I

GENERAL INSTRUCTIONS ............................................................................. 1

1.01 FUNCTIONS OF COURT AND JURY ................................................ 1

1.02 THE CHARGE ................................................................................. 2

1.03 PRESUMPTION OF INNOCENCE/BURDEN OF PROOF ................... 3

1.04 DEFINITION OF REASONABLE DOUBT........................................... 5

1.05 DEFINITION OF CRIME CHARGED ................................................. 6

1.06 DEFINITION OF FELONY/MISDEMEANOR ..................................... 7

1.07 BILL OF PARTICULARS ................................................................... 8

2.01 THE EVIDENCE .............................................................................. 9

2.02 CONSIDERING THE EVIDENCE .................................................... 11

2.03 DIRECT AND CIRCUMSTANTIAL EVIDENCE ................................. 12

2.04 NUMBER OF WITNESSES ............................................................. 13

2.05 DEFENDANT’S FAILURE TO TESTIFY OR PRESENT

EVIDENCE .................................................................................... 14

3.01 CREDIBILITY OF WITNESSES ....................................................... 15

3.02 ATTORNEY INTERVIEWING WITNESS ........................................... 16

3.03 PRIOR INCONSISTENT STATEMENTS ........................................... 17

3.04 PRIOR INCONSISTENT STATEMENT BY DEFENDANT .................. 18

3.05 WITNESSES REQUIRING SPECIAL CAUTION ................................ 19

3.06 IMPEACHMENT BY PRIOR CONVICTION....................................... 21

3.07 CHARACTER EVIDENCE REGARDING WITNESS .......................... 22

3.08 CHARACTER EVIDENCE REGARDING DEFENDANT ..................... 23

3.09 STATEMENT BY DEFENDANT ....................................................... 24

3.10 DEFENDANT’S SILENCE IN THE FACE OF ACCUSATION ............. 26

3.11 EVIDENCE OF OTHER ACTS BY DEFENDANT .............................. 27

3.12 IDENTIFICATION TESTIMONY ...................................................... 30

3.13 OPINION TESTIMONY ................................................................... 32

3.14 RECORDED CONVERSATIONS/TRANSCRIPTS ............................. 33

3.15 FOREIGN LANGUAGE RECORDINGS/ ENGLISH

TRANSCRIPTS............................................................................... 34

3.16 SUMMARIES RECEIVED IN EVIDENCE ........................................ 35

3.17 DEMONSTRATIVE SUMMARIES/CHARTS NOT RECEIVED IN

EVIDENCE .................................................................................... 36

3.18 JUROR NOTE-TAKING .................................................................. 37

3.19 GOVERNMENT INVESTIGATIVE TECHNIQUES ............................. 38

4.01 ELEMENTS/BURDEN OF PROOF ................................................. 40

4.02 ELEMENTS/BURDEN OF PROOF IN CASE INVOLVING

INSANITY DEFENSE ..................................................................... 41

4.03 ELEMENTS/BURDEN OF PROOF IN CASE INVOLVING

COERCION DEFENSE ................................................................... 42

4.04 UNANIMITY ON SPECIFIC ACTS ................................................... 43

4.05 DATE OF CRIME CHARGED ......................................................... 45

4.06 SEPARATE CONSIDERATION – ONE DEFENDANT CHARGED

WITH MULTIPLE CRIMES ............................................................. 46

4.07 SEPARATE CONSIDERATION – MULTIPLE DEFENDANTS

CHARGED WITH SAME OR MULTIPLE CRIME(S) .......................... 47

4.08 PUNISHMENT ............................................................................... 48

4.09 ATTEMPT ...................................................................................... 49

4.10 KNOWINGLY – DEFINITION .......................................................... 51

4.11 WILLFULLY – DEFINITION ............................................................ 53

4.12 SPECIFIC INTENT/GENERAL INTENT ........................................... 54

4.13 DEFINITION OF POSSESSION ...................................................... 55

4.14 POSSESSION OF RECENTLY STOLEN PROPERTY ........................ 56

5.01 RESPONSIBILITY .......................................................................... 57

5.02 PERSONAL RESPONSIBILITY OF CORPORATE AGENT ................. 58

5.03 ENTITY RESPONSIBILITY – ENTITY DEFENDANT – AGENCY ........ 59

5.04 ENTITY RESPONSIBILITY – ENTITY DEFENDANT – AGENCY

RATIFICATION .............................................................................. 62

5.05 JOINT VENTURE .......................................................................... 63

5.06 AIDING AND ABETTING/ACTING THROUGH ANOTHER ............... 64

5.07 PRESENCE/ACTIVITY/ASSOCIATION ........................................... 65

5.08(A) CONSPIRACY – OVERT ACT REQUIRED ....................................... 67

5.08(B) CONSPIRACY – NO OVERT ACT REQUIRED.................................. 70

5.09 CONSPIRACY – DEFINITION OF CONSPIRACY .............................. 71

5.10 CONSPIRACY – MEMBERSHIP IN CONSPIRACY ............................ 73

5.10(A) BUYER/SELLER RELATIONSHIP .................................................. 75

5.10(B) SINGLE CONSPIRACY VS. MULTIPLE CONSPIRACIES .................. 77

5.11 CONSPIRATOR’S LIABILITY FOR SUBSTANTIVE CRIMES

COMMITTED BY CO-CONSPIRATORS WHERE CONSPIRACY

CHARGED – ELEMENTS ............................................................... 78

5.12 CONSPIRATOR’S LIABILITY FOR SUBSTANTIVE CRIMES

COMMITTED BY CO-CONSPIRATORS; CONSPIRACY NOT

CHARGED IN THE INDICTMENT – ELEMENTS ............................. 80

5.13 CONSPIRACY – WITHDRAWAL ...................................................... 82

5.14(A) CONSPIRACY – WITHDRAWAL – STATUTE OF LIMITATIONS –

ELEMENTS ................................................................................... 84

5.14(B) CONSPIRACY – WITHDRAWAL – STATUTE OF LIMITATIONS --

DEFINITION .................................................................................. 85

..................................................................................................... 86

6.01 SELF DEFENSE/DEFENSE OF OTHERS ...................................... 87

6.02 INSANITY ...................................................................................... 89

6.03 DEFENDANT’S PRESENCE ........................................................... 90

6.04 ENTRAPMENT – ELEMENTS ......................................................... 91

6.05 ENTRAPMENT – DEFINITIONS OF TERMS .................................... 92

6.06 RELIANCE ON PUBLIC AUTHORITY .............................................. 95

6.07 ENTRAPMENT BY ESTOPPEL........................................................ 96

6.08 COERCION/DURESS .................................................................... 97

6.09(A) VOLUNTARY INTOXICATION ......................................................... 98

6.09(B) DIMINISHED CAPACITY ................................................................ 99

6.10 GOOD FAITH – FRAUD/FALSE STATEMENTS/

MISREPRESENTATIONS ............................................................. 100

6.11 GOOD FAITH: TAX AND OTHER TECHNICAL STATUTE CASES . 101

6.12 RELIANCE ON ADVICE OF COUNSEL ......................................... 102

7.01 JURY DELIBERATIONS ............................................................... 103

7.02 VERDICT FORM .......................................................................... 105

vii

7.03 UNANIMITY/DISAGREEMENT AMONG JURORS ......................... 106

STATUTORY INSTRUCTIONS ..................................................................... 108

7 U.S.C. § 2024(B) UNAUTHORIZED ACQUISITION OF FOOD STAMPS

– ELEMENTS .............................................................................. 108

7 U.S.C. § 2024(B) DEFINITION OF “CONTRARY TO LAW” ....................... 109

8 U.S.C. § 1324A(A)(1)(A) UNLAWFUL EMPLOYMENT – ELEMENTS ......... 110

8 U.S.C. § 1324(A)(1)(A)(I) BRINGING ALIEN TO THE UNITED STATES

OTHER THAN AT DESIGNATED PLACE – ELEMENTS ................. 112

8 U.S.C. § 1324(A)(1)(A)(II) ALIEN TRANSPORTATION – ELEMENTS .......... 114

8 U.S.C. § 1324(A)(1)(A)(III) CONCEALING OR HARBORING ALIENS –

ELEMENTS ................................................................................. 116

8 U.S.C. § 1324(A)(1)(A)(IV) ENCOURAGING ILLEGAL ENTRY –

ELEMENTS ................................................................................. 119

8 U.S.C. § 1324(A)(2)(B)(II) BRINGING ALIEN INTO UNITED STATES

FOR COMMERCIAL ADVANTAGE OR PRIVATE FINANCIAL

GAIN – ELEMENTS ..................................................................... 121

8 U.S.C. § 1324(A)(2)(B)(III) BRINGING ALIEN INTO UNITED STATES

WITHOUT IMMEDIATE PRESENTATION AT DESIGNATED

PORT OF ENTRY – ELEMENTS.................................................... 123

8 U.S.C. § 1325(A)(1) ILLEGAL ENTRY – ELEMENTS ................................ 125

8 U.S.C. § 1325(A)(2) ELUDING EXAMINATION OR INSPECTION –

ELEMENTS ................................................................................. 127

8 U.S.C. § 1325(A)(3) ENTRY BY FALSE OR MISLEADING

REPRESENTATION – ELEMENTS ................................................ 129

8 U.S.C. § 1325(C) MARRIAGE FRAUD – ELEMENTS ............................... 131

8 U.S.C. § 1326(A) DEPORTED ALIEN FOUND IN UNITED STATES –

ELEMENTS ................................................................................. 132

8 U.S.C. § 1546(A) USE, POSSESSION OF IMMIGRATION DOCUMENT

PROCURED BY FRAUD – ELEMENTS ......................................... 133

18 U.S.C. § 3 ACCESSORY AFTER THE FACT .......................................... 135

18 U.S.C. § 152(1) CONCEALMENT OF PROPERTY – ELEMENTS ............. 136

18 U.S.C. § 152(1) DEFINITION OF CONCEALMENT ................................ 137

18 U.S.C. § 152(2) & (3) FALSE OATH, FALSE DECLARATION UNDER

PENALTY OF PERJURY – ELEMENTS ......................................... 138

18 U.S.C. § 152(2) & (3) FALSE DECLARATION UNDER PENALTY OF

PERJURY – DEFINITION OF MATERIALITY ................................. 139

viii

18 U.S.C. § 152(4) PRESENTING OR USING A FALSE CLAIM –

ELEMENTS ................................................................................. 140

18 U.S.C. § 152(6) BRIBERY – ELEMENTS ............................................... 141

18 U.S.C. § 152(7) CONCEALMENT OR TRANSFER OF ASSETS IN

CONTEMPLATION OF BANKRUPTCY OR WITH INTENT TO

DEFEAT THE PROVISIONS OF THE BANKRUPTCY LAW –

ELEMENTS ................................................................................. 142

18 U.S.C. § 152(7) DEFINITION OF “IN CONTEMPLATION OF

BANKRUPTCY PROCEEDING” ..................................................... 143

18 U.S.C. § 152(7) DEFINITION OF “TRANSFER” ...................................... 144

18 U.S.C. § 152(8) DESTRUCTION OF RECORDS; FALSE ENTRIES –

ELEMENTS ................................................................................. 145

18 U.S.C. § 152(9) WITHHOLDING RECORDS – ELEMENTS ..................... 146

18 U.S.C. § 201 GIVING A BRIBE – ELEMENTS ....................................... 147

18 U.S.C. § 201 INTENT TO INFLUENCE .................................................. 148

18 U.S.C. § 201 OFFICIAL ACT ................................................................ 149

18 U.S.C. § 241 ELEMENTS ..................................................................... 151

18 U.S.C. § 241 DEFINITION OF CONSTITUTIONAL RIGHTS ................... 153

18 U.S.C. § 241 DEATH ........................................................................... 154

18 U.S.C. § 242 DEPRIVATION OF RIGHTS UNDER COLOR OF LAW –

ELEMENTS ................................................................................. 156

18 U.S.C. § 242 RIGHTS .......................................................................... 158

18 U.S.C. § 242 DEFINITION OF COLOR OF LAW .................................... 159

18 U.S.C. § 242 DEATH ........................................................................... 160

18 U.S.C. § 242 BODILY INJURY ............................................................. 161

18 U.S.C. § 286 CONSPIRACY TO DEFRAUD THE GOVERNMENT WITH

RESPECT TO CLAIMS – ELEMENTS ............................................ 163

18 U.S.C. § 287 FALSE, FICTITIOUS, OR FRAUDULENT CLAIMS –

ELEMENTS ................................................................................. 165

18 U.S.C. § 401 CRIMINAL CONTEMPT .................................................... 167

18 U.S.C. § 402 CRIMINAL CONTEMPT .................................................... 168

18 U.S.C. § 471 FALSELY MAKING, FORGING, COUNTERFEITING, OR

ALTERING A SECURITY OR OBLIGATION – ELEMENTS .............. 169

18 U.S.C. § 472 UTTERING COUNTERFEIT OBLIGATIONS OR

SECURITIES – ELEMENTS .......................................................... 170

18 U.S.C. § 473 DEALING IN COUNTERFEIT OBLIGATIONS OR

SECURITIES – ELEMENTS .......................................................... 171

18 U.S.C. § 495 FALSELY MAKING, FORGING, COUNTERFEITING, OR

ALTERING A DOCUMENT – ELEMENTS ...................................... 172

18 U.S.C. § 495 UTTERING OR PUBLISHING A FALSE DOCUMENT –

ELEMENTS ................................................................................. 174

18 U.S.C. § 495 PRESENTING A FALSE DOCUMENT – ELEMENTS .......... 175

18 U.S.C. § 500 FALSELY MAKING, FORGING, COUNTERFEITING,

ENGRAVING, OR PRINTING A MONEY ORDER – ELEMENTS ...... 176

18 U.S.C. § 500 FORGING OR COUNTERFEITING A SIGNATURE OR

INITIALS OF ANY PERSON AUTHORIZED TO ISSUE A MONEY

ORDER, POSTAL NOTE, OR BLANK – ELEMENTS ....................... 177

18 U.S.C. § 500 FORGING OR COUNTERFEITING A SIGNATURE OR

ENDORSEMENT ON A MONEY ORDER, POSTAL NOTE, OR

BLANK – ELEMENTS................................................................... 179

18 U.S.C. § 500 FORGING OR COUNTERFEITING A SIGNATURE ON A

RECEIPT OR CERTIFICATE OF IDENTIFICATION – ELEMENTS .. 181

18 U.S.C. § 500 FALSELY ALTERING A MONEY ORDER OR POSTAL

NOTE – ELEMENTS .................................................................... 183

18 U.S.C. § 500 PASSING, UTTERING, OR PUBLISHING FORGED OR

ALTERED MONEY ORDERS OR POSTAL NOTES – ELEMENTS ... 184

18 U.S.C. § 500 FRAUDULENTLY ISSUING A MONEY ORDER OR

POSTAL NOTE – ELEMENTS ....................................................... 185

18 U.S.C. § 500 THEFT OF A MONEY ORDER – ELEMENTS .................... 186

18 U.S.C. § 500 RECEIPT OR POSSESSION OF A STOLEN MONEY

ORDER – ELEMENTS .................................................................. 187

18 U.S.C. § 500 FALSE PRESENTMENT OF A MONEY ORDER OR

POSTAL NOTE – ELEMENTS ....................................................... 188

18 U.S.C. § 500 THEFT OR RECEIPT OF A MONEY ORDER MACHINE

OR INSTRUMENT – ELEMENTS .................................................. 189

18 U.S.C. § 500 DEFINITION OF “MATERIAL” .......................................... 190

18 U.S.C. § 500 DEFINITION OF “MATERIAL ALTERATION” ..................... 191

18 U.S.C. § 511 ALTERING OR REMOVING VEHICLE IDENTIFICATION

NUMBERS .................................................................................. 192

18 U.S.C. § 542 ENTRY OF GOODS BY MEANS OF FALSE

STATEMENTS – WHETHER OR NOT UNITED STATES SHALL

OR MAY BE DEPRIVED OF ANY LAWFUL DUTIES –

ELEMENTS ................................................................................. 193

18 U.S.C. § 542 ENTRY OF GOODS BY MEANS OF FALSE

STATEMENTS – DEFINITION OF FRAUDULENT .......................... 195

18 U.S.C. § 542 DEFINITION OF MATERIAL ............................................. 196

18 U.S.C. § 542 ENTRY OF GOODS BY MEANS OF FALSE

STATEMENTS – DEFINITION OF ENTRY ..................................... 197

18 U.S.C. § 542 ENTRY OF GOODS BY MEANS OF FALSE

STATEMENTS – DEFINITION OF IMPORTED MERCHANDISE ..... 198

18 U.S.C. § 542 ENTRY OF GOODS BY MEANS OF FALSE

STATEMENTS – UNITED STATES HAS BEEN OR MAY HAVE

BEEN DEPRIVED OF ANY LAWFUL DUTIES – ELEMENTS .......... 199

18 U.S.C. § 641 THEFT OF GOVERNMENT PROPERTY – ELEMENTS ....... 200

18 U.S.C. § 641 DEFINITION OF “VALUE” ................................................ 202

18 U.S.C. § 659 EMBEZZLEMENT OR THEFT OF GOODS FROM

INTERSTATE SHIPMENT – ELEMENTS ....................................... 203

18 U.S.C. § 659 POSSESSION OF GOODS STOLEN FROM INTERSTATE

SHIPMENT – ELEMENTS ............................................................ 204

18 U.S.C. § 666(A)(1)(A) THEFT CONCERNING FEDERALLY FUNDED

PROGRAM – ELEMENTS ............................................................. 206

18 U.S.C. § 666(A)(1)(A) THEFT CONCERNING FEDERALLY FUNDED

PROGRAM – ELEMENTS ............................................................. 208

18 U.S.C. § 666(A)(1)(B) BRIBERY CONCERNING FEDERALLY FUNDED

PROGRAM – ELEMENTS ............................................................. 209

18 U.S.C. § 666(A)(1)(B) ACCEPTING A BRIBE .......................................... 211

18 U.S.C. § 666(A)(2) PAYING A BRIBE ..................................................... 213

18 U.S.C. § 666(C) BONA FIDE COMPENSATION ..................................... 215

18 U.S.C. § 666 “AGENT” – DEFINITION .................................................... 216

18 U.S.C. § 669(A) HEALTH CARE THEFT/EMBEZZLEMENT –

ELEMENTS ................................................................................. 217

18 U.S.C. § 669(A) HEALTH CARE BENEFIT PROGRAM/ INTERSTATE

COMMERCE – DEFINITION ......................................................... 219

18 U.S.C. § 751 ESCAPE – ELEMENTS .................................................... 220

18 U.S.C. § 842(A)(1) IMPORTING, MANUFACTURING, OR DEALING IN

EXPLOSIVE MATERIALS WITHOUT A LICENSE – ELEMENTS ..... 221

18 U.S.C. § 842(A)(2) WITHHOLDING INFORMATION, MAKING A FALSE

STATEMENT, OR FURNISHING FALSE IDENTIFICATION TO

OBTAIN EXPLOSIVE MATERIALS – ELEMENTS .......................... 222

18 U.S.C. § 892 EXTORTIONATE EXTENSION OF CREDIT –

ELEMENTS ................................................................................. 223

18 U.S.C. § 892 DEFINITION OF “DEBTOR” ............................................. 224

18 U.S.C. § 892 DEFINITION OF UNDERSTANDING ................................. 225

18 U.S.C. § 894 EXTORTIONATE COLLECTION OF DEBT – ELEMENTS... 226

18 U.S.C. § 894 DEFINITION OF THREAT ................................................ 227

18 U.S.C. § 911 REPRESENTATION OF CITIZENSHIP OF UNITED

STATES – ELEMENTS ................................................................. 228

18 U.S.C. § 922(A)(6) MAKING A FALSE STATEMENT OR FURNISHING

FALSE IDENTIFICATION TO A LICENSED FIREARMS

IMPORTER, MANUFACTURER, DEALER, OR COLLECTOR IN

CONNECTION WITH THE ACQUISITION OF A FIREARM OR

AMMUNITION – ELEMENTS ........................................................ 230

18 U.S.C. § 922(D) SALE OR TRANSFER OF A FIREARM OR

AMMUNITION TO A PROHIBITED PERSON – ELEMENTS ............ 231

18 U.S.C. § 922(D) DEFINITION OF “REASONABLE CAUSE TO

BELIEVE” ................................................................................... 233

18 U.S.C. § 922(G) UNLAWFUL SHIPMENT OR TRANSPORTATION OF A

FIREARM OR AMMUNITION BY A PROHIBITED PERSON –

ELEMENTS ................................................................................. 234

18 U.S.C. § 922(G) UNLAWFUL POSSESSION OR RECEIPT OF A

FIREARM OR AMMUNITION BY A PROHIBITED PERSON –

ELEMENTS ................................................................................. 235

18 U.S.C. § 922(G) DEFINITIONS OF “IN OR AFFECTING COMMERCE”

AND “IN INTERSTATE OR FOREIGN COMMERCE” ...................... 236

18 U.S.C. § 922(G) DEFINITION OF “POSSESSION” ................................. 237

18 U.S.C. § 922 DEFINITION OF “AMMUNITION” ..................................... 238

18 U.S.C. § 924(C)(1)(A) USING OR CARRYING A FIREARM DURING

AND IN RELATION TO A CRIME OF VIOLENCE OR DRUG

TRAFFICKING CRIME – ELEMENTS ............................................ 239

18 U.S.C. § 924(C)(1)(A) USING OR CARRYING A FIREARM DURING

AND IN RELATION TO A CRIME OF VIOLENCE OR DRUG

TRAFFICKING CRIME – ACCOUNTABILITY THEORY

ELEMENTS ................................................................................. 240

18 U.S.C. § 924(C)(1)(A) POSSESSION OF A FIREARM IN

FURTHERANCE OF A CRIME OF VIOLENCE OR DRUG

TRAFFICKING CRIME – ELEMENTS ............................................ 241

xii

18 U.S.C. § 924(C)(1)(A) POSSESSION OF A FIREARM IN

FURTHERANCE OF A CRIME OF VIOLENCE OR DRUG

TRAFFICKING CRIME – ACCOUNTABILITY THEORY

ELEMENTS ................................................................................. 243

18 U.S.C. § 924(C)(1)(A) DEFINITION OF “ADVANCE KNOWLEDGE” ........ 244

18 U.S.C. § 924(C) DEFINITION OF “USE” ................................................ 245

18 U.S.C. § 924(C) DEFINITION OF “CARRY”............................................ 246

18 U.S.C. § 924(C) DEFINITION OF “DURING” ......................................... 247

18 U.S.C. § 924(C) DEFINITION OF “IN RELATION TO” ............................ 248

18 U.S.C. § 924(C) DEFINITION OF “IN FURTHERANCE OF” .................... 249

18 U.S.C. §§ 922 & 924 DEFINITION OF “FIREARM” ................................ 250

18 U.S.C. §§ 922 & 924 DEFINITION OF “ANTIQUE FIREARM” ................ 251

BRANDISH/DISCHARGE SPECIAL VERDICT INSTRUCTIONS .................... 252

18 U.S.C. § 982(A)(1) FORFEITURE INSTRUCTION ................................... 253

18 U.S.C. § 982(A)(2) FORFEITURE INSTRUCTION ................................... 254

18 U.S.C. § 982(A)(3) FORFEITURE INSTRUCTION ................................... 256

18 U.S.C. § 982(A)(4) FORFEITURE INSTRUCTION ................................... 258

18 U.S.C. § 982(A)(5) FORFEITURE INSTRUCTION ................................... 259

18 U.S.C. § 982(A)(6) FORFEITURE INSTRUCTION ................................... 260

18 U.S.C. § 982(A)(7) FORFEITURE INSTRUCTION ................................... 262

18 U.S.C. § 982(A)(8) FORFEITURE INSTRUCTION ................................... 263

NEXUS INSTRUCTION ............................................................................... 264

DEFINITION OF FEDERAL HEALTH CARE OFFENSE................................. 265

DEFINITION OF CONVEYANCE .................................................................. 266

PROPERTY SUBJECT TO FORFEITURE ..................................................... 267

18 U.S.C. § 981(A)(1)(A) FORFEITURE INSTRUCTION ............................... 268

18 U.S.C. § 981(A)(1)(C) FORFEITURE ...................................................... 270

18 U.S.C. § 981(A)(1)(G)(I –III) FORFEITURE INSTRUCTION ...................... 272

18 U.S.C. § 981(A)(1)(G)(IV) FORFEITURE INSTRUCTION ......................... 273

18 U.S.C. § 981(A)(1)(H) FORFEITURE INSTRUCTION .............................. 274

18 U.S.C. § 981(A)(2) DEFINITION OF “PROCEEDS” ................................. 275

TRACEABLE TO – DEFINITION .................................................................. 276

18 U.S.C. § 1001 CONCEALING A MATERIAL FACT – ELEMENTS ............ 277

xiii

18 U.S.C. § 1001 MAKING A FALSE STATEMENT OR

REPRESENTATION – ELEMENTS ................................................ 278

18 U.S.C. § 1001 MAKING OR USING A FALSE WRITING OR

DOCUMENT – ELEMENTS .......................................................... 280

18 U.S.C. § 1001 DEFINITION OF SCHEME AND DEVICE ....................... 281

18 U.S.C. § 1001 DEFINITION OF FALSE, FICTITIOUS............................. 282

18 U.S.C. § 1001 DEFINITION OF FRAUDULENT ..................................... 283

18 U.S.C. § 1001 DEFINITION OF MATERIALITY ...................................... 284

18 U.S.C. § 1001 WILLFULLY – DEFINITION ............................................ 285

18 U.S.C. § 1001 DEPARTMENT OR AGENCY .......................................... 286

18 U.S.C. § 1005, PARA. 4 FRAUDULENTLY BENEFITTING FROM A

LOAN BY A FEDERALLY INSURED INSTITUTION ........................ 287

18 U.S.C. § 1006 INSIDER FRAUD ON A FEDERALLY INSURED

FINANCIAL INSTITUTION ............................................................ 288

18 U.S.C. § 1007 FALSE STATEMENTS TO INFLUENCE THE FDIC .......... 289

18 U.S.C. § 1014 FALSE STATEMENT TO FINANCIAL INSTITUTION –

ELEMENTS ................................................................................. 290

18 U.S.C. § 1015(A) MAKING A FALSE STATEMENT IN AN

IMMIGRATION DOCUMENT – ELEMENTS ................................... 291

18 U.S.C. § 1015(B) FALSE DENIAL OF NATURALIZATION OR

CITIZENSHIP – ELEMENTS ......................................................... 292

18 U.S.C. § 1015(C) USE OF FRAUDULENT IMMIGRATION

DOCUMENT – ELEMENTS .......................................................... 293

18 U.S.C. § 1015(D) MAKING FALSE CERTIFICATE OF APPEARANCE –

ELEMENTS ................................................................................. 294

18 U.S.C. § 1015(E) FALSE CLAIM OF CITIZENSHIP – ELEMENTS ........... 295

18 U.S.C. § 1015(F) FALSE CLAIM OF CITIZENSHIP IN ORDER TO

VOTE – ELEMENTS..................................................................... 296

18 U.S.C. § 1028(A) OFFENSES AND § 1028(B) PENALTIES .................... 297

18 U.S.C. § 1028(A)(1) FRAUDULENT PRODUCTION OF AN

IDENTIFICATION DOCUMENT, AUTHENTICATION FEATURE,

OR FALSE IDENTIFICATION DOCUMENT – ELEMENTS .............. 299

18 U.S.C. 1028(A)(2) FRAUDULENT TRANSFER OF AN

IDENTIFICATION DOCUMENT, AUTHENTICATION FEATURE,

OR FALSE IDENTIFICATION DOCUMENT – ELEMENTS .............. 301

xiv

18 U.S.C. § 1028(A)(3) FRAUDULENT POSSESSION OF FIVE OR MORE

IDENTIFICATION DOCUMENTS, AUTHENTICATION

FEATURES, OR FALSE IDENTIFICATION DOCUMENTS –

ELEMENTS ................................................................................. 303

18 U.S.C. § 1028(A)(4) POSSESSION OF AN IDENTIFICATION

DOCUMENT, AUTHENTICATION FEATURE, OR FALSE

IDENTIFICATION DOCUMENT WITH INTENT TO DEFRAUD

THE UNITED STATES – ELEMENTS ............................................ 305



18 U.S.C. § 1028(A)(5) FRAUDULENT PRODUCTION, TRANSFER, OR

POSSESSION OF A DOCUMENT – MAKING IMPLEMENT OR

AUTHENTICATION FEATURE – ELEMENTS ................................ 307

18 U.S.C. § 1028(A)(6) POSSESSION OF A STOLEN IDENTIFICATION

DOCUMENT OR AUTHENTICATION FEATURE – ELEMENTS ...... 309

18 U.S.C. § 1028(A)(7) FRAUDULENT TRANSFER, POSSESSION, OR

USE OF A MEANS OF IDENTIFICATION – ELEMENTS ................ 311

18 U.S.C. § 1028(A)(8) TRAFFICKING IN FALSE OR ACTUAL

AUTHENTICATION FEATURES – ELEMENTS .............................. 313

18 U.S.C. § 1028 PENALTY-ENHANCING INSTRUCTIONS AND SPECIAL

VERDICT FORMS ........................................................................ 315

18 U.S.C. § 1028 PENALTY-ENHANCING PROVISIONS UNDER §

1028(B) ....................................................................................... 317

18 U.S.C. § 1028 SPECIAL VERDICT FORM ............................................. 319

18 U.S.C. § 1028 DEFINITIONS ................................................................ 321

18 U.S.C. § 1028(D)(1) DEFINITION OF “AUTHENTICATION FEATURE” ... 322

18 U.S.C. § 1028(D)(2) DEFINITION OF “DOCUMENT-MAKING

IMPLEMENT” .............................................................................. 323

18 U.S.C. § 1028(D)(3) DEFINITION OF “IDENTIFICATION DOCUMENT” .. 324

18 U.S.C. § 1028(D)(4) DEFINITION OF “FALSE IDENTIFICATION

DOCUMENT” .............................................................................. 325

18 U.S.C. § 1028(D)(5) DEFINITION OF “FALSE AUTHENTICATION

FEATURE” .................................................................................. 326

18 U.S.C. § 1028(D)(6) DEFINITION OF “ISSUING AUTHORITY” ............... 327

18 U.S.C. § 1028(D)(7) DEFINITION OF “MEANS OF IDENTIFICATION” ... 328

18 U.S.C. § 1028(D)(8) DEFINITION OF “PERSONAL IDENTIFICATION

CARD” ........................................................................................ 330

18 U.S.C. § 1028(D)(9) DEFINITION OF “PRODUCE” ................................ 331

18 U.S.C. § 1028(D)(10) DEFINITION OF “TRANSFER” ............................. 332

18 U.S.C. § 1028(D)(11) DEFINITION OF “STATE” .................................... 333

18 U.S.C. § 1028(D)(12) DEFINITION OF “TRAFFIC” ................................. 334

18 U.S.C. § 1028 DEFINITION OF “LAWFUL AUTHORITY” ........................ 335

18 U.S.C. § 1028 DEFINITION OF “INTERSTATE OR FOREIGN

COMMERCE” .............................................................................. 336

18 U.S.C. § 1028A(A)(1) AGGRAVATED IDENTITY THEFT – ELEMENTS .. 337

18 U.S.C. § 1028A DEFINITION OF “IN RELATION TO” ............................ 339

18 U.S.C. § 1029(A)(1) PRODUCTION, USE OR TRAFFICKING IN

COUNTERFEIT ACCESS DEVICES – ELEMENTS ........................ 340

18 U.S.C. § 1029(A)(2) TRAFFICKING OR USE OF UNAUTHORIZED

ACCESS DEVICES – ELEMENTS ................................................. 341

18 U.S.C. § 1029(A)(3) POSSESSION OF MULTIPLE UNAUTHORIZED

OR COUNTERFEIT ACCESS DEVICES – ELEMENTS ................... 342

18 U.S.C. § 1029(A)(4) PRODUCTION, TRAFFICKING AND POSSESSION

OF DEVICE-MAKING EQUIPMENT – ELEMENTS ........................ 343

18 U.S.C. § 1029(A)(5) FRAUDULENT TRANSACTIONS WITH

ANOTHER’S ACCESS DEVICE – ELEMENTS ............................... 344

18 U.S.C. § 1029(A)(6) SOLICITATION TO SELL ACCESS DEVICE OR

INFORMATION REGARDING AN ACCESS DEVICE –

ELEMENTS ................................................................................. 346

18 U.S.C. § 1029(A)(7) USE, PRODUCTION, TRAFFICKING OR

POSSESSION OF MODIFIED TELECOMMUNICATION

INSTRUMENT – ELEMENTS ........................................................ 347

18 U.S.C. § 1029(A)(8) USE, PRODUCTION, TRAFFICKING OR

POSSESSION OF A SCANNING RECEIVER – ELEMENTS ............ 348

18 U.S.C. § 1029(A)(9) USE, PRODUCTION, TRAFFICKING OR

POSSESSION OF HARDWARE OR SOFTWARE CONFIGURED

TO OBTAIN TELECOMMUNICATION SERVICES – ELEMENTS .... 349

18 U.S.C. § 1029(A)(10) FRAUDULENT PRESENTATION OF EVIDENCE

OF PAYMENT BY ACCESS DEVICE – ELEMENTS ....................... 350

18 U.S.C. § 1029 ACCESS DEVICE FRAUD – DEFINITIONS ..................... 351

18 U.S.C. § 1029(E)(1) DEFINITION OF “ACCESS DEVICE” ...................... 352

18 U.S.C. § 1029(E)(2) DEFINITION OF “COUNTERFEIT ACCESS

DEVICE” ..................................................................................... 353

18 U.S.C. § 1029(E)(3) DEFINITION OF “UNAUTHORIZED ACCESS

DEVICE” ..................................................................................... 354

18 U.S.C. § 1029(E)(4) DEFINITION OF “PRODUCE” ................................. 355

xvi

18 U.S.C. § 1029(E)(5) DEFINITION OF “TRAFFIC” OR “TRAFFICKING” .... 356

18 U.S.C. § 1029(E)(6) DEFINITION OF “DEVICE-MAKING EQUIPMENT” . 357

18 U.S.C. § 1029(E)(7) DEFINITION OF “CREDIT CARD SYSTEM

MEMBER” ................................................................................... 358

18 U.S.C. § 1029(E)(8) DEFINITION OF “SCANNING RECEIVER” .............. 359

18 U.S.C. § 1029(E)(9) DEFINITION OF “TELECOMMUNICATIONS

SERVICE” ................................................................................... 360

18 U.S.C. § 1029(E)(11) DEFINITION OF “TELECOMMUNICATION

IDENTIFYING INFORMATION” ..................................................... 361

18 U.S.C. § 1029 DEFINITION OF “TELECOMMUNICATIONS

INSTRUMENT” ............................................................................ 362

18 U.S.C. § 1029 DEFINITION OF “HARDWARE” ...................................... 363

18 U.S.C. § 1029 DEFINITION OF “SOFTWARE” ....................................... 364

18 U.S.C. § 1029 DEFINITION OF “INTERSTATE OR FOREIGN

COMMERCE” .............................................................................. 365

18 U.S.C. §§ 1029(B)(1) AND (B)(2) ATTEMPT AND CONSPIRACY–

ELEMENTS ................................................................................. 366

18 U.S.C. § 1030(A)(1) OBTAINING INFORMATION FROM COMPUTER

INJURIOUS TO THE UNITED STATES – ELEMENTS ................... 367

18 U.S.C. § 1030(A)(2)(A), (B), AND (C) OBTAINING FINANCIAL

INFORMATION BY UNAUTHORIZED ACCESS OF A

COMPUTER – ELEMENTS ........................................................... 368

18 U.S.C. § 1030(A)(3) ACCESSING A NON-PUBLIC GOVERNMENT

COMPUTER – ELEMENTS ........................................................... 371

18 U.S.C. § 1030(A)(4) COMPUTER FRAUD USE BY OR FOR FINANCIAL

INSTITUTION OR GOVERNMENT – ELEMENTS ........................... 372

18 U.S.C. § 1030(A)(5)(A) TRANSMISSION OF PROGRAM TO

INTENTIONALLY CAUSE DAMAGE TO A COMPUTER –

ELEMENTS ................................................................................. 373

18 U.S.C. § 1030(A)(5)(B) RECKLESSLY CAUSING DAMAGE BY

ACCESSING A PROTECTED COMPUTER – ELEMENTS ............... 376

18 U.S.C. § 1030(A)(5)(C) CAUSING DAMAGE AND LOSS BY

ACCESSING A PROTECTED COMPUTER – ELEMENTS ............... 378

18 U.S.C. § 1030(A)(6) TRAFFICKING IN PASSWORDS – ELEMENTS ........ 379

18 U.S.C. § 1030(A)(7)(A) EXTORTION BY THREATENING TO DAMAGE

A PROTECTED COMPUTER – ELEMENTS ................................... 380

xvii

18 U.S.C. § 1030(A)(7)(B) EXTORTION BY THREATENING TO OBTAIN

INFORMATION FROM A PROTECTED COMPUTER –

ELEMENTS ................................................................................. 381

18 U.S.C. § 1030(A)(7)(C) EXTORTION BY DEMANDING MONEY IN

RELATION TO A PROTECTED COMPUTER – ELEMENTS ............ 382



18 U.S.C. § 1030(A)(7)(C) DEFINITION OF “IN RELATION TO” ................... 383

18 U.S.C. § 1030(B) ATTEMPT AND CONSPIRACY – ELEMENTS .............. 384

18 U.S.C. § 1030 COMPUTER FRAUD AND RELATED ACTIVITY –

DEFINITIONS .............................................................................. 385

18 U.S.C. § 1030(E)(1) DEFINITION OF “COMPUTER” .............................. 386

18 U.S.C. § 1030(E)(2) DEFINITION OF “PROTECTED COMPUTER” ......... 387

18 U.S.C. § 1030(E)(3) DEFINITION OF “STATE” ...................................... 388

18 U.S.C. § 1030(E)(4) DEFINITION OF “FINANCIAL INSTITUTION” .......... 389

18 U.S.C. § 1030(E)(5) DEFINITION OF “FINANCIAL RECORD”................. 390

18 U.S.C. § 1030(E)(6) DEFINITION OF “EXCEEDS AUTHORIZED

ACCESS” .................................................................................... 391

18 U.S.C. § 1030(E)(7) DEFINITION OF “DEPARTMENT OF THE

UNITED STATES” ........................................................................ 392

18 U.S.C. § 1030(E)(8) DEFINITION OF “DAMAGE” .................................. 393

18 U.S.C. § 1030 DEFINITION OF “GOVERNMENT ENTITY” ..................... 394

18 U.S.C. § 1030(E)(10) DEFINITION OF “CONVICTION” .......................... 395

18 U.S.C. § 1030(E)(11) DEFINITION OF “LOSS” ...................................... 396

18 U.S.C. § 1030(E)(12) DEFINITION OF “PERSON”.................................. 397

18 U.S.C. § 1030 DEFINITION OF “PASSWORD” ...................................... 398

CARE MATTERS: FALSIFICATION AND CONCEALMENT ............................ 399

CARE MATTERS: FALSE STATEMENT ....................................................... 400

18 U.S.C. § 1035(A)(1 & 2) DEFINITION OF HEALTH CARE BENEFIT

PROGRAM .................................................................................. 401

18 U.S.C. § 1035(A)(1 & 2) DEFINITION OF MATERIAL .............................. 402

18 U.S.C. § 1035(A)(1 & 2) DEFINITION OF WILLFULLY ............................. 402

18 U.S.C. § 1111 FIRST DEGREE MURDER – ELEMENTS ........................ 403

18 U.S.C. § 1111 DEFINITION OF MALICE AFORETHOUGHT ................... 410

18 U.S.C. § 1111 DEFINITION OF PREMEDITATION ................................. 411

18 U.S.C. § 1111 SECOND DEGREE MURDER – ELEMENTS .................... 412

xviii

18 U.S.C. §§ 1111, 1112 JURISDICTION .................................................. 414

18 U.S.C. §§ 1111, 1112 CONDUCT CAUSED DEATH ............................... 415

18 U.S.C. § 1112 VOLUNTARY MANSLAUGHTER – ELEMENTS ................ 416

18 U.S.C. § 1112 DEFINITION OF HEAT OF PASSION .............................. 417

18 U.S.C. § 1112 DEFINITION OF VOLUNTARY MANSLAUGHTER ............ 418

18 U.S.C. § 1112 INVOLUNTARY MANSLAUGHTER - ELEMENTS.............. 419

18 U.S.C. § 1112 DEFINITION OF ASSAULT ............................................. 421

18 U.S.C. § 1112 DEFINITION OF DANGEROUS WEAPON ........................ 422

18 U.S.C. § 1112 DEFINITION OF SERIOUS BODILY INJURY ................... 423

18 U.S.C. §§ 1341 & 1343 MAIL/WIRE/CARRIER

FRAUD – ELEMENTS .................................................................. 424

18 U.S.C. §§ 1341, 1343 & 1346 TYPES OF MAIL/ WIRE/CARRIER

FRAUD ....................................................................................... 426

18 U.S.C. §§ 1341 & 1343 DEFINITION OF SCHEME TO DEFRAUD ......... 427

18 U.S.C. §§ 1341 & 1343 PROOF OF SCHEME ....................................... 430

18 U.S.C. §§ 1341 & 1343 DEFINITION OF MATERIAL ............................. 431

18 U.S.C. §§ 1341 & 1343 DEFINITION OF INTENT TO DEFRAUD ........... 432

18 U.S.C. §§ 1341, 1343 & 1346 DEFINITION OF HONEST SERVICES ..... 433

18 U.S.C. §§ 1341, 1343 & 1346 RECEIVING A BRIBE OR KICKBACK ..... 435

18 U.S.C. §§ 1341, 1343 & 1346 OFFERING A BRIBE OR KICKBACK ...... 438

18 U.S.C. §§ 1341, 1343 & 1346 INTENT TO INFLUENCE ........................ 439

18 U.S.C. §§ 1341 & 1343 SUCCESS NOT REQUIRED ............................. 440

18 U.S.C. § 1343 WIRE COMMUNICATION............................................... 441

18 U.S.C. §§ 1341 AND 1343 USE OF MAILS/INTERSTATE

CARRIER/INTERSTATE COMMUNICATION FACILITY ................. 442

18 U.S.C. § 1344 SCHEME – DEFINITION .................................................. 444

18 U.S.C. § 1344 MULTIPLE FALSE STATEMENTS CHARGED ................... 446

18 U.S.C. § 1344(1) SCHEME TO DEFRAUD A FINANCIAL INSTITUTION

– ELEMENTS .............................................................................. 447

18 U.S.C. § 1344 SCHEME – DEFINITION ................................................ 449

18 U.S.C. § 1344 MULTIPLE FALSE STATEMENTS CHARGED ................. 451

18 U.S.C. § 1344(1) SCHEME TO DEFRAUD A FINANCIAL INSTITUTION

– ELEMENTS .............................................................................. 452

18 U.S.C. § 1344(1) SCHEME TO DEFRAUD – DEFINITION ........................ 454

xix

18 U.S.C. § 1344(2) OBTAINING BANK PROPERTY BY FALSE OR

FRAUDULENT PRETENSES – ELEMENTS ................................... 456

18 U.S.C. § 1344(2) SCHEME – DEFINITION .............................................. 458

18 U.S.C. § 1347(1) HEALTH CARE FRAUD – ELEMENTS ........................ 460

18 U.S.C. § 1347 HEALTH CARE BENEFIT PROGRAM/ INTERSTATE

COMMERCE – DEFINITION ......................................................... 463

18 U.S.C. § 1461 MAILING OBSCENE MATERIAL – ELEMENTS ............... 464

18 U.S.C. § 1462 BRINGING OBSCENE MATERIAL INTO THE UNITED

STATES – ELEMENTS ................................................................. 465

18 U.S.C. § 1462 TAKING OR RECEIVING OBSCENE MATERIAL –

ELEMENTS ................................................................................. 466

18 U.S.C. § 1462 IMPORTING OR TRANSPORTING OBSCENE

MATERIAL – ELEMENTS ............................................................. 467

18 U.S.C. § 1465 PRODUCTION WITH INTENT TO TRANSPORT/

DISTRIBUTE/TRANSMIT OBSCENE MATERIAL FOR SALE OR

DISTRIBUTION – ELEMENTS ...................................................... 468

18 U.S.C. § 1465 TRANSPORTATION OF OBSCENE MATERIAL FOR

SALE OR DISTRIBUTION – ELEMENTS ....................................... 469

INTERSTATE/FOREIGN COMMERCE – DEFINED ...................................... 470

18 U.S.C. § 1466 ENGAGING IN BUSINESS OF PRODUCING/

SELLING OBSCENE MATTER – ELEMENTS ................................ 471

18 U.S.C. § 1466 ENGAGING IN BUSINESS OF

SELLING/TRANSFERRING OBSCENE MATTER – ELEMENTS) .... 472

18 U.S.C. § 1466 ENGAGING IN BUSINESS OF

RECEIVING/POSSESSING OBSCENE MATTER – ELEMENTS ..... 473

18 U.S.C. § 1466A(A)(1) PRODUCING/DISTRIBUTING/RECEIVING/

POSSESSING WITH INTENT TO DISTRIBUTE OBSCENE

VISUAL REPRESENTATIONS OF SEXUAL ABUSE OF

CHILDREN – ELEMENTS ............................................................ 474

18 U.S.C. § 1466A(A)(2) PRODUCING/DISTRIBUTING/RECEIVING/

POSSESSING WITH INTENT TO DISTRIBUTE OBSCENE

VISUAL REPRESENTATIONS OF SEXUAL ABUSE OF

CHILDREN – ELEMENTS ............................................................ 476

18 U.S.C. § 1466A(B)(1) POSSESSION OF OBSCENE VISUAL

REPRESENTATIONS OF SEXUAL ABUSE OF CHILDREN —

ELEMENTS ................................................................................. 478

18 U.S.C. § 1466A(B)(2) POSSESSION OF OBSCENE VISUAL

REPRESENTATIONS OF SEXUAL ABUSE OF CHILDREN –

ELEMENTS) ................................................................................ 480

18 U.S.C. § 1466A(F)(1) VISUAL DEPICTION – DEFINED .......................... 482

18 U.S.C. § 1466A(F)(3) GRAPHIC – DEFINED .......................................... 483

18 U.S.C. §1466(B) ENGAGED IN THE BUSINESS – DEFINED ................. 484

18 U.S.C. § 1470 TRANSFER OF OBSCENE MATERIAL TO

A MINOR – ELEMENTS 485

18 U.S.C. § 1470 – OBSCENITY – DEFINITION ........................................... 486

18 U.S.C. § 1512(B)(1) WITNESS TAMPERING – INFLUENCING OR

PREVENTING TESTIMONY – ELEMENTS .................................... 488

18 U.S.C. § 1512(B)(2)(A) WITNESS TAMPERING – WITHHOLDING

EVIDENCE – ELEMENTS ............................................................ 489

18 U.S.C. § 1512(B)(2)(B) WITNESS TAMPERING – ALTERING OR

DESTROYING EVIDENCE – ELEMENTS ...................................... 490

18 U.S.C. § 1512(B)(2)(C) WITNESS TAMPERING – EVADING LEGAL

PROCESS – ELEMENTS .............................................................. 491

18 U.S.C. § 1512(B)(2)(D) WITNESS TAMPERING – ABSENCE FROM

LEGAL PROCEEDING – ELEMENTS ............................................ 492

18 U.S.C. § 1512(B)(3) WITNESS TAMPERING – HINDER, DELAY OR

PREVENT COMMUNICATION RELATING TO COMMISSION OF

OFFENSE – ELEMENTS .............................................................. 493

18 U.S.C. § 1512(C)(1) DESTROY, ALTER OR CONCEAL DOCUMENT

OR OBJECT – ELEMENTS .......................................................... 495

18 U.S.C. § 1512(C)(2) OTHERWISE OBSTRUCT OFFICIAL

PROCEEDING – ELEMENTS........................................................ 496

18 U.S.C. §§ 1512 AND 1515(A)(1) DEFINITION OF OFFICIAL

PROCEEDING ............................................................................. 497

18 U.S.C. §§ 1512 DEFINITION OF CORRUPTLY ...................................... 499

18 U.S.C. §§ 1512 AND 1515(A)(3) DEFINITION OF MISLEADING

CONDUCT .................................................................................. 500

18 U.S.C. § 1512(E) AFFIRMATIVE DEFENSE .......................................... 501

18 U.S.C. §§ 1512 AND 1515(A)(4) DEFINITION OF LAW

ENFORCEMENT OFFICER .......................................................... 502

18 U.S.C. § 1543 FORGERY OF PASSPORT – ELEMENTS ........................ 503

18 U.S.C. § 1543 FALSE USE OF PASSPORT – ELEMENTS ...................... 504

18 U.S.C. § 1544 MISUSE OF A PASSPORT – ELEMENTS ........................ 505

xxi

18 U.S.C. § 1544 FURNISHING A FALSE PASSPORT – ELEMENTS ........... 507

18 U.S.C. § 1546(A) FRAUDULENT IMMIGRATION DOCUMENT –

ELEMENTS ................................................................................. 508

18 U.S.C. § 1546(A) MAKING A FALSE STATEMENT ON IMMIGRATION

DOCUMENT – ELEMENTS .......................................................... 509

18 U.S.C. § 1546(A) PRESENTATION OF FALSE STATEMENT ON

IMMIGRATION DOCUMENT – ELEMENTS ................................... 510

18 U.S.C. § 1546(A) DEFINITION OF MATERIAL ....................................... 511

18 U.S.C. § 1591 SEX TRAFFICKING OF A MINOR – ELEMENTS ............ 512

18 U.S.C. § 1591 BENEFITTING FROM SEX TRAFFICKING OF A

MINOR – ELEMENTS .................................................................. 513

18 U.S.C. § 1591(A)(1) SEX TRAFFICKING OF A MINOR OR BY FORCE,

FRAUD, OR COERCION .............................................................. 515

18 U.S.C. §1591(E)(1) ABUSE OR THREATENED ABUSE OF LAW OR

LEGAL PROCESS – DEFINED ..................................................... 518

18 U.S.C. §1591(E)(2) COERCION – DEFINED .......................................... 519

18 U.S.C. § 1591(E)(3) COMMERCIAL SEX ACT – DEFINED ..................... 520

18 U.S.C. § 1591(E)(4) SERIOUS HARM – DEFINED ................................. 521

18 U.S.C. § 1591(E)(5) VENTURE – DEFINED ........................................... 522

18 U.S.C. § 1623 FALSE DECLARATIONS BEFORE GRAND JURY OR

COURT – ELEMENTS .................................................................. 523

18 U.S.C. § 1623 MATERIALITY – DEFINITION ......................................... 525

18 U.S.C. § 1623 RECORDS OR DOCUMENTS ......................................... 526

18 U.S.C. § 1623 SEQUENCE OF QUESTIONS ......................................... 527

18 U.S.C. § 1623 INCONSISTENT STATEMENTS ...................................... 528

18 U.S.C. § 1623 RECANTATION .............................................................. 529

18 U.S.C. § 1701 OBSTRUCTION OF MAILS ............................................. 531

18 U.S.C. § 1708 THEFT OF MAIL FROM AUTHORIZED DEPOSITORY –

ELEMENTS ................................................................................. 532

18 U.S.C. § 1708 MAIL THEFT ON OR NEXT TO A DEPOSITORY –

ELEMENTS ................................................................................. 534

18 U.S.C. § 1708 BUYING, RECEIVING, CONCEALING, OR

UNLAWFULLY POSSESSING STOLEN MAIL – ELEMENTS ........... 535

18 U.S.C. § 1708 REMOVING CONTENTS OF/SECRETING/

EMBEZZLING/DESTROYING MAIL ............................................. 536

xxii

18 U.S.C. § 1709 THEFT OF MAIL BY OFFICER OF EMPLOYEE –

ELEMENTS ................................................................................. 537

18 U.S.C. § 1951 EXTORTION – NON-ROBBERY – ELEMENTS................. 539

18 U.S.C. § 1951 ATTEMPTED EXTORTION – ELEMENTS ........................ 540

18 U.S.C. § 1951 EXTORTION – ROBBERY – ELEMENTS ......................... 541

18 U.S.C. § 1951 DEFINITION OF ROBBERY ........................................... 542

18 U.S.C. § 1951 COLOR OF OFFICIAL RIGHT – DEFINITION .................. 543

18 U.S.C. § 1951 EXTORTION – DEFINITION ........................................... 545

18 U.S.C. § 1951 PROPERTY – DEFINITION ............................................. 546

18 U.S.C. § 1951 INTERSTATE COMMERCE – DEFINITION ..................... 547

18 U.S.C. § 1952 INTERSTATE AND FOREIGN TRAVEL OR

TRANSPORTATION IN AID OF RACKETEERING ENTERPRISES

– ELEMENTS .............................................................................. 549

18 U.S.C. § 1952 INTERSTATE COMMERCE – DEFINITION ..................... 551

18 U.S.C. § 1952 DEFINITION OF UNLAWFUL ACTIVITY – BUSINESS

ENTERPRISE .............................................................................. 552

18 U.S.C. § 1952 DEFINITION OF UNLAWFUL BUSINESS ACTIVITY –

CONTROLLED SUBSTANCES ...................................................... 553

18 U.S.C. § 1956(A)(1)(A)(I) MONEY LAUNDERING – PROMOTING

UNLAWFUL ACTIVITY ................................................................. 554

18 U.S.C. § 1956(A)(1)(A)(II) MONEY LAUNDERING – TAX VIOLATIONS

– ELEMENTS .............................................................................. 556

18 U.S.C. § 1956(A)(1)(B)(I) MONEY LAUNDERING – CONCEALING OR

DISGUISING – ELEMENTS .......................................................... 557

18 U.S.C. § 1956(A)(1)(B)(II) MONEY LAUNDERING – AVOIDING

REPORTING – ELEMENTS .......................................................... 558

18 U.S.C. § 1956(A)(2)(A) MONEY LAUNDERING – INTERNATIONAL

PROMOTION – ELEMENTS.......................................................... 559

18 U.S.C. § 1956(A)(2)(B)(I) MONEY LAUNDERING – INTERNATIONAL

CONCEALING OR DISGUISING – ELEMENTS.............................. 560

18 U.S.C. § 1956 DEFINITION OF “PROCEEDS” ......................................... 561

18 U.S.C. § 1956 KNOWLEDGE ................................................................. 563

18 U.S.C. § 1956 DEFINITION OF “TRANSACTION” .................................... 564

18 U.S.C. § 1956 DEFINITIONS .................................................................. 565

18 U.S.C. § 1956 DEFINITION OF “CONCEAL OR DISGUISE” .................... 566

xxiii

18 U.S.C. § 1957 UNLAWFUL MONETARY TRANSACTIONS IN

CRIMINALLY DERIVED PROPERTY – ELEMENTS ........................ 567

18 U.S.C. § 1957 DEFINITIONS ................................................................ 568

18 U.S.C. § 1959(A) VIOLENT CRIMES IN AID OF RACKETEERING

ACTIVITY .................................................................................... 570

18 U.S.C. § 1961(4) ENTERPRISE – LEGAL ENTITY .................................. 572

18 U.S.C. § 1961(4) ENTERPRISE – ASSOCIATION IN FACT ..................... 573

18 U.S.C. § 1962(C) SUBSTANTIVE RACKETEERING – ELEMENTS .......... 574

18 U.S.C. § 1962 INTERSTATE COMMERCE – DEFINITION ..................... 575

18 U.S.C. § 1962(C) PATTERN REQUIREMENT – SUBSTANTIVE

RACKETEERING ......................................................................... 576

18 U.S.C. § 1962(C) SUBPARTS OF RACKETEERING ACTS ...................... 577

18 U.S.C. § 1962(D) RACKETEERING CONSPIRACY – ELEMENTS ........... 578

18 U.S.C. § 1962(D) PATTERN REQUIREMENT – RACKETEERING

CONSPIRACY .............................................................................. 579

18 U.S.C. § 1962(C) & (D) CONDUCT – DEFINITION ................................. 580

18 U.S.C. § 1962(C) & (D) ASSOCIATE – DEFINITION ............................... 581

18 U.S.C. § 1963(A)(1) FORFEITURE ELEMENTS ..................................... 582

18 U.S.C. § 1963(A)(1) DEFINITIONS ........................................................ 583

18 U.S.C. § 1963(A)(2) FORFEITURE ELEMENTS ..................................... 584

18 U.S.C. § 1963(A)(3) FORFEITURE ELEMENTS ..................................... 586

18 U.S.C. § 1963(A)(3) DEFINITION OF PROCEEDS ................................. 587

18 U.S.C. § 1963(B) DEFINITION OF PROPERTY ...................................... 588

FORFEITURE VERDICT FORM ................................................................... 589

18 U.S.C. § 2113(A) BANK ROBBERY – ELEMENTS ................................. 590

18 U.S.C. § 2113(A) DEFINITION OF “INTIMIDATION” .............................. 591

18 U.S.C. § 2113(A) ENTERING TO COMMIT BANK ROBBERY OR

ANOTHER FELONY – ELEMENTS ................................................ 592

18 U.S.C. § 2113(B) BANK THEFT – ELEMENTS....................................... 593

18 U.S.C. § 2113(B) DEFINITION OF “STEAL” .......................................... 595

18 U.S.C. § 2113(C) POSSESSION OF STOLEN BANK MONEY OR

PROPERTY – ELEMENTS ............................................................ 596

18 U.S.C. § 2113(D) ARMED BANK ROBBERY – ELEMENTS .................... 598

18 U.S.C. § 2113(D) DEFINITION OF “ASSAULT” ...................................... 600

xxiv

18 U.S.C. § 2113(D) DEFINITION OF “PUT IN JEOPARDY THE LIFE OF

ANOTHER PERSON” ................................................................... 601

18 U.S.C. § 2113(D) DEFINITION OF “DANGEROUS WEAPON OR

DEVICE” ..................................................................................... 602

18 U.S.C. § 2113(E) KIDNAPPING OR MURDER DURING A BANK

ROBBERY – ELEMENTS.............................................................. 603

18 U.S.C. § 2114(A) ASSAULT WITH INTENT TO ROB MAIL MATTER,

MONEY, OR OTHER PROPERTY OF THE UNITED STATES –

ELEMENTS ................................................................................. 605

18 U.S.C. § 2114(A) ROBBERY OR ATTEMPTED ROBBERY OF MAIL

MATTER, MONEY, OR OTHER PROPERTY OF THE UNITED

STATES – ELEMENTS ................................................................. 606

18 U.S.C. § 2114(A) WOUNDING OR PUTTING A LIFE IN JEOPARDY

DURING A ROBBERY OR ATTEMPTED ROBBERY OF MAIL

MATTER, MONEY, OR OTHER PROPERTY OF THE UNITED

STATES – ELEMENTS ................................................................. 608

18 U.S.C. § 2114(B) RECEIPT, POSSESSION, CONCEALMENT, OR

DISPOSAL OF STOLEN MAIL MATTER, MONEY, OR OTHER

PROPERTY OF THE UNITED STATES – ELEMENTS .................... 610

18 U.S.C. § 2241(A) AGGRAVATED SEXUAL ABUSE – ELEMENTS ........... 611

18 U.S.C. § 2241(B)(1) AGGRAVATED SEXUAL ABUSE – RENDERING

VICTIM UNCONSCIOUS – ELEMENTS ......................................... 612

18 U.S.C. § 2241(B)(2) AGGRAVATED SEXUAL ABUSE –

ADMINISTRATION OF DRUG, INTOXICANT OR OTHER

SUBSTANCE – ELEMENTS .......................................................... 613

18 U.S.C. § 2241(C) AGGRAVATED SEXUAL ABUSE OF CHILD –

ELEMENTS ................................................................................. 614

18 U.S.C. § 2241(C) AGGRAVATED SEXUAL ABUSE OF CHILD ON

FEDERAL PROPERTY – ELEMENTS ............................................ 615

18 U.S.C. § 2241(C) AGGRAVATED SEXUAL ABUSE OF A MINOR

TWELVE TO SIXTEEN – ELEMENTS ........................................... 616

18 U.S.C. § 2241(C) AGGRAVATED SEXUAL ABUSE – RENDERING

VICTIM UNCONSCIOUS, MINOR TWELVE TO SIXTEEN –

ELEMENTS ................................................................................. 617

18 U.S.C. § 2241(C) AGGRAVATED SEXUAL ABUSE –

ADMINISTRATION OF DRUG, INTOXICANT OR OTHER

SUBSTANCE, MINOR TWELVE TO SIXTEEN – ELEMENTS.......... 618

18 U.S.C. § 2243(A) SEXUAL ABUSE OF MINOR – ELEMENTS ................. 619

xxv

18 U.S.C. § 2243(A), 2423(B) AND 2241(C) CROSSING STATE LINE

WITH INTENT TO ENGAGE IN SEXUAL ACT WITH MINOR –

ELEMENTS ................................................................................. 620

18 U.S.C. § 2243(B) SEXUAL ABUSE OF PERSON IN OFFICIAL

DETENTION – ELEMENTS .......................................................... 621



18 U.S.C. § 2243(B) DEFINITION OF “OFFICIAL DETENTION”.................. 622

18 U.S.C. § 2243(C)(1) DEFENSE OF REASONABLE BELIEF OF

MINOR’S AGE ............................................................................. 623

18 U.S.C. § 2244(A), 2242 ABUSIVE SEXUAL CONTACT – ELEMENTS ....... 624

18 U.S.C. § 2244(A)(2) ABUSIVE SEXUAL CONTACT – INCAPACITATED

VICTIM – ELEMENTS .................................................................. 625

18 U.S.C. § 2244(B) ABUSIVE SEXUAL CONTACT WITHOUT

PERMISSION – ELEMENTS ......................................................... 626

18 U.S.C. § 2246(2) DEFINITION OF “SEXUAL ACT”................................. 627

18 U.S.C. § 2246(3) DEFINITION OF “SEXUAL CONTACT” ....................... 628

18 U.S.C. § 2250(A) FAILURE TO REGISTER/ UPDATE AS

SEX OFFENDER – ELEMENTS .................................................... 629

18 U.S.C. § 2251(A) SEXUAL EXPLOITATION OF CHILD – ELEMENTS ..... 631

18 U.S.C. § 2251(A) SELLING OF CHILDREN – ELEMENTS ...................... 633

18 U.S.C. § 2251(B) SEXUAL EXPLOITATION OF CHILD – PERMITTING

OR ASSISTING BY PARENT OR GUARDIAN – ELEMENTS ........... 636

18 U.S.C. 2251(C) SEXUAL EXPLOITATION OF CHILD – CONDUCT

OUTSIDE OF THE UNITED STATES – ELEMENTS ....................... 638

18 U.S.C. § 2251(D) PUBLISHING OF CHILD PORNOGRAPHY –

ELEMENTS ................................................................................. 639

18 U.S.C. § 2252A(A)(1) MAILING, TRANSPORTING OR SHIPPING

MATERIAL CONTAINING CHILD PORNOGRAPHY – ELEMENTS .. 641

18 U.S.C. § 2252A(A)(2)(A) RECEIPT OR DISTRIBUTION OF CHILD

PORNOGRAPHY – ELEMENTS ..................................................... 643

18 U.S.C. § 2252A(A)(2)(B) RECEIPT OR DISTRIBUTION OF MATERIAL

CONTAINING CHILD PORNOGRAPHY – ELEMENTS .................... 645

18 U.S.C. § 2252A(A)(3)(A) REPRODUCTION OF CHILD PORNOGRAPHY

FOR DISTRIBUTION – ELEMENTS .............................................. 647

18 U.S.C. § 2252A(A)(4)(A) SALE OR POSSESSION WITH INTENT TO

SELL OF CHILD PORNOGRAPHY IN U.S. TERRITORY –

ELEMENTS ................................................................................. 649

xxvi

18 U.S.C. § 2252A(A)(4)(B) SALE OR POSSESSION WITH INTENT TO

SELL OF CHILD PORNOGRAPHY IN INTERSTATE OR

FOREIGN COMMERCE – ELEMENTS .......................................... 651

18 U.S.C. § 2252A(A)(5)(A) POSSESSION OF OR ACCESS WITH INTENT

TO VIEW CHILD PORNOGRAPHY IN U.S. TERRITORY –

ELEMENTS ................................................................................. 653

18 U.S.C. § 2252A(A)(5)(B) POSSESSION OF OR ACCESS WITH INTENT

TO VIEW CHILD PORNOGRAPHY IN INTERSTATE COMMERCE

– ELEMENTS .............................................................................. 655

18 U.S.C. §§ 2252A(A)(6)(A), (B) AND (C) PROVIDING CHILD

PORNOGRAPHY TO A MINOR – ELEMENTS ................................ 657

18 U.S.C. § 2252A(A)(7) PRODUCTION WITH INTENT TO DISTRIBUTE

AND DISTRIBUTION OF ADAPTED CHILD PORNOGRAPHY –

ELEMENTS ................................................................................. 659

18 U.S.C. § 2251A(B) PURCHASING OR OBTAINING CHILDREN .............. 661

18 U.S.C. § 2256(9) – 18 U.S.C. § 2252A(C) – AFFIRMATIVE DEFENSE

TO CHARGES UNDER 18 U.S.C. §§ 2252A(A)(1), (A)(2), (A)(3)(A),

(A)(4) OR (A)(5) ............................................................................ 663

18 U.S.C. § 2252A(D) – AFFIRMATIVE DEFENSE TO CHARGE UNDER

18 U.S.C. § 2252A(A)(5) ............................................................... 664

18 U.S.C. §2256(1) MINOR – DEFINED .................................................... 665

18 U.S.C. §2256(2)(A) SEXUALLY EXPLICIT CONDUCT – DEFINED .......... 666

18 U.S.C. § 2256(3) PRODUCING – DEFINED ........................................... 667

18 U.S.C. § 2256(6) COMPUTER – DEFINED .............................................. 668

18 U.S.C. § 2256(7) CUSTODY OR CONTROL – DEFINED ........................ 669

18 U.S.C. § 2256(8) CHILD PORNOGRAPHY – DEFINED .......................... 670

18 U.S.C. § 2256(9) IDENTIFIABLE MINOR – DEFINED ............................ 671

18 U.S.C. § 2256(11) INDISTINGUISHABLE – DEFINED ........................... 672

18 U.S.C. § 2260(A) PRODUCTION OF SEXUALLY EXPLICIT

DEPICTIONS OF A MINOR – IMPORTATION ................................ 673

18 U.S.C. § 2260(B) USE OF A VISUAL DEPICTION – IMPORTATION ....... 675

18 U.S.C. § 2312 TRANSPORTATION OF STOLEN VEHICLE –

ELEMENTS ................................................................................. 676

18 U.S.C. § 2312 DEFINITION OF “STOLEN” ............................................ 678

18 U.S.C. § 2313 SALE OR RECEIPT OF STOLEN VEHICLES –

ELEMENTS ................................................................................. 679

xxvii

18 U.S.C. § 2314 TRANSPORTATION OF STOLEN OR CONVERTED

GOODS OR GOODS TAKEN BY FRAUD – ELEMENTS) ................ 680

18 U.S.C. § 2314 INTERSTATE TRAVEL TO EXECUTE OR CONCEAL

FRAUD – ELEMENTS .................................................................. 681

18 U.S.C. § 2314 INTERSTATE TRANSPORTATION OF FALSELY MADE,

FORGED, ALTERED OR COUNTERFEITED SECURITIES OR

TAX STAMPS – ELEMENTS ......................................................... 682

18 U.S.C. § 2314 INTERSTATE TRANSPORTATION OF A TRAVELER’S

CHECK BEARING A FORGED COUNTERSIGNATURE –

ELEMENTS ................................................................................. 684

18 U.S.C. § 2314 INTERSTATE TRANSPORTATION OF TOOLS USED IN

MAKING, FORGING, ALTERING, OR COUNTERFEITING ANY

SECURITY OR TAX STAMPS – ELEMENTS .................................. 685

18 U.S.C. § 2315 RECEIPT OF STOLEN PROPERTY – ELEMENTS ............ 686

18 U.S.C. § 2315 RECEIPT OF COUNTERFEIT SECURITIES OR TAX

STAMPS – ELEMENTS ................................................................ 687

18 U.S.C. § 2315 DEFINITION OF “INTERSTATE AND FOREIGN

COMMERCE” .............................................................................. 688

18 U.S.C. § 2325 DEFINITION OF TELEMARKETING APPLICABLE TO

ENHANCED PENALTIES UNDER 18 U.S.C. § 2326 ...................... 689

18 U.S.C. § 2421 TRANSPORTATION FOR PROSTITUTION/SEXUAL

ACTIVITY – ELEMENTS ............................................................... 690

18 U.S.C. § 2422(A) ENTICEMENT – ELEMENTS ...................................... 691

18 U.S.C. § 2422(B) ENTICEMENT OF A MINOR – ELEMENTS ................. 692

18 U.S.C. § 2423(A) TRANSPORTATION OF MINORS WITH INTENT TO

ENGAGE IN CRIMINAL SEXUAL ACTIVITY – ELEMENTS ............. 694

18 U.S.C. § 2423(B) INTERSTATE TRAVEL WITH INTENT TO ENGAGE

IN A SEXUAL ACT WITH A MINOR – ELEMENTS ......................... 696

18 U.S.C. § 2423(C) FOREIGN TRAVEL WITH INTENT TO ENGAGE IN A

SEXUAL ACT WITH A MINOR – ELEMENTS ................................ 697

18 U.S.C. § 2423(G) AFFIRMATIVE DEFENSE .......................................... 698

18 U.S.C. § 2423(F) ILLICIT SEXUAL CONDUCT – DEFINED .................... 699

18 U.S.C. § 2425 USE OF INTERSTATE FACILITIES TO TRANSMIT

INFORMATION ABOUT A MINOR – ELEMENTS ........................... 700

21 U.S.C. § 841(A)(1) DISTRIBUTION OF A CONTROLLED SUBSTANCE

– ELEMENTS .............................................................................. 701

21 U.S.C. § 841(A)(1) DEFINITION OF DISTRIBUTION .............................. 702

xxviii

21 U.S.C. § 841(A)(1) POSSESSION WITH INTENT TO DISTRIBUTE –

ELEMENTS ................................................................................. 703

21 U.S.C. § 841(C)(1) POSSESSION OF LISTED CHEMICAL WITH

INTENT TO MANUFACTURE – ELEMENTS .................................. 704

21 U.S.C. § 841(C)(2) POSSESSION/DISTRIBUTION OF LISTED

CHEMICAL FOR USE IN MANUFACTURE – ELEMENTS .............. 705

21 U.S.C. § 841(A)(1) AND (C) DEFINITION OF POSSESSION ................... 706

21 U.S.C. § 846 ATTEMPTED DISTRIBUTION OF CONTROLLED

SUBSTANCE – ELEMENTS .......................................................... 707

21 U.S.C. § 846 ATTEMPTED POSSESSION WITH INTENT TO

DISTRIBUTE – ELEMENTS .......................................................... 708

21 U.S.C. § 841(A)(1) DEFINITION OF CONTROLLED SUBSTANCE .......... 709

DRUG QUANTITY/SPECIAL VERDICT INSTRUCTIONS............................... 710

21 U.S.C. § 843(B) USE OF COMMUNICATION FACILITY IN AID OF

NARCOTICS OFFENSE – ELEMENTS .......................................... 712

21 U.S.C. § 843(B) USE OF COMMUNICATION FACILITY IN AID OF

NARCOTICS OFFENSE – DEFINITION ......................................... 713

21 U.S.C. § 844 SIMPLE POSSESSION – ELEMENTS ............................... 714

21 U.S.C. § 848 CONTINUING CRIMINAL ENTERPRISE – ELEMENTS ...... 715

21 U.S.C. § 848 CONTINUING CRIMINAL ENTERPRISE – CONTINUING

SERIES OF OFFENSES ............................................................... 716

21 U.S.C. § 848 CONTINUING CRIMINAL ENTERPRISE – FIVE OR

MORE PERSONS......................................................................... 717

21 U.S.C. § 848 CONTINUING CRIMINAL ENTERPRISE – ORGANIZING,

MANAGING, SUPERVISING ......................................................... 718

21 U.S.C. § 848 CONTINUING CRIMINAL ENTERPRISE –

SUBSTANTIAL INCOME OR RESOURCES ................................... 719

21 U.S.C. § 856(A)(1) MAINTAINING DRUG-INVOLVED PREMISES –

ELEMENTS ................................................................................. 720

21 U.S.C. § 856(A)(1) MAINTAINING DRUG-INVOLVED PREMISES –

LIMITING INSTRUCTION ............................................................. 722

21 U.S.C. § 856(A)(2) MAINTAINING DRUG-INVOLVED PREMISES –

ELEMENTS ................................................................................. 723

21 U.S.C. § 859 DISTRIBUTION OF CONTROLLED SUBSTANCE TO

PERSON UNDER 21 – ELEMENTS .............................................. 725

21 U.S.C. § 853 DRUG FORFEITURE – ELEMENTS .................................. 726

21 U.S.C. § 853(B) DEFINITION OF PROPERTY ........................................ 727

xxix

21 U.S.C. § 853(D) REBUTTABLE PRESUMPTION .................................... 728

INTRODUCTORY FORFEITURE INSTRUCTION ........................................... 729

FORFEITURE ALLEGATIONS INSTRUCTION .............................................. 730

FORFEITURE BURDEN OF PROOF INSTRUCTION ..................................... 731

SEPARATE CONSIDERATION – FORFEITURE ALLEGATIONS..................... 732

SEPARATE CONSIDERATION – MULTIPLE DEFENDANTS .......................... 733

21 U.S.C. § 952(A) & (B); 21 U.S.C. § 960(A) IMPORTATION OF

CONTROLLED SUBSTANCES – ELEMENTS ................................ 734

21 U.S.C. § 951(A)(2) CUSTOMS TERRITORY OF THE UNITED STATES

– DEFINITION ............................................................................. 736

21 U.S.C. § 952(A) DEFINITION OF CONTROLLED SUBSTANCE .............. 737

26 U.S.C. § 7201 ATTEMPT TO EVADE OR DEFEAT TAX – ELEMENTS ... 738

26 U.S.C. § 7201 UNANIMITY AS TO ACTS OF EVASION.......................... 740

26 U.S.C. § 7201 NO NEED FOR TAX ASSESSMENT................................ 741

26 U.S.C. § 7203 FAILURE TO FILE TAX RETURN – ELEMENTS .............. 742

26 U.S.C. § 7203 WHEN PERSON IS OBLIGATED TO FILE RETURN ........ 743

26 U.S.C. § 7203 TAX RETURN MUST CONTAIN SUFFICIENT

INFORMATION ............................................................................ 744

26 U.S.C. § 7206(1) FRAUD AND FALSE STATEMENTS – ELEMENTS ...... 745

26 U.S.C. § 7206(2) AIDING AND ABETTING IN SUBMITTING FALSE

AND FRAUDULENT RETURN – ELEMENTS ................................. 746

26 U.S.C. § 7206(2) KNOWLEDGE OF TAXPAYER IRRELEVANT ............... 747

26 U.S.C. § 7206 MATERIALITY ............................................................... 748

26 U.S.C. §§ 7201, 7203, 7206 KNOWLEDGE OF CONTENTS OF

RETURN ..................................................................................... 749

26 U.S.C. §§ 7201, 7203, 7206 FUNDS OR PROPERTY FROM

UNLAWFUL SOURCES ................................................................ 750

26 U.S.C. § 7212 CORRUPTLY ENDEAVORING TO OBSTRUCT OR

IMPEDE DUE ADMINISTRATION OF INTERNAL REVENUE

LAWS – ELEMENTS .................................................................... 751

26 U.S.C. § 7212 GOOD FAITH ................................................................ 752

26 U.S.C. § 5845 DEFINITIONS OF FIREARM-RELATED TERMS.............. 753

26 U.S.C. § 5861(A) FAILURE TO PAY TAX OR REGISTER – ELEMENTS .. 754

26 U.S.C. § 5861(D) RECEIVING OR POSSESSING AN UNREGISTERED

FIREARM – ELEMENTS ............................................................... 755

xxx

26 U.S.C. § 5861(H) RECEIPT OR POSSESSION OF A FIREARM WITH

AN OBLITERATED, REMOVED, CHANGED, OR ALTERED

SERIAL NUMBER – ELEMENTS .................................................. 756

26 U.S.C. § 5861(J) TRANSPORTING, DELIVERING OR RECEIVING AN

UNREGISTERED FIREARM – ELEMENTS.................................... 758



31 U.S.C. § 5324(A)(3) STRUCTURING FINANCIAL TRANSACTIONS –

ELEMENTS ................................................................................. 760

31 U.S.C. § 5324(A)(3) STRUCTURING FINANCIAL TRANSACTIONS –

DEFINITIONS .............................................................................. 762

42 U.S.C. § 408(A)(3) MAKING OR CAUSING TO BE MADE A FALSE

STATEMENT OR REPRESENTATION OF MATERIAL FACT FOR

USE IN DETERMINING A FEDERAL BENEFIT – ELEMENTS ....... 763

42 U.S.C. § 408(A)(7)(A) USE OF A FALSELY OBTAINED SOCIAL

SECURITY NUMBER ELEMENTS ................................................ 764

42 U.S.C. § 408(A)(7)(A) AND (B) DEFINITION OF “INTENT TO DECEIVE” .. 766

42 U.S.C. § 408(A)(7)(B) USE OF A FALSE SOCIAL SECURITY NUMBER

– ELEMENTS .............................................................................. 767

42 U.S.C. § 408(A)(7)(C) SOCIAL SECURITY CARD VIOLATIONS

ELEMENTS ................................................................................. 768

42 U.S.C. § 408(A)(7)(C) DEFINITION OF “COUNTERFEIT” ....................... 770

PRELIMINARY INSTRUCTIONS................................................................... 771

10.01 FUNCTIONS OF COURT AND JURY ............................................ 771

10.02 THE CHARGE ............................................................................. 772

10.03 PRESUMPTION OF INNOCENCE/BURDEN OF PROOF ............... 773

10.04 THE EVIDENCE .......................................................................... 774

10.05 TESTIMONY PRESENTED THROUGH INTERPRETER .................. 775

10.06 DIRECT AND CIRCUMSTANTIAL EVIDENCE ............................... 776

10.07 CONSIDERING THE EVIDENCE .................................................. 777

10.08 CREDIBILITY OF WITNESSES ..................................................... 778

10.09 NUMBER OF WITNESSES ........................................................... 779

10.10 JUROR NOTE-TAKING ................................................................ 780

10.11 JUROR CONDUCT ...................................................................... 781

10.12 CONDUCT OF THE TRIAL ........................................................... 783

GENERAL INSTRUCTIONS

1.01 FUNCTIONS OF COURT AND JURY

Members of the jury, I will now instruct you on the law that you must follow

in deciding this case. [I will also give [each of] you a copy of these instructions to

use in the jury room.] [Each of you has a copy of these instructions to use in the

jury room.] You must follow all of my instructions about the law, even if you

disagree with them. This includes the instructions I gave you before the trial,

any instructions I gave you during the trial, and the instructions I am giving you

now.

As jurors, you have two duties. Your first duty is to decide the facts from the

evidence that you saw and heard here in court. This is your job, not my job or

anyone else’s job.

Your second duty is to take the law as I give it to you, apply it to the facts,

and decide if the government has proved the defendant[s] guilty beyond a

reasonable doubt [and whether the defendant has proved [insert defense] by a

preponderance of the evidence; by clear and convincing evidence].

You must perform these duties fairly and impartially. Do not let sympathy,

prejudice, fear, or public opinion influence you. [In addition, do not let any

person’s race, color, religion, national ancestry, or gender influence you.]

[You must give [name of corporate/entity defendant] the same fair

consideration that you would give to an individual.]

You must not take anything I said or did during the trial as indicating that I

have an opinion about the evidence or about what I think your verdict should

be.

1.02 THE CHARGE

The charge[s] against the defendant [is; are] in a document called an

indictment [information]. [You will have a copy of the indictment during your

deliberations.]

The indictment [information] in this case charges that the defendant[s]

committed the crime[s] of [fill in short description of charged offenses]. The

defendant[s] [has; have] pled not guilty to the charge[s].

The indictment [information] is simply the formal way of telling the defendant

what crime[s] [he is; they are] accused of committing. It is not evidence that the

defendant[s] [is; are] guilty. It does not even raise a suspicion of guilt.

Committee Comment

This instruction is necessary because, as stated in United States v. Garcia,

562 F.2d 411, 417 (7th Cir. 1977), “[i]n almost any criminal case … the fact of

the indictment has some emphasis. To the degree an uninstructed jury considers

the matter, there is a real possibility that a charge leveled by a grand jury

composed of its peers will weigh in the petit jury’s balance on the side of guilt.”

Instruction on this subject is particularly important when the court permits the

jury to take the indictment with it during deliberations. 2A C. Wright, N. King,

S. Klein & P. Henning, Federal Practice and Procedure, Criminal § 486 (2009).

When the jury is given the indictment—as is common practice—the “[f]ailure to

instruct the jury to the effect that the indictment is not to be considered evidence

of the guilt of the accused constitutes error.” United States v. Smith, 419 F.3d

521, 530–31 (6th Cir. 2005) (internal quotation marks omitted).

If the court provides the jury with the indictment, references to the grand jury

and its determination should be redacted from the copy tendered to the jury. In

appropriate circumstances, references to defendants not on trial should be

removed. References in indictments to uncharged individuals, e.g., Individual A,

who are identified in the public record by the evidence at trial, may be replaced

by their proper names. Where a defendant on trial is charged only in some counts

of a multi-count indictment, the court may consider renumbering the counts in

which that defendant is charged for ease of reference by the jury. Any final

judgment should, of course, relate to the counts as numbered in the actual

charging instrument.

1.03 PRESUMPTION OF INNOCENCE/BURDEN OF PROOF

[The; each] defendant is presumed innocent of [each and every one of] the

charge[s]. This presumption continues throughout the case, including during

your deliberations. It is not overcome unless, from all the evidence in the case,

you are convinced beyond a reasonable doubt that the [defendant; particular

defendant you are considering] is guilty as charged.

The government has the burden of proving [the; each] defendant’s guilt beyond

a reasonable doubt. This burden of proof stays with the government throughout the

case.

[The; a] defendant is never required to prove his innocence. He is not required

to produce any evidence at all.

Alternative to paragraphs 2 and 3 to be used when an affirmative

defense is raised on which the defendant has the burden of proof:

The government has the burden of proving every element of the crime[s]

charged beyond a reasonable doubt. This burden of proof stays with the

government throughout the case. [The; a] defendant is never required to prove

his innocence. He is not required to produce any evidence at all.

However, the defendant has the burden of proving the defense of [identify

defense, e.g., duress, insanity] by [a preponderance of the evidence; clear and

convincing evidence].

Committee Comment

Whether or not it is constitutionally required, compare Taylor v. Kentucky,

436 U.S. 478 (1978) (failure to give instruction on the presumption of innocence

is reversible error) with Kentucky v. Wharton, 441 U.S. 786 (1979) (instruction is

not constitutionally required in every case), it is well established that juries in

federal criminal trials should be instructed on both the presumption of

innocence, see, e.g, United States v. Covarrubias, 65 F.3d 1362, 1369 (7th Cir.

1995) (“Juries in federal criminal trials are instructed that the defendant is

presumed innocent.”); United States v. DeJohn, 638 F.2d 1048, 1057–59 (7th Cir.

1981) (instruction recommended, but a long and confusing instruction may do

more harm than good), and the government’s burden to prove guilt beyond a

reasonable doubt. Coffin v. United States, 156 U.S. 432, 452–61 (1895); United

States v. Nelson, 498 F.2d 1247 (5th Cir. 1974); McDonald v. United States, 284

F.2d 232 (D.C. Cir. 1960). The cases are legion in which the Seventh Circuit has

considered an instruction along these lines as curing potential error resulting

from, for example, allegedly improper argument. See, e.g., United States v. Clark,

535 F.3d 571, 581 (7th Cir. 2008).

The alternative paragraphs are to be used when the defendant is asserting an

affirmative defense on which he bears the burden of proof.

1.04 DEFINITION OF REASONABLE DOUBT

[No instruction.]

Committee Comment

The Seventh Circuit has repeatedly held that it is inappropriate for the trial

judge to attempt to define “reasonable doubt” for the jury. See, e.g., United States

v. Glass, 846 F.2d 386, 387 (7th Cir. 1988); see also United States v. Hatfield,

590 F.3d 945, 949 (7th Cir. 2010); United States v. Bruce, 109 F.3d 323, 329

(7th Cir. 1997). As the court said in Glass,

This case illustrates all too well that “[a]ttempts to explain the term

‘reasonable doubt’ do not usually result in making it any clearer to

the minds of the jury.” Holland v. United States, 348 U.S. 121, 140

(1954). And that is precisely why this circuit’s criminal jury

instructions forbid them. See Federal Criminal Instructions of the

Seventh Circuit 2.07 (1980). “Reasonable doubt” must speak for

itself. Jurors know what is “reasonable” and are quite familiar with

the meaning of “doubt.” Judges’ and lawyers’ attempts to inject

other amorphous catch-phrases into the “reasonable doubt”

standard, such as “matter of the highest importance,” only muddy

the water. This jury attested to that. It is, therefore, inappropriate

for judges to give an instruction defining “reasonable doubt,” and it

is equally inappropriate for trial counsel to provide their own defi-

nition. See, e.g., United States v. Dominguez, 835 F.2d 694, 701 (7th

Cir. 1987). Trial counsel may argue that the government has the

burden of proving the defendant’s guilt “beyond a reasonable doubt,”

but they may not attempt to define “reasonable doubt.”

Glass, 846 F.2d at 386 (emphasis in original).

1.05 DEFINITION OF CRIME CHARGED

[No instruction.]

Committee Comment

It was once common practice to quote the language of the pertinent statute

in the instructions to the jury. The Committee recommends against this practice

and has drafted no instruction on this point. The purpose of the “elements”

instructions is to provide the jury with the requirements for proving the

defendant’s guilt, in direct language comprehensible to lay jurors. Quoting from

the statute would, in most situations, undercut the pattern instructions’ goal of

simplicity and comprehensibility.

1.06 DEFINITION OF FELONY/MISDEMEANOR

Committee Comment

The Committee does not consider it necessary to have a general instruction

defining the terms “felony” or “misdemeanor” because those terms are not used

elsewhere in the instructions, and the determination of whether a crime is a

felony or misdemeanor is a question of law.

1.07 BILL OF PARTICULARS

[No instruction.]

Committee Comment

The Committee does not consider it necessary to give an instruction con-

cerning the content or effect of a bill of particulars. The admissibility of evidence

in light of a bill of particulars is a question of law for the court.

2.01 THE EVIDENCE

You must make your decision based only on the evidence that you saw and

heard here in court. Do not consider anything you may have seen or heard

outside of court, including anything from the newspaper, television, radio, the

Internet, or any other source.

The evidence includes only what the witnesses said when they were testifying

under oath[,] [and] the exhibits that I allowed into evidence[,] [and] the

stipulations that the lawyers agreed to. A stipulation is an agreement that

[[certain facts are true] [or] [that a witness would have given certain testimony.]

[In addition, you may recall that I took [judicial] notice of certain facts that

may be considered as matters of common knowledge. You may accept those facts

as proved, but you are not required to do so.]

Nothing else is evidence. The lawyers’ statements and arguments are not

evidence. If what a lawyer said is different from the evidence as you remember

it, the evidence is what counts. The lawyers’ questions and objections likewise

are not evidence.

A lawyer has a duty to object if he thinks a question is improper. If I sustained

objections to questions the lawyers asked, you must not speculate on what the

answers might have been.

If, during the trial, I struck testimony or exhibits from the record, or told you

to disregard something, you must not consider it.

Committee Comment

Extraneous influence. This instruction is consistent with the one approved by

the Seventh Circuit in United States v. Xiong, 262 F.3d 672, 676 (7th Cir. 2001).

The Seventh Circuit has also defined the minimum measures a trial judge must

take when confronted with evidence of prejudicial publicity prior to or during

trial. When apprised in a general fashion of the existence of damaging publicity,

the trial judge should “strongly and repeatedly [admonish] the jury throughout

the trial not to read or listen to any news coverage of the case.” Margoles v. United

States, 407 F.2d 727, 733 (7th Cir. 1969). When the publishing or broadcast of

specific items of inadmissible evidence is brought to the trial court’s attention,

the court must investigate further to determine juror exposure:

Thus, the procedure required by this circuit where prejudicial

publicity is brought to the court’s attention during a trial is that the

court must ascertain if any jurors who had been exposed to such

publicity had read or heard the same. Such jurors who respond

affirmatively must then be examined, individually and outside the

presence of the other jurors, to determine the effect of the publicity.

Id. at 735. A court faced with a post-verdict question of extraneous prejudicial

information is obligated to follow this same procedure. United States v. Bashawi,

272 F.3d 458, 463 (7th Cir. 2001).

Judicial notice. Fed. R. Evid. 201(g) requires the court in a criminal case to

“instruct the jury that it may, but is not required to, accept as conclusive any

fact judicially noticed.”

2.02 CONSIDERING THE EVIDENCE

Give the evidence whatever weight you decide it deserves. Use your common

sense in weighing the evidence, and consider the evidence in light of your own

everyday experience.

People sometimes look at one fact and conclude from it that another fact

exists. This is called an inference. You are allowed to make reasonable

inferences, so long as they are based on the evidence.

Committee Comment

The Seventh Circuit has held that an instruction to the jury to use their

common sense and reflect on their everyday experience “does not … invite a jury

member to consider the evidence in light of personally-held … stereotypes or

prejudices.” United States v. Jones, 808 F.2d 561, 568 (7th Cir. 1986).

2.03 DIRECT AND CIRCUMSTANTIAL EVIDENCE

You may have heard the terms “direct evidence” and “circumstantial

evidence.” Direct evidence is evidence that directly proves a fact. Circumstantial

evidence is evidence that indirectly proves a fact.

You are to consider both direct and circumstantial evidence. The law does not

say that one is better than the other. It is up to you to decide how much weight

to give to any evidence, whether direct or circumstantial.

Committee Comment

The phrase “circumstantial evidence” is addressed here because of its use in

common parlance and the likelihood that jurors may have heard the term outside

the courtroom.

The committee did not include examples in the standard instruction, though

it does not rule out their use in a given case (and it has included one as an option

in the preliminary instructions). If used, however, caution is required. One oft-

used illustration is the following: “An example of direct evidence that it was

raining would be testimony from a witness who said she was outside and saw it

raining. An example of circumstantial evidence that it was raining would be

testimony that a witness observed someone carrying a wet umbrella.” Examples

of this sort may be too simplistic to illustrate the definitions in a given case, and

they omit the fact that more than one conclusion may be drawn from

circumstantial evidence (in the example, the wet umbrella might mean that the

person walked under a lawn sprinkler).

If asked to give examples, the court should consider these points and should

also consider whether it is more appropriate to leave the matter for attorney

argument.

2.04 NUMBER OF WITNESSES

Do not make any decisions simply by counting the number of witnesses who

testified about a certain point.

[You may find the testimony of one witness or a few witnesses more

persuasive than the testimony of a larger number. You need not accept the

testimony of the larger number of witnesses.]

What is important is how truthful and accurate the witnesses were and how

much weight you think their testimony deserves.

Committee Comment

The bracketed paragraph should not be given when the defendant does not

call any witnesses or when the defendant objects.

2.05 DEFENDANT’S FAILURE TO TESTIFY OR PRESENT EVIDENCE

A defendant has an absolute right not to testify [or present evidence]. You

may not consider in any way the fact that [the; a] defendant did not testify [or

present evidence]. You should not even discuss it in your deliberations.

Committee Comment

No judge can prevent jurors from speculating about why a defendant stands

mute in the face of a criminal accusation, but a judge can, and must, if requested

to do so, use the unique power of the jury instruction to reduce that speculation

to a minimum. Carter v. Kentucky, 450 U.S. 288, 303 (1981).

In a multi-defendant trial, this instruction must be given at the request of a

non-testifying defendant over the objection of a defendant who testifies. Bruno v.

United States, 308 U.S. 287 (1939); United States v. Schroeder, 433 F.2d 846,

851 (8th Cir. 1970); United States v. Kelly, 349 F.2d 720, 768–69 (2d Cir. 1965).

3.01 CREDIBILITY OF WITNESSES

Part of your job as jurors is to decide how believable each witness was, and

how much weight to give each witness’ testimony [, including that of the

defendant]. You may accept all of what a witness says, or part of it, or none of it.

Some factors you may consider include:

- [the age of the witness;]

- the intelligence of the witness;

- the witness’ ability and opportunity to see, hear, or know the

things the witness testified about;

- the witness’ memory;

- the witness’ demeanor;

- whether the witness had any bias, prejudice, or other reason

to lie or slant the testimony;

- the truthfulness and accuracy of the witness’ testimony in

light of the other evidence presented; and

- inconsistent [or consistent] statements or conduct by the

witness.

Committee Comment

The bracketed portion of the instruction relating to testimony by the defen-

dant should be given only if the defendant has testified.

The portion of the instruction relating to age should be given only when a very

elderly or very young witness has testified.

The bracketed language “or consistent” should not be used unless a con-

sistent statement is admitted.

3.02 ATTORNEY INTERVIEWING WITNESS

It is proper for an attorney to interview any witness in preparation for trial.

Committee Comment

The court should give this instruction only if there has been testimony re-

garding interviews of witnesses.

“As the trial judge explained to the jury, ‘it is perfectly proper for a lawyer to

interview a witness in preparation for trial,’ and an attorney who does not

question, rehearse and prepare his witnesses before trial is not properly prepared

for trial.” United States v. Torres, 809 F.2d 429, 439–40 (7th Cir. 1987).

3.03 PRIOR INCONSISTENT STATEMENTS

You have heard evidence that before the trial, [a] witness[es] made [a]

statement[s] that may be inconsistent with [his; their] testimony here in court.

You may consider an inconsistent statement made before the trial [only] to help

you decide how believable a witness’ testimony was here in court. [If an earlier

statement was made under oath, then you can also consider the earlier

statement as evidence of the truth of whatever the witness said in the earlier

statement.]

Committee Comment

See, e.g., United States v. Severson, 49 F.3d 268, 272 (7th Cir. 1995) (prior

inconsistent statement not given under oath is admissible only for purposes of

impeachment); United States v. Dietrich, 854 F.2d 1056, 1061 (7th Cir. 1988)

(same); Fed. R. Evid. 801(d)(1)(A) (inconsistent statement given under oath at

trial, hearing or other proceeding, or deposition is not hearsay).

The bracketed word “only” in the second sentence should be included if the

prior inconsistent statement is admitted only for purposes of impeachment. See

Fed. R. Evid. 801(d)(1).

3.04 PRIOR INCONSISTENT STATEMENT BY DEFENDANT

You have heard evidence that before the trial, [the; a] defendant made [a]

statement[s] that may be inconsistent with his testimony here in court. You may

consider an inconsistent statement by [the; a] defendant made before the trial to

help you decide how believable the defendant’s testimony was here in court, and

also as evidence of the truth of whatever the defendant said in the earlier

statement.

Committee Comment

The court should give this instruction only if a defendant testifies and in-

consistent statements by that defendant are admitted that qualify for substan-

tive use under Fed. R. Evid. 801(d)(2)(A). The court may, if appropriate, craft

instructions applicable to statements of others attributable to and admitted

substantively against a defendant under one of the other subsections of Rule

801(d)(2).

3.05 WITNESSES REQUIRING SPECIAL CAUTION

You have heard testimony from [a witness; witnesses; name(s) of witness(es)]

who:

[- [was; were] [promised; received; expected] [a] benefit[s] in

return for his [testimony; cooperation with the government];]

[- has [admitted; been convicted of] lying under oath;]

[- has [pled guilty to; stated] that he was involved in [[one; some]

of] the crime[s] the defendant is charged with committing.] [You may

not consider his guilty plea as evidence against the defendant.]]

You may give [this witness’; these witnesses’] testimony whatever weight you

believe is appropriate, keeping in mind that you must consider that testimony

with caution and great care.

Committee Comment

Witness given or promised a benefit: The Supreme Court observed, in On Lee

v. United States, 343 U.S. 747, 757 (1952), that the use of informers “may raise

serious questions of credibility. To the extent that they do, a defendant is entitled

to … have the issues submitted to the jury with careful instructions.” The Court

has never specifically articulated what is to be included in these “careful

instructions,” but in Hoffa v. United States, 385 U.S. 293, 311–12 & n.14 (1966),

it approved an instruction in which the trial judge told the jury to “[c]onsider …

any relation each witness may bear to either side of the case … All evidence of a

witness whose self-interest is shown from either benefits received, detriments

suffered, threats or promises made, or any attitude of the witness which might

tend to prompt testimony either favorable or unfavorable to the accused should

be considered with caution and weighed with care.”

Former Seventh Circuit Pattern Criminal Jury Instruction No. 3.13 (1999)

included a specific reference to immunity. The Committee concluded that im-

munity is a form of benefit that is covered by the more general “benefit” refer-

enced in this instruction.

Witness who has pled guilty: This instruction is recommended for use in trials

in which a witness testifies after pleading guilty to an offense arising from the

same occurrence for which the defendant is on trial, and the jury learns of the

plea. Such evidence may only be used for the purpose of impeachment or to

reflect on the credibility of the witness. The instruction is necessary due to the

possibility that an uninstructed jury may infer that the witness’ guilty plea is

indicative of the defendant’s guilt. See United States v. Johnson, 26 F.3d 669,

677–80 (7th Cir. 1994). At the defendant’s request, this instruction should be

given immediately after the plea is admitted and repeated at the end of the trial.

Id.; see also United States v. Carraway, 108 F.3d 745, 756 (7th Cir. 1997).

3.06 IMPEACHMENT BY PRIOR CONVICTION

(a)

You may consider evidence that the defendant was convicted of a crime only

in deciding the believability of his testimony. [You may not consider it for any

other purpose.] [The other conviction[s] [is; are] not evidence of whether the

defendant is guilty of [the; any] crime he is charged with in this case.]

(b)

You may consider evidence that a witness was convicted of a crime only in

deciding the believability of his testimony. You may not consider it for any other

purpose.

Committee Comment

The final sentences of instruction (a) are bracketed to account for cases in

which the prior conviction is an element of the offense for which the defendant

is on trial.

Some offenses require proof of a prior conviction as an element. E.g., 18

U.S.C. 922(g) and (h). The defendant’s commission of another crime may also be

admissible to prove motive, opportunity, intent and the like. See Fed. R. Evid.

404(b). In such cases this instruction should not be given. Instead, the jury

should be specifically instructed on the purpose for which the evidence may be

considered. See Pattern Instruction 3.11.

3.07 CHARACTER EVIDENCE REGARDING WITNESS

You have heard testimony about [name]’s character for [truthfulness;

untruthfulness]. You may consider this evidence only in deciding the believability

of [name]’s testimony and how much weight to give to it.

Committee Comment

See Fed. R. Evid. 404(a)(2), 404(a)(3), and 608.

3.08 CHARACTER EVIDENCE REGARDING DEFENDANT

You have heard testimony about the defendant’s [good character; character

for ____________]. You should consider this testimony together with and in the

same way you consider the other evidence.

Committee Comment

See Fed. R. Evid. 404(a)(1). Until 1985, the Seventh Circuit adhered to the

idea that when evidence of the defendant’s good character was introduced, an

instruction was required stating that such evidence “standing alone” could pro-

vide a reasonable doubt regarding the defendant’s guilt. See United States v.

Donnelly, 179 F.2d 227, 233 (7th Cir. 1950). This requirement rested on a

reading of Edgington v. United States, 164 U.S. 361 (1896), and Michelson v.

United States, 335 U.S. 469 (1948). However, in United States v. Burke, 781 F.2d

1234, 1238–42 (7th Cir. 1985), the court abandoned the “standing alone”

instruction:

The “standing alone” instruction conveys to the jury the sense that

even if it thinks the prosecution’s case compelling, even if it thinks the

defendant a liar, if it also concludes that he has a good reputation this

may be the “reasonable doubt” of which other instructions speak. A

“standing alone” instruction invites attention to a single bit of evidence

and suggests to jurors that they analyze this evidence all by itself. No

instruction flags any other evidence for this analysis – not eyewitness

evidence, not physical evidence, not even confessions. There is no good

reason to consider any evidence “standing alone.”

Id. at 1239 (emphasis in original).

While Burke makes clear that a “standing alone” instruction is never required,

the court has said that it may sometimes be permissible, though it has not

identified circumstances in which that might be the case. See United States v.

Ross, 77 F.3d 1525, 1538 (7th Cir. 1996) (“This Court has repeatedly held that

such an instruction, while sometimes allowable, is never necessary.”); Burke,

781 F.2d at 1242 n.5. Several other Circuits also recognize that there may be

situations in which the instruction can be used. See United States v. Winter, 663

F.2d 1120, 1147–49 (1st Cir. 1981); United States v. Pujana-Mena, 949 F.2d 24,

27–32 (2d Cir. 1991); United States v. Spangler, 838 F.2d 85, 87–88 (3d Cir.

1988); United States v. Foley, 598 F.2d 1323, 1336–37 (4th Cir. 1979).

3.09 STATEMENT BY DEFENDANT

You have [heard testimony; received evidence] that [the defendant; defendant

[name]] made a statement to [name of person or agency]. You must decide

whether [the defendant; defendant [name]] actually made the statement and, if

so, how much weight to give to the statement. In making these decisions, you

should consider all of the evidence, including the defendant’s personal

characteristics and circumstances under which the statement may have been

made.

[You may not consider the statement of defendant [name] as evidence against

[the; any] other defendant.]

Committee Comment

This instruction is intended to apply only to statements made by a defendant

to law enforcement. See United States v. Broeske, 178 F.3d 887, 889–90 (7th Cir.

1999).

The second paragraph is in brackets because it should not be given in a

single-defendant case.

This instruction utilizes the word “statement” in place of words such as

“admission” and “confession.” In United States v. Gardner, 516 F.2d 334, 346

(7th Cir. 1975), the court said that “the word ‘statements’ is a more neutral de-

scription than ‘confession’, and should be used in its place in future instructions

unless the statements can be considered a ‘complete and conscious admission

of guilt—a strict confession.’” The use of the term “statement” in all such

instructions eliminates the need for additional debate or litigation regarding

whether a particular statement fits the definition of a “strict confession” under

Gardner.

The instruction assumes that the trial court has rejected any challenge to the

voluntariness of the defendant’s statement, following a hearing comporting with

the requirements of Jackson v. Denno, 378 U.S. 368 (1964), and 18 U.S.C. §

3501. Consequently, reconsideration of the voluntariness issue by the jury is not

required. Lego v. Twomey, 404 U.S. 477 (1972).

As required by 18 U.S.C. § 3501, the instruction directs the jurors to make a

determination as to the weight, if any, to be given to a statement after considering

factors having to do with the defendant’s personal characteristics and the

conditions under which the statement was made. “Evidence about the manner

in which a confession was secured will often be germane to its probative weight,

a matter that is exclusively for the jury to assess.” Crane v. Kentucky, 476 U.S.

683, 688 (1986). It is the Committee’s view that the specific factors set forth in

18 U.S.C. § 3501 should not be set forth in the instruction, but, rather, should

be left to argument by counsel. Inclusion of all possible subjects of consideration

in a general instruction might result in the inclusion of irrelevant factors in many

cases, while recitation of only few common factors might cause undue emphasis

on those particular factors.

This instruction does not cover vicarious or adoptive admissions or state-

ments made in furtherance of a conspiracy or joint venture.

3.10 DEFENDANT’S SILENCE IN THE FACE OF ACCUSATION

You have heard evidence that _______ accused the defendant of [the; a] crime

charged in the indictment and that the defendant did not [deny; object to;

contradict] the accusation. If you find that the defendant was present and heard

and understood the accusation, and that the accusation was made under such

circumstances that the defendant would [deny; object to; contradict] it if it were

not true, then you may consider whether the defendant’s silence was an

admission of the truth of the accusation.

Committee Comment

If a defendant is in custody, his silence in the face of an accusatory statement

made by a law enforcement official cannot be considered an admission of the truth

of the statements. Such evidence should not be received, and as a result, no

instruction is necessary to cover the point. See Doyle v. Ohio, 426 U.S. 610 (1976).

More difficult issues arise, however, when the accusatory statement is not made by

a law enforcement official or when the defendant is not in custody. See generally

Charles W. Gamble, The Tacit Admission Rule: Unreliable and Unconstitutional—A

Doctrine Ripe For Abandonment, 14 Ga. L. Rev. 27 (1979) (criticizing admission of

such evidence under any circumstances). A defendant’s silence in the face of an

accusation while not in custody is not subject to the rule of Doyle. See Greer v.

Miller, 483 U.S. 756, 763–65 (1987); Brecht v. Abrahamson, 507 U.S. 619 (1993);

United States v. Jumper, 497 F.3d 699, 704 (7th Cir. 2007).

Under Fed. R. Evid. 801(d)(2)(B), before silence can be considered to be an

admission, the court must consider whether the defendant was present and

heard and understood the statement and had an opportunity to deny it but did

not do so. See, e.g., United States v. Ward, 377 F.3d 671, 675 (7th Cir. 2004).

3.11 EVIDENCE OF OTHER ACTS BY DEFENDANT

You have heard [testimony/evidence] that the defendant committed acts other

than the ones charged in the indictment. Before using this evidence, you must

decide whether it is more likely than not that the defendant took the actions that

are not charged in the indictment. If you decide that he did, then you may

consider that evidence to help you decide [describe with particularity the purpose

for which other act evidence was admitted, e.g. the defendant’s intent to

distribute narcotics, absence of mistake in dealing with the alleged victim, etc.].

You may not consider this evidence for any other purpose. To be more specific,

you may not assume that, because the defendant committed an act in the past,

he is more likely to have committed the crime[s] charged in the indictment. The

reason is that the defendant is not on trial for these other acts. Rather, he is on

trial for [list charges alleged in the indictment]. The government has the burden

to prove beyond a reasonable doubt the elements of the crime[s] charged in the

indictment. This burden cannot be met with an inference that the defendant is

a person whose past acts suggest bad character or a willingness or tendency to

commit crimes.

Committee Comment

See Fed. R. Evid. 404(b) (admissibility of other act evidence for limited purposes);

see also, e.g., United States v. Perkins, 548 F.3d 510, 514 (7th Cir. 2008) (jury must

find that the defendant committed the act in question). Other act evidence may be

admitted to show, among other things, predisposition, motive, opportunity, intent,

preparation, plan, knowledge, identity, presence, or absence of mistake or accident.

This instruction may also be given during the trial at the time the evidence is

introduced provided that the court has first consulted with defense counsel about

whether the defense wants a limiting instruction. United States v. Gomez, 763 F.3d

845, 860 (7th Cir. 2014) (en banc). “When given, the limiting instruction should be

customized to the case rather than boilerplate.” Id. In other words, the judge

should, to the extent feasible, identify the other-act evidence in question and

describe with particularity the issue(s) on which it has been admitted, as more fully

discussed in the remainder of this Comment. The judge should take care to describe

the evidence in a neutral fashion and to avoid giving it additional weight. In

addition, the judge should consult counsel about whether and when to give a

limiting instruction; the Seventh Circuit has “caution[ed] against judicial

freelancing in this area.” Id. In some situations, the defense may prefer “to let the

evidence come in without the added emphasis of a limiting instruction,” and if so

the judge should not preempt this. Id.; see also United States v. Lawson, 776 F.3d

519, 522 (7th Cir. 2015) (“[T]he choice whether to give a limiting instruction rests

with the defense, which may decide that the less said about the evidence the

better.”).

In United States v. Miller, 673 F.3d 688 (7th Cir. 2012), the court counseled

against “leaving juries to decode for themselves how they may properly consider

admissible bad acts evidence” and encouraged trial judges to include “a case-spe-

cific explanation of the permissible inference – with the requisite care not to af-

firmatively credit that inference.” 673 F.3d at 702 n.1. This instruction contem-

plates that the trial judge will do exactly that, inserting into the bracket in the

third sentence a description of the issue(s) on which the other-act evidence has

been admitted. This will help focus the jury on the fact that the identified pur-

pose for consideration of the evidence is the sole purpose for which it may con-

sider the evidence. As counseled in Miller, the description of the basis for which

the other-act evidence is offered should be as focused as reasonably possible

under the circumstances, and where possible, courts should avoid using overly

general language. Miller indicates that a general instruction along the lines that

other-act evidence may be considered “on the questions of knowledge and intent”

may be unduly vague and may invite the jury to consider the evidence for

impermissible purposes. See id. The cautionary language at the end of the in-

struction is included for the same reasons and to avoid misuse of “other act” evi-

dence. See, e.g., Sixth Circuit Criminal Instruction 7.13; Eighth Circuit Criminal

Instructions 2.08 & 2.09.

In United States v. Gomez, 763 F.3d 845 (7th Cir. 2014)(en banc), the court

abandoned the four-part test for admissibility under Rule 404(b), originally set

forth in United States v. Zapata, 871 F.2d 616, 620 (7th Cir. 1989). Gomez

adopted “a more straightforward rules-based approach,” which is summarized

as follows:

[T]o overcome an opponent’s objection to the introduction of

other-act evidence, the proponent of the evidence must first

establish that the other act is relevant to a specific purpose other

than the person’s character or propensity to behave in a certain way.

See Fed. R. Evid. 401, 402, 404(b). Other-act evidence need not be

excluded whenever a propensity inference can be drawn. But its

relevance to “another purpose” must be established through a chain

of reasoning that does not rely on the forbidden inference that the

person has a certain character and acted in accordance with that

character on the occasion charged in the case. If the proponent can

make this initial showing, the district court must in every case

assess whether the probative value of the other-act evidence is

substantially outweighed by the risk of unfair prejudice and may

exclude the evidence under Rule 403 if the risk is too great. The

court’s Rule 403 balancing should take account of the extent to

which the non-propensity fact for which the evidence is offered

actually is at issue in the case.

Id. at 853, 860.

Gomez also counseled against keeping the jury in the dark about the rationale

for the rule against propensity inferences and suggested that jurors should be

explicitly told why they must not use the other-act evidence to infer that the

defendant has a certain “character” and acted “in character” in the present case.

Id. at 861. This instruction does just that while also reminding the jury that the

government bears the burden of proving every element of the specific crime

charged beyond a reasonable doubt.

This instruction does not apply to evidence admitted pursuant to Fed. R. Evid.

413 or 414, under which a prior act of sexual assault or child molestation by the

defendant may be considered for “its bearing on any matter to which it is

relevant.” If evidence was admitted pursuant to Rules 413 or 414, this in-

struction should be modified to exempt that evidence from its limitations, and a

separate instruction should be given to address the Rule 413 or 414 evidence.

3.12 IDENTIFICATION TESTIMONY

You have heard testimony of an identification of a person. Identification

testimony is an expression of the witness’ belief or impression. In evaluating this

testimony, you should consider the opportunity the witness had to observe the

person at the time [of the offense] and to make a reliable identification later. You

should also consider the circumstances under which the witness later made the

identification.

The government must prove beyond a reasonable doubt that the defendant is

the person who committed the crime that is charged.

Committee Comment

In Perry v. New Hampshire, 132 S.Ct. 716 (2012), the Supreme Court ac-

knowledged the possibility of eyewitness misidentification but held that trial

courts are not required to make a preliminary determination of the admissibility

of an identification unless suggestive circumstances exist that are the result of

law enforcement conduct. In doing so, the Court observed that “the jury, not the

judge, traditionally determines the reliability of evidence.” 132 S.Ct. at 728. The

Court also relied on the protections provided by “[e]yewitness-specific jury

instructions, which many federal and state courts have adopted,

[which] likewise

warn the jury to take care in appraising identification evidence,” 132 S.Ct. at

728–29 and n. 7 (collecting pattern instruction cites, including Seventh Circuit

Pattern Criminal Jury Instruction 3.08 (1999)), as well as the requirement that

the Government prove the defendant’s guilt beyond a reasonable doubt, 132

S.Ct. at 729.

A specific instruction on witness identification must be given when identifi-

cation is at issue. United States v. Hall, 165 F.3d 1095, 1007 (citing United States

v. Anderson, 730 F.2d 1254, 1257–58 (7th Cir. 1984)). This instruction, derived

from the instruction recommended in United States v. Telfaire, 469 F.2d 552

(D.C. Cir. 1972), cautions the jury to weigh carefully the circumstances

surrounding the identification before reaching a conclusion. See United States v.

Crotteau, 218 F.3d 826, 833 (7th Cir. 2000) (approving earlier version of this

instruction).

It has long been the practice in this Circuit to leave to argument the factors

that may bear on the accuracy of an eyewitness identification. The Committee

notes, however, that there has been some support expressed for judicial in-

struction on such points. See Hall, 165 F.3d at 1120 (Easterbrook, J., concur-

ring). A judge may consider whether it is appropriate in a given case to sup-

plement this instruction by identifying a specific factor or factors for the jury’s

consideration.

The phrase “of the offense” in the first paragraph is bracketed because

identification testimony does not always involve an eyewitness to the offense

itself.

A court may, but is not required to, admit expert testimony regarding the

reliability of eyewitness testimony. See United States v. Carter, 410 F.3d 942, 950

(7th Cir. 2005).

3.13 OPINION TESTIMONY

You have heard a witness, namely, [name of witness], who gave opinions and

testimony about [certain subject(s); specify the subject(s), if possible]. You do not

have to accept this witness’ [opinions; testimony]. You should judge this witness’

opinions and testimony the same way you judge the testimony of any other

witness. In deciding how much weight to give to these opinions and testimony,

you should consider the witness’ qualifications, how he reached his [opinions;

conclusions], and the factors I have described for determining the believability of

testimony.

Committee Comment

Plural forms should be used if more than one expert witness testifies.

The term “expert” and the prior pattern instruction’s reference to witnesses

with “special knowledge or skill” have been omitted to avoid the perception that

the court credits the testimony of such a witness or the witness’ qualifications.

Some jurisdictions do not offer a standard instruction on expert testimony.

The Illinois Pattern Jury Instructions recommend that no instruction be given

on this subject, indicating that the credibility of expert testimony is a proper

subject of closing argument. See IPI Criminal 3d 3.18 (1992). Similarly, the

Indiana Pattern Jury Instructions do not include a specific instruction on the

subject. The general instruction relating to the jury’s role in determining the

weight and credibility of witnesses is thought to be sufficient in the courts of

those States. Nevertheless, the danger that an expert’s testimony will be given

undue weight by the jury does exist. See United States v. Brawner, 471 F.2d 969

(D.C. Cir. 1972) (noting the influence of expert testimony in prosecutions in

which the defendant’s sanity is an issue); United States v. Gold, 661 F. Supp

1127, 1129–30 (D.D.C. 1987) (same). The Committee believes that it is appro-

priate to give the jury a specific instruction that an expert’s opinion should be

evaluated along with all other evidence.

If the court wishes to give an instruction concerning the jury’s consideration

of lay opinion testimony, this instruction may be adapted for that purpose by

eliminating the reference to “the witness’ qualifications” as a factor to be con-

sidered.

3.14 RECORDED CONVERSATIONS/TRANSCRIPTS

You have [heard [a] recorded conversation[s]; seen [a] video recording[s]]. This

is proper evidence that you should consider together with and in the same way

you consider the other evidence.

[You were also given transcripts of the conversation[s] [on the video

recording[s]] to help you follow the recording[s] as you listened to [it; them]. The

recording[s] are the evidence of what was said and who said it. The transcripts

are not evidence. If you noticed any differences between what you heard in a

conversation and what you read in the transcripts, your understanding of the

recording is what matters. In other words, you must rely on what you heard, not

what you read. And if you could not hear or understand certain parts of a

recording, you must ignore the transcripts as far as those parts are concerned.

[You may consider a person’s actions, facial expressions, and lip movements that

you are able to observe on a video recording to help you determine what was said

and who said it.]]

[I am providing you with the recording[s] and a device with instructions on its

use. It is up to you to decide whether to listen to [a; the] recording during your

deliberations. You may, if you wish, rely on your recollections of what you heard

during the trial.]

[If, during your deliberations, you wish to have another opportunity to view

[a; any] transcript[s][as you listen to a recording], send a written message to the

[marshal; court security officer], and I will provide you with the transcript[s].]

Committee Comment

The word “proper” is used in the first paragraph to avoid jury speculation

regarding the propriety of recording conversations or introducing them into

evidence. See United States v. McGee, 612 F.3d 627, 630 (7th Cir. 2010). It

should be noted, however, that in United States v. Cunningham, 462 F.3d 708,

712–15 (7th Cir. 2006), the court concluded that it was error to admit evidence

regarding the process of court approval for interception of wire communications.

The second paragraph of the instruction, concerning the use of transcripts,

is in brackets because in some cases it is stipulated or undisputed that the

transcripts are accurate. In such cases, there is no need to instruct the jury that

the transcripts may be used only for limited purposes.

The fourth paragraph of the instruction is bracketed because some judges

may prefer to allow the jury to take all of the transcripts along with the exhibits

admitted in evidence. No particular practice is recommended in this regard.

3.15 FOREIGN LANGUAGE RECORDINGS/

ENGLISH TRANSCRIPTS

During the trial, [list name of language] language recordings were admitted

in evidence. You were also given English transcripts of those recordings so you

could consider the contents of the recordings. It is up to you to decide whether

a transcript is accurate, in whole or in part. You may consider the translator’s

knowledge, training, and experience, the nature of the conversation, and the

reasonableness of the translation in light of all the evidence in the case. You may

not rely on any knowledge you may have of the [name] language. Rather, your

consideration of the transcripts should be based on the evidence introduced in

the trial.

[You may consider a person’s actions, facial expressions, and lip movements

that you are able to observe on a video recording to help you determine what was

said and who said it.]

Committee Comment

This instruction is not required if the parties stipulate to the accuracy of the

translation of a non-English-language recording.

3.16 SUMMARIES RECEIVED IN EVIDENCE

Certain [summaries; charts; etc.] were admitted in evidence. [You may use

those [summaries; charts] as evidence [even though the underlying [documents;

evidence] are not here].]

[The accuracy of the [summaries; charts] has been challenged. [The

underlying [documents; evidence] [has; have] also been admitted so that you may

determine whether the summaries are accurate.]

[It is up to you to decide how much weight to give to the summaries.]

Committee Comment

See Fed. R. Evid. 1006. For an undisputed summary, only the first two

sentences should be given. For a disputed summary, the entire instruction

should be given, except for the second sentence of the first paragraph.

In United States v. White, 737 F.3d 1121 (7th Cir. 2013), the court provides

an overview of summary exhibits offered and admitted pursuant to Rule 1006,

and distinguishes such exhibits from demonstrative summaries offered

pursuant to Fed. R. Evid. 611(a), which are addressed in pattern instruction

3.17, infra. A party may introduce information by means of a summary exhibit

under Rule 1006 to prove the content of voluminous documents that cannot be

conveniently examined by the court. If admitted this way, then the summary

itself is admissible evidence, in part because the party is not obligated to

introduce the underlying documents themselves. Because a Rule 1006 summary

is intended to substitute for the voluminous documents, the exhibit must

accurately summarize those documents. It must not misrepresent their contents

or make arguments about the inferences the jury should draw from them. White,

737 F.3d at 1135.

3.17 DEMONSTRATIVE SUMMARIES/CHARTS

NOT RECEIVED IN EVIDENCE

Certain [summaries; charts; etc.] were shown to you to help explain other

evidence that was admitted, [specifically, identify the demonstrative exhibit, if

appropriate]. These [summaries; charts] are not themselves evidence or proof of

any facts, [so you will not have these particular [summaries; charts] during your

deliberations]. [If they do not correctly reflect the facts shown by the evidence,

you should disregard the [summaries; charts] and determine the facts from the

underlying evidence.]

Committee Comment

The last sentence should only be given if there is a dispute about whether a

particular demonstrative exhibit is accurate.

The committee suggests that this instruction as given should identify the

demonstrative exhibit(s) by name, and not just by number. In addition, the court

may wish to give this instruction during trial when the demonstrative exhibit is

used, so that the jurors are made aware that they will not have the exhibit

available during deliberations.

In United States v. White, 737 F.3d 1121 (7th Cir. 2013), the court provides

an overview of demonstrative exhibits offered as “pedagogical summaries” that

may be allowed under Fed. R. Evid. 611(a), which gives the court “control over

the mode . . . [of] presenting evidence.” The court distinguished such exhibits

from summaries admitted into evidence under Fed. R. Evid. 1006. Pedagogical

summaries are meant to facilitate the presentation of evidence already in the

record and thus are not themselves admissible evidence. Instead, such

summaries are meant to aid the jury in its understanding of evidence that has

been admitted and thus may be more slanted in presenting information than a

summary admitted under Rule 1006. Allowing such an exhibit is within the

district court’s discretion, but when the court allows an exhibit of this sort, it

should instruct the jury that the exhibit is not evidence and is meant only aid

the jury in its evaluation of other evidence. White, 737 F.3d at 1135.

3.18 JUROR NOTE-TAKING

If you have taken notes during the trial, you may use them during

deliberations to help you remember what happened during the trial. You should

use your notes only as aids to your memory. The notes are not evidence. All of

you should rely on your independent recollection of the evidence, and you should

not be unduly influenced by the notes of other jurors. Notes are not entitled to

any more weight than the memory or impressions of each juror.

Committee Comment:

This instruction is adapted from Seventh Circuit Pattern Civil Jury Instruc-

tion 1.07.

3.19 GOVERNMENT INVESTIGATIVE TECHNIQUES

You have heard evidence obtained from the government’s use of [undercover

agents] [informants] [deceptive investigative techniques]. The government is

permitted to use these techniques. You should consider evidence obtained this

way together with and in the same way you consider the other evidence.

Committee Comment

In United States v. McKnight, 665 F.3d 786, 790–95 (7th Cir. 2011), the court

did not find the giving of an instruction that addressed similar issues to be

prejudicial or an abuse of discretion in that case. However, the court expressed

concern about the dangers of giving such an instruction in a case in which the

defense raises no issues at the trial regarding the propriety of deceptive

investigative techniques. See also United States v. McKnight, 671 F.3d 664 (7th

Cir. 2012) (Posner, J., joined by Kanne, J. and Williams, J., dissenting from

denial of rehearing en banc). Although the McKnight panel did not expressly

approve the language of the instruction given in that case, the Committee has

drafted one.

The instruction is worded so that it minimizes the appearance of a judicial

imprimatur on particular techniques. Nevertheless, this possibility will exist if

the trial judge gives any instruction on this issue. See McKnight, 665 F.3d at 794

(“There is … a possibility that singling out this aspect of the case might be

interpreted by the jurors as at least indirect approval of the effectiveness of the

Government’s management of the investigation.”). For this reason, this in-

struction need not and should not be given as a matter of course in every case

involving undercover or deceptive investigative techniques. Rather, it is intended

for use only in the rare case in which questioning or argument, or a statement

during jury selection, or some other circumstance arising or existing during trial

suggests the impropriety of such techniques.

When nothing like that occurs, raising the issue in an instruction is likely to

distract the jury from other instructions that address matters that actually are

at issue. See, e.g., United States v. Hill, 252 F.3d 919, 923 (7th Cir. 2001) (“Unless

it is necessary to give an instruction, it is necessary not to give it, so that the

important instructions stand out and are remembered.”), cited in McKnight, 665

F.3d at 794. If such an instruction is given, it is important for the trial judge to

explain the reasons for doing so in the record. Id. at 794. See also United States

v. McKnight, 671 F.3d 664 at 668–669 (7th Cir. 2012).

Additional reasons to exercise caution in giving this instruction are to avoid

undercutting appropriate argument that a witness’s deceptive act may be con-

sidered in assessing the witness’s credibility, see, e.g., Fed. R. Evid. 608(b), and

to avoid conflict with other instructions, such as those that advise the jury to

consider all of the surrounding circumstances (which may include deception) in

assessing a defendant’s confession or identification testimony. See Instructions

3.09 & 3.12.

In addition, in a case in which an entrapment instruction is given and this

instruction (3.19) is requested, consideration should be given to rewording this

instruction so that it does not implicitly modify or undercut the entrapment

instruction. See Instructions 6.04 & 6.05.

4.01 ELEMENTS/BURDEN OF PROOF

[The indictment charges the defendant[s] with; Count[s] ___ of the indictment

charge[s] the defendant[s] with] ________________. In order for you to find [a; the]

defendant guilty of this charge, the government must prove each of the [fill in

number of elements] following elements beyond a reasonable doubt:

and

4. [Addressing any issues raised by an affirmative defense on which the

government bears the burden of proof, e.g., entrapment.]

If you find from your consideration of all the evidence that the government

has proved each of these elements beyond a reasonable doubt [as to the charge

you are considering], then you should find the defendant guilty [of that charge].

If, on the other hand, you find from your consideration of all the evidence that

the government has failed to prove any one of these elements beyond a

reasonable doubt [as to the charge you are considering], then you should find

the defendant not guilty [of that charge].

4.02 ELEMENTS/BURDEN OF PROOF IN CASE

INVOLVING INSANITY DEFENSE

[The indictment charges the defendant[s] with; Count[s] ___ of the indictment

charge[s] the defendant[s] with] ________________. In order for you to find [a; the]

defendant guilty of this charge, the government must prove each of the [fill in

number of elements] following elements beyond a reasonable doubt:

and

If you find from your consideration of all the evidence that the government

has failed to prove any one of these elements beyond a reasonable doubt [as to

the charge you are considering], then you should find the defendant not guilty

[of that charge].

If, on the other hand, you find from your consideration of all the evidence that

the government has proved each of these elements beyond a reasonable doubt

[as to the charge you are considering], then you should find the defendant guilty

[of that charge], unless you decide that the defendant is not guilty by reason of

insanity.

If the defendant has proved the defense of insanity by clear and convincing

evidence [as to the charge you are considering], then you should find the

defendant not guilty [of that charge] by reason of insanity. Clear and convincing

evidence is not as high a burden as proof beyond a reasonable doubt.

[Insert definition of insanity from Pattern Instruction 6.02.]

Committee Comment

This instruction is parallel to the general elements instruction. The Seventh

Circuit has not had occasion to define “clear and convincing” evidence as that

term is used in the insanity statute. The court has stated in another context,

however, that “‘highly probable’ … is the Supreme Court’s definition of … ‘clear

and convincing evidence.’” United States v. Boos, 329 F.3d 907, 911 (7th Cir.

2003) (citing Colorado v. New Mexico, 467 U.S. 310 (1984)). The contrast with

the requirement of proof beyond a reasonable doubt is taken from Sixth Circuit

Instruction 6.04 and is used so that the jury is aware of the different level of

proof required.

4.03 ELEMENTS/BURDEN OF PROOF IN CASE

INVOLVING COERCION DEFENSE

[The indictment charges the defendant[s] with; Count[s] ___ of the indictment

charge[s] the defendant[s] with] ________________. In order for you to find [a; the]

defendant guilty of this charge, the government must prove each of the [fill in

number of elements] following elements beyond a reasonable doubt:

and

If you find from your consideration of all the evidence that the government

has failed to prove any one of these elements beyond a reasonable doubt [as to

the charge you are considering], then you should find the defendant not guilty

[of that charge].

If, on the other hand, you find from your consideration of all the evidence that

the government has proved each of these elements beyond a reasonable doubt

[as to the charge you are considering], then you should find the defendant guilty

[of that charge], unless the defendant has proven the defense of coercion. If the

defendant has proven that it is more likely than not that he was coerced, then

you should find the defendant not guilty [of that charge].

[Insert definition of coercion from Pattern Instruction 6.08]

Committee Comment

The defendant bears the burden of proving a coercion defense. Dixon v. United

States, 548 U.S. 1 (2006).

The “preponderance of the evidence” definition is adapted from that offered in

the Seventh Circuit Pattern Civil Jury Instructions.

4.04 UNANIMITY ON SPECIFIC ACTS

Count[s] ___ charge the defendant with [fill in description of multiple acts,

e.g., making more than one false statement]. The government is not required to

prove that the defendant made every one of the [fill in shorthand description,

e.g., false statements] alleged in [Count __; the particular Count you are

considering]. However, the government is required to prove that the defendant

made at least one of the [fill in shorthand description, e.g., false statements] that

is alleged in [Count __; the particular Count]. To find that the government has

proven this, you must agree unanimously on which particular [shorthand

description, e.g. false statement] the defendant made, as well as all of the other

elements of the crime charged.

[For example[, on Count __], if some of you were to find that the government

has proved beyond a reasonable doubt that the defendant [fill in description of

one of the particular acts charged, e.g., “made a false statement regarding his

taxable income”], and the rest of you were to find that the government has proved

beyond a reasonable doubt that the defendant [fill in description of a different

particular act charged, e.g., “made a false statement about the number of

exemptions to which he was entitled”], then there would be no unanimous

agreement on which [shorthand description, e.g., false statement] the

government has proved. On the other hand, if all of you were to find that the

government has proved beyond a reasonable doubt that the defendant [fill in

description of one of the particular acts charged, e.g., “made a false statement

regarding his taxable income”], then there would be a unanimous agreement on

which [shorthand description, e.g., false statement] the government proved.]

Committee Comment

This instruction may apply when the government alleges in a single count

that the defendant violated the law in more than one way. The law in this regard

has developed significantly in recent years. When Richardson v. United States,

526 U.S. 813 (1999), and Schad v. Arizona, 501 U.S. 624, 631–32 (1991)

(plurality opinion), are read together, it appears that unanimity is required when

the government alleges more than one possibility for an element of the crime

(e.g., a false statement charge in which the government charges that the

defendant made one or more of three alleged false statements), but not when the

government contends that the defendant committed an element of the crime

using one or more of several possible means (e.g., an armed robbery charge in

which the government charges that the defendant committed a robbery using a

knife, or a gun, or both). Richardson, 513 U.S. at 817.

The element/means distinction is not always clear. Some guidance has been

provided by the Seventh Circuit’s post-Richardson cases. See, e.g., United States

v. Griggs, 569 F.3d 341, 344 (7th Cir. 2009), which gives as examples of when a

jury must be unanimous on particular acts in situations in which a single count

charges multiple perjurious statements, multiple objects of a single conspiracy,

and multiple predicate acts of an alleged continuing criminal enterprise. By

analogy, false statement-type charges (including false tax return charges) that

allege multiple false statements in a single count and RICO charges listing a

series of predicate acts likely require a unanimity instruction, though there is no

definitive post-Richardson guidance from the Seventh Circuit on charges of that

sort. See also United States v. Mannava, 565 F.3d 412, 415–16 (7th Cir. 2009)

(conviction under 18 U.S.C. § 2422(b), which makes it a crime to induce a minor

to engage in sexual activity for which a person can be charged with a criminal

offense, requires unanimity regarding underlying state criminal offense

involved); United States v. Davis, 471 F.3d 783, 791 (7th Cir. 2006) (if fraud

charge alleges multiple schemes, unanimity regarding the particular scheme is

required). On the other hand, a jury need not be unanimous on which overt act

the defendants committed in furtherance of a charged conspiracy. Griggs, 569

F.3d at 343–44. In addition, the Seventh Circuit held that specific unanimity is

not required when multiple false statements are alleged as part of a scheme to

defraud. See United States v. Daniel, 749 F.3d 608, 613-14 (7th Cir. 2014) (“the

fraudulent representations or omissions committed by [defendant] . . . were

merely the means he used to commit an element of the crime.”). In certain cases,

where the evidence (and the strength of the evidence) on false statements or

omissions is different enough that the jury might well split, it might be

appropriate to instruct the jury that there need not be unanimity on the

particular representation or omission.

If used, this instruction should be given in sequence to accompany the

“elements” and definitional instructions for the particular count(s) to which it

applies. If the instruction applies to some counts but not others, the trial judge

should include language in the instruction identifying the counts to which the

instruction applies. The example provided in the second paragraph is optional

and, if given, should be adapted to the particular case.

4.05 DATE OF CRIME CHARGED

The indictment charges that [the crime[s]; insert other description] happened

“on or about” [fill in date]. The government must prove that the crime[s]

happened reasonably close to the date[s]. The government is not required to

prove that the crime[s] happened on the [those] exact date[s].

Committee Comment

This instruction is unnecessary in the average case in which no discrepancy

exists between the date charged in the indictment and the date suggested by the

evidence at trial.

If there is such a discrepancy, this instruction may be given if the date sug-

gested by the evidence falls within the applicable statute of limitations, Ledbetter

v. United States, 170 U.S. 606, 612 (1898); United States v. Leibowitz, 857 F.2d

373, 378 (7th Cir. 1988). Use of the phrase “on or about” in the indictment makes

a date reasonably near the date in the indictment sufficient, and only a material

variance will cause the government’s case to fail. Leibowitz, 857 F.2d at 378.

There are two possible exceptions to this rule: (a) when the date charged is

an essential element of the offense and the defendant was misled by such date

in preparing a defense, see, e.g., United States v. Bourque, 541 F.2d 290, 293–96

(1st Cir. 1976); United States v. Cina, 699 F.2d 853, 859 (7th Cir. 1983); or (b)

when the defendant asserts an alibi defense for the specific date(s) charged, see

Leibowitz, 857 F.2d at 378–79.

4.06 SEPARATE CONSIDERATION – ONE DEFENDANT

CHARGED WITH MULTIPLE CRIMES

[The; certain] defendant[s] has been accused of more than one crime. The

number of charges is not evidence of guilt and should not influence your

decision.

You must consider each charge [and the evidence concerning each charge]

separately. Your decision on one charge, whether it is guilty or not guilty, should

not influence your decision on any other charge.

Committee Comment

The bracketed language addressing “evidence concerning each charge”

should be given only when there is evidence that was admitted only with respect

to a particular charge or charges.

4.07 SEPARATE CONSIDERATION – MULTIPLE DEFENDANTS

CHARGED WITH SAME OR MULTIPLE CRIME(S)

Even though the defendants are being tried together, you must consider each

defendant [and the evidence concerning that defendant] separately. Your

decision concerning one defendant, whether it is guilty or not guilty, should not

influence your decision concerning any other defendant.

Committee Comment

The bracketed language addressing “evidence concerning that defendant”

should be given only when there is evidence that was admitted only with respect

to less than all of the defendants.

4.08 PUNISHMENT

In deciding your verdict, you should not consider the possible punishment for

the defendant[s] [who [is; are] on trial]. If you decide that the government has

proved [the; a] defendant guilty beyond a reasonable doubt, then it will be my

job to decide on the appropriate punishment.

Committee Comment

This instruction is optional. It is commonly requested by the government in

certain districts within the Circuit and is given by some, but not all, judges. The

Committee has included it so that there is some standardization. The most

common argument against giving an instruction in the way it is now commonly

given, i.e., “you should not consider the issue of punishment,” is that it tends to

denigrate the burden of proof and to undermine the seriousness of the jury’s

task. The rewording of the commonly-given instruction that is proposed here will

go at least part of the way toward eliminating the risk that this will occur. The

wording is adapted from Sixth Circuit Instruction 8.05.

In a case in which the jury has heard evidence suggesting the range of sen-

tences the defendant may face—for example, when a cooperating witness

charged with the same offenses testifies and is cross examined on the sentence

he faced absent a cooperation agreement—the trial judge may wish to consider

modifying this instruction so that it does not suggest that it is inappropriate for

the jury to consider the possible punishment the witness faced.

4.09 ATTEMPT

A person attempts to commit [identify offense, e.g., bank robbery] if he (1)

knowingly takes a substantial step toward committing [describe the offense], (2)

with the intent to commit [describe the offense]. The substantial step must be an

act that strongly corroborates that the defendant intended to carry out the [the

crime; describe the offense].

Committee Comment

See generally United States v. Sanchez, 615 F.3d 836, 844–45 (7th Cir. 2010);

United States v. Barnes, 230 F.3d 311, 315 (7th Cir. 2000); United States v.

Rovetuso, 768 F.2d 809, 822 (7th Cir. 1985). The definition of “substantial step” is

included because the term is difficult to understand without explanation.

In United States v. Gladish, 536 F.3d 646 (7th Cir. 2008), the court concluded

that explicitly sexual Internet chatter combined with the defendant sending the

purported minor a video of himself masturbating did not amount to a

“substantial step” as required to convict the defendant of attempting to induce

the minor to engage in sexual activity. The court stated that “[t]he requirement

of proving a substantial step serves to distinguish people who pose real threats

from those who are all hot air.” 536 F.3d. at 650; see also United States v.

Zawada, 552 F.3d 531 (7th Cir. 2008) (planning for meeting with minor and

discussion about setting up a meeting sufficient to constitute substantial step

under plain error review); United States v. Davey, 550 F. 2d 653 (7th Cir. 2008)

(affirming denial of motion to withdraw guilty plea; substantial step toward

completion of substantive offense demonstrated by planning a meeting with

purported minor, travel across state lines to achieve meeting, and telephone

contact with purported minor upon arrival for further planning); Doe v. City of

Lafayette, 337 F.3d 757, 783 (7th Cir. 2004) (merely thinking sexual thoughts

about children does not constitute substantial step towards sexual abuse).

As the Seventh Circuit noted in Sanchez, the line between mere preparation

and a substantial step is “inherently fact specific.” Sanchez, 615 F.3d at 844.

The Committee has not proposed a bright-line rule because none exists. The trial

judge must, of course, assess whether there is evidence that, consistent with the

law, would permit a finding of guilt.

Many Seventh Circuit cases say that a “substantial step” is “something more

than mere preparation, but less than the last act necessary before the actual

commission of the substantive crime.” See, e.g., Sanchez, 615 F.3d at 844 (in-

ternal quotation marks omitted); United States v. Barnes, 230 F.3d 311, 315 (7th

Cir. 2000). The Committee did not include this language in the pattern jury

instruction because it did not appear to provide clear guidance to jurors. As the

Seventh Circuit observed in Sanchez, “there is no easy way to separate mere

preparation from a substantial step.” 615 F.3d at 844.

Some pattern instructions include an “attempt” alternative. See, e.g.,

Instruction for 18 U.S.C. § 2113(a) (bank robbery). When a court instructs on an

attempt offense where the pattern instruction does not include an attempt

alternative, the court should modify the pattern instruction for the offense to

incorporate the element of attempt and then should give the definition of attempt

in Instruction 4.09 either separately or in the body of the elements instruction.

For example, for a charge of attempted possession with intent to distribute

cocaine under 21 U.S.C. § 841(a)(1), the court should instruct as follows

(eliminating the bold type, of course):

The indictment charges defendant with attempting to possess cocaine with

intent to distribute. In order for you to find the defendant guilty of this charge,

the government must prove each of the three following elements beyond a

reasonable doubt:

1. The defendant knowingly attempted to possess cocaine; and

2. The defendant intended to distribute the substance to another person; and

3. The defendant knew the substance was some kind of a controlled

substance. The government is not required to prove that the defendant knew the

substance was cocaine.

If you find from your consideration of all the evidence that the government

has proved each of these elements beyond a reasonable doubt, then you should

find the defendant guilty.

If, on the other hand, you find from your consideration of all the evidence that

the government has failed to prove any one of these elements beyond a

reasonable doubt, then you should find the defendant not guilty.

(separate instruction)

A person attempts to possess a controlled substance if he (1) knowingly takes

a substantial step toward possessing the controlled substance, (2) with the intent

to possess the controlled substance. The substantial step must be an act that

strongly corroborates that the defendant intended to carry out the crime.

4.10 KNOWINGLY – DEFINITION

A person acts knowingly if he realizes what he is doing and is aware of the

nature of his conduct, and does not act through ignorance, mistake, or accident.

[In deciding whether the defendant acted knowingly, you may consider all of the

evidence, including what the defendant did or said.]

[You may find that the defendant acted knowingly if you find beyond a

reasonable doubt that he believed it was highly probable that [state fact as to

which knowledge is in question, e.g., “drugs were in the suitcase,” “the financial

statement was false,”] and that he took deliberate action to avoid learning that

fact. You may not find that the defendant acted knowingly if he was merely

mistaken or careless in not discovering the truth, or if he failed to make an effort

to discover the truth.]

Committee Comment

The Seventh Circuit has approved the definition of “knowledge” given in the

first paragraph of this instruction. United States v. Graham, 431 F.3d 585, 590

(7th Cir. 2005).

The second paragraph, commonly referred to as an “ostrich” instruction, will

not be appropriate in every case in which knowledge is an issue. Such an in-

struction is appropriate “where (1) the defendant claims a lack of guilty knowl-

edge, and (2) the government has presented evidence sufficient for a jury to

conclude that the defendant deliberately avoided learning the truth.” United

States v. Carani, 492 F.3d 867, 873 (7th Cir. 2007) (citing United States v.

Carrillo, 435 F.3d 767, 780 (7th Cir. 2006)). Deliberate avoidance is more than

mere negligence. “The purpose of the ostrich instruction is to inform the jury

that a person may not escape criminal liability by pleading ignorance if he knows

or strongly suspects he is involved in criminal dealings but deliberately avoids

learning more exact information about the nature or extent of those dealings.”

Carrillo, 435 F.3d at 780 (internal quotation marks and citation omitted).

“[E]vidence merely supporting a finding of negligence[,] that a reasonable person

would have been strongly suspicious, or that a defendant should have been

aware of criminal knowledge, does not support an inference that a particular

defendant was deliberately ignorant.” Carrillo, 435 F.3d at 781; United States v.

Stone, 987 F.2d 469, 472 (7th Cir. 1993) (explaining that it is improper to use

an ostrich instruction “to convict [a defendant] on the basis of what [he] should

have known”).

Accordingly, an ostrich instruction is inappropriate when the government’s

evidence leaves the jury with a “binary choice” – the defendant had actual

knowledge, or he lacked knowledge. See United States v. Craig, 178 F.3d 891,

898 (7th Cir. 1999); United States v. Giovanetti, 919 F.2d 1223, 1228 (7th Cir.

1990). “If the evidence against the defendant points solely to direct knowledge of

the criminal venture, it would be error to give the [ostrich] instruction.” United

States v. Caliendo, 910 F.2d 429, 435 (7th Cir. 1990) (internal quotation marks

and citation omitted). As the Seventh Circuit stated in United States v. Macias,

786 F.3d 1060 (7th Cir. 2015):

An ostrich instruction should not be given unless there is evidence that the

defendant engaged in behavior that could reasonably be interpreted as having

been intended to shield him from confirmation of his suspicion that he was

involved in criminal activity. As the Supreme Court put it in Global– Tech

Appliances, Inc. v. SEB S.A., ––– U.S. ––––, 131 S. Ct. 2060, 2070 (2011), the

defendant must not only “believe that there is a high probability that a fact exists”

but also “must take deliberate actions to avoid learning of that fact” (emphasis

added). In United States v. Salinas, 763 F.3d 869, 880–81 (7th Cir. 2014), we noted

that although Global–Tech was a civil case, several courts of appeal have deemed

its definition of willful blindness applicable to criminal cases. It is quite similar to

our analysis of ostrich instructing in United States v. Giovannetti, 919 F.2d 1223,

1228 (7th Cir. 1990)[.]



4.11 WILLFULLY – DEFINITION

(No Instruction)

Committee Comment

The Committee has not proposed a general definition of willfulness because

the definition of the term is statute-specific. The pattern elements instructions

for offenses requiring proof of willfulness include the necessary definitional

instructions.

4.12 SPECIFIC INTENT/GENERAL INTENT

(No Instruction)

Committee Comment

The Committee recommends avoiding instructions that distinguish between

“specific intent” and “general intent.” Instead, the trial judge should give in-

structions that define the precise mental state required by the particular offense

charged. Distinctions between “specific intent” and “general intent” more than

likely confuse rather than enlighten juries. See United States v. Bailey, 444 U.S.

394, 398–413 (1980); see also Liparota v. United States, 471 U.S. 419, 433 n.16

(1985) (suggesting that jury instructions should “eschew use of difficult legal

concepts like ‘specific intent’ and ‘general intent.’”).

4.13 DEFINITION OF POSSESSION

A person possesses an object if he knowingly has the ability and intention to

exercise control over the object, either directly or through others. [A person may

possess an object even if he is not in physical contact with it [and even if he does

not own it].]

[More than one person may possess an object. If two or more persons share

possession, that is called “joint” possession. If only one person possesses the

object, that is called “sole” possession. The term “possess” in these instructions

includes both joint and sole possession.]

Committee Comment

The instruction provides a definition of “constructive” possession. See, e.g.,

United States v. Harris, 325 F.2d 865, 870 (7th Cir. 2003); United States v. Folks,

236 F.3d 384, 389 (7th Cir. 2001). There is no need to use the term “constructive”

in the jury instructions, as it would introduce an element of confusion. It is better

simply to provide the definition without using the legal term.

Constructive possession represents a distinct theory of liability from that of

possession based on co-conspirator liability, and the two theories have different

elements. See United States v. Mokol, 646 F.3d 479, 486–87 (7th Cir. 2011).

The second (bracketed) paragraph should be used only in a case in which

there is evidence of possession by more than one person.

4.14 POSSESSION OF RECENTLY STOLEN PROPERTY

If you find that the defendant was in possession of property that recently had

been stolen, you may infer that he knew it was stolen. You are not required to

make this inference.

The term “recently” has no fixed meaning. The more time that has passed

since the property was stolen, the more doubtful an inference of the defendant’s

knowledge becomes.

Committee Comment

See Barnes v. United States, 412 U.S. 837, 843 (1973); United States v. Woody,

55 F.3d 1257, 1265 (7th Cir. 1995). Both of those cases hold that an inference

of knowledge from possession of recently stolen property is legally appropriate.

The current version of the instruction modifies the previous version to alter

language that arguably suggested that the defendant is under an obligation to

explain his possession of recently stolen property.

5.01 RESPONSIBILITY

A person who [orders; authorizes; [or] in some other way is responsible for]

the criminal acts of another person may be found guilty whether or not the other

person [is; has been] found guilty.

Committee Comment

This instruction has relatively narrow application. When Congress enacted

the Sherman Act, it was concerned that juries would hesitate to convict lower

level employees who actually had violated the law but had done so at the direc-

tion of their superiors, so it added the verbs “authorized” and “ordered” into the

Act to clarify its intent that the superiors also were personally liable. See United

States v. Wise, 370 U.S. 405, 413 (1962). This instruction reassures jurors that

if they acquit a lower level employee, they are not obliged to acquit his superior

who ordered the conduct.

5.02 PERSONAL RESPONSIBILITY OF CORPORATE AGENT

A person who acts on behalf of a [corporation; partnership; other entity] also

is personally responsible for what he does or causes someone else to do.

However, a person is not responsible for the conduct of others performed on

behalf of a corporation merely because that person is an officer, employee, or

other agent of a corporation.

Committee Comment

A corporate agent through whose act, default or omission the corporation

committed a crime is himself guilty of that crime. This principle applies re-

gardless of whether the crime requires consciousness of wrongdoing and it ap-

plies not only to those corporate agents who themselves committed the criminal

act, but also to those who by virtue of their managerial positions or their similar

relation to the actor could be deemed responsible for its commission. See, e.g.,

United States v. Park, 421 U.S. 658, 670 (1975) (clean warehouse case). “Two

fundamental principles are thoroughly settled. One is that neither in the civil nor

the criminal law can an officer protect himself behind a corporation where he is

the actual, present, and efficient actor; and the second is that all parties active

in promoting a misdemeanor, whether agents or not, are principals.” United

States v. Wise, 370 U.S. 405, 410 (1962). Implicit in these principles is the notion

that criminal culpability attaches because of the agent’s act, default or omission,

not simply and solely because of the officer’s position in the corporation.

5.03 ENTITY RESPONSIBILITY – ENTITY DEFENDANT – AGENCY

[Name of entity] is a [corporation; other type of entity]. A [corporation; other

type of entity] may be found guilty of an offense. A [corporation; other type of

entity] acts only through its agents and employees, that is, people authorized or

employed to act for the [corporation; other type of entity].

[The indictment charges [name of entity] with; Count __ of the indictment is

a charge of] ______________. In order for you to find [name of entity] guilty of this

charge, the government must prove each of the following elements beyond a

reasonable doubt:

First, the offense charged was committed by an agent or employee of [name

of entity]; and

Second, in committing the offense, the agent[s] or employee[s] intended, at

least in part, to benefit [name of entity]; and

Third, the agent[s] or employee[s] acted within [his/their] authority.

If you find from your consideration of all the evidence that the government

has proved each of these elements beyond a reasonable doubt, then you should

find the defendant guilty.

If, on the other hand, you find from your consideration of all the evidence that

the government has failed to prove any of these elements beyond a reasonable

doubt, then you should find the defendant not guilty.

An act is within the authority of an agent or employee if it concerns a matter

that [name of entity] generally entrusted to that agent or employee. [Name of

entity] need not have actually authorized or directed the particular act.

If an agent or employee was acting within his authority, then [name of entity]

is not relieved of its responsibility just because the act was illegal, or was

contrary to [name of entity]’s instructions, or was against [name of entity]’s

general policies. However, you may consider the fact that [name of entity] had

policies and instructions and how carefully it tried to enforce them when you

determine whether [name of entity]’s agent[s] or employee[s] was acting with the

intent to benefit [name of entity] or was acting within his authority.

Committee Comment

This instruction adopts the position of the majority of the courts of appeals

that have considered the question of the responsibility of a corporation for the

criminal conduct of its agents. The majority view is that unless the criminal

statute explicitly provides otherwise, a corporation is vicariously criminally liable

for the crimes committed by its agents acting within the scope of their em-

ployment—that is, within their actual or apparent authority and on behalf of the

corporation.

In non-regulatory cases, however, intent to benefit the corporation is treated

as a separate element. See, e.g., United States v. One Parcel of Land Located at

7326 Highway 45 N., Three Lakes, 965 F.2d 311, 316 (7th Cir. 1992), in which

the court held that agents are outside the scope of their employment when not

acting at least in part for the benefit of the corporation, implying that the intent

to benefit is an element of corporate responsibility. See also United States v.

Barrett, 51 F.3d 86, 89 (7th Cir. 1995) (“common sense dictates that when an

employee acts to the detriment of his employer and in violation of the law, his

actions normally will be deemed to fall outside the scope of his employment and

thus will not be imputed to his employer.”); cf. Doe v. R.R.Donnelley & Sons Co.,

42 F.3d 439, 446 (7th Cir. 1994) (sexual harassment case in which the Seventh

Circuit noted that “[k]nowledge of the agent is imputed to the corporate principal

only if the agent receives the knowledge while acting within the scope of the

agent’s authority and when the knowledge concerns a matter within the scope of

that authority”); Juarez v. Ameritech Mobile Communications, Inc., 957 F.2d 317,

321 (7th Cir. 1992) (same).

In United States v. LaGrou Distribution Sys., Inc., 466 F.3d 585 (7th Cir. 2006),

the corporate defendant was convicted of felonies related to the knowing and

intentional unsanitary storage of meat and poultry. The trial court used Pattern

Instructions 5.02–5.03 and added this to its definition of “knowingly”:

A corporation acts through its agents … and “knows” through its

agents … To distinguish knowledge belonging exclusively to an agent

from knowledge belonging to the corporate principal, courts rely on

certain presumptions. Where a corporate agent obtains knowledge

while acting in the scope of agency, he presumably reports that

knowledge to this corporate principal so the court imputes such

knowledge to a corporation.

The Seventh Circuit deemed this an accurate summary of the law in cases

where “knowingly” was the required level of mens rea, as distinguished from Ar-

thur Andersen LLP v. United States, 544 U.S. 696 (2005), in which “corruptly”

was the corporate mens rea required to convict. LaGrou Distribution Sys., 466

F.3d at 592. (In Arthur Andersen, the Supreme Court observed that the charging

statute, 18 U.S.C. § 1512(b)(2)(A)), required proof that the defendant “knowingly

… corruptly persuaded” another person “with intent to cause” that person to

withhold documents from an official proceeding. Arthur Andersen, 544 U.S. at

704–05. To act with this intent, defendants must be “persuaders conscious of

their wrongdoing.” Id. at 706.)

In Pugh v. Tribune Co., 521 F.3d 686 (7th Cir. 2008), a civil securities fraud

case involving inflation of circulation figures, the court reaffirmed the principle

underlying the pattern instruction:

A corporation may be held liable for statements by employees

who have apparent authority to make them. Accordingly, the cor-

porate scienter inquiry must focus on the state of mind of the indi-

vidual corporate official or officials who make or issue the statement

(or order or approve it or its making or issuance, or who furnish

information or language for the inclusion therein, or the like) rather

than generally to the collective knowledge of all the corporation’s

officers and employees acquired in the course of their employment.

Pugh, 521 F.3d at 697 (citations and internal quotation marks omitted).

In United States v. Ladish Malting Co., 135 F.3d 484 (7th Cir. 1998), the court

held that corporations are deemed to have knowledge if the knowledge is possessed

by persons with authority to do something about what they know, regardless of

their title within the company (i.e., it is not necessary for a “supervisor” to know

about a safety hazard if a member of the company’s safety committee knew about

it). Id. at 492–93. The court also held that corporations are not entitled to a

“forgetfulness” instruction because corporations qua corporations don’t forget

things. Id. at 492. The court reaffirmed these principles in United States v. L.E.

Myers Co., 562 F.3d 845, 853–55 (7th Cir. 2009).

In United States v. One Parcel of Land, a drug forfeiture case, the court in

dicta summarized these agency principles: a corporation knows what its agents

know when they are acting for the benefit of the corporation; but a corporation

is not imputed to know what its employees are doing when they act outside of

the scope of their agency and are not acting for or in behalf of the corporation.

965 F.2d at 316–17; see also id. at 322 (Posner, J., dissenting).

5.04 ENTITY RESPONSIBILITY – ENTITY DEFENDANT

– AGENCY RATIFICATION

If you find that an agent’s act was outside his authority, then you must

consider whether the corporation later approved the act. An act is approved if,

after it is performed, another agent of the corporation, with the authority to

perform or authorize the act and with the intent to benefit the corporation, either

expressly approves the act or engages in conduct that is consistent with

approving the act. A corporation is legally responsible for any act or omission

approved by its agents.

Committee Comment

This instruction is patterned on ordinary agency principles of post hoc ratifi-

cation. Note, however, that the Supreme Court declined to require corporate

ratification for liability to attach in a civil antitrust case, finding that “a ratifi-

cation rule would have anticompetitive effects, directly contrary to the purposes

of the antitrust laws.” American Society of Mechanical Engineers, Inc. v. Hy-

drolevel, 456 U.S. 556, 573 (1982).

5.05 JOINT VENTURE

An offense may be committed by more than one person. A defendant’s guilt

may be established without proof that the defendant personally performed every

act constituting the crime charged.

5.06 AIDING AND ABETTING/ACTING THROUGH ANOTHER

(a)

Any person who knowingly [aids; counsels; commands; induces; or procures]

the commission of an offense may be found guilty of that offense if he knowingly

participated in the criminal activity and tried to make it succeed.

(b)

If a defendant knowingly causes the acts of another, then the defendant is

responsible for those acts as though he personally committed them.

Committee Comment

See Rosemond v. United States, 5134 S. Ct. 1240 (2014); United States v.

Irwin, 149 F.3d 565, 571–73 (7th Cir. 1998). In prosecutions under 18 U.S.C. §

924(c), the Supreme Court held in Rosemond that the affirmative act requirement

is satisfied if the act is one in furtherance of either the underlying violent crime

of drug trafficking offense or the firearms offense. However, with respect to

intent, the defendant must be shown to have intended to facilitate an armed

commission of the underlying offense.

5.07 PRESENCE/ACTIVITY/ASSOCIATION

(a)

A defendant’s presence at the scene of a crime and knowledge that a crime is

being committed is not sufficient by itself to establish the defendant’s guilt.

(b)

If a defendant performed acts that advanced the crime but had no knowledge

that the crime was being committed or was about to be committed, those acts

are not sufficient by themselves to establish the defendant’s guilt.

(c)

A defendant’s association with persons involved in a [crime; criminal scheme]

is not sufficient by itself to prove his [participation in the crime] [or] [membership

in the criminal scheme].

Committee Comment

Only the particular subpart(s) that apply in the particular case should be

given.

“Mere presence” instruction (subpart (a)). It is the Committee’s position that

the presence instruction should be used in a limited fashion. If there is no evi-

dence other than a defendant’s mere presence at the scene of the crime, then

presumably that defendant’s motion for a directed verdict or judgment of ac-

quittal would be granted by the trial judge. However, there may be some cases

where a defendant is present and takes some action which is the subject of

conflicting testimony. In those situations, the Committee believes that a presence

instruction may be appropriate.

Instruction (a) restates traditional law. See United States v. Valenzuela, 596

F.2d 824, 830–31 (9th Cir. 1979), United States v. Garguilo, 310 F.2d 249, 253

(2d Cir. 1962), United States v Moya-Gomez, 860 F.2d 706, 759 (7th Cir. 1988);

United States v. Jones, 950 F.2d 1309, 1313 (7th Cir. 1991). It omits the word

“mere,” commonly used to modify “presence.” The omission is due to the

Committee’s belief that “mere” is unnecessary and, in some situations, mis-

leading or argumentative.

Instruction (a) is most typically given in conspiracy cases, such as United

States v. Quintana, 508 F.2d 867, 880 (7th Cir. 1975); United States v. Atterson,

926 F.2d 649, 655–56 (7th Cir. 1991); United States v. Williams, 798 F.2d 1024,

1028–29 (7th Cir. 1996), and in aiding and abetting cases, such as Nye & Nissen

v. United States, 336 U.S. 613, 619 (1949); United States v. Townsend, 924 F.2d

1385, 1393–94 (7th Cir. 1991); United States v. Boykins, 9 F.3d 1278, 1287–88

(7th Cir. 1993).

Instruction (a) may be given where a defendant charged with a substantive

crime such as assault alleges that although he/she was present at the scene of

the crime, he/she did not do it.

Acts that advance criminal activity (subpart (b)). Instruction (b) has been given

by judges in this Circuit for many years. It stems from cases such as Dennis v.

United States, 302 F.2d 5, 12–13 (10th Cir. 1962); United States v. Benz, 740

F.2d 903, 910–11 (11th Cir. 1984); United States v. Windom, 19 F.3d 1190 (7th

Cir. 1994); United States v. Carrillo, 269 F.3d 761, 770 (7th Cir. 2001); and

United States v. Ramirez, 574 F.3d 869, 883 (7th Cir. 2009).

Like Instruction (a), Instruction (b) may be given where a defendant charged

with a substantive crime, such as assault or possession of narcotics, alleges that

although he was present at the scene of the crime, he was not a participant in

the criminal activity.

If a defendant is charged with conspiracy on the basis of furnishing supplies or

services to someone engaged in a criminal conspiracy, an additional instruction

may be necessary. The Seventh Circuit has determined that a defendant who fur-

nishes supplies or services to someone engaged in a conspiracy is not guilty of

conspiracy even though the supply of goods or services may have furthered the

object of a conspiracy if the defendant had no knowledge of the conspiracy. See

United States v. Manjarrez, 258 F.3d 618, 626–27 (7th Cir. 2001).

“Mere association” instruction (subpart (c)). Subpart (c) mirrors an instruction

that is included as part of Instruction 5.10 concerning membership in a conspiracy.

Because the concept that association with someone involved in a crime is not

enough by itself to establish criminal responsibility is not confined to conspiracy

cases, however, a more generalized version of the instruction is included here.

5.08(A) CONSPIRACY – OVERT ACT REQUIRED

[The indictment charges defendant[s] with; Count[s] __ of the indictment

charge[s] the defendant with] conspiracy. In order for you to find the defendant

guilty of this charge, the government must prove each of the [three] following

elements beyond a reasonable doubt:

1. The conspiracy as charged in Count [___] existed;

2. The defendant knowingly became a member of the conspiracy with an

intent to advance the conspiracy; and

3. One of the conspirators committed an overt act in an effort to advance [a;

the] goal[s] of the conspiracy [on or before ______].

An overt act is any act done to carry out [a; the] goal[s] of the conspiracy. The

government is not required to prove all of the overt acts charged in the

indictment. [The overt act may itself be a lawful act.]

If you find from your consideration of all the evidence that the government

has proved each of these elements beyond a reasonable doubt, then you should

find the defendant guilty.

If, on the other hand, you find from your consideration of all the evidence that

the government has failed to prove any one of these elements beyond a

reasonable doubt, then you should find the defendant not guilty.

Committee Comment

(a)

Usage of 5.08(A) vs. 5.08(B). Instructions 5.08(A) and 5.08(B) are alternative

instructions. Instruction 5.08(A) should be used if the particular conspiracy

charge requires proof of an overt act. Instruction 5.08(B) should be used if the

conspiracy charge does not require proof of an overt act.

The definition of “overt act” in the last paragraph of instruction 5.08(A) is

taken from the general conspiracy statute, 18 U.S.C. § 371 (“any act to effect the

object of the conspiracy”). See also United States v. Hickok, 77 F.3d 992, 1005–

06 (7th Cir. 1996) (affirming the action of the trial court in defining “overt act”

pursuant to 18 U.S.C. § 371 in response to a question from the jury).

(b)

Additional explanatory instructions to be given with this instruction and with

Instruction 5.08(B). The Seventh Circuit has cautioned trial judges to provide

juries adequate guidance on the nuances of conspiracy law. See United States v.

Tolliver, 454 F.3d 660, 668 n.5 (7th Cir. 2006); United States v. Stotts, 323 F.3d

520, 522 (7th Cir. 2003). These points are covered by Instructions 5.09, 5.10,

and, in appropriate circumstances, 5.10(A) and 5.10(B). The Committee

recommends that the trial judge give those instructions in addition to 5.08(A) or

(B), making deletions only when it is clear that the jury has heard no evidence

on the point covered by the material to be deleted.

(c)

Supplemental instruction regarding proof of existence of conspiracy. In some

cases, it may be appropriate to provide the jury with a further definition of how

existence of a conspiracy is proved. In such cases, the Committee recommends

that the following additional instruction be provided:

To prove that a conspiracy existed, the government must prove

beyond a reasonable doubt that the defendant had an agreement or

mutual understanding with at least one other person to [fill in

description of the substantive offense, e.g., distribute heroin].

(d)

Unanimity regarding overt act. Recent Seventh Circuit authority indicates that

there is no requirement that the jury agree unanimously on which particular overt

act was committed in furtherance of the conspiracy. United States v. Griggs, 569

F.3d 341, 344 (7th Cir. 2009). There may, however, be some conflicting authority

on this point. See United States v. Matthews, 505 F.3d 698, 709–10 (7th Cir. 2007)

(“[I]f either party had requested a unanimity instruction or special verdict form on

the overt acts, unanimity would not have been an issue in this case. Counsel should

seriously consider making such requests in the future.”).

(e)

Unanimity regarding object of multiple-object conspiracy. When the indictment

charges a multiple-object conspiracy, an instruction may be required regarding

the need for jury unanimity regarding the particular object(s) proven. See

Instruction 4.04 and its commentary, as well as Griggs, 569 F.3d at 344, which

uses a multiple-object conspiracy as an example of a situation in which the jury

must be unanimous as to particulars of an indictment. See also United States v.

Hughes, 310 F.3d 557, 560–61 (7th Cir. 2002). In such a case, this instruction

should be supplemented accordingly.

(f)

Interaction with statute of limitations. Proof that a conspiracy continued into

the period of limitations and that an overt act in furtherance of the conspiracy

was performed within that period is an element of the offense of conspiracy under

18 U.S.C. § 371. See, e.g., Grunewald v. United States, 353 U.S. 391, 396–97

(1957) (“where substantiation of a conspiracy charge requires proof of an overt

act, it must be shown both that the conspiracy still subsisted [within the

limitations period] … and that at least one overt act in furtherance of the

conspiratorial agreement was performed within the period”); United States v.

Curley, 55 F.3d 254, 257 (7th Cir. 1995); United States v. Read, 658 F.2d 1225,

1232–33 (7th Cir. 1981); United States v. Greichunos, 572 F. Supp. 220, 226

(N.D. Ill. 1983) (defendant entitled to new trial because jury instruction on con-

spiracy failed to inform the jury that the government had to show an overt act

committed in furtherance of the conspiracy within the five years preceding the

indictment).

5.08(B) CONSPIRACY – NO OVERT ACT REQUIRED

[The indictment charges defendant[s] with; Count[s] __ of the indictment

charge[s] the defendant with] conspiracy. In order for you to find the defendant

guilty of this charge, the government must prove both of the following elements

beyond a reasonable doubt:

1. The conspiracy as charged in [Count ___] existed; and

2. The defendant knowingly became a member of the conspiracy with an

intent to advance the conspiracy.

If you find from your consideration of all the evidence that the government

has proved each of these elements beyond a reasonable doubt, then you should

find the defendant guilty.

If, on the other hand, you find from your consideration of all the evidence that

the government has failed to prove any one of these elements beyond a

reasonable doubt, then you should find the defendant not guilty.

Committee Comment

(a)

Usage of 5.08(B) vs. 5.08(A). Instruction 5.08(B) should be used if the par-

ticular conspiracy charge does not require proof of an overt act. Instruction

5.08(B) will most often be used in drug conspiracy cases under 21 U.S.C. § 846,

see United States v. Corson, 579 F.3d 804, 810 (7th Cir. 2009); United States v.

Shabani, 513 U.S. 10, 11 (1994), although there are other statutes that do not

require proof of an overt act, see, e.g., Whitfield v. United States, 543 U.S. 209

(2005) (money laundering conspiracy); United States v. Salinas, 522 U.S. 52

(1997) (RICO); Singer v. United States, 323 U.S. 338, 340 (1945) (Selective Service

Act); Nash v. United States, 229 U.S. 373 (1913) (antitrust conspiracy). See also

United States v. Resendiz-Ponce, 549 U.S. 102 (2007) (government conceded that

the overt act requirement applied to an attempt to reenter the United States

illegally, but successfully defended the indictment’s failure to allege a specific

overt act on grounds that the attempt described in the indictment implicitly

described an overt act).

Incorporation of comments to Instruction 5.08(A). When Instruction 5.08(B) is

used, counsel and the court should consult the Committee Comment to In-

struction 5.08(A), which includes a number of points that also apply to con-

spiracy charges in which no overt act is required.

5.09 CONSPIRACY – DEFINITION OF CONSPIRACY

A conspiracy is an express or implied agreement between two or more persons

to commit a crime. A conspiracy may be proven even if its goal[s] [was; were] not

accomplished.

In deciding whether the charged conspiracy existed, you may consider all of

the circumstances, including the words and acts of each of the alleged

participants.

Committee Comment

(a)

Usage. This definitional instruction should be given in conjunction with In-

struction 5.08(A) or (B).

(b)

Consideration of co-conspirator declarations. Under United States v. Santiago,

582 F.2d 1128 (7th Cir. 1978), the trial judge must determine preliminarily

whether statements by a co-conspirator of the defendant will be admissible at

trial under Federal Rule of Evidence 801(d)(2)(e). In making this determination

the judge must decide “if it is more likely than not that the declarant and the

defendant were members of a conspiracy when the hearsay statement was made,

and that the statement was in furtherance of the conspiracy …” Id. at 1143

(quoting United States v. Petrozziello, 548 F.2d 20, 23 (1st Cir. 1977)); see also

United States v. Hoover, 246 F.3d 1054, 1060 (7th Cir. 2001). If the trial judge

determines the statements are admissible, the jury may consider them as it

considers all other evidence. See United States v. Cox, 923 F.2d 519, 526 (7th

Cir. 1991); United States v. Wesson, 33 F.3d 788, 796 (7th Cir. 1994).

Under Santiago, the government must make a preliminary offer of evidence to

show that: 1) a conspiracy existed; 2) the defendant and declarant were

members of the conspiracy; and 3) the statements sought to be admitted were

made during and in furtherance of the conspiracy. Santiago, 582 F.2d at 1134–

35; see also, e.g., United States v. Alviar, 573 F.3d 526, 540 (7th Cir. 2009).

According to Bourjaily v. United States, 483 U.S. 171, 176–81 (1987), the court

can consider the statements in question (the statements seeking to be admitted)

to determine whether the three Santiago criteria have been met. Seventh Circuit

cases construing Bourjaily have held that properly admitted hearsay, including

statements admitted under the co-conspirator exception to the hearsay rule (Fed.

R. Evid. 801(d)(2)(E)), may be used to prove what another person did or said that

may demonstrate their membership in the conspiracy. United States v. Loscalzo,

18 F.3d 374, 383 (7th Cir. 1994) (“[W]hile only the defendant’s acts or statements

could be used to prove that defendant’s membership in a conspiracy, evidence

of the defendant’s acts or statements may be provided by the statements of co-

conspirators.”); United States v. Martinez de Ortiz, 907 F.2d 629, 633 (7th Cir.

1990) (en banc).

Based on these cases, the Committee recommends that this instruction be

given in conjunction with the conspiracy “elements” instruction in appropriate

cases. The Seventh Circuit has strongly recommended that “trial judges give the

instruction in appropriate cases, such as where the evidence that the defendant

committed the crime of conspiracy is based largely on the declarations of

coconspirators.” United States v. Stotts, 323 F.3d 520, 522 (7th Cir. 2003) (citing

Martinez de Ortiz, 907 F.2d at 635). In this context, the Seventh Circuit has

further noted that it has repeatedly “cautioned trial judges to provide sufficient

guidance to juries on the nuanced principles of conspiracy.” Stotts, 323 F.3d at

522 (listing cases).

5.10 CONSPIRACY – MEMBERSHIP IN CONSPIRACY

To be a member of a conspiracy, [the/a] defendant does not need to join it at

the beginning, and he does not need to know all of the other members or all of

the means by which the illegal goal[s] of the conspiracy [was; were] to be

accomplished. The government must prove beyond a reasonable doubt that the

defendant [you are considering] was aware of the illegal goal[s] of the conspiracy

and knowingly joined the conspiracy.

[A defendant is not a member of a conspiracy just because he knew and/or

associated with people who were involved in a conspiracy, knew there was a

conspiracy, and/or was present during conspiratorial discussions.]

[The conspiracy must include at least one member other than the defendant

who, at the time, was not [a government agent; a law enforcement officer; an

informant].]

In deciding whether [a particular] [the] defendant joined the charged

conspiracy, you must base your decision only on what [that] [the] defendant did

or said. To determine what [that] [the] defendant did or said, you may consider

[that] [the] defendant’s own words or acts. You may also use the words or acts of

other persons to help you decide what the defendant did or said.

Committee Comment

(a)

Consideration of co-conspirator declarations. See Committee Comment to In-

struction 5.08(c) for a discussion of the consideration of co-conspirator state-

ments, United States v. Santiago, 582 F.2d 1128 (7th Cir. 1978), and Bourjaily v.

United States, 483 U.S. 171, 176–81 (1987).

(b)

Authority. A defendant does not need to join a conspiracy at its beginning,

know all of its members, or know all of the means by which the goal of the

conspiracy was to be accomplished in order to be a member of the conspiracy.

United States v. James, 540 F.3d 702, 708 (7th Cir. 2008); United States v. Bo-

livar, 523 F.3d 699, 603–04 (7th Cir. 2008). The Seventh Circuit has made clear,

however, that the defendant’s mere knowledge of or association with other

members of the conspiracy is insufficient to prove membership in the conspiracy.

United States v. Useni, 516 F.3d 634, 646 (7th Cir. 2008). See also Pattern

Instruction 5.07 and its commentary.

“The government must prove that the defendant conspired with at least one

true co-conspirator. In other words, a conspiracy cannot be established between

one criminally-minded individual and a government agent or informer.” United

States v. Spagnola, 632 F.3d 981, 986 (7th Cir. 2011) (internal quotation marks

and citation omitted). The bracketed paragraph concerning this point should not

be given, of course, if a government agent was an actual co-conspirator.

5.10(A) BUYER/SELLER RELATIONSHIP

A conspiracy requires more than just a buyer-seller relationship between the

defendant and another person. In addition, a buyer and seller of [name of drug]

do not enter into a conspiracy to [distribute [name of drug]; possess [name of

drug] with intent to distribute] simply because the buyer resells the [name of

drug] to others, even if the seller knows that the buyer intends to resell the [name

of drug]. The government must prove that the buyer and seller had the joint

criminal objective of further distributing [name of drug] to others.

Committee Comment

This instruction should be used only in cases in “where the jury could

rationally find, from the evidence presented, that the defendant merely bought

or sold drugs but did not engage in a conspiracy.” United States v. Cruse, 805

F.3d 795, 814 (7th Cir. 2015) (internal quotation marks omitted).

A routine buyer-seller relationship, without more, does not equate to con-

spiracy. United States v. Johnson, 592 F.3d 749 (7th Cir. 2010); United States v.

Colon, 549 F.3d 565, 567 (7th Cir. 2008). This issue may arise in drug conspiracy

cases. In Colon, the Seventh Circuit reversed the conspiracy conviction of a

purchaser of cocaine because there was no evidence that the buyer and seller

had engaged in a joint criminal objective to distribute drugs. Id. at 569–70, citing

Direct Sales Co. v. United States, 319 U.S. 703, 713 (1943) (distinguishing

between conspiracy and a mere buyer-seller relationship); see also United States

v. Kincannon, 593 F.3d 893, 897 (7th Cir. 2009) (regular and repeated purchases

of narcotics on standardized terms, even in distribution quantities, does not

make a buyer and seller into conspirators); United States v. Lechuga, 994 F.2d

346, 47 (7th Cir. 1993) (en banc) (drug conspiracy conviction cannot be

sustained by evidence of only large quantities of controlled substances being

bought or sold).

In Colon, the Seventh Circuit was critical of the previously-adopted pattern

instruction on this point, which included a list of factors to be considered. The

Committee has elected to simplify the instruction so that it provides a definition,

leaving to argument of counsel the weight to be given to factors shown or not

shown by the evidence.

Some cases have suggested that particular combinations of factors permit an

inference of conspiracy. See, e.g., United States v. Vallar, 635 F.3d. 271 (7th Cir.

2011) (repeated purchases on credit, combined with standardized way of doing

business and evidence that purchaser paid seller only after reselling the drugs);

United States v. Kincannon, 567 F.3d 893 (7th Cir. 2009). But the cases appear

to reflect that particular factors do not always point in the same direction. See

United States v. Nunez, 673 F.3d 661, 665 and 666 (7th Cir. 2012) (“Sales on

credit and returns for refunds are normal incidents of buyer-seller

relationships,” but they can in some situations be “‘plus’ factors” indicative of

conspiracy). The Committee considered and rejected the possibility of drafting

an instruction that would zero in on particular factors, out of concern that this

would run afoul of Colon and due to the risk that the instruction might be viewed

by jurors as effectively directing a verdict.

In United States v. Brown, 726 F.3d 993 (7th Cir. 2013), the court generally

endorsed the approach taken by this pattern instruction, see id. at 1001, but

held that the district court did not abuse its discretion in providing further

guidance regarding the types of evidence that might tend to establish a

conspiracy. Id. at 1003-04. Following the decision in Brown, the Committee

considered making further changes to the pattern instruction but decided not to

do so, largely due to the “infinite varieties” of conspiratorial agreements that may

exist. Id. at 1001. In addition, the court in Brown reaffirmed its rejection of the

“list of factors” approach disapproved in Colon. Id. at 999. For the reasons cited

in this Comment, and due to “the immense challenge of trying to craft a jury

instruction that captures [the Seventh Circuit’s] case law on buyer-seller

relationships,” judges should proceed with caution before adopting jury

instructions that identify particular factors as pointing in one direction or

another.

5.10(B) SINGLE CONSPIRACY VS. MULTIPLE CONSPIRACIES

Count ___ charges that there was a single conspiracy. The defendant contends

that [there was more than one conspiracy; other defense contention].

If you find that there was more than one conspiracy and that the defendant

was a member of one or more of those conspiracies, then you may find the

defendant guilty on Count ___ only if the [conspiracy; conspiracies] of which he

was a member was a part of the conspiracy charged in Count ___.

The government is not required to prove the exact conspiracy charged in the

indictment, so long as it proves that the defendant was a member of a smaller

conspiracy contained within the charged conspiracy.

Committee Comment

The previous pattern instructions did not include a standard “multiple con-

spiracy” instruction. Because such an instruction is often requested, the

Committee believed it would be beneficial to provide a standardized version.

This instruction is appropriate only “when the evidence presented at trial

could tend to prove the existence of several distinct conspiracies.” United States

v. Mims, 92 F.3d 461, 467 (7th Cir. 1996). A defendant is not entitled to this

instruction if the evidence at trial shows only one, uninterrupted conspiracy.

United States v. Ogle, 425 F.3d 471, 472 (7th Cir. 2005). One example of a case

in which a multiple conspiracy instruction may be necessary is a case in which

“a defendant is a low-level player in a major drug-selling enterprise and evidence

has been presented at trial concerning a wide range of the enterprise’s activities.”

Mims, 92 F.3d at 467; see also United States v. Westmoreland, 122 F.3d 431, 434

(7th Cir. 1997). Another example is a case involving a “hub-and-spokes”

conspiracy in which a defendant serves as a hub connected to each of his co-

conspirators by a spoke. To prove the existence of a single conspiracy, a rim

must connect the spokes together; otherwise the conspiracy is not one but many.

United States v. Avila, 557 F.3d 809, 814 (7th Cir. 2009).

Regarding the third paragraph, see United States v. Campos, 541 F.3d 735,

743–45 (7th Cir. 2008).

5.11 CONSPIRATOR’S LIABILITY FOR SUBSTANTIVE

CRIMES COMMITTED BY CO-CONSPIRATORS WHERE

CONSPIRACY CHARGED – ELEMENTS

Count[s] ___ of the indictment charges defendant[s] [name(s)] with [a] crime[s]

that the indictment alleges [was; were] committed by [another; other] member[s]

of the conspiracy. In order for you to find the defendant guilty of [this; these]

charge[s], the government must prove each of the following [four] elements

beyond a reasonable doubt:

1. The defendant [is guilty of the charge of conspiracy as alleged in Count

___] or [was a member of the conspiracy [alleged in Count [list conspiracy count]

when the crime was committed];

2. [Another member/Other members] of the same conspiracy committed the

crime charged in Count ___] during the time that the defendant was also a

member of the conspiracy;

3. The other conspirator[s] committed the crime charged in Count ___ to

advance the goals of the conspiracy; and

4. It was reasonably foreseeable to the defendant that other conspirators

would commit the crime charged in Count ___ in order to advance the goals of

the conspiracy. The government is not required to prove that the defendant

actually knew about the crime charged in Count ___ or that the defendant

actually realized that this type of crime would be committed as part of the

conspiracy.

If you find from your consideration of all the evidence that the government

has proved each of these elements beyond a reasonable doubt [as to the charge

you are considering], then you should find the defendant guilty [ of that charge].

If, on the other hand, you find from your consideration of all the evidence that

the government has failed to prove any one of these elements beyond a

reasonable doubt [as to the charge you are considering], then you should find

the defendant not guilty [as to that charge].

Committee Comment

See Pinkerton v. United States, 328 U.S. 640, 647–48 (1946); United States v.

Wantuch, 525 F.3d 505, 518–20 (7th Cir. 2008); see also United States v. Red-

wine, 715 F.2d 315, 322 (7th Cir. 1983); United States v. Kimmons, 917 F.2d

1011, 1017 (7th Cir. 1990); United States v. Villagrana, 5 F.3d 1048, 1052 (7th

Cir. 1993); United States v. Chairez, 33 F.3d 823 (7th Cir. 1994) (co-conspirator

vicariously liable under Pinkerton despite claim that he did not know or suspect

the presence of a gun in the vehicle).

The Seventh Circuit has emphasized that, for a Pinkerton instruction to be

adequate, it must “advise the jury that the government bears the burden of

proving all elements of the [Pinkerton] doctrine beyond a reasonable doubt.”

United States v. Stott, 245 F.3d 890, 908 (7th Cir. 2001), citing United States v.

Sandoval-Curiel, 50 F.3d 1389, 1394–95 (7th Cir. 1995); see also United States

v. Elizondo, 920 F.2d 1308, 1317 (7th Cir. 1990). One of the elements that must

be proved beyond a reasonable doubt in order to hold a defendant liable for his

co-conspirator’s crimes is that the crimes must have been committed in

furtherance of the conspiracy. Stott, 245 F.3d at 908–09.

If the government pursues alternative theories of direct responsibility and

Pinkerton responsibility, the trial judge should explain in this instruction that it

is offered as an alternate basis for liability on the particular charge(s).

5.12 CONSPIRATOR’S LIABILITY FOR SUBSTANTIVE

CRIMES COMMITTED BY CO-CONSPIRATORS; CONSPIRACY

NOT CHARGED IN THE INDICTMENT – ELEMENTS

Count[s] ___ of the indictment charges defendant[s] [name(s)] with [a] crime[s]

that the indictment alleges [was; were] committed by [another; other] member[s]

of the conspiracy. In order for you to find the defendant guilty of [this; these]

charge[s], the government must prove each of the following [four] elements

beyond a reasonable doubt:

1. The defendant knowingly joined a conspiracy. A conspiracy is an

agreement between two or more persons to commit a crime;

2. [Another member/Other members] of the same conspiracy committed the

crime charged in Count ___ during the time that the defendant was also a

member of the conspiracy;

3. The other conspirator[s] committed the crime charged in Count ___ to

advance the goals of the conspiracy; and

4. It was reasonably foreseeable to the defendant that the other conspirator[s]

would commit the crime charged in Count ___ in order to advance the goals of

the conspiracy. The government is not required to prove that the defendant

actually knew about the crime charged in Count ___ or that the defendant

actually realized that this type of crime would be committed as part of the

conspiracy.

If you find from your consideration of all the evidence that the government

has proved each of these elements beyond a reasonable doubt [as to the charge

you are considering], then you should find the defendant guilty [of that charge].

If, on the other hand, you find from your consideration of all the evidence that

the government has failed to prove any one of these elements beyond a

reasonable doubt [as to the charge you are considering], then you should find

the defendant not guilty [as to that charge].

Committee Comment

The Committee regards this instruction as one rarely given. When it is given

the court should also give Instructions 5.09 and 5.10.

See Pinkerton v. United States, 328 U.S. 640, 647–48 (1946); United States v.

Redwine, 715 F.2d 315, 322 (7th Cir. 1983); United States v. Kimmons, 917 F.2d

1011, 1017 (7th Cir. 1990); United States v. Villagrana, 5 F.3d 1048, 1052 (7th

Cir. 1993); United States v. Chairez, 33 F.3d 823 (7th Cir. 1994) (co-conspirator

vicariously liable under Pinkerton despite his/her claim that he/she did not

know or suspect the presence of a gun in the vehicle); United States v. Rawlings,

341 F.3d 657, 660 (7th Cir. 2003); United States v. Haynes, 582 F.3d 686, 707

(7th Cir. 2009).

If the government pursues alternative theories of direct responsibility and

Pinkerton responsibility, the trial judge should explain in this instruction that it

is offered as an alternate basis for liability on the particular charge(s).

5.13 CONSPIRACY – WITHDRAWAL

If you find that the government has proved all of the elements in Count[s]

___ of the indictment as to [the; a] defendant[s] [name] even though the crime[s]

charged in [that; those] Count[s] were committed by others, you should then

consider whether [he; they] withdrew from the conspiracy prior to the time [that;

those] crime[s] [was; were] committed.

[The; A] defendant is not responsible for the crime[s] charged in Count ___,

if, before the commission of [that; those] crime[s], he took some affirmative act

in an attempt to defeat or disavow the goal[s] of the conspiracy, such as:

(a) [completely undermining his earlier acts in support of the

commission of the crime so that these acts no longer could support or assist the

commission of the crime], or

(b) [alerting the proper law enforcement authorities in time to give them

the opportunity to stop the crime or crimes], or

the conspiracy in a way that the co-conspirators are reasonably likely to know

about it before they carry through with additional acts of the conspiracy], or

(d) [making a genuine effort to prevent the commission of the crime], or

(e) [communicating to each of his co-conspirators that he has

abandoned the conspiracy and its goals].

Merely ceasing active participation in the conspiracy is not sufficient to

evidence withdrawal.

[The; a] defendant has the burden of proving that it is more likely than not

that he withdrew from the conspiracy.

Committee Comment

The present instruction should be given, when applicable, only when the

court has given Instruction 5.11 or Instruction 5.12, the instructions that

embody Pinkerton-based criminal responsibility. The present instruction applies

only in the Pinkerton context, in other words, when the government seeks to

impose criminal liability upon a defendant for a substantive offense committed

by other members of the conspiracy of which the defendant is claimed to have

been a member. See United States v. U.S. Gypsum Co., 438 U.S. 422, 463–65

(1978). The question of withdrawal as a defense to a charge of conspiracy is

covered by Instructions 5.14(A) and 5.14(B).

In U.S. Gypsum, the Supreme Court held that an unnecessarily confining

instruction on the issue of withdrawal from a conspiracy constituted reversible

error. 438 U.S. at 463–65. Thus, when a defendant requests that specific actions

introduced at trial which are inconsistent with the object of the conspiracy be

included in the withdrawal instruction, the court should instruct the jury

accordingly.

The Supreme Court held in Smith v. United States, 133 S. Ct. 714 (2013),

that a defendant bears the burden of proving withdrawal from a conspiracy. This

decision abrogated a line of Seventh Circuit cases, including United States v.

Morales, 655 F.3d 608, 640 (7th Cir. 2011), United States v. Starnes, 14 F.3d

1207, 1210-11 (7th Cir. 1994), and United States v. Read, 658 F.2d 1225, 1236

(7th Cir. 1981).

Regarding subsection (e) of the instruction (“communicating to each of

his/her co-conspirators that he/she has abandoned the conspiracy and its

goals”), the Seventh Circuit has repeatedly announced in dicta this manner of

demonstrating withdrawal from a conspiracy. See, e.g., United States v. Vaughn,

433 F.3d 917, 922 (7th Cir. 2006) (“Withdrawal requires an affirmative act to

either defeat or disavow the purposes of the conspiracy, such as making a full

confession to the authorities or communicating to co-conspirators that one has

abandoned the enterprise.”) (internal citation omitted); United States v. Sax, 39

F.3d 1380, 1386 (7th Cir. 1994) (“Withdrawal requires an affirmative act on the

part of the conspirator; he must either make a full confession to the authorities,

or communicate to each of his coconspirators that he abandoned the conspiracy

and its goals.”), citing United States v. DePriest, 6 F.3d 1201, 1206 (7th Cir.

1993). The Committee, however, has found no case defining or applying this

section of the instruction.

5.14(A) CONSPIRACY – WITHDRAWAL – STATUTE OF LIMITATIONS –

ELEMENTS

[The indictment charges the defendant[s] with; Count[s] ___ of the

indictment charge[s] the defendant[s] with] conspiracy. In order for you to find

[a; the] defendant guilty of this charge, the government must prove each of the

[fill in number of elements] following elements beyond a reasonable doubt:

1. and

2. and

If you find from your consideration of all the evidence that the government

has failed to prove any one of these elements beyond a reasonable doubt [as to

the charge you are considering], then you should find the defendant not guilty

[of that charge].

If, on the other hand, you find from your consideration of all the evidence

that the government has proved each of these elements beyond a reasonable

doubt, then you should find the defendant guilty [of that charge], unless you also

find that the defendant has proved that it is more likely than not that he

withdrew from the conspiracy more than five years before the return of the

indictment in this case. A defendant who has so proved should be found not

guilty.

Committee Comment

This instruction should be followed immediately by Instruction 5.14(B).

The Supreme Court held in Smith v. United States, 133 S. Ct. 714 (2013),

that a defendant bears the burden of proving withdrawal from a conspiracy. This

decision abrogated a line of Seventh Circuit cases, including United States v.

Morales, 655 F.3d 608, 640 (7th Cir. 2011), United States v. Starnes, 14 F.3d

1207, 1210-11 (7th Cir. 1994), and United States v. Read, 658 F.2d 1225, 1236

(7th Cir. 1981).

5.14(B) CONSPIRACY – WITHDRAWAL – STATUTE OF LIMITATIONS --

DEFINITION

[The] defendant[s] [name[s]] cannot be found guilty of the conspiracy

charge if [he; they] withdrew from the conspiracy more than five years before the

indictment was returned. The indictment in this case was returned on [date of

indictment]. Thus, the [defendant[s] [name[s]] must prove that it is more likely

than not that [he; they] withdrew from the conspiracy prior to [date five years

prior to date of indictment].

In order to withdraw, [the; a] defendant must have taken some affirmative

act in an attempt to defeat or disavow the goal[s] of the conspiracy, such as:

(a) [completely undermining his earlier acts in support of the

commission of the crime so that these acts no longer could support or assist the

commission of the crime], or

(b) [alerting the proper law enforcement authorities in time to give them

the opportunity to stop the crime or crimes], or

the conspiracy in a way that the co-conspirators are reasonably likely to know

about it before they carry through with additional acts of the conspiracy], or

(d) [making a genuine effort to prevent the commission of the crime], or

(e) [communicating to each of his co-conspirators that he has

abandoned the conspiracy and its goals].

Merely ceasing active participation in the conspiracy is not sufficient to

evidence withdrawal.

Committee Comment

This instruction should be used in conjunction with Instruction 5.14(A).

Withdrawal as a defense to conspiracy. Withdrawal from a conspiracy is

only effective prospectively; it is not a defense to a conspiracy count directed at

the period prior to withdrawal. United States v. Dallas, 229 F.3d 105, 110–11

(7th Cir. 2000). On the other hand, withdrawal from a conspiracy outside the

statute of limitations is a defense because it negates an element of the offense;

namely, membership in the conspiracy within the statute of limitations. United

States v. Read, 658 F.2d 1225 (7th Cir. 1981).

What constitutes withdrawal from a conspiracy. Simply ceasing to

participate in a conspiracy, even for an extended period or periods of time, is

insufficient to constitute withdrawal from the conspiracy. Rather, withdrawal

requires an affirmative act to defeat or disavow the criminal aim of the

conspiracy. United States v. Julian, 427 F.3d 471 (7th Cir. 2005).

Factors to be considered. In United States v. U.S. Gypsum Co., 438 U.S.

422, 463–65 (1978), the Supreme Court held that an instruction unnecessarily

limiting the type of actions that may constitute withdrawal from a conspiracy is

reversible error. Thus, this instruction should be tailored to the specific actions

introduced by the defendant at trial that are inconsistent with the object of the

conspiracy. With regard to subsection (e) of the instruction (“communicating to

each of his/her co-conspirators that he/she has abandoned the conspiracy and

its goals”), the Seventh Circuit has repeatedly endorsed in dicta this manner of