US v. David Diaz

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OPINION ATTACHMENTS. [16-4226]

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Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 1 of 684 Pattern Jury Instructions for Federal Criminal Cases District of South Carolina Eric Wm. Ruschky 2016 Online Edition 017 7/2 7/2 d0 Emily Deck Harrill, Editor e iew ,v 226 4 Includes 16- updates through August 15, 2016 o. N This work should be cited as: Eric Wm. Ruschky, Pattern Jury Instructions for Federal Criminal Cases, District of South Carolina § ______ (Emily Deck Harrill, ed., 2015 Online Edition). Please email comments/suggestions to: valerie_mcdonald@scd.uscourts.gov. Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 2 of 684 ABOUT THE AUTHOR Eric William Ruschky received his undergraduate degree cum laude from Wheaton College, Wheaton, Illinois, in 1970, and his juris doctor in 1973 from the University of Virginia School of Law. He is a member of the Virginia and South Carolina Bars. Mr. Ruschky served as an Assistant United States Attorney for the District of South Carolina from 1974 to 2004. During his career, he served as Deputy Chief of the Criminal Division and Senior Litigation Counsel and litigated approximately 200 jury trials, ranging from routine gun and drug cases to first degree murder and complicated white collar cases. Mr. Ruschky is now in private practice in Columbia, South Carolina. 017 7/2 7/2 d0 e iew ,v o. 1 N 226 6-4 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 3 of 684 2015 Online Edition PREFACE Many federal circuits have pattern jury instructions formulated by committees of judges and practitioners and approved by the circuit for use in criminal cases. The Fourth Circuit does not. Thus, the purpose of this work, Pattern Criminal Instructions for Criminal Cases District of South Carolina, is to fill that void by publishing pattern instructions annotated primarily by reference to Fourth Circuit and Supreme Court cases. Authority from other circuits is referenced only when there is no Fourth Circuit or Supreme Court authority on point. The instructions are organized in six sections, reflecting the order in which jury instructions are generally given. 1. Preliminary Matters addresses burden of proof, presumption of innocence, direct and circumstantial evidence, note-taking by jurors, and similar general topics. Most judges have standard preliminary charges and do not require counsel to submit proposed instructions on preliminary matters. 2. Specific Criminal Statutes provides pattern charges for most federal crimes, separated into crimes under Title 18 and Other Titles. Elements of the offense are included for each crime. Where appropriate, definitions of the key words or phrases used in the elements are also provided. Potential affirmative defenses are explained, and pertinent case law is cited in footnotes. 017 7/2 7/2 d0 3. Definitions provides explanations of terms commonly used throughout the criminal code. These are terms whose meaning does not vary depending on the crime charged. e iew various defenses to crimes. In addition, 4. Defenses provides jury instructions for 6, v it provides defense-specific definitions for common terms and explains to which crimes each 22 defense is applicable. 6-4 1 5. Final o. Instructions advise the jury as to rules they must follow in evaluating N evidence admitted during the trial and in reaching a verdict. These non-offense-specific instructions also include rules for deliberations. 6. Practice Notes addresses a number of lesser known legal principles which may influence the preparation of jury instructions. For example, this section covers special verdicts, lesser-included offenses, as well as jury nullification. Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 4 of 684 Pattern Jury Instructions for Federal Criminal Cases Eric Wm. Ruschky I. INTRODUCTION Jury instructions should be based on the particular facts of the case on trial and should not be merely “boilerplate abstractions. Because abstract instructions that are not adjusted to the facts of a particular case may confuse the jury, it is plain error for a district judge to fail to relate the evidence to the law.” United States v. Holley, 502 F.2d 273, 276 (4th Cir. 1974) (quotations and citations omitted). 017 7/2 7/2 d0 The charge must outline to the jury the elements of the crime. Mere reading of the eof the constituents of the offense is w statute to the jury will not suffice. An exposition vie v. Head, 641 F.2d 174, 180 (4th Cir. 1981); mandatory and indispensable. See United States 6, United States v. Polowichak, 7832 410, 415 (4th Cir. 1986). F.2d 42 “The definition 16- elements of a criminal offense is entrusted to the legislature, of the . particularly in the case of federal crimes, which are solely creatures of statute.” Liparota v. NoU.S. 419, 424 (1985). United States, 471 In Griffin v. United States, 502 U.S. 46 (1991), the Supreme Court reiterated settled law that a “general jury verdict [is] valid so long as it [is] legally supportable on one of the submitted grounds ....” 502 U.S. at 49. The Supreme Court admonished that “if the evidence is insufficient to support an alternative legal theory of liability, it would generally be preferable for the court to give an instruction removing that theory from the jury’s consideration.” Id. at 60. “The fact that a party did not pursue a particular theory does not preclude the trial judge from giving an instruction on that theory where it deems such an instruction to be appropriate.” United States v. Horton, 921 F.2d 540, 544 (4th Cir. 1990). 1 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 5 of 684 PRELIM INARY II. PRELIMINARY A. Admonishing Attorneys Sometimes the court must admonish or warn an attorney who out of zeal for his or her client does something which is not in keeping with the rules of evidence or procedure. If this happens, “do not permit this to have any effect on your evaluation of the merits of any evidence that comes before you .... You are to draw absolutely no inference against the side to whom an admonition of the court may have been addressed during the trial of this case.”1 B. Burden of Proof The government must prove each element of the crime charged to each and every one of you beyond a reasonable doubt. If the government fails to prove an element beyond a reasonable doubt, then you must find that that element has not been proven and find the defendant not guilty. While the government’s burden of proof is a strict and heavy burden, it is not necessary that it be proved beyond all possible doubt. It is only required that the government’s proof exclude any reasonable doubt concerning that element. The defendant never has the burden of disproving the existence of anything which the government must prove beyond a reasonable doubt. The burden is wholly upon the government. The law does not require the defendant to produce any evidence.2 C. 017 7/2 7/2 d0 Discussing the Case “You are not to discuss the case with anyone or permit anyone to discuss it with you. Until you retire to the jury room at the end of the case to deliberate on your verdict, you simply are not to talk about the case.”3 e iew ,v 226 4 You are not to read any newspaper or internet accounts of this case or listen to any 16-of this case. You are not to allow any member of your family, . radio or television accounts No or other person to tell you what was contained in such accounts. or a friend, acquaintance, You are not even to discuss the case among yourselves until you have heard all of the evidence and you have received final instructions from me. D. Evidence 1 United States v. Smith, 441 F.3d 254, 269 (4th Cir. 2006) (approvingly quoting district court’s instructions). 2 3 2 See United States v. Moss, 756 F.2d 329 (4th Cir. 1985). United States v. Nelson, 102 F.3d 1344, 1348 (4th Cir. 1996). Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 6 of 684 PRELIM INARY Evidence can come in many forms. It can be testimony about what the witness saw, heard, tasted, touched, or smelled, something that came to the witness’s knowledge through his senses. Evidence can be an exhibit admitted into evidence. Evidence can be a person’s opinion. Some evidence proves a fact directly, such as testimony of a witness who saw a jet plane flying across the sky. Some evidence proves a fact indirectly, such as testimony of a witness who saw only the white trail that jet planes often leave. This indirect evidence is sometimes referred to as circumstantial evidence. In either instance, the witness’s testimony is evidence that a jet plane flew across the sky.4 “Circumstantial evidence is evidence of facts and circumstances from which one may infer connected facts which reasonably follow in the common experience of mankind. Circumstantial evidence is evidence which tends to prove a disputed fact by proof of another fact or other facts which have a logical tendency to lead the mind to the conclusion that the disputed fact has been established.”5 017 7/2 “[C]ircumstantial evidence is treated no differently than direct evidence, and may be sufficient to support a verdict of guilty, even though it does not exclude every reasonable hypothesis consistent with innocence.”6 7/2 d0 The following are not evidence: arguments and statements by the lawyers, questions and objections by the lawyers, testimony that was stricken or that you have been instructed to disregard, comments or questions by me, and anything that you may have seen or heard when the court was not in session. E. L e iew ,v 226 4 Giving the indictment to the jury is within the trial judge’s discretion. 16. No Indictment 4 Peter J. Tiersma, Communicating with Juries: How to Draft More Understandable Instructions, 10 Scribes J. Legal W riting 37 (2005-2006). 5 United States v. Yousef, 327 F.3d 56, 133 (2d Cir. 2003) (approvingly quoting instruction given by district court). 6 United States v. Gray, 137 F.3d 765, 772 (4th Cir. 1998) (quoting United States v. Jackson, 863 F.2d 1168, 1173 (4th Cir.1989)). 3 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 7 of 684 PRELIM INARY The indictment is not evidence. It is given to you solely as an aid in following the court’s instructions and the arguments of counsel.7 ____________________NOTE____________________ If the indictment contains irrelevant allegations, ordinarily they should be redacted, or the court can instruct the jury that certain counts or allegations should be disregarded as irrelevant to the defendant(s) on trial. United States v. Polowichak, 783 F.2d 410, 413 (4th Cir. 1986). F. Note-Taking L Allowing jurors to take notes is within the trial judge’s discretion. If allowed, use the following instruction: You are permitted to take notes during the trial. You, of course, are not obliged to take any notes, and some feel that the taking of notes is not helpful because it may distract you so that you do not hear and evaluate all of the evidence. If you do take notes, do not allow note taking to distract you from the ongoing proceedings. 017 7/2 Your notes should be used only as memory aids. You should not give your notes precedence over your independent recollection of the evidence. If you do not take notes, you should rely on your own independent recollection of the proceedings and you should not be influenced by the notes of other jurors. Notes are not entitled to any greater weight than the recollection or impression of each juror as to what the testimony may have been.8 7/2 d0 e iew not cover points that are significant to Notes are not official transcripts and may ,v another juror. The contents of notes6 not be disclosed except to other jurors. must 22 -Innocence G. Presumption of 4 . 16 The law presumes a defendant to be innocent, and the presumption of innocence alone o is sufficient toN acquit a defendant, unless the jury is satisfied beyond a reasonable doubt of the 9 defendant’s guilt after careful and impartial consideration of the evidence introduced at trial. A defendant has no obligation to establish his innocence. The burden is always upon the prosecution to prove guilt beyond a reasonable doubt, and this burden never shifts to the defendant. If the jury, after careful and impartial consideration of all the evidence, has a 7 8 See id. at 413 (citing United States v. Rhodes, 631 F.2d 43, 46 n.3 (5th Cir. 1980)). 9 4 United States v. Polowichak, 783 F.2d 410, 413 (4th Cir. 1986). Id. (citing United States v. MacLean, 578 F.2d 64, 66 (3d Cir. 1978)). Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 8 of 684 PRELIM INARY reasonable doubt that a defendant was guilty of the charge under consideration, you must find that defendant not guilty of that charge. If, on the other hand, the jury finds that the evidence is sufficient to overcome the presumption of innocence and to convince you beyond a reasonable doubt of the guilt of the defendant of the charge under consideration, it must find the defendant guilty of that charge.10 H. Questioning by Jurors If any juror would like to have a particular question asked of a witness during his testimony, the juror should write the question out and have it passed to the judge. If the question is not legally improper, I will ask the witness the question. I am not encouraging you to ask a large number of questions, but you should not hesitate to ask a question if you feel that there is something that you need to know from a witness and the lawyers or the court did not bring it out. ____________________NOTE____________________ The proper handling of juror questions is a matter within the discretion of the trial judge. United States v. Callahan, 588 F.2d 1078, 1086 n.2 (5th Cir. 1979). There is nothing improper about the practice of allowing occasional questions from jurors, but the Callahan opinion should not be read as an endorsement of any particular procedure. 017 7/2 Voir Dire [LAST UPDATED : 7/18/14] I. 7/2 d0 e iew ,v “The Supreme Court has not required specific voir dire questions except in very limited circumstances—capital cases, ... and cases where racial or ethnic issues are ‘inextricably bound up with the conduct of the trial’ such that inquiry into racial or ethnic prejudice of the jurors is constitutionally mandated .....” United States v. Jeffery, 631 F.3d 669, 673 (4th Cir. 2011) (quoting Rosales-Lopez v. United States, 451 U.S.182, 189 (1981)). In most non-capital cases, a district court “need not pursue a specific line of questioning on voir dire, provided the voir dire as a whole is reasonably sufficient to uncover bias or partiality in the venire.” Id. at 674 (quotations and citation omitted). o. 1 N 226 6-4 In Jeffery, the defendant wanted the district court to inquire about a juror’s ability to apply the reasonable-doubt standard and burden of proof. The Fourth Circuit reiterated that it has rejected this approach. Id. (citing United States v. Robinson, 804 F.2d 280, 281 (4th Cir. 1986)). 10 United States v. Porter, 821 F.2d 968, 973 (4th Cir. 1987). 5 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 9 of 684 TITLE 18 III. TITLE 18 18 U.S.C. § 2 AIDING AND ABETTING Title 18, United States Code, Section 2 makes it a crime to aid and abet another person to commit a crime. The guilt of an accused in a criminal case may be established without proof that he personally did every act constituting the offense alleged. The law recognizes that ordinarily anything a person can do for himself may also be accomplished by him through direction of another person as his agent, or by acting in concert with, or under the direction of another person or persons in a joint effort or enterprise.1 For you to find the defendant guilty, the government must prove each of the following beyond a reasonable doubt: P First, that the crime charged was in fact committed by someone other than the defendant [the court should instruct on the elements of that crime]; P Second, that the defendant participated in the criminal venture as in something that he wished to bring about; P Third, that the defendant associated himself with the criminal venture knowingly and voluntarily; and P Fourth, that the defendant sought by his actions to make the criminal venture succeed.2 017 7/2 7/2 d0 e iew ,v Simply put, aiding and abetting means to assist the perpetrator of the crime.3 226 6-4 One who aids, abets, counsels, commands, induces, or procures the commission of an act is as responsible for that act as if he committed it directly. o. 1 N To prove association, the government must show that the defendant shared in the criminal intent of the person(s) committing the crime. This requires evidence that the defendant was aware of (his) (their) criminal intent and the unlawful nature of the criminal acts.4 1 United States v. Chorman, 910 F.2d 102, 108, 113 (4th Cir. 1990) (instruction not error). 2 United States v. Moye, 454 F.3d 390, 400-01 (4th Cir. 2006) (en banc). 3 United States v. Horton, 921 F.2d 540, 543 (4th Cir. 1990). 4 United States v. Moye, 422 F.3d 207, 213 (4th Cir. 2005), rev’d on other grounds, 454 F.3d 390 (4th Cir. 2006) (en banc). 6 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 10 of 684 TITLE 18 Evidence that the defendant merely brought about the arrangement that made the criminal act possible does not alone support a conclusion that the defendant was aware of the criminal nature of the act.5 The government is not required to prove that the defendant participated in every stage of an illegal venture, but the government is required to prove beyond a reasonable doubt that the defendant participated at some stage and that the participation was accompanied by knowledge of the result and intent to bring about that result.6 There must be evidence to establish that the defendant engaged in some affirmative conduct, that is, that the defendant committed an act designed to aid in the success of the venture, and there must be evidence to establish that the defendant shared in the criminal intent of the person the defendant was aiding and abetting.7 It is not necessary that the person who was aided and assisted be tried and convicted of the offense.8 It is not necessary that the government prove the actual identity of the perpetrator of the crime. The government must prove that the underlying crime was committed [or attempted, if attempt is included] by some person and that the defendant aided and abetted that person.9 017 unlawful If two persons act in concert with a common purpose or design to2 27/ commit an act, then the act of one of them in furtherance of the unlawful/act is in law considered the 07 act of the other. d we e , vi 226 -4 United States 16 v. Winstead, 708 F.2d 925, 927 (4th Cir. 1983). . No v. Burgos, 94 F.3d 849, 873 (4th Cir. 1996) (en banc); United States v. United States 10 5 6 Wilson, 135 F.3d 291, 305 (4th Cir. 1998). 7 United States v. Beck, 615 F.2d 441, 449 (7th Cir. 1980). However, the defendant need not have the exact intent as the principal. 8 United States v. Barnett, 667 F.2d 835, 841 (9th Cir. 1982). 9 United States v. Horton, 921 F.2d 540, 543-44 (4th Cir. 1990). 10 “W e can discern no Congressional intent to eliminate an instruction on a common law confederation by its promulgation of 18 U.S.C. § 2.” United States v. Sims, 543 F.2d 1089, 1090 (4th Cir. 1976). 7 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 11 of 684 TITLE 18 The government must prove that the defendant counseled and advised the commission of the crime, and that the counsel and advice influenced the perpetration of the crime. There is no requirement that fixes a time limit within which the crime must be committed.11 If the person who was assisted or induced commits the crime he was assisted or induced to commit, then the person who assisted or induced him is guilty of aiding and abetting.12 The government must prove that the defendant participated in the crime charged. The mere presence of a defendant where a crime is being committed even coupled with knowledge by the defendant that a crime is being committed or the mere acquiescence by a defendant in the criminal conduct of others even with guilty knowledge is not sufficient to establish guilt.13 However, the jury may find knowledge and voluntary participation from evidence of presence when the presence is such that it would be unreasonable for anyone other then a knowledgeable participant to be present.14 017 2 It is of no consequence that in the indictment the defendant 7/ charged only as the 2 was aiding and abetting principal and not as an aider or abettor. “[O]ne may be convicted of 07/ United States v. Duke, 409 under an indictment which charges only the principald e offense.” F.2d 669, 671 (4th Cir. 1969). ew viabetted in the [mail and securities] fraud and “A defendant who merely aided , 26 and performed all of his acts in relation thereto prior to the mailing and outside the limitations 2 period nonetheless may be prosecuted for his role where the fraud was completed inside the 6-4 v. United Med. and Surgical Supply Corp., 989 F.2d 1390, limitations period.”. 1 States United No 1398 (4th Cir. 1993). ____________________NOTE____________________ See generally United States v. Winstead, 708 F.2d 925, 927 (4th Cir. 1983). 11 Barnett, 667 F.2d at 841. 12 Id. at 841-42. 13 See United States v. Moye, 422 F.3d 207, 217 (4th Cir. 2005) (citing instruction given by the district court), rev’d on other grounds, 454 F.3d 390 (4th Cir. 2006) (en banc). 14 8 See United States v. Gallardo-Trapero, 185 F.3d 307, 322 (5th Cir. 1999). Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 12 of 684 TITLE 18 An aider and abettor may be prosecuted in the district in which the principal acted in furtherance of the substantive crime. United States v. Kibler, 667 F.2d 452, 455 (4th Cir. 1982). In other words, it does not matter where the aider and abettor acted, venue depends on where the principal acted. However, venue might be improper if the defendant is not charged as an aider and abettor. See United States v. Cabrales, 524 U.S. 1, 7 (1998). In United States v. Moye, 454 F.3d 390 (4th Cir. 2006) (en banc), the defendant was charged with 18 U.S.C. § 922(g)(1), felon in possession of firearms, and § 922(j), possession of stolen firearms, and aiding and abetting. Moye and two co-defendants were caught burglarizing a gun dealer. The district court gave a general aiding and abetting charge, set forth above. However, there was no evidence that either of the co-defendants were felons, so the aiding and abetting charge did not apply to the § 922(g) charge. The Fourth Circuit said the “preferable approach would have been for the court to give an instruction that tailored the aiding and abetting theory exclusively to the § 922(j) count.” 454 F.3d at 398. Conspiracy requires proof of agreement, aiding and abetting does not. United States v. Beck, 615 F.2d 441, 449 n.9 (7th Cir. 1980). Aiding and abetting is not a lesser included offense of conspiracy. United States v. Price, 763 F.2d 640, 642 (4th Cir. 1985). 017 has been A person cannot be found guilty of aiding and abetting a crime/that already 2 committed. United States v. Daly, 842 F.2d 1380, 1389 (2d Cir. 1988). 27 07/ d 18 U.S.C. § 2(b) CAUSING ANOTHER TO COMMIT A CRIME we it a crime to cause another person to e Title 18, United States Code, Section 2(b) makes , vi commit a crime. 2a26 case may be established without proof that he The guilt of an accused in criminal 6-4 1constituting the offense alleged. The law recognizes that ordinarily, personally did every act . anything a person can do for himself may also be accomplished by him through direction No of another person as his agent, or by acting in concert with, or under the direction of, another person or persons in a joint effort or enterprise.15 For you to find the defendant guilty, the government must prove each of the following beyond a reasonable doubt: P First, that another person committed an act that is prohibited by law [the court should instruct on the elements of that crime]; and P Second, that the defendant caused that person to do so. 15 United States v. Chorman, 910 F.2d 102, 108 n.9 (4th Cir. 1990) (quoting instruction). 9 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 13 of 684 TITLE 18 ____________________NOTE____________________ In United States v. Sahadi, 292 F.2d 565 (2d Cir. 1961), the indictment alleged that the defendant unlawfully issued postal money orders to be presented by another. The trial judge instructed the jury on § 2. The Second Circuit held that it was not a fatal defect that the indictment did not expressly charge the defendant under § 2. “There is no rule of pleading which requires that a federal indictment state whether the offense charged was as to one or more of its various elements committed by the defendant directly or indirectly through another.” 292 F.2d at 569. It is not necessary that the government prove that the person who committed the prohibited act had any criminal intent. In United States v. West Indies Transport, Inc., 127 F.3d 299 (3d Cir. 1997), the defendants contended that they could not be convicted because the government conceded that immigrant workers who presented false information to the INS at the instigation of West Indies Transport lacked criminal intent. The Third Circuit said that “a defendant is liable if he willfully causes an act to be done by another which would be illegal if he did it himself. For this reason, whether the immigrant workers lacked criminal intent is irrelevant so long as West Indies Transport intentionally caused them to submit false information.” 127 F.3d at 307 (citation omitted). 18 U.S.C. § 3 017 7/2 7/2 d0 ACCESSORY AFTER THE FACT e iew ,v Title 18, United States Code, Section 3 makes it a crime to give assistance to a person who has committed a federal crime. For you to find the defendant guilty, the government must prove each of the following beyond a reasonable doubt: P P P P 226United States had been committed [the court should First, that a crime -4 against the instruct on the elements of that crime]; 16 . Second, that the defendant knew that the crime had been committed; No Third, that the defendant received, relieved, comforted, or assisted the person who committed the crime; and Fourth, that the defendant did so in order to hinder or prevent the apprehension, trial, or punishment of the person who committed the crime. ____________________NOTE____________________ For one to be convicted as an accessory after the fact, the substantive crime must be complete. United States v. McCoy, 721 F.2d 473 (4th Cir. 1983). 10 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 14 of 684 TITLE 18 See United States v. Osborn, 120 F.3d 59, 63 (7th Cir. 1997). In Osborn, the defendant argued that a lie to authorities is insufficient, standing alone, to violate 18 U.S.C. § 3. The Seventh Circuit acknowledged the issue, but did not need to provide a definitive answer. See also Gov’t of Virgin Islands v. Aquino, 378 F.2d 540, 553 (3d Cir. 1967). 18 U.S.C. § 4 MISPRISION Title 18, United States Code, Section 4 makes it a crime to conceal information about a felony offense. For you to find the defendant guilty, the government must prove each of the following beyond a reasonable doubt: P First, that a felony crime was committed; P Second, that the defendant knew the felony had been committed; P Third, that the defendant failed to notify authorities; and P Fourth, that the defendant took an affirmative step to conceal the crime.16 ____________________NOTE____________________ 017 7/2 Pre-arrest silence may satisfy the “failure to disclose” element, but silence alone is not concealment. United States v. Wilkes, No. 92-5037, 1992 WL 188133 (4th Cir. Aug. 7, 1992). However, harboring a fugitive and assisting in the disposal of evidence would constitute concealment. Id. at *2. 7/2 d0 e iew ,v In United States v. Pittman, 527 F.2d 444 (4th Cir. 1975), the Fourth Circuit affirmed the defendant’s conviction because her untruthful statement was intended to conceal her husband’s participation in a bank robbery. 226 6-4 1ASSIMILATIVE CRIMES ACT o. States Code, Section 13 makes it a crime to commit certain offenses Title 18,N United 18 U.S.C. § 13 within the special territorial jurisdiction of the United States. For you to find the defendant guilty, the government must prove each of the following beyond a reasonable doubt: P First, [all of the elements for the state crime alleged];17 and 16 United States v. Wilkes, No. 92-5037, 1992 W L 188133 at *2 (4th Cir. Aug. 7, 1992) (citing United States v. Baez, 732 F.2d 780, 782 (10th Cir. 1984)). 17 See Ralph King Anderson Jr., South Carolina Requests to Charge - Criminal (2007), and Miller W . Shealy Jr. & Margaret M. Lawton, South Carolina Crimes: Elements and Defenses (2009), for elements of various state offenses. 11 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 15 of 684 TITLE 18 P Second, that the offense occurred within the special maritime and territorial jurisdiction of the United States.18 “Special maritime and territorial jurisdiction of the United States” includes lands reserved or acquired for the use of the United States, and under the exclusive or concurrent jurisdiction of the United States, or any place purchased or otherwise acquired by the United States by consent of the legislature of the State in which the land is situated, for the building of a fort, arsenal, dock, or other needed building.19 ____________________NOTE____________________ The Assimilative Crimes Act assimilates the elements and punishment of state offenses when committed on or within a federal jurisdiction, unless the offense has been preempted by a federal statute that proscribes the same conduct. The Assimilative Crimes Act does not assimilate state procedures or state rules of evidence. Kay v. United States, 255 F.2d 476, 479 (4th Cir. 1958), abrogated on other grounds by Ohio v. Roberts, 448 U.S. 56 (1980), abrogated by Crawford v. Washington, 541 U.S. 36 (2004). 017 7/2 For cases discussing special jurisdiction, especially pertaining to Fort Jackson, see the following: United States v. Lavender, 602 F.2d 639 (4th Cir. 1979); United States v. Lovely, 319 F.2d 673 (4th Cir. 1963); United States v. Benson, 495 F.2d 475 (5th Cir. 1974); and State v. Zeigler, 274 S.C. 6, 260 S.E.2d 182 (S.C. 1979), overruled on other grounds by Joseph v. State, 351 S.C. 551, 571 S.E.2d 280 (S.C. 2002). 7/2 d0 e iew 711, 724-25 (1946) (United States may See also Williams v. United States, 327 U.S. 6, v invoke Assimilative Crimes Act to prosecute offense under state law only when there is no 2 enactment of Congress that punishes the offender); United States v. Wright, No. 92-5527, 1993 -42 . 16 No 18 19 See United States v. Sturgis, 48 F.3d 784, 786 (4th Cir. 1995). See 18 U.S.C. § 7 (listing other definitions). In United States v. Passaro, 577 F.3d 207 (4th Cir. 2009), the Fourth Circuit construed § 7(9) as reaching only fixed locations. An inexhaustive list of factors relevant in determining whether a particular location qualifies as the premises of a United States mission include the following: the size of a given military mission’s premises, the length of United States control over those premises, the substantiality of its improvements, actual use of the premises, the occupation of the premises by a significant number of United States personnel, and the host nation’s consent (whether formal or informal) to the presence of the United States. In Passaro, the court found that Asadabad Firebase in Afghanistan came within the statutory definition, such that Passaro, a civilian contractor, could be prosecuted for assaulting a prisoner, in violation of 18 U.S.C. § 113. 12 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 16 of 684 TITLE 18 WL 18321 (4th Cir. Jan. 29, 1993); United States v. Eades, 633 F.2d 1075 (4th Cir. 1980) (en banc). This statute applies to members of the armed services if they have not been prosecuted under the Uniform Code of Military Justice for the same offense. United States v. Walker, 552 F.2d 566, 567 (4th Cir. 1977). Special territorial jurisdictions in the District of South Carolina include Fort Jackson, parts of Shaw Air Force Base, parts of McEntire Air National Guard Base, Parris Island, and the Marine Corps Air Station. Special territorial jurisdiction does not include proprietary jurisdiction. Most federal buildings, such as courthouses and office buildings, are proprietary jurisdictions, and are usually covered only by regulations of the General Services Administration published in the Code of Federal Regulations. 18 U.S.C. § 17 INSANITY DEFENSE REFORM ACT[LAST UPDATED : 7/2/14] 017 7/2 The defendant has the burden of proving, by clear and convincing evidence, that at the time of the offense, he was unable to appreciate the nature and quality of the wrongfulness of his acts because of a severe mental disease or defect.20 7/2 d0 ____________________NOTE____________________ e iew ,v “The language of the statute leaves no room for a defense that raises any form of legal excuse based upon one’s lack of volitional control including a diminished ability or failure to reflect adequately upon the consequences or nature of one’s actions.” United States v. Worrell, 313 F.3d 867, 872 (4th Cir. 2002) (quotation and citation omitted). However, the Fourth Circuit is “inclined to agree with those [circuit] courts holding that [the] Insanity Defense Reform Act does not prohibit psychiatric evidence of a mental condition short of insanity when such evidence is offered purely to rebut the government’s evidence of specific intent, although such cases will be rare.” Id. at 874. In Worrell, because the psychiatrist’s opinion did not address the defendant’s intent to mail the threatening letters (18 U.S.C. § 876), it was properly excluded. The IDRA “bars a defendant who is not pursuing an insanity defense from offering evidence of his lack of volitional control as an alternative defense.” Id. at 875. o. 1 N 226 6-4 In United States v. Flanery, No. 88-5605, 1989 WL 79731 (4th Cir. July 13, 1989), the Fourth Circuit stated the following: 20 United States v. Cristobal, 293 F.3d 134, 144 (4th Cir. 2002). 13 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 17 of 684 TITLE 18 We note that the Eighth Circuit recognizes “that a defendant’s delusional belief that his criminal conduct is morally justified may establish an insanity defense under federal law, even where the defendant knows that the conduct is illegal.” United States v. Dubray, 854 F.2d 1099, 1101 (8th Cir. 1988). See also United States v. Seqna, 555 F.2d 226, 232-33 (9th Cir. 1977). We are, however, unwilling to adopt this rule under the facts of this case. A review of the record indicates that there was no evidence of defendant’s moral justification of the bank robbery — merely evidence that voices compelled Flanery to rob the bank. As the Dubray court stated, “[t]he jury should be instructed on the distinction between moral and legal wrongfulness, however, only where evidence at trial suggests that this is a meaningful distinction in the circumstances of the case.” We hold that the trial court did not err in refusing Flanery’s proffered jury instruction regarding moral wrongfulness. Id. at *6 (citations omitted). The Fourth Circuit has never required a jury instruction regarding the consequences of a verdict of not guilty only by reason of insanity. United States v. McDonald, 444 F. App’x 710 (4th Cir. 2011). See also Shannon v. United States, 512 U.S. 573, 580 (1994) (“The text of the Act gives no indication that jurors are to be instructed regarding the consequences of an NGI verdict.”) 017 7/2 7/2 18 U.S.C. § 32 DESTRUCTION OF AIRCRAFT 0 ed Title 18, United States Code, Sectionew 32 makes it a crime to damage aircraft or communicate false information concerning aircraft. For you to find the defendant guilty, the , vi beyond a reasonable doubt: government must prove each of the 6 following 422 § 32(a)(1) 16- set fire to, damaged, destroyed, disabled, or wrecked; P First, that . defendant No the in the special aircraft jurisdiction of the United States, or a civil P Second, an aircraft aircraft used, operated, or employed in interstate, overseas, or foreign air commerce; and P Third, that the defendant acted willfully. § 32(a)(2) P P 14 First, that the defendant placed, or caused to be placed, a destructive device or substance in, upon, or in proximity to, or otherwise made or caused to be made unworkable or unusable or hazardous to work or use; Second, an aircraft in the special aircraft jurisdiction of the United States, or a civil aircraft used, operated, or employed in interstate, overseas, or foreign air Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 18 of 684 TITLE 18 commerce, or any part or other materials used or intended to be used in connection with the operation of such aircraft; P Third, that the conduct was likely to endanger the safety of the aircraft; and P Fourth, that the defendant acted willfully. § 32(a)(3) P First, that the defendant set fire to, damaged, destroyed, or disabled, or interfered by force or violence with the operation of; P Second, an air navigation facility; P Third, that the conduct was likely to endanger the safety of an aircraft in flight; and P Fourth, that the defendant acted willfully. § 32(a)(4) P First, that the defendant set fire to, damaged, destroyed, disabled, or placed a destructive device or substance in, on, or in proximity to; P Second, any appliance or structure, ramp, landing area, property, machine, or apparatus or any facility or other material used, or intended to be used in connection with the operation, maintenance, loading, unloading, or storage of an aircraft or cargo carried or intended to be carried on an aircraft; 017 7/2 7/2 of the United States, 0 P Third, that the aircraft was in the special aircraft jurisdiction ed or was a civil aircraft used, operated, or employed in interstate, overseas, or w foreign air commerce; and vie , P Fourth, that the defendant 6 willfully and with intent to damage, destroy, or 2 acted 2 disable the aircraft.4 61 § 32(a)(5) o. N P First, that the defendant interfered with or disabled a person; P Second, that the person was engaged in the authorized operation of an aircraft in the special aircraft jurisdiction of the United States, or a civil aircraft used, operated, or employed in interstate, overseas, or foreign air commerce, or any air navigation facility aiding in the navigation of such an aircraft; and P Third, that the defendant acted willfully and with intent to endanger the safety of any person or with reckless disregard for the safety of human life. § 32(a)(6) P First, that the defendant committed an act of violence against or incapacitated an individual; 15 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 19 of 684 TITLE 18 P Second, that the individual was on an aircraft in the special aircraft jurisdiction of the United States, or a civil aircraft used, operated, or employed in interstate, overseas, or foreign air commerce; P Third, that the act was likely to endanger the safety of the aircraft; and P Fourth, that the defendant acted willfully. § 32(a)(7) P First, that the defendant communicated false information concerning an aircraft in the special aircraft jurisdiction of the United States or a civil aircraft used, operated, or employed in interstate, overseas, or foreign air commerce; P Second, that the defendant knew the information was false and under circumstances in which the information may reasonably be believed; P Third, that the defendant acted willfully; and P Fourth, that, as a result of the false information being communicated, the safety of an aircraft in flight was endangered. 017 7/2 “Endanger” means to bring into danger or peril of probable harm or loss; imperil or threaten to danger; to create a dangerous situation.21 § 32(a)(8) 7/2 d0 e iew of violence against an individual; First, that the defendant performed an act 6, v board a civil aircraft registered in a country 2 Second, that the individual was on -42 and the aircraft was in flight; other than the United States 16 .the act of violence was likely to endanger the safety of the aircraft; Third, that No the defendant acted willfully; and Fourth, that Prohibits attempting or conspiring to violate §§ 32(a)(1) through (7). § 32(b)(1) P P P P P Fifth, that a national of the United States was, or would have been, on board the aircraft; the defendant is a national of the United States; or the defendant was found in the United States. § 32(b)(2) P First, that the defendant destroyed an aircraft while that aircraft was in service, or caused damage to an aircraft which rendered the aircraft incapable of flight or was likely to endanger the aircraft’s safety in flight; 21 16 United States v. Mendoza, 244 F.3d 1037, 1042 (9th Cir. 2001). Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 20 of 684 TITLE 18 P Second, that the aircraft was a civil aircraft registered in a country other than the United States; P Third, that the defendant acted willfully; and P Fourth, that a national of the United States was, or would have been, on board the aircraft; the defendant is a national of the United States; or the defendant was found in the United States. § 32(b)(3) P First, that the defendant placed or caused to be placed a device or substance on an aircraft; P Second, that the device or substance was likely to destroy the aircraft or cause damage to it that rendered it incapable of flight or which was likely to endanger the aircraft’s safety in flight; P Third, that the aircraft was a civil aircraft registered in a country other than the United States; P Fourth, that the defendant acted willfully; and P Fifth, that a national of the United States was, or would have been, on board the aircraft; the defendant is a national of the United States; or the defendant was found in the United States. § 32(b)(4) 017 7/2 7/2 d0 e iew ,v Prohibits attempting or conspiring to violate §§ 32(b)(1) through (3). 226 or conveyed a threat that [would violate any of 4 First, that the defendant imparted 16- (6) or §§ 32(b)(1) through (3), and the court should reiterate §§ 32(a)(1) through . the elements of the appropriate subsection]; No § 32(c) P P P Second, that the defendant acted willfully; and Third, that the defendant had the apparent determination and will to carry the threat into execution. “Aircraft” means a civil, military, or public contrivance invented, used, or designed to navigate, fly, or travel in the air. [§ 31(a)(1)] “Aviation quality,” with respect to a part of an aircraft or space vehicle, means the quality of having been manufactured, constructed, produced, maintained, repaired, overhauled, rebuilt, reconditioned, or restored in conformity with applicable standards specified by law (including applicable regulations). [§ 31(a)(2)] “In flight” means 17 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 21 of 684 TITLE 18 (A) any time from the moment at which all the external doors of an aircraft are closed following embarkation until the moment when any such door is opened for disembarkation; and (B) in the case of a forced landing, until competent authorities take over the responsibility for the aircraft and the persons and property on board. [§ 31(a)(4)] “In service” means (A) anytime from the beginning of preflight preparation of an aircraft by ground personnel or by the crew for a specific flight until 24 hours after any landing; and (B) in any event includes the entire period during which the aircraft is in flight. [§ 31(a)(5)] “Special aircraft jurisdiction of the United States” includes any of the following aircraft in flight: (a) a civil aircraft of the United States; (b) an aircraft of the armed forces of the United States; 017 7/2 (c) another aircraft in the United States; (d) another aircraft outside the United States 7/2 d0 (1) that has its next scheduled destination or last place of departure in the United States, if the aircraft next lands in the United States; e iew ,v (2) on which an individual unlawfully seizes, exercises control of, or attempts to seize or exercise control of an aircraft in flight by any form of intimidation (or assists such an individual); or 226 (3) against -4 an individual unlawfully seizes, exercises control of, or which 16 to seize or exercise control of an aircraft in flight by any form attempts o. intimidation (or assists such an individual), if the aircraft lands in the N of States with the individual still on the aircraft; United (e) any other aircraft leased without crew to a lessee whose principal place of business is in the United States or, if the lessee does not have a principal place of business, whose permanent residence is in the United States. [49 U.S.C. § 46501(2)] “National of the United States” means a citizen of the United States, or a person, who though not a citizen of the United States, owes permanent allegiance to the United States. [8 U.S.C. § 1101(a)(22)] ____________________NOTE____________________ 18 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 22 of 684 TITLE 18 In United States v. Mendoza, 244 F.3d 1037, 1045 n.4 (9th Cir. 2001), the Ninth Circuit assumed, without deciding, that this section contains a causation element. 18 U.S.C. § 33 DESTRUCTION OF MOTOR VEHICLES Title 18, United States Code, Section 33(a) makes it a crime to damage motor vehicles. For you to find the defendant guilty, the government must prove each of the following beyond a reasonable doubt: ¶1 P First, that the defendant damaged, disabled, destroyed, tampered with, or placed or caused to be placed any explosive or other destructive substance in, upon, or in proximity to, any motor vehicle; P Second, that the motor vehicle was used, operated, or employed in interstate or foreign commerce, or its cargo or material used or intended to be used in connection with its operation; P Third, that the defendant did so with intent to endanger the safety of any person on board or anyone who the defendant believed would board the motor vehicle, or with a reckless disregard for the safety of human life; and P Fourth, that the defendant did so willfully.22 7/2 d0 e iew ,v ¶2 P 017 7/2 First, that the defendant damaged, disabled, destroyed, set fire to, tampered with, or placed or caused to be placed any explosive or other destructive substance in, upon, or in proximity to, any garage, terminal, structure, supply, or facility used in the operation or, or in support of the operation of, motor vehicles or otherwise made or caused such property to be made unworkable, unusable, or hazardous to work or use; o. 1 N 226 6-4 P Second, that the motor vehicles were engaged in interstate or foreign commerce; P Third, that the defendant did so with intent to endanger the safety of any person on board or anyone who the defendant believed would board the motor vehicle, or with a reckless disregard for the safety of human life; and P Fourth, that the defendant did so willfully.23 ¶3 22 United States v. Kurka, 818 F.2d 1427, 1430 (9th Cir. 1987). 23 Id. 19 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 23 of 684 TITLE 18 P First, that the defendant disabled or incapacitated any driver or person employed in connection with the operation or maintenance of a motor vehicle, or in any way lessened the ability of such person to perform his duties as such; P Second, that the motor vehicle was used, operated, or employed in interstate or foreign commerce, or its cargo or material used or intended to be used in connection with its operation; P Third, that the defendant did so with intent to endanger the safety of any person on board or anyone who the defendant believed would board the motor vehicle, or with a reckless disregard for the safety of human life; and P Fourth, that the defendant did so willfully.24 AGGRAVATED PENALTY 1. Was the motor vehicle, at the time the violation occurred, carrying high-level radioactive waste or spent nuclear fuel [as defined in 42 U.S.C. §§ 10101(12) and (23)]? 017 7/2 ____________________NOTE____________________ The statute has its own attempt and conspiracy provision in paragraph 4. 7/2 HOAX ACT) 0 18 U.S.C. § 35(b) CONVEYING FALSE INFORMATION (BOMB ed it a crime to convey false Title 18, United States Code, Section w e 35(b) makes viaircraft, trains, or vessels. For you to find the information concerning the destruction of 6, defendant guilty, the government2 must prove each of the following beyond a reasonable 2 doubt: 6-4 P First, that the defendant imparted, conveyed, or caused to be imparted or conveyed o. 1 N false information; P Second, that the defendant knew the information was false; P Third, that the information concerned an attempt being made or to be made to do an act which would violate [18 U.S.C. §§ 32-40 (concerning aircraft)] [18 U.S.C. §§ 1991-1992 (concerning railroads)] or [18 U.S.C. §§ 2271-2285 (concerning vessels and shipping)];25 and 24 25 20 Id. The court should instruct on the elements of the appropriate predicate offense. Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 24 of 684 TITLE 18 P Fourth, that the defendant did so willfully and maliciously, or with reckless disregard for the safety of human life.26 L The court should instruct on the elements of the appropriate predicate offense. Willfully means deliberately and intentionally, as contrasted with being made accidentally, carelessly or unintentionally.27 To act maliciously means to do something with an evil purpose or motive.28 18 U.S.C. § 36 DRIVE-BY SHOOTING Title 18, United States Code, Section 36 makes it a crime to shoot into a group of people in furtherance of a major drug offense. For you to find the defendant guilty, the government must prove each of the following beyond a reasonable doubt: § 36(b)(1) P First, that the defendant fired a weapon into a group of two or more persons; P Second, that the defendant fired the weapon in furtherance of, or to escape detection of, a major drug offense; 017 /2 P Third, that the defendant fired the weapon with intent/27 to intimidate, harass, injure, or maim; and 07 d P Fourth, that, in the course of firing the we the defendant caused grave risk to weapon, e human life. , vi § 36(b)(2)(A) 226 a weapon into a group of two or more persons; 4 P First, that the defendant fired 16-defendant fired the weapon in furtherance of, or to escape . P Second, that the Noof, a major drug offense; detection 29 26 See United States v. White, 475 F.2d 1228, 1230 (4th Cir. 1973). 27 United States v. Hassouneh, 199 F.3d 175, 183 (4th Cir. 2000). 28 “W e note that Hassouneh’s proposed instruction, which incorporated an ‘evil purpose or motive’ component, more accurately reflects the proper legal standard necessary to convict a person of acting ‘maliciously’ under § 35(b). W e also note that other instructions may be equally capable of properly directing the jury on the meaning of ‘maliciously’ under the Act.” Id. at 182. 29 See United States v. Wallace, 447 F.3d 184, 187 (2d Cir. 2006). 21 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 25 of 684 TITLE 18 P Third, that the defendant fired the weapon with intent to intimidate, harass, injure, or maim; P Fourth, that, in the course of firing the weapon, the defendant unlawfully killed another human being with malice aforethought; and P Fifth, that the killing was willful, deliberate, malicious, and premeditated.30 § 36(b)(2)(B) P First, that the defendant fired a weapon into a group of two or more persons; P Second, that the defendant fired the weapon in furtherance of, or to escape detection of, a major drug offense; P Third, that the defendant fired the weapon with intent to intimidate, harass, injure, or maim; and P Fourth, that, in the course of firing the weapon, the defendant unlawfully killed another human being with malice aforethought.31 A “major drug offense” means one of the following: [§ 36(a)] 017 2 2. a conspiracy to distribute controlled substances [the court should instruct on 27/ the elements of 21 U.S.C. § 846]; or 07/ of major quantities of d 3. distribution of major quantities of drugs, or possession we drugs with intent to distributei[the court should instruct on the elements of 21 e U.S.C. § 841]. ,v 226 18 U.S.C. § 81 ARSON 4 16- Code, Section 81 makes it a crime to set fire to or burn any . Title 18, United States No building, structure or vessel, any machinery or building materials or supplies, military or 1. a continuing criminal enterprise, [the court should instruct on the elements of 21 U.S.C. § 848]; naval stores, munitions of war, or any structural aids or appliances for navigation or shipping, within the special territorial jurisdiction of the United States. For you to find the defendant guilty, the government must prove each of the following beyond a reasonable doubt: P First, that the defendant set fire to or burned (or attempted to or conspired to set fire to or burn) a building, structure, vessel, machinery, building materials or 30 31 22 See jury instruction for 18 U.S.C. § 1111. See jury instruction for 18 U.S.C. § 1111. Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 26 of 684 TITLE 18 supplies, military or naval stores, munitions of war, structural aids or appliances for navigation or shipping;32 P Second, that the building, structure, vessel, machinery, building materials or supplies, military or naval stores, munitions of war, structural aids or appliances for navigation or shipping, was/were within the special maritime and territorial jurisdiction of the United States; and P Third, that the defendant did so willfully and maliciously.33 AGGRAVATED PENALTY 1. Was the building a dwelling? 2. Was the life of any person placed in jeopardy? “Maliciously” means acting intentionally or with willful disregard of the likelihood that damage or injury will result.34 In other words, willfully and maliciously can be proved by evidence that the defendant set the fire intentionally and without justification or lawful excuse.35 017 7/2 “Special maritime and territorial jurisdiction of the United States” includes lands reserved or acquired for the use of the United States, and under the exclusive or concurrent jurisdiction of the United States, or any place purchased or otherwise acquired by the United States by consent of the legislature of the State in which the land is situated, for the building of a fort, arsenal, dock, or other needed building.36 7/2 d0 32 e iew ,v 226 6-4 See United States v. Auginash, 266 F.3d 781, 785 (8th Cir. 2001) (concluding that “the ordinary meaning of § 81 includes the burning of an automobile.”). 33 34 o. 1 Prentiss, 273 F.3d 1277, 1279 (10th Cir. 2001). United States v. N See United States v. Gullett, 75 F.3d 941, 947 (4th Cir. 1996) (§ 844(i) prosecution). 35 United States v. Doe, 136 F.3d 631, 635 (9th Cir. 1998) (“At common law ... arson did not require proof of an intent to burn down a building, or of knowledge this would be the probable consequence of the defendant’s act.”). See discussion of Gullet under NOTE. 36 See 18 U.S.C. § 7 (listing other definitions). In United States v. Passaro, 577 F.3d 207 (4th Cir. 2009), the Fourth Circuit construed § 7(9) as reaching only fixed locations. An inexhaustive list of factors relevant in determining whether a particular location qualifies as the premises of a United States mission include “the size of a given military mission’s premises, the length of United States control over those premises, the substantiality of its improvements, actual use of the premises, the (continued...) 23 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 27 of 684 TITLE 18 ____________________NOTE____________________ For cases discussing special jurisdiction, especially pertaining to Fort Jackson, see the following: United States v. Lavender, 602 F.2d 639 (4th Cir. 1979); United States v. Lovely, 319 F.2d 673 (4th Cir. 1963); United States v. Benson, 495 F.2d 475 (5th Cir. 1974); and State v. Zeigler, 274 S.C. 6, 260 S.E.2d 182 (S.C. 1979), overruled on other grounds by Joseph v. State, 351 S.C. 551, 571 S.E.2d 280 (S.C. 2002). In United States v. Gullett, 75 F.3d 941 (4th Cir. 1996), an explosion occurred in the parking lot of a machine shop, but damaged nearby rental property. The appellant stipulated that the rental property was used in activity affecting interstate commerce, but argued that he did not maliciously intend to damage the rental property. The Fourth Circuit approved the following charge: A defendant may not be excused from responsibility for the harmful consequences of his actions simply because that harm was not precisely the harm in which he intended. That is, if the only difference between what a defendant intended to flow from his action and what actually occurred as a result of his action is that some property was damaged other than that which the defendant intended, the defendant, under the law, may still be held responsible to the same extent that he would have been responsible had the intended harm resulted, so long as the actual result is similar to and not remote from the intended result. Of course, the defendant must have acted maliciously and with specific intent, and the government must prove all of the essential elements of the offense beyond a reasonable doubt in order for you to find the defendant guilty. 017 7/2 7/2 d0 e iew ,v 226 6-4 75 F.3d at 948. The court stated this was “a correct statement of the law” as Gullett “‘may’ be legally responsible for his actions even though ‘some property was damaged other than that which the defendant intended.’” Id. o. 1 N 18 U.S.C. § 111 ASSAULTING FEDERAL OFFICER37 [LAST UPDATED : 12/29/14] 36 (...continued) occupation of the premises by a significant number of United States personnel, and the host nation’s consent (whether formal or informal) to the presence of the United States.” 577 F.3d at 214. In Passaro, the court found that Asadabad Firebase in Afghanistan came within the statutory definition, such that Passaro, a civilian contractor, could be prosecuted for assaulting a prisoner, in violation of 18 U.S.C. § 113. 37 24 See United States v. Briley, 770 F.3d 267, 273 (4th Cir. 2014) (“In essence, § 111 (continued...) Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 28 of 684 TITLE 18 Title 18, United States Code, Section 111 makes it a crime to assault certain federal officers or employees. For you to find the defendant guilty, the government must prove each of the following beyond a reasonable doubt: § 111(a)(1) or (2) [misdemeanor] P First, that the defendant [assaulted, resisted, opposed, impeded, intimidated, or interfered with an officer or employee of the United States as designated in § 1114] [assaulted or intimidated a person who formerly served as an officer or employee of the United States as designated in § 1114]; P Second, that the defendant did so forcibly;38 P Third, that the defendant did so [while the employee was engaged in or on account of the performance of official duties] [on account of the performance of official duties during that person’s term of service]; and P Fourth, that the defendant acted intentionally.39 To be guilty under this section, the government must prove that the defendant committed a simple assault, or an assault not involving physical contact.40 “Simple assault” is an assault involving an attempt to put another in fear of imminent serious bodily injury by physical menace.41 017 7/2 An assault is committed by either a willful attempt to inflict injury upon the person of another, or by a threat to inflict injury upon the person of another which, when coupled with an apparent present ability, causes a reasonable apprehension of immediate bodily harm.42 7/2 d0 e iew ,v 37 226 6-4 (...continued) proscribes five types of offenses: a misdemeanor (constituting only simple assault), two less serious felonies (involving either physical contact or felonious intent), and two more serious felonies (involving either a weapon or bodily injury). Notably, in defining the penalties for the various offenses, each statutory provision refers back to the original list of violative acts against current or former officials. 18 U.S.C. § 111(a) (‘the acts in violation of this section’); id. (‘such acts’); id. § 111(b) (‘any acts described in subsection (a)’).”). o. 1 N 38 The verb “forcibly” modifies each of the verbs it precedes, not only “assault.” Long v. United States, 199 F.2d 717, 719 (4th Cir. 1952). The D.C. Circuit approved the following twosentence pattern instruction in United States v. Arrington, 309 F.3d 40, 47 n.13 (D.C. Cir. 2002): “All of the acts — assault, resist, oppose, impede, intimidate and interfere with — are modified by the word ‘forcibly.’ Thus, before you can find the defendant guilty you must find, beyond a reasonable doubt, that he acted forcibly.” 39 See United States v. Cooper, 289 F. App’x 627, 629 (4th Cir. 2008) (citing Arrington, 309 F.3d at 44). 40 United States v. Campbell, 259 F.3d 293, 296 (4th Cir. 2001). 41 Id. (citing United States v. Duran, 96 F.3d 1495, 1511 (D.C. Cir. 1996)). 42 United States v. Dupree, 544 F.2d 1050, 1051 (9th Cir. 1976) (citation omitted). 25 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 29 of 684 TITLE 18 However, the government must prove some use of force.43 The government need not prove that the defendant knew that the victim was a federal employee.44 § 111(a)(1) or (2) [felony] P First, that the defendant [assaulted, resisted, opposed, impeded, intimidated, or interfered with an officer or employee of the United States as designated in § 1114] [assaulted or intimidated a person who formerly served as an officer or employee of the United States as designated in § 1114]; P Second, that the defendant did so forcibly;45 P Third, that the defendant did so [while the employee was engaged in or on account of the performance of official duties] [on account of the performance of official duties during that person’s term of service]; P Fourth, that the act involved physical contact with the victim of the assault or the intent to commit another felony [here, the court must identify the elements of this other felony]46 ; and P Fifth, that the defendant acted intentionally.47 The government must prove some use of force.48 017 7/2 7/2 d0 e iewan essential element of the crime.” Long, 199 Congress “has prescribed the use of force as 6, v F.2d at 717. 22 -4420 U.S. 671, 676 n.9 (1975) (finding “the existence of the fact that United States16 . v. Feola, confers federal jurisdiction need not be one in the mind of the actor at the time he perpetrates the act o made criminal Nthe federal statute.”). See also United States v. Wallace, 368 F.2d 537 (4th Cir. by 43 44 1966) (same). 45 The verb “forcibly” modifies each of the verbs it precedes, not only “assault.” United States v. Long, 199 F.2d 717, 719 (4th Cir. 1952). The D.C. Circuit approved the following twosentence pattern instruction in United States v. Arrington, 309 F.3d 40, 47 n.13 (D.C. Cir. 2002): “All of the acts — assault, resist, oppose, impede, intimidate and interfere with — are modified by the word ‘forcibly.’ Thus, before you can find the defendant guilty you must find, beyond a reasonable doubt, that he acted forcibly.” 46 United States v. Thomas, 669 F.3d 421, 425 (4th Cir. 2012) (government conceded plain error in indictment’s failure to allege intent to commit another felony). 47 See United States v. Cooper,289 F. App’x 627, 629 (4th Cir. 2008) (citing Arrington, 309 F.3d at 44). 48 Congress “has prescribed the use of force as an essential element of the crime.” Long, 199 F.2d at 719. 26 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 30 of 684 TITLE 18 § 111(b)49 [aggravated felony] P First, that the defendant [assaulted, resisted, opposed, impeded, intimidated, or interfered with an officer or employee of the United States as designated in § 1114] [assaulted or intimidated a person who formerly served as an officer or employee of the United States]; P Second, that the defendant did so forcibly;50 P Third, that the defendant did so while the employee was engaged in or on account of the performance of official duties, and P Fourth, that the defendant [used a deadly or dangerous weapon] [inflicted bodily injury]51 ; and P Fifth, that the defendant did so intentionally.52 The government must prove some use of force.53 The government need not prove that the defendant knew that the victim was a federal employee.54 What constitutes a dangerous weapon depends not on the object’s intrinsic character but on its capacity, given the manner of its use, to endanger life or inflict serious physical harm. Almost any weapon, as used or attempted to be used, may endanger life or inflict bodily harm; as such, in appropriate circumstances, it may be a dangerous and deadly weapon. Thus, an object need not be inherently dangerous to be a dangerous weapon. 017 7/2 7/2 d0 49 e iew ,v 226 6-4 Section 111(b) is a separate offense from § 111(a) and use of a dangerous or deadly weapon or inflicting bodily injury are offense elements. United States v. Campbell, 259 F.3d 293, 298 (4th Cir. 2001). 50 1 o.“forcibly” modifies each of the verbs it precedes, not only “assault.” United N The verb States v. Long, 199 F.2d 717, 719 (4th Cir. 1952). The D.C. Circuit approved the following twosentence pattern instruction in Arrington, 309 F.3d at 47 n.13: “All of the acts — assault, resist, oppose, impede, intimidate and interfere with are — modified by the word ‘forcibly.’ Thus, before you can find the defendant guilty you must find, beyond a reasonable doubt, that he acted forcibly.” 51 See Thomas, 669 F.3d at 425 (Government conceded plain error in indictment’s failure to allege infliction of bodily injury). 52 See Cooper, 289 F. App’x at 629 (citing United States v. Feola, 420 U.S. 671, 686 (1975)). 53 Congress “has prescribed the use of force as an essential element of the crime.” Long, 199 F.2d at 719. 54 United States v. Feola, 420 U.S. 671, 676 n.9 (1975) (finding “the existence of the fact that confers federal jurisdiction need not be one in the mind of the actor at the time he perpetrates the act made criminal by the federal statute.”). See also United States v. Wallace, 368 F.2d 537 (4th Cir. 1966) (same). 27 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 31 of 684 TITLE 18 Rather, innocuous objects or instruments may become capable of inflicting serious injury when put to assaultive use.55 “Deadly or dangerous weapon” includes a weapon intended to cause death or danger but that fails to do so by reason of a defective component. [§ 111(b)] “Bodily injury” means a cut, abrasion, bruise, burn, or disfigurement; physical pain; illness; impairment of the function of a bodily member, organ, or mental faculty; or any other injury to the body, no matter how temporary.56 ____________________NOTE____________________ In United States v. Briley, 770 F.3d 267, 274 (4th Cir. 2014), the Fourth Circuit held that “§ 111 prohibits the six different kinds of enumerated acts [“forcibly assaults, resists, opposes, impedes, intimidates, or interferes with ....”] and [ ] specifically, the misdemeanor provision is not limited to assault.” But see United States v. Davis, 690 F.3d 127, 135 (2d Cir. 2012) (“[F]or a defendant to be guilty of the misdemeanor of resisting arrest under Section 111(a), he necessarily must have committed common law simple assault.”). One episode of interference with federal officers is a single offense, regardless of the number of injuries. In Ladner v. United States, 358 U.S. 169 (1958), the defendant injured two federal officers with the single discharge of a shotgun, and the Supreme Court held it constituted a single assault. 358 U.S. at 178. See also United States v. Thomas, 669 F.3d 421 (4th Cir. 2012) (defendant committed multiple acts, both verbally threatening and later punching the officer following significant intervening acts); United States v. Alverez, 445 F. App’x 715 (4th Cir. 2011) (defendant could only be convicted of one instance of assault under § 111(b) when he ran his vehicle into one car containing two DEA agents). 017 7/2 7/2 d0 e iew ,v However, an indictment may allege “separate assaults [ ] when the Government demonstrates that ‘the actions and intent of [the] defendant constitute distinct successive criminal episodes, rather than two phases of a single assault.’” Thomas, 669 F.3d at 426 (citation omitted). See also Briley, 770 F.3d at 270 (defendant charged with three counts of assault where three officers involved in attempt to arrest defendant). 226 6-4 1 o. weapon” language of § 111(b) is the same language used in 18 U.S.C. N The “dangerous § 2113(d). Accordingly, cases interpreting armed bank robbery apply to this statute. United States v. Hamrick, 43 F.3d 877, 881 (4th Cir. 1995) (en banc). Hamrick was prosecuted for mailing a bomb which did not detonate to the United States Attorney for the Northern 55 In United States v. Sturgis, 48 F.3d 784, 787 (4th Cir. 1995), an inmate who was HIV positive bit two correctional officers. The Fourth Circuit surveyed “dangerous weapon” cases, and concluded that the “test of whether a particular object was used as a dangerous weapon ... must be left to the jury to determine whether, under the circumstances of each case, the defendant used some instrumentality, object, or (in some instances) a part of his body to cause death or serious injury.” Id. at 788 (citations omitted). 56 See 18 U.S.C. §§ 831(f)(5), 1365(g)(4), 1515(a)(5), 1864(d)(2) (statutory definitions). See also United States v. Perkins, 470 F.3d 150, 161 (4th Cir. 2006) (“physical pain alone or any injury to the body, no matter how fleeting, suffices” to establish bodily injury.) (18 U.S.C. § 242 prosecution). 28 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 32 of 684 TITLE 18 District of West Virginia. The Fourth Circuit held that a dysfunctional or inoperable bomb “could be considered by the jury to constitute a ‘dangerous weapon’” under this section. Id. at 884. In United States v. Arrington, 309 F.3d 40, 45 (D.C. Cir. 2002), the government conceded that when an object is not inherently deadly, the following additional elements are required: “the object must be capable of causing serious bodily injury or death to another person and the defendant must use it in that manner.” In United States v. Gore, 592 F.3d 489 (4th Cir. 2010), the Fourth Circuit held that “a prisoner charged with a violation of 18 U.S.C. § 111 must, to succeed on the affirmative defense of self-defense, demonstrate that he responded to an unlawful and present threat of death or serious bodily injury.” 592 F.3d st 495. In that case, the district court instructed the jury that the defendant “could rely on justification based on self-defense only when he was under an unlawful present or imminent threat of serious bodily injury or death.” Id. at 490 (quotation omitted). The district court elaborated as follows: A present or imminent threat of serious bodily injury or death must be based on a reasonable fear that a real and specific threat existed at the time of the defendant’s assault, resistance, opposition, or impediment. This is an objective test that does not depend on the defendant’s perception. If the defendant unlawfully assaulted, resisted, or impeded a correctional officer when no reasonable fear of a present or imminent threat of serious bodily injury or death actually existed, his self-defense justification must fail. 017 7/2 7/2 In United States v. Stotts, 113 F.3d 493 (4th Cir.d 0 the defendant was prosecuted 1997), under D.C. Code § 22-505, which punishes we on correctional officers “without assaults justifiable and excusable cause.” The Fourth Circuit held that a defendant generally cannot ve , on ai police or correctional officer, and therefore a invoke self-defense to justify an assault 26 2would not apply. However, a defendant has a limited right standard self-defense instruction 4 of self-defense if the defendant presents evidence that the officer used excessive force in 16. carrying out his official duties. “A defendant who responds to an officer’s use of excessive No Id. at 490. force with force reasonably necessary for self-protection under the circumstances has acted with ‘justifiable and excusable cause’ and therefore does not violate § 22-505.” 113 F.3d at 496. The court added that the jury must be instructed that “the government bears the burden of disproving the defendant’s limited claim of self-defense or justification beyond a reasonable doubt.” Id. 18 U.S.C. § 113 ASSAULTS WITHIN SPECIAL TERRITORIAL JURISDICTION [LAST UPDATED : 7/3/14] Title 18, United States Code, Section 113 makes it a crime to commit certain assaults within the special territorial jurisdiction of the United States. For you to find the defendant guilty, the government must prove each of the following beyond a reasonable doubt: § 113(a)(1) P First, that the defendant assaulted the victim; 29 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 33 of 684 TITLE 18 P Second, that the defendant did so with intent to commit murder57 or sexual abuse [in violation of either Section 2241 or 2242]; and P Third, that the assault occurred within the special maritime and territorial jurisdiction of the United States. § 113(a)(2) P First, that the defendant assaulted the victim; P Second, that the defendant did so with intent to commit [a felony other than murder or criminal sexual conduct — specify elements of felony charged in indictment]; and P Third, that the assault occurred within the special maritime and territorial jurisdiction of the United States. § 113(a)(3) P First, that the defendant assaulted the victim; P Second, that the defendant did so with a dangerous weapon; P Third, that the defendant did so with intent to do bodily harm;58 and P Fourth, that the assault occurred within the special maritime and territorial jurisdiction of the United States. 017 7/2 L Assault by striking and simple assault are lesser included offenses of assault with a dangerous weapon, and the jury should be charged if that is an issue. 7/2 d0 What constitutes a dangerous weapon depends not on the object’s intrinsic character but on its capacity, given the manner of its use, to endanger life or inflict serious physical harm. Almost any weapon, as used or attempted to be used, may endanger life or inflict bodily harm; as such, in appropriate circumstances, it may be a dangerous and deadly weapon. Thus, an object need not be inherently dangerous to be a dangerous weapon. Rather, innocuous objects or instruments may become capable of inflicting serious injury when put to assaultive use.59 e iew ,v o. 1 N 226 6-4 57 In United States v. Perez, 43 F.3d 1131, 1138 (7th Cir. 1994), the Seventh Circuit held that § 113(a) requires a specific intent to commit murder, and the usual “malice aforethought” instruction which includes “conduct which is reckless and wanton” without intending to kill is not sufficient. See Braxton v. United States, 500 U.S. 344, 351 n.1 (1991); United States v. Bird, 409 F. App’x 681 (4th Cir. 2011) (citing Perez, 43 F.3d at 1137). In Bird, the defendant argued unsuccessfully that attempted murder is a lesser-included offense of assault with intent to commit murder. 58 United States v. Jackson, No. 99-4388, 2000 W L 194284 (4th Cir. Feb. 18, 2000) (quoting United States v. Guilbert, 692 F.2d 1340, 1343 (11th Cir. 1982)) (“The existence of ‘just cause or excuse’ for the assault is an affirmative defense, and the government does not have the burden of pleading or proving its absence.”). 59 In United States v. Sturgis, 48 F.3d 784 (4th Cir. 1995), an inmate who was HIV positive bit two correctional officers. The Fourth Circuit surveyed “dangerous weapon” cases, and concluded that “test of whether a particular object was used as a dangerous weapon ... must be left to the jury to (continued...) 30 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 34 of 684 TITLE 18 The intent of the defendant is not to be measured by his secret motive, or some undisclosed purpose merely to frighten, not to hurt, but rather it is to be judged objectively from the visible conduct of the defendant and what a person in the position of the victim might reasonably conclude.60 § 113(a)(4)61 P First, that the defendant assaulted the victim by striking, beating, or wounding the victim; and P Second, that the assault occurred within the special maritime and territorial jurisdiction of the United States. § 113(a)(5)(“simple assault”)62 P First, that the defendant assaulted the victim; and P Second, that the assault occurred within the special maritime and territorial jurisdiction of the United States. AGGRAVATED PENALTY for § 113(a)(5): 1. Was the victim of the assault an individual who had not attained the age of 16 years? § 113(a)(6)63 017 2 P Third, that the assault occurred within the special maritime and territorial 27/ jurisdiction of the United States. 07/ d § 113(a)(7) we e P First, that the defendant assaulted the victim, who had not attained the age of 16 , vi years; 226 4 16. No (...continued) P First, that the defendant assaulted the victim; P Second, that the assault resulted in serious bodily injury;64 and 59 determine whether, under the circumstances of each case, the defendant used some instrumentality, object, or (in some instances) a part of his body to cause death or serious injury.” Id. at 788 (citations omitted). 60 United States v. Guilbert, 692 F.2d at 1344. 61 This section is simple battery since it contemplates some form of contact. United States v. Juvenile Male, 930 F.2d 727, 728 (9th Cir. 1991). Intent to cause injury is not an element of § 113(a)(4). United States v. Martin, 536 F.2d 535, 535 (2d Cir. 1976). 62 “[A] specific kind of intent is not inherent in the statutory definition of [§ 113(a)(5)] ....” United States v. Bayes, 210 F.3d 64, 68 (1st Cir. 2000). 63 Section 113(a)(6) is a general intent crime. United States v. Lewis, 780 F.2d 1140, 1143 (4th Cir. 1986). 64 United States v. Campbell, 259 F.3d 293, 300 (4th Cir. 2001). 31 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 35 of 684 TITLE 18 P Second, that the assault resulted in substantial bodily injury;65 and P Third, that the assault occurred within the special maritime and territorial jurisdiction of the United States. An assault is committed by either a willful attempt to inflict injury upon the person of another, or by a threat to inflict injury upon the person of another which, when coupled with an apparent present ability, causes a reasonable apprehension of immediate bodily harm.66 Battery is defined as inflicting injury upon the person of another.67 Battery may also be defined as the slightest willful offensive touching of another, regardless of whether the defendant had an intent to do physical harm.68 In the case of an attempted battery, the victim need not have experienced reasonable apprehension of immediate bodily harm.69 Attempt requires two elements: P First, that the defendant intended to commit a battery; and P Second, that the defendant committed an act which constituted a substantial step toward the commission of the battery.70 A substantial step is more than mere preparation, yet may be less than the last act necessary before the actual commission of the battery.71 017 7/2 The government need not prove that the defendant intended to injure the victim. The government need only prove that the defendant was criminally negligent or reckless.72 7/2 d0 e iew ,v 226 6-4 65 See id. 66 United States v. Dupree, 544 F.2d 1050, 1051 (9th Cir. 1976) (citation omitted). 67 o. 1 N See United States v. Juvenile Male, 930 F.2d 727, 728 (9th Cir. 1991), for a full definition of common law assault. 68 United States v. Williams, 197 F.3d 1091, 1096 (11th Cir. 1999) (“Intention to do bodily harm is not a necessary element of battery.”). 69 United States v. Guilbert, 692 F.2d 1340, 1343 (11th Cir. 1982). 70 See United States v. Pratt, 351 F.3d 131, 135 (4th Cir. 2003). 71 United States v. Sutton, 961 F.2d 476, 478 (4th Cir. 1992). “But if preparation comes so near to the accomplishment of the crime that it becomes probable that the crime will be committed absent an outside intervening circumstance, the preparation may become an attempt.” Pratt, 351 F.3d at 136. 72 United States v. Juvenile Male, 930 F.2d 727, 728-29 (9th Cir. 1991) (“a battery need not be intentional to constitute a violation of [§ 113(a)(6)].”). 32 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 36 of 684 TITLE 18 If the defendant intended to assault another person with intent to do bodily harm, but he harms a third person whom he did not intend to harm, the law considers the defendant just as guilty as if he had actually harmed the intended victim.73 “Special maritime and territorial jurisdiction of the United States” includes lands reserved or acquired for the use of the United States, and under the exclusive or concurrent jurisdiction of the United States, or any place purchased or otherwise acquired by the United States by consent of the legislature of the State in which the land is situated, for the building of a fort, arsenal, dock, or other needed building.74 “Substantial bodily injury” means bodily injury which involves a temporary but substantial disfigurement or a temporary but substantial loss or impairment of the function of any bodily member, organ, or mental faculty. [§ 113(b)(1)] “Serious bodily injury” means bodily injury which involves substantial risk of death, extreme physical pain, protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily member, organ, or mental faculty. [§ 113(b)(2) which adopts the definition in 18 U.S.C. § 1365(h)(3)] ____________________NOTE____________________ See United States v. Sturgis, 48 F.3d 784, 786 (4th Cir. 1995). 017 2 For cases discussing special jurisdiction, especially pertaining to Fort Jackson, see the 27/ States v. Lovely, / ; United following: United States v. Lavender, 602 F.2d 639 (4th Cir.7 0 1979)475 (5th Cir. 1974); and d 319 F.2d 673 (4th Cir. 1963); United States v. Benson, 495 F.2d we overruled on other grounds by State v. Zeigler, 274 S.C. 6, 260 S.E.2d 182 (S.C. 1979), e Joseph v. State, 351 S.C. 551, 571 S.E.2d 280 (S.C. 2002). , vi 226 Section § 113(a)(6), is a general intent crime; therefore, voluntary intoxication is not 4 a defense. United States 6 Lewis, 780 F.2d 1140, 1143 (4th Cir. 1986). 1 v. . See alsoNo States v. Fay, 668 F.2d 375 (8th Cir. 1981), where the Eighth Circuit United said that intoxication would be a defense to assault with a deadly weapon which includes “Force and violence is the traditional language of assault.” Simpson v. United States, 435 U.S. 6, 13 (1978). the element of specific intent to do bodily harm. However, assault resulting in serious bodily 73 Instruction on transferred intent approved in United States v. Montoya, 739 F.2d 1437 (9th Cir. 1984). 74 See 18 U.S.C. § 7 (listing other definitions). In United States v. Passaro, 577 F.3d 207 (4th Cir. 2009), the Fourth Circuit construed § 7(9) as reaching only fixed locations. An inexhaustive list of factors relevant in determining whether a particular location qualifies as the premises of a United States mission include “the size of a given military mission’s premises, the length of United States control over those premises, the substantiality of its improvements, actual use of the premises, the occupation of the premises by a significant number of United States personnel, and the host nation’s consent (whether formal or informal) to the presence of the United States.” 577 F.3d at 214. In Passaro, the court found that Asadabad Firebase in Afghanistan came within the statutory definition, such that Passaro, a civilian contractor, could be prosecuted for assaulting a prisoner, in violation of 18 U.S.C. § 113. 33 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 37 of 684 TITLE 18 injury and assault by striking do not require more than general intent, and therefore “the trial court’s failure to give an intoxication instruction [did] not affect defendant’s convictions on these counts.” 668 F.2d at 377. “Assault had two meanings at common law, the first being an attempt to commit a battery and the second [being] an act putting another in reasonable apprehension of bodily harm. A battery, in turn, did not require proof that the defendant intended to injure another or to threaten [the person] with harm. The slightest willful offensive touching of another constitute[d] a battery ... regardless of whether the defendant harbor[ed] an intent to do physical harm.” United States v. Bayes, 210 F.3d 64, 68 (1st Cir. 2000) (internal citation and quotation marks omitted). Unit of Prosecution In United States v. Chipps, 410 F.3d 438 (8th Cir. 2005), the Eighth Circuit concluded that Congress had not specified the unit of prosecution for simple assault with clarity. Applying the rule of lenity, the Eighth Circuit interpreted assault to be a course-of-conduct offense. To determine how many courses of conduct the defendant undertook, the Eighth Circuit applied the so-called “impulse test.” Under that test, all violations that arise from “that singleness of thought, purpose of action, which may be deemed a single impulse are treated as one offense.” 410 F.3d at 449. The defendant was charged with two counts of assault with dangerous weapons, shod feet and a baseball bat. The jury convicted Chipps of the lesser included offense of simple assault, § 113(a)(5), on each count. The Eighth Circuit directed the district court to vacate the second conviction, “[g]iven the uninterrupted nature of the attack ....” Id. 017 7/2 7/2 d0 e iew ,v Lesser-Included Offenses Assault by striking and simple assault are lesser-included offenses of assault with a dangerous weapon, and the jury should be charged if that is an issue. See United States v. Agofsky, 411 F.2d 1013 (4th Cir. 1969) (noting that assault by striking, beating, or wounding under 18 U.S.C. 113(d) [now § 113(a)(4)] and simple assault under § 113(e) [now § 113(a)(5)] are lesser included offenses of assault with a dangerous weapon under § 113(c) [now § 113(a)(3)]. Simple assault is defined as the form of assault involving an attempt to put another in fear of imminent serious bodily injury by physical menace. See United States v. Campbell, 259 F.3d 293, 296 n.3 (4th Cir. 2001) (citing United States v. Duran, 96 F.3d 1495, 1511 (D.C. Cir. 1996)). But see United States v. Duran, 127 F.3d 911, 915 (10th Cir. 1997) (“the offense of striking, beating or wounding is simply not a lesser included offense of assault with a dangerous weapon”). Assault by striking requires physical touching whereas assault with a weapon does not. Id. o. 1 N 226 6-4 Offensive Touching At common law, battery included the slightest willful offensive touching of another, regardless of whether the defendant had an intent to do physical harm. United States v. Williams, 197 F.3d 1091, 1096 (11th Cir. 1999). However, because § 113(a)(4) speaks in terms of “striking, beating, or wounding,” offensive touching cases are usually resolved as violations of § 113(a)(5), simple assault. In United States v. Bayes, 210 F.3d 64, 69 (1st Cir. 2000), the First Circuit found that “in a prosecution for simple assault under § 113(a)(5), it is sufficient to show that the defendant deliberately touched another in a patently offensive manner without justification or excuse[ ]” where the defendant had rubbed and grabbed the 34 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 38 of 684 TITLE 18 buttocks of a flight attendant. See also United States v. Whitefeather, 275 F.3d 741 (8th Cir. 2002) (defendant urinated on victim). 18 U.S.C. § 115 RETALIATING AGAINST A FEDERAL OFFICIAL § 115(a)(1)(A) Title 18, United States Code, Section 115(a)(1)(A) makes it a crime to assault, kidnap, or murder, or threaten to assault, kidnap, or murder a United States official, judge, law enforcement officer [or other official designated in § 1114]. For you to find the defendant guilty, the government must prove each of the following beyond a reasonable doubt: P First, that the defendant assaulted, kidnapped, or murdered, or attempted or conspired to kidnap or murder, or threatened to assault, kidnap, or murder a member of the immediate family of [the victim designated]; and P Second, that the defendant did so with intent to impede, intimidate, or interfere with such official while the official was engaged in the performance of official duties, or with intent to retaliate against such official on account of the performance of official duties. § 115(a)(1)(B) 017 7/2 Title 18, United States Code, Section 115(a)(1)(B) makes it a crime to threaten to assault, kidnap, or murder a United States official, judge, law enforcement officer [or other official designated in § 1114]. For you to find the defendant guilty, the government must prove each of the following beyond a reasonable doubt: 7/2 or murder [the victim 0 P First, that the defendant threatened to assault, kidnap ed designated]; and w ve P Second, that the defendant did so iwith intent to impede, intimidate, or interfere , with such official while26 the official was engaged in the performance of official 2 duties, or with intent to retaliate against such official on account of the 6-4 duties. performance1 official o. of N § 115(a)(2) Title 18, United States Code, Section 115(a)(2) makes it a crime to threaten to assault, kidnap, or murder a former United States official, judge, law enforcement officer [or other official designated in § 1114], or a member of the immediate family of such person. For you to find the defendant guilty, the government must prove each of the following beyond a reasonable doubt: P First, that the defendant assaulted, kidnapped or murdered, or attempted or conspired to kidnap or murder, or threatened to assault, kidnap, or murder [the victim designated]; and P Second, that the defendant did so with intent to retaliate against such official on account of the performance of official duties during the term of service of such person. 35 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 39 of 684 TITLE 18 The threat must be a “true threat” and not merely uttered as a part of a political protest or an idle gesture.75 The test is whether an ordinary reasonable recipient who is familiar with the context of the threat would interpret it as a threat of injury. There is no requirement that the actual recipient testify.76 The government is not required to prove that the person who made the threat was capable of carrying out the threat.77 ____________________NOTE____________________ A threatening statement must amount to a “true threat” rather than mere political hyperbole or idle chatter. Watts v. United States, 394 U.S. 705, 708 (1969). In Watts, the Supreme Court identified four factors in determining that the statement was not a true threat. The Court noted that the communication was: (1) made in jest; (2) to a public audience; (3) in political opposition to the President; and (4) conditioned upon an event the speaker himself vowed would never happen. Id. at 707-08. In United States v. Armel, 585 F.3d 182 (4th Cir. 2009), the Fourth Circuit refused to add a “particularized victim” element to § 115. “The Supreme Court has explained that true threats encompass statements directed at a particular individual or group of individuals.” 585 F.3d at 185 (quoting Virginia v. Black, 538 U.S. 343, 359 (2003)). 18 U.S.C. § 152 BANKRUPTCY FRAUD 017 7/2 7/2 d0 Title 18, United States Code, Section 152 makes it a crime to commit certain offenses in bankruptcy proceedings. For you to find the defendant guilty, the government must prove each of the following beyond a reasonable doubt: e iew to a Debtor § 152(1) Concealing Property Belonging 6, v 2 P First, that there existed a proceeding in bankruptcy on or about the date alleged in -42 the indictment;6 1 o. the defendant concealed property belonging to the estate of a debtor; P Second, that N 78 75 United States v. Roberts, 915 F.2d 889, 890 (4th Cir. 1990). 76 Id. at 891. 77 United States v. Armel, 585 F.3d 182, 185 (4th Cir. 2009). 78 See United States v. Atkins, No. 97-4864, 1999 W L 397711 (4th Cir. June 17, 1999), where the Fourth Circuit found substantial evidence that Atkins attempted to conceal his misappropriation of funds from the bankruptcy court. Atkins secretly took funds out of an escrow account, then created false documents to conceal the transfer. The court approvingly cited United States v. Weinstein, 834 F.2d 1454 (9th Cir. 1987) (sufficient if one withholds knowledge of assets about which trustee should be told), and United States v. Turner, 725 F.2d 1154 (8th Cir. 1984) (sale not recorded in corporation’s books constituted concealment). 36 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 40 of 684 TITLE 18 P Third, that the defendant concealed the property from a custodian, trustee, marshal, or other officer of the bankruptcy court charged with the control or custody of the property, or from creditors or the United States Trustee; and P Fourth, that the defendant did so knowingly and fraudulently.79 The property need not be physically concealed. Concealment can be accomplished by withholding knowledge or preventing disclosure about the property.80 § 152(3) False Statement under Penalty of Perjury P First, that a proceeding in bankruptcy existed on or about the date alleged in the indictment; P Second, that the defendant made or caused to be made a false declaration, certificate, verification, or statement in that bankruptcy proceeding or in relation to it; P Third, that the statement or declaration related to a material matter; P Fourth, that the declaration or statement was made under penalty of perjury; and P Fifth, the defendant did so knowingly and fraudulently, that is, the defendant knew the statement was false and acted with intent to defraud.81 017 7/2 A statement is fraudulent if known to be untrue and made with intent to deceive.82 A statement (or claim) is material if it has a natural tendency to influence, or is capable of influencing, the decision of the body to which it was addressed. It is irrelevant whether the false statement (or claim) actually influenced or affected the decision-making process. The capacity to influence must be measured at the point in time that the statement (or claim) was made.83 7/2 d0 e ew ior adverse reliance by a creditor, nor does it Materiality does not require harm to ,v require a realization of a gain by26defendant. Rather, it requires that the false oath or the 2 account relate to some significant aspect of the bankruptcy case or proceeding in which it 6-4 to the discovery of assets or to the debtor’s financial was given, or that it1 pertain o. N 79 See United States v. Guiliano, 644 F.2d 85, 87 (2d Cir. 1981). 80 United States v. Porter, 842 F.2d 1021, 1024 (8th Cir. 1988). 81 Compare United States v. Pritt, No. 99-4581, 2000 W L 1699833 (4th Cir. Nov. 14, 2000), with United States v. Gellene, 182 F.3d 578, 586 n.12 (7th Cir. 1999). See also United States v. O’Connor, 158 F. Supp. 2d 697, 727 (E.D. Va. 2001). 82 Gellene, 182 F.3d at 586, 587. Prosecutable false statements are not limited to those that deprive the debtor of his property or the bankruptcy estate of its assets. Section 152 is designed to protect the integrity of the administration of a bankruptcy case. 83 United States v. Sarihifard, 155 F.3d 301, 306 (4th Cir. 1998). 37 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 41 of 684 TITLE 18 transactions. Materiality does not require proof of the potential impact on the disposition of assets.84 The government does not have to prove that a loss was suffered as a result of a false statement made in the course of the bankruptcy proceeding.85 § 152(4) Presenting a False Claim P First, that a proceeding in bankruptcy existed on or about the date alleged in the indictment; P Second, that the defendant presented a proof of claim against the estate of a debtor; P Third, that the claim was false as to a material matter; and P Fourth, that the defendant knew the claim was false and acted knowingly and fraudulently.86 A proof of claim filed in a bankruptcy proceeding is a legal document submitted to the court by a creditor of the person or corporation who filed bankruptcy. In this document the creditor is required to notify the court, the debtor, and all other creditors that he is asserting some claim or right to payment from the estate of the debtor in bankruptcy. This claim or right to payment can be asserted by a creditor whether or not this right or claim is reduced to judgment, is liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured, or unsecured. In other words, the creditor can submit a claim whether or not he knows the exact amount, whether it is right, or even if the claim is in dispute, as long as he submits the claim in good faith. 017 7/2 7/2 d0 A proof of claim is false if it is untrue when it is made and is known to be untrue by the person making it. A proof of claim is false if the statements in it are intentionally inaccurate and submitted without any good faith basis for the claim and are not the result of some mistake or clerical error or inadvertent omission.87 e iew ,v 226 6-4 A statement is material if it has a natural tendency to influence, or is capable of influencing, the decision-making body to which it was addressed. It is irrelevant whether the false statement actually influenced or affected the decision-making process of the agency or fact finding body. A false statement’s capacity to influence must be measured at the point in time that the statement was made.88 o. 1 N AFFIRMATIVE DEFENSE Good faith is an absolute defense. A claim, even if false, made with a good faith belief in its accuracy, does not amount to presenting a false claim in violation of this statute. You 84 85 O’Connor, 158 F. Supp. 2d at 727. 86 United States v. Overmyer, 867 F.2d 937, 949 (6th Cir. 1989). 87 Id. at 950. 88 38 Gellene,182 F.3d at 588. United States v. Sarihifard, 155 F.3d 301, 307 (4th Cir. 1998). Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 42 of 684 TITLE 18 must consider whether the claim was intentionally false and made with fraudulent intent, or whether it was the result of an honest mistake or omission.89 § 152(8) Concealing or Making False Entries Concerning the Property of a Debtor P First, that the defendant concealed, destroyed, mutilated, falsified, or made a false entry in any recorded information relating to the property or financial affairs of a debtor; P Second, that the defendant did so after the filing of a case under Title 11 or in contemplation of filing; and P Third, that the defendant did so knowingly and fraudulently. ____________________NOTE____________________ Statutory definitions relevant to bankruptcy proceedings may be found in 11 U.S.C. § 101. 18 U.S.C. § 201 BRIBERY OF OFFICIALS and ILLEGAL GRATUITIES90 [LAST UPDATED : 8/15/2016] 017 7/2 Title 18, United States Code, Section 201 makes it a crime to give a bribe or an illegal gratuity to a public official, or for a public official to accept a bribe or illegal gratuity. For you to find the defendant guilty, the government must prove each of the following beyond a reasonable doubt: e iew ,v § 201(b)(1) [defendant gave the bribe] P P 7/2 d0 First, that the defendant, directly or indirectly, gave, offered, or promised anything of value to any public official [or offered or promised the public official to give anything of value to any other person or entity]; and 6 22did so corruptly with the intent to influence any official 4 Second, that the defendant 16a-public official to do or omit to do any act in violation of his act or to induce . No official duty [or to influence the public official to commit, aid, collude in or allow any fraud, or make an opportunity for the commission of any fraud on the United States].91 § 201(b)(2) [defendant received the bribe] P First, that the defendant was, at the time alleged in the indictment, a public official; 89 Overmyer, at 950-51. 90 This statute also covers persons selected to be public officials, witnesses, and jurors. Separate wording for these categories of individuals is not included. Additionally, § 201(c)(1) covers former public officials. 91 See United States v. Sun-Diamond Growers of Cal., 526 U.S. 398, 404 (1999) (noting elements of §§ 201(b)(1) and (b)(2)). 39 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 43 of 684 TITLE 18 P Second, that the defendant, directly or indirectly, demanded, sought, received, accepted, or agreed to receive or accept anything of value personally or for any other person or entity; and P Third, that the defendant did so corruptly in return for being influenced in the performance of any official act or being induced to do or omit to do any act in violation of the official’s duty [or being influenced to commit, aid, collude in or allow any fraud, or make an opportunity for the commission of any fraud on the United States].92 § 201(c)(1)(A) [defendant gave the gratuity]93 P First, that the defendant, directly or indirectly, gave, offered, or promised to any public official anything of value to which the public official was not lawfully entitled; and P Second, that the thing of value was for or because of any official act performed or to be performed by the public official. § 201(c)(1)(B) [defendant received the gratuity] P First, that the defendant was, at the time alleged in the indictment, a public official; P Second, that the defendant, directly or indirectly, demanded, sought, received, accepted, or agreed to receive or accept anything of value personally to which the defendant was not lawfully entitled; and 017 2 P Third, that the thing of value was for or because of any official act performed or 27/ to be performed by the defendant. 07/ d L The following instructions apply to illegal gratuities, § 201(c): wethe gratuity and a specific official act The government must establish a link ie between 6, v — some particular official act must be identified and proved. 22 An illegal gratuity can4 one of three forms: (1) for past action, that is, for an - take official act already performed; (2) to entice a public official who has already staked out . 16to the giver to maintain that position; or (3) to induce a public a position favorable No 94 95 official to propose, take, or shy away from some future act.96 92 See United States v. Quinn, 359 F.3d 666, 673 (4th Cir. 2003) (listing elements). 93 “[A]n illegal gratuity does not require an intent to influence or be influenced.” United States v. Jefferson, 674 F.3d 332, 358 (4th Cir. 2012). 94 18 U.S.C. § 201(c)(1)(B). See Sun-Diamond Growers, 526 U.S. at 404 (noting elements of § 201(c)(1)(B)). 95 96 Sun-Diamond Growers of Cal., 526 U.S. at 406, 414. See United States v. Sun-Diamond Growers of Cal., 526 U.S. 398, 405 (1999) (noting that an illegal gratuity “may constitute merely a reward for some future act that the public official will take (or may already have determined to take), or for a past act that he already has taken.”). 40 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 44 of 684 TITLE 18 The government does not have to prove the intent of the giver or the receiver of the illegal gratuity. What the government must prove is that the public official received something to which he was not lawfully entitled for performance of an official act.97 The government does not need to prove the existence of a quid pro quo in order to prove the payment or receipt of an illegal gratuity.98 Payments, sometimes referred to as goodwill gifts, made with no more than some generalized hope or expectation of ultimate benefit on the part of the donor are neither bribes nor gratuities, since they are made neither with the intent to engage in a relatively specific quid pro quo with an official nor for or because of a specific official act (or omission).99 Also, token gifts given to a public official based upon that official’s position and not linked to any identifiable act are not illegal gratuities.100 “Public official” means Member of Congress, Delegate, or Resident Commissioner, either before or after such official has qualified, or an officer or employee or person acting for or on behalf of the United States, or any department, agency or branch of Government thereof, including the District of Columbia, in any official function, under or by authority of any such department, agency, or branch of Government, or a juror. [§ 201(a)(1)] “To be a public official under section 201(a), an individual must possess some degree of official responsibility for carrying out a federal program or policy.”101 017 7/2 /2 7(4th Cir. 1998) (noting that for See United States v. Jennings, 160 F.3d 1006, 1013 0 conviction regarding an illegal gratuity, “[n]o corrupt intentd influence official behavior is required. to eof’ some official act.”). The payor simply must make the payment ‘for or ew because , vi Id. at 1013. 226 4 16Id. at 1020 n.5. . No States v. Jefferson, 674 F.3d 332, 353 (4th Cir. 2012). See United 97 98 99 100 101 Dixson v. United States, 465 U.S. 482, 499 (1984). See also id. at 496 (Section 201(a) is “applicable to all persons performing activities for or on behalf of the United States, whatever the form of delegation of authority.”); United States v. Jennings, 160 F.3d 1006, 1013 n.2 (4th Cir. 1998) (citing Dixson); United States v. Velazquez, 847 F.2d 140, 142 (4th Cir. 1988) (person bribed was a county deputy in a county jail who “supervised the federal prisoners as a federal jailer would.”). In Hurley v. United States, 192 F.2d 297 (4th Cir. 1951), the Fourth Circuit read § 201 to cover three categories of persons: (1) officers of the United States; (2) employees of the United States; and (3) persons acting for the United States in any official function. The phrase “in any official function,” therefore, modifies only the word “person” and not “officer or employee.” W hen the bribee is an officer of the United States, there is no necessity to show that he was acting in an official capacity .... W e hold, therefore, that since [the defendant] was an officer of the United States, it was not necessary to allege or prove that he was acting in an official function.*** It is sufficient if it be shown (continued...) 41 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 45 of 684 TITLE 18 To determine whether a person is acting for or on behalf of the United States, “the proper inquiry is not simply whether the person had signed a contract with the United States or agreed to serve as the Government’s agent, but rather whether the person occupies a position of public trust with official federal responsibilities.”102 A bribe under § 201(b) need not be given directly to the public official; it may be given indirectly to the public official. Additionally, the bribe can be an offer or promise given to the public official to give anything of value to or for “any other person or entity.” 18 U.S.C. §§ 201(b)(1), (b)(2). (Note that § 201(c) does not contain this “any other person or entity” language.) “Official act” means any decision or action on any question, matter, cause, suit, proceeding or controversy, which may at any time be pending, or which may by law be brought before any public official, in such official’s official capacity, or in such official’s place of trust or profit. [§ 201(a)(3)]103 The Government must show that the public official undertook an official act. To prove an “official act” the Government must prove two things.104 First, the Government must identify a question, matter, cause, suit, proceeding, or controversy that may at any time be pending or may by law be brought before a public official.105 This requires a showing of a formal exercise of governmental power that is similar in nature to a lawsuit before a court, a determination before an agency, or a hearing before a committee.106 It must also be something specific and focused that is pending or may by law be brought before a public official.107 017 7/2 7/2 d0 Second, the Government must prove that the public official made a decision or took an action on that question, matter, cause, suit, proceeding, or controversy, or that e iew ,v 101 o. 1 N 226 6-4 (...continued) that the bribee was an officer of the United States and that the bribe was given “with intent to influence him to commit or aid in committing *** any fraud, on the United States” or with intent “to induce him to do or omit to do any act in violation of his lawful duty.” 192 F.2d at 299-300. 102 Dixson, 465 U.S. at 496. 103 See United States v. Valdes, 475 F.3d 1319 (D.C. Cir. 2007) (en banc), which held that a police officer disclosing information from databases does not constitute an “official act.” The D.C. Circuit held that “the six-term series [“question, matter, cause, suit, proceeding or controversy”] [in § 201(a)(3)] refers to a class of questions or matters whose answer or disposition is determined by the government.” 475 F.3d at 1324. 104 McDonnell v. United States, 136 S. Ct. 2355, 2368 (2016). Id. 106 Id. at 2369, 2372. 107 Id. at 2372. 105 42 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 46 of 684 TITLE 18 he agreed to do so.108 That decision or action may include using his official position to exert pressure on another official to perform an official act, or to advise another official, knowing or intending that such advice will form the basis for an official act by another official. Setting up a meeting, talking to another official, or organizing an event or agreeing to do so—without more—does not count as a decision or action on that matter.109 The government does not have to prove that the official receiving the bribe took any affirmative action to perform his part of the corrupt bargain.110 The official act offered in exchange for the bribe need not “be harmful to the government or inconsistent with the official’s legal obligations. The critical question is whether the government official solicited something of value with a corrupt intent, i.e., in exchange for an official act.”111 “It is not a defense that the official act sought to be influenced would have been done anyway regardless of the fact that the bribe was received or accepted. That is to say, even if the defendant acted as he or she normally would if the bribe had not been requested, the crime of bribery has still been committed.”112 “[I]t is not necessary to find that the action or result sought by whoever hypothetically gives the bribe is something that was in fact within the power of the official in question. It would not be possible, on the other hand, for you to find a case of bribery [or illegal gratuity] if the action sought was so far outside the purview of the official’s duties or possible power or possible authority that it would be unreasonable for any reasonable man to have supposed the official could have done anything about that particular subject.”113 017 7/2 7/2 d0 The following instructions apply to bribery, § 201(b): e iew ,v A bribe requires that the payment be made or received corruptly, that is with the intent either to induce a specific act or be influenced in performance of a specific act.114 226 6-4 An act is done “corruptly” if is done with the intent to receive a specific benefit in return for the payment.115 o. 1 N “[F]or bribery there must be a quid pro quo -a specific intent to give or receive something of value in exchange for an official act.”116 Not every payment made to influence or reward an official is intended to corrupt him. A payor has the intent to corrupt an official only if he makes a payment or promise with the intent to engage in some fairly specific quid pro quo with that official. The defendant must 108 Id. at 2368. Id. at 2372, 2375. 110 Wilson v. United States, 230 F.2d 521, 526 (4th Cir. 1983) (prosecution under former § 202, a companion statute, which contained language quite similar to § 201). 111 United States v. Quinn, 359 F.3d 666, 675 (4th Cir. 2004) (internal citations omitted). 112 Id. 113 United States v. Carson, 464 F.2d 424, 431-32 (2d Cir. 1972). 114 United States v. Jennings, 160 F.3d 1006, 1021 (4th Cir. 1998) (prosecution under 18 U.S.C. § 666). 115 Id. at 1013. 116 United States v. Sun-Diamond Growers of Cal., 526 U.S. 398, 404-05 (1999). 109 43 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 47 of 684 TITLE 18 have intended for the official to engage in some specific act or omission or course of action or inaction in return for the payment charged in the indictment.117 To prove bribery, “the government is not required to prove an expressed intention (or agreement) to engage in a quid pro quo. Such an intent may be established by circumstantial evidence.” 118 Also, the government need not show that the defendant intended for his payments to be tied to specific official acts (or omissions). But the government must show that the payor intended for each payment to induce the official to adopt a specific course of action. “Bribery requires the intent to effect an exchange of money (or gifts) for specific official action (or inaction), but each payment need not be correlated with a specific official act.”119 It is not necessary for the government to prove “that the payor intended to induce the official to perform a set number of official acts in return for the payments. The quid pro quo requirement is satisfied so long as the evidence shows a course of conduct of favors and gifts flowing to a public official in exchange for a pattern of official actions favorable to the donor.”120 Therefore, the government only has to show that payments were made with the intent of obtaining a specific type of official action or favor in return.121 The quid pro quo requirement is satisfied if you find that the government has established beyond a reasonable doubt that the defendant agreed to accept things of value in exchange for performing [or declining to perform] official acts on an as-needed basis, so that whenever the opportunity presents itself, the defendant would take [or fail to take] specific action on the payor’s behalf.122 017 7/2 7/2 d0 ____________________NOTE____________________ e iew ,v Section 201 prohibits two types of payments to federal officials: bribes and illegal gratuities. Bribes are corruptly given with intent to influence any official act. Illegal gratuities are given for or because of any official act. “Whether a payment is a bribe or an illegal gratuity depends on the intent of the payor.” United States v. Jennings, 160 F.3d 1006, 1013 (4th Cir. 1998). Corrupt intent is the intent to receive a specific benefit in return for the payment. The payor of a bribe must intend to engage in some more or less specific quid pro quo with the official who receives the payment. “Accordingly, a goodwill gift to an official to foster a favorable business climate, given simply with the generalized hope or expectation of ultimate benefit on the part of the donor does not constitute a bribe.” Id. (quotation marks and citation omitted). “Vague expectations of some future benefit should not be sufficient to make a payment a bribe.” United States v. Allen, 10 F.3d 405, 411 (7th Cir. 1993). o. 1 N 117 226 6-4 Jennings, 160 F.3d at 1018-19. In Jennings, the defendant was the payor. If the defendant is the public official/bribee, the wording should be changed appropriately. 118 Id. at 1014. 119 United States v. Jennings, 160 F.3d 1006, 1014 (4th Cir. 1998) (quotation and citation omitted). 120 Id. 121 Id. 122 See United States v. Jefferson, 674 F.3d 332, 358 (4th Cir. 2012). 44 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 48 of 684 TITLE 18 On the other hand, an illegal gratuity “is a payment made to an official concerning a specific official act (or omission) that the payor expected to occur in any event. No corrupt intent to influence official behavior is required. The payor simply must make the payment or gift for or because of some official act.” Jennings, 160 F.3d at 1013 (quotations marks and citation omitted). “The gratuity and the [relevant] official act need not motivate each other.” United States v. Sun-Diamond Growers of Cal., 138 F.3d 961, 966 (D.C. Cir. 1998), cert. granted in part, aff’d, 526 U.S. 398 (1999). The timing of the payment in relation to the official act for which it is made is irrelevant. Jennings, 160 F.3d at 1014. In Sun-Diamond Growers, the Supreme Court affirmed the reversal of a conviction for giving a gratuity to the Secretary of Agriculture because the government did not prove a link between the gift and a specific official act for or because of which it was given. The distinguishing feature of each crime [in § 201] is its intent element. Bribery requires intent “to influence” an official act or “to be influenced” in an official act, while illegal gratuity requires only that the gratuity be given or accepted “for or because of” an official act. In other words, for bribery there must be a quid pro quo–a specific intent to give or receive something of value in exchange for an official act. An illegal gratuity, on the other hand, may constitute merely a reward for some future act that the public official will take (and may already have determined to take), or for a past act that he has already taken. 17 0scheme and are 2 Bribery and illegal gratuities are subsections of the same statutory 27/ therefore subject to the same definitions. United States v. Jefferson, 674 F.3d 332, 353 (4th 07/ Cir. 2012). d Payment of an illegal gratuity is a lesser included offense of bribery. United States v. we e Muldoon, 931 F.2d 282, 287 (4th Cir. 1991). , vi “[F]ederal bribery statutes have been construed to cover any situation in which the 226 employee would be influential, irrespective of advice or recommendation -4 government 16 of a the employee’s specific authority (or lack of same) to make a binding decision.” United . States v. Carson,o F.2d 424, 433 (2d Cir. 1972). N 464 United States v. Sun-Diamond Growers of Cal., 526 U.S. 398, 404-05 (1999). In United States v. Hare, 618 F.2d 1085, 1087 (4th Cir. 1980), the court held that a loan with favorable interest and payment provisions constituted “anything of value.” However, the statute of limitations started running with the making of the loan, not the making of payments subject to the favorable interest rate or the missing of payments without suffering late payment penalties. 18 U.S.C. § 208 CONFLICT OF INTEREST [LAST UPDATED : 7/3/14] Title 18, United States Code, Section 208 makes it a crime for a federal employee to benefit personally from an official action. For you to find the defendant guilty, the government must prove each of the following beyond a reasonable doubt: P First, that the defendant was an officer or employee of the executive branch or of an independent agency of the federal government; 45 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 49 of 684 TITLE 18 P Second, that the defendant participated personally and substantially in his official, governmental capacity through decision, approval, disapproval, recommendation, the rendering of advice, investigation, or otherwise; P Third, that the defendant did so in a judicial or other proceeding, application, request for a ruling or other determination, contract, claim, controversy, charge, accusation, arrest, or other particular matter; P Fourth, that the defendant knew that he, his spouse, or [other statutorily-listed person or entity] had a financial interest in that particular matter; and P Fifth, that the defendant did so willfully.123 The government does not have to prove actual corruption, or that an actual loss was suffered by the government.124 Negotiation is a communication between two parties with a view to reaching an agreement. Negotiation connotes discussion and active interest on both sides. Preliminary or exploratory talks do not constitute negotiation. Rather, to find a negotiation, you must find that there was a process of submission and consideration of offers.125 ____________________NOTE____________________ 017 912 2 Section 208 establishes an objective standard of conduct. United States v. Hedges, 27/ F.2d 1397, 1402 (11th Cir. 1990). 07/ offense statute, requiring The Eleventh Circuit held that § 208 is a strict liability ed knowledge only as to the fourth element, thatwstatutorily-listed person had a financial a e interest in the defendant’s official work. v at 1402. , Id.i 226 Under the sentencing scheme in § 216(a), a felony conviction requires willfulness. 4 Otherwise, the conduct is punishable as a misdemeanor. 16. “[L]iability o conflict of interest may be founded on a variety of acts leading up to N for the formation of a contract even if those acts are not specifically mentioned in the text of See United States v. Lund, 853 F.2d 242 (4th Cir. 1988). section 208(a).” United States v. Selby, 557 F.3d 968, 972-73 (9th Cir. 2009). Section 208(b) sets forth a number of exceptions, which might be construed as affirmative defenses. See United States v. Guilbert, 692 F.2d 1340, 1343 (11th Cir. 1982) (the existence of “just cause or excuse” for an assault in violation of 18 U.S.C. § 113(a)(3) is an affirmative defense, and the government does not have the burden of pleading or proving its absence). 123 United States v. Nevers, 7 F.3d 59, 62 (5th Cir. 1993). United States v. Hedges, 912 F.2d 1397, 1402 (11th Cir. 1990) (citing United States v. Miss. Valley Generating Co., 364 U.S. 520 (1961)) (predecessor statute). 125 Id. at 1403 n.2 (quoting instruction given by district court). 124 46 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 50 of 684 TITLE 18 18 U.S.C. § 211 ACCEPTING OR ASKING FOR ANYTHING OF VALUE TO OBTAIN APPOINTIVE PUBLIC OFFICE Title 18, United States Code, Section 211 makes it a crime to ask for or receive any thing of value in return for supporting any person for any appointive office under the United States. For you to find the defendant guilty, the government must prove each of the following beyond a reasonable doubt: ¶1 P First, that the defendant asked for or received any money or thing of value; and P Second, that the thing of value was in return for the promise of support or the use of influence in obtaining for any person any appointive office or place under the United States. ¶2 P First, that the defendant asked for or received any thing of value; and P Second, that the thing of value was asked for or received in return for helping a person to obtain employment under the United States either by referring his name to an executive department or agency of the United States, or by requiring the payment of a fee because the person obtained employment. 7 01corruption. It 2 The statute covers the sale of non-existent offices. “This Act7/ penalized 2 than to sell one he can.” is no less corrupt to sell an office one may never be able to deliver 07/ United States v. Hood, 343 U.S. 148, 151 (1952). d e iew 18 U.S.C. § 215 RECEIVING GIFTS FOR PROCURING LOANS 6, v 215 makes it a crime to receive a gift for 2 Title 18, United States Code, Section -42 procuring a loan from a financial institution. For you to find the defendant guilty, the government must prove each of the following beyond a reasonable doubt: . 16 No ____________________NOTE____________________ § 215(a)(1) P First, that the defendant gave, offered, or promised anything which exceeded $1,000.00 in value to any person; P Second, that the thing was given in connection with any business or transaction of a financial institution; and P Third, that the defendant did so corruptly and with intent to influence or reward an officer, director, employee, agent, or attorney of the financial institution. § 215(a)(2) P First, that the defendant was an officer, director, employee, agent, or attorney of a financial institution; P Second, that the defendant asked for or demanded for the benefit of any person, or accepted or agreed to accept, anything which exceeded $1,000.00 in value; and P Third, that the defendant did so corruptly and intending to be influenced or rewarded in connection with any business or transaction of the financial institution. 47 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 51 of 684 TITLE 18 An act is done “corruptly” if is done with the intent to receive a specific benefit in return for the payment.126 “Financial institution” means (1) an insured depository institution (as defined in section 3(c)(2) of the Federal Deposit Insurance Act); (2) a credit union with accounts insured by the National Credit Union Share Insurance Fund; (3) a Federal home loan bank or a member, as defined in section 2 of the Federal Home Loan Bank Act (12 U.S.C. 1422), of the Federal home loan bank system; (4) a System institution of the Farm Credit System, as defined in section 5.35(3) of the Farm Credit Act of 1971; (5) a small business investment company, as defined in section 103 of the Small Business Investment Act of 1958 (15 U.S.C. 662); (6) a depository institution holding company (as defined in section 3(w)(1) of the Federal Deposit Insurance Act); (7) a Federal Reserve bank or a member bank of the Federal Reserve System. 017 2 (9) a branch or agency of a foreign bank (as such terms are defined in paragraphs (1) 27/ and (3) of section 1(b) of the International Banking Act of 1978); or / 0727 of this title) or any person (10) a mortgage lending business (as defined in d e section or entity that makes in whole or in part a federally related mortgage loan as defined in w section 3 of the Real Estate Settlement,Procedures Act of 1974. [18 U.S.C. § 20] vie 226 4 16____________________NOTE____________________ . No (8) an organization operating under section 25 or section 25(a) of the Federal Reserve Act; See United States v. Etheridge, 414 F. Supp. 609, 611 (E.D. Va. 1976) (“It is of no consequence that the money was not paid until after the loan had been made, or that [the] borrower did not know the bank officer was sharing in the fee.”). 18 U.S.C. § 228 FAILURE TO PAY CHILD SUPPORT [LAST UPDATED : 7/3/14] Title 18, United States Code, Section 228 makes it a crime to fail to pay a past due child support obligation, or to travel in interstate commerce with intent to evade a support obligation. For you to find the defendant guilty, the government must prove each of the following beyond a reasonable doubt: § 228(a)(1)127 P First, that the defendant failed to pay; P Second, a past due support obligation, which is defined as “any amount ... determined under a court order or an order of an administrative process pursuant to the law of a state to be due from a person for the support and maintenance of a child or of a child and the parent with whom the child is living.” The past due 126 United States v. Jennings, 160 F.3d 1006, 1013 (4th Cir. 1998) (18 U.S.C. § 666 prosecution). 127 A second conviction is a felony. 18 U.S.C. § 228(c). 48 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 52 of 684 TITLE 18 support obligation must have remained unpaid for more than one year or be greater than $5,000.00; P Third, with respect to a child who resides in another state; and P Fourth, that the defendant did so willfully.128 P [Fifth, that the defendant has a prior conviction for the same offense.]129 § 228(a)(2) P First, that the defendant traveled in interstate or foreign commerce; P Second, that the defendant owed a past due support obligation, which is defined as “any amount ... determined under a court order or an order of an administrative process pursuant to the law of a state to be due from a person for the support and maintenance of a child or of a child and the parent with whom the child is living.” The past due support obligation must have remained unpaid for more than one year or be greater than $5,000.00; and P Third, that the defendant traveled with the intent to evade the support obligation. § 228(a)(3) P First, that the defendant failed to pay; P Second, a past due support obligation, which is defined as “any amount ... determined under a court order or an order of an administrative process pursuant to the law of a state to be due from a person for the support and maintenance of a child or of a child and the parent with whom the child is living.” The past due support obligation must have remained unpaid for more than two years or be greater than $10,000.00; 017 7/2 7/2 d0 e ew iresides in another state; and P Third, with respect to a child , v 6 whowillfully. 2 P Fourth, that the defendant did so -42 the past due support obligation is unpaid for more L If a disputed issue is whether . 16years, or is greater than $5,000 or $10,000, the court should than one year or two o consider N giving a lesser included offense instruction. Willfulness is defined as the voluntary, intentional violation of a known legal duty.130 “Interstate commerce” includes commerce between one State, Territory, Possession, or the District of Columbia and another State, Territory, Possession, or the District of Columbia. [18 U.S.C. § 10] “Foreign commerce” includes commerce with a foreign country. [18 U.S.C. § 10] “Reside” means the act or fact of living in a given place permanently or for an extended period of time.131 128 United States v. Johnson, 114 F.3d 476, 482 (4th Cir. 1997). Prior convictions used as a basis for a sentencing enhancement need not be pled in the indictment or submitted to the jury for proof beyond a reasonable doubt. United States v. Cheek, 415 F.3d 349 (4th Cir. 2005). 130 See Cheek v. United States, 498 U.S. 192, 201 (1991). See also United States v. Fields, 500 F.3d 1327, 1332 (11th Cir. 2007) (finding that to prove willfulness, the government must prove that the defendant knew his child resided in another state and that he refused to pay.). 131 United States v. Novak, 607 F.3d 968 (4th Cir. 2010). 129 49 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 53 of 684 TITLE 18 The government must prove the existence of a state judicial or administrative order creating the support obligation. The government does not need to prove the facts which were the basis for the support order, including the fact of parentage.132 ____________________NOTE____________________ In United States v. Mattice, 186 F.3d 219 (2d Cir. 1999), the defendant argued that to establish willfulness, the government had to prove that he had sufficient disposable income to pay his entire past due support obligation during the period charged in the indictment. Writing for the court, then-Circuit Judge Sotomayor disagreed. “Congress’s choice of ‘any amount,’ rather than ‘the amount,’ is significant. This language suggests that Congress intended to make partial failures to pay actionable ..., and that defendants who can pay some of their past due support obligations but fail to do so can be held liable.” 186 F.3d at 227. The Second Circuit nevertheless found that “if a defendant is unable to pay even some of his past due child support obligations, his failure to pay cannot be either voluntary or intentional and thus cannot be willful ....” Id. at 228. As a defense to the charge, the court found that a “defendant is free to present evidence that during the period charged in the indictment, his income was not sufficient, after meeting his basic subsistence needs, to enable him to pay any portion of the support obligation.” Id. at 229. In United States v. Ballek, 170 F.3d 871 (9th Cir. 1999), the court found that willfully “can be read one of two ways: having the money and refusing to use it for child support; or, not having the money because one has failed to avail oneself of the available means of obtaining it.” Id. at 873. 017 7/2 7/2 d0 In United States v. Johnson, 114 F.3d 476, 483 (4th Cir. 1997), the defendant relied on United States v. Mendoza-Lopez, 481 U.S. 828 (1987), to relitigate the parentage issue. The Fourth Circuit assumed the principle applied, but found that Johnson could not meet the critical requirement that he had no means within the state court system to challenge the support order. e iew ,v 226 -4 Section 228(b) states “[t]he existence of a support obligation that was in effect for the 16indictment or information creates a rebuttable presumption that . time period charged in the No the obligor has the ability to pay the support obligation for that time period.” One court has held this provision unconstitutional, but severable from the rest of the statute. United States v. Grigsby, 85 F. Supp. 2d 100 (D.R.I. 2000). In United States v. Kerley, 544 F.3d 172 (2d Cir. 2008), the defendant was charged in a two-count indictment, because there were two children, although only one order. The Second Circuit found that Congress failed to specify that the unit of prosecution was the child involved, and therefore, applying the rule of lenity in favor of the defendant, the court ruled the indictment multiplicitous. In United States v. Novak, 607 F.3d 968 (4th Cir. 2010), the Fourth Circuit pointed out that § 228 contains a specific venue provision, which provides that the prosecution may be brought in the district in which the obliger resided. 18 U.S.C. § 229 CHEMICAL WEAPONS [LAST UPDATED : 12/10/14] Title 18, United States Code, Section 229 makes it a crime to develop, produce, otherwise acquire, transfer directly or indirectly, receive, stockpile, retain, own, possess, use, or threaten to use, any chemical weapon. For you to find the defendant guilty, the government must prove each of the following beyond a reasonable doubt: 132 50 Johnson, 114 F.3d at 482. Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 54 of 684 TITLE 18 § 229(a)(1) P First, that the defendant developed, produced, otherwise acquired, transferred directly or indirectly, received, stockpiled, retained, owned, possessed, used, or threatened to use; chemical weapon; and P Second, that the defendant did so knowingly.133 § 229(a)(2) P First, that the defendant [assisted or induced, in any way, any person] or [attempted] or [conspired] P Second, that the defendant [assisted or induced, in any way, any person] or [attempted] or [conspired] to develop, produce, otherwise acquire, transfer directly or indirectly, receive, stockpile, retain, own, possess, use, or threaten to use, any chemical weapon; and P That the defendant did so knowingly. AGGRAVATED PENALTY [§ 229A(a)(2)] 1. Did the defendant’s conduct result in the death of another person? “Chemical weapon” means the following, together or separately: 017 7/2 (a) a toxic chemical and its precursors, except where intended for a purpose not prohibited under Chapter 11B as long as the type and quantity is consistent with such a purpose; 7/2 d0 (b) a munition or device, specifically designed to cause death or other harm through toxic properties of those toxic chemicals specified in (a) above, which would be released as a result of the employment of such munition or device; e iew for use directly in connection with the (c) any equipment specifically designed 6, v in (b) above. [§ 229F(1)] employment of munitions or devices specified 22 -4chemical reactant which takes part at any stage in the “Precursor” means6 any . 1method of a toxic chemical. The term includes any key component production by whatever o of a binary orN multicomponent chemical system. [§ 229F(6)(A)] “Key component of a binary or multicomponent chemical system” means the precursor which plays the most important role in determining the toxic properties of the final product and reacts rapidly with other chemicals in the binary or multicomponent system. [§ 229F(3)] “Person” means “means any individual, corporation, partnership, firm, association, trust, estate, public or private institution, any State or any political subdivision thereof, or any political entity within a State, any foreign government or nation or any agency, instrumentality or political subdivision of any such government or nation, or other entity located in the United States.” [§229F(5)] ____________________NOTE____________________ Section 229(b) identifies certain exemptions. Section 229(c) provides the bases for jurisdiction. Section 229C excludes individual self-defense devices, including those using pepper spray or chemical mace. 133 United States v. Johnson, 114 F.3d 476, 482 (4th Cir. 1997). 51 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 55 of 684 TITLE 18 The Supreme Court has determined that § 229 does not “reach a purely local crime [of] an amateur attempt by a jilted wife to injury her husband’s lover, which ended up causing only a minor thumb burn readily treated by rinsing with water.” United States v. Bond, 572 U.S. __, 134 S. Ct. 2077, 2083 (2014). 18 U.S.C. § 241 CONSPIRING AGAINST CIVIL RIGHTS Title 18, United States Code, Section 241 makes it a crime to conspire with someone else to injure or intimidate another person in the exercise of his civil rights. A conspiracy is an agreement between two or more persons to join together to accomplish the unlawful purpose. It is a kind of partnership in crime in which each member becomes the agent of every other member. For you to find the defendant guilty, the government must prove each of the following beyond a reasonable doubt: P First, that two or more persons agreed to injure, oppress, threaten, or intimidate any person; P Second, in that person’s free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having exercised his right or privilege [the right or privilege should be identified and explained to the jury]; and P Third, that the defendant knew of the agreement and willfully participated in the agreement. 017 7/2 7/2 this law, or did the act 1. Did death result from the act committed in d 0 e violation of include kidnapping or an attempt to kidnap, aggravated sexual abuse, or an attempt to ew commit aggravated sexual abuse, orvi attempt to kill? an 26, ____________________NOTE____________________ -42 6for 18 U.S.C. § 371. See jury instructions o. 1v. Falcone, 311 U.S. 205, 210 (1940); United States v. Hedgepeth, N See United States AGGRAVATED PENALTY 418 F.3d 411, 420 (4th Cir. 2005); United States v. Tucker, 376 F.3d 236, 238 (4th Cir. 2004). “The right to choose is the right of qualified voters to cast their ballots and have them counted at Congressional elections. [T]his is a right secured by the Constitution [and] is secured against the action of individuals as well as of states.” United States v. Classic, 313 U.S. 299, 315 (1941). See id. at 320 (“[A] primary election which involves a necessary step in the choice of candidates for election as representatives in Congress, and which in the circumstances of this case controls that choice, is an election within the meaning of the constitutional provision ....”). Section 241 “embraces a conspiracy to stuff the ballot box at an election for federal officers, and thereby to dilute the value of votes of qualified voters.” Anderson v. United States, 417 U.S. 211, 226 (1974). The government does not have to prove an intent to change the outcome of the federal election. The intent required is the intent “to have false votes cast and thereby to injure the right of all voters in a federal election to express their choice of a candidate and to have their expressions of choice given full value and effect, without being diluted or distorted by the casting of fraudulent ballots.” Id. However, the Court found the case was an inappropriate vehicle to decide whether a conspiracy to cast false votes for candidates for state or local office was unlawful under § 241. Id. at 228. 52 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 56 of 684 TITLE 18 In United States v. Olinger, 759 F.2d 1293 (7th Cir. 1985), the Seventh Circuit held that § 241 covered the right of suffrage in state or local elections, under the equal protection clause of the Fourteenth Amendment, if there is involvement of the state or of one acting under the color of its authority. “‘Under color’ of law has been construed as identical with and as representing state action. It may be represented by action taken directly under a state statute or by a state official acting ‘under color’ of his office.” 759 F.2d at 1304. “Misuses of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law, is action taken ‘under color of’ state law.” Classic, 313 U.S. at 326. The government is permitted to present evidence of acts committed in furtherance of the conspiracy even though they are not specified in the indictment. United States v. Janati, 374 F.3d 263, 270 (4th Cir. 2004). In United States v. Cobb, 905 F.2d 784 (4th Cir. 1990), a § 242 prosecution, the defendant was a law enforcement officer, and the victim was a pretrial detainee subjected to excessive force. The district court instructed the jury concerning the element of deprivation of a right, as follows: In considering whether or not a defendant deprived [the victim] of his constitutional right not to be subjected to unreasonable and excessive force, you should determine whether the force used by that defendant was necessary in the first place or was greater than the force that would appear reasonably necessary to an ordinary, reasonable, and prudent person. 017 7/2 7/2 d0 A law enforcement officer is justified in the use of any force which he reasonably believes to be necessary to effect an arrest or hold someone in custody and of any force which he reasonably believes to be necessary to defend himself or another from bodily harm. e iew ,v 226 6-4 Provocation by mere insulting or threatening words will not excuse a physical assault by a law enforcement officer. Mere words, without more, do not constitute provocation or aggression on the part of the person saying those words. No law enforcement officer is entitled to use force against someone based on that person’s verbal statements alone. o. 1 N In determining whether the force used in this case was excessive or unwarranted, you should consider such factors as the need for the application of force, the relationship between the need and the amount of force that was used, the extent of injury inflicted, and whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm. 905 F.2d at 787-88. Regarding the element of willfulness, the district court instructed as follows: [The government] must show that a defendant had the specific intent to deprive [the victim] of his right not to be subjected to unreasonable and excessive force. If you find that a defendant knew what he was doing and that he intended to do what he was doing, and if you find that he did violate a constitutional right, then you may conclude that the defendant acted with the specific intent to deprive the victim of that constitutional right. Id. at 788. In Cobb, the victim’s constitutional right was a Fourteenth Amendment right to be free from the use of excessive force that amounted to punishment. Id. at 788. Therefore, it would have 53 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 57 of 684 TITLE 18 been appropriate for the trial court to have instructed the jury that to have been excessive, the use of force must have been intended as punishment. Although the instruction was far from perfect, it fairly stated the controlling law. Other protected rights include the following: P The right to vote. United States v. Classic, 313 U.S. 299, 323 (1941). Voter bribery and honest elections fall under 42 U.S.C. § 1973i. United States v. McLean, 808 F.2d 1044, 1046 (4th Cir. 1987). P The right to report a crime. In re Quarles, 158 U.S. 532, 535 (1895). P The right to testify at trial. United States v. Thevis, 665 F.2d 616, 626-27 (5th Cir. Unit B 1982), superseded on other grounds by rule, Fed. R. Evid. 804(b)(6). P The right not to be subject to cruel and unusual punishment. United States v. LaVallee, 439 F.3d 670, 686 (10th Cir. 2006). P The right not to be deprived of liberty without due process of law. This right includes the right to be kept free from harm while in official custody. “No person may ever be physically assaulted, intimidated, or otherwise abused intentionally and without justification by a person acting under the color of the laws of any state.” United States v. Bigham, 812 F.2d 943, 949 (5th Cir. 1987). P The right to enjoy public accommodations. 42 U.S.C. § 2000a. The presence of electronic video games turns a convenience store into a supplier of entertainment and therefore a place of public accommodation. United States v. Baird, 85 F.3d 450, 454 (9th Cir. 1996). In United States v. Piche, 981 F.2d 706 (4th Cir. 1992), superseded on other grounds by statute, 18 U.S.C. § 3664, the defendant was prosecuted for interfering with Asian-American men because they were enjoying the goods and services of a public facility. The district court charged the jury that “[a] place of public accommodation is any establishment that is used by members of the general public for entertainment, that is, recreation, fun, or pleasure, and in which the sources of entertainment move in interstate commerce.” 981 F.2d at 716. 017 7/2 7/2 d0 e iew ,v o. 1 N 226 6-4 A pretrial detainee has a Fourteenth Amendment right to be from the use of excessive force, an arrestee has a Fourth Amendment right to be free from unreasonable seizures, and a convict has an Eighth Amendment right to be free from cruel and unusual punishment. United States v. Cobb, 905 F.2d 784, 788 and 788 n.7 (4th Cir. 1990). 18 U.S.C. § 242 CIVIL RIGHTS – COLOR OF LAW Title 18, United States Code, Section 242 makes it a crime to deprive any person of his civil rights under color of law. For you to find the defendant guilty, the government must prove each of the following beyond a reasonable doubt: P First, that [name of victim] was present in South Carolina; P Second, that the defendant deprived [name of victim] of a right secured or protected by the Constitution or laws of the United States [the right infringed must be identified], or to different punishments, pains, or penalties on account of such person being an alien, or by reason of his color or race; P Third, that the defendant acted under color of law; and P Fourth, that the defendant acted willfully.134 134 54 See United States v. Perkins, 470 F.3d 150, 153 n.3 (4th Cir. 2006); United States v. (continued...) Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 58 of 684 TITLE 18 AGGRAVATED PENALTIES 1. Did bodily injury result from the act committed in violation of this law, or did the act include the use, attempted use, or threatened use of a dangerous weapon, explosives, or fire? 2. Did death result from the act committed in violation of this law, or did the act include kidnapping or an attempt to kidnap, aggravated sexual abuse, or an attempt to commit aggravated sexual abuse, or an attempt to kill? “Under color of law” means the real or purported use of authority provided by law. A person acts “under color of law” when that person acts in his or her official capacity or claims to act in his or her official capacity. Acts committed “under color of law” include not only the actions of officials within the limits of their lawful authority, but also the actions of officials who exceed the limits of their lawful authority while purporting or claiming to act in performance of their official duties.135 “Bodily injury” means a cut, abrasion, bruise, burn, or disfigurement; physical pain; illness; impairment of the function of a bodily member, organ, or mental faculty; or any other injury to the body, no matter how temporary.136 Physical abuse or violence is not necessarily required to prove a violation of this statute.137 017was a law In United States v. Cobb, 905 F.2d 784 (4th Cir. 1990), the /2 defendant enforcement officer, and the victim was a pretrial detainee subjected to excessive force. The /27 7 district court instructed the jury concerning the element of0 deprivation of a right, as follows: d we In considering whether or not a defendant deprived [the victim] of his e constitutional right not to be subjected to unreasonable and excessive force, you , vi by that defendant was necessary in the 6 should determine whether the force used 22the force that would appear reasonably necessary 4 first place or was greater than 16- and prudent person. to an ordinary, reasonable, . No A law enforcement officer is justified in the use of any force which he reasonably ____________________NOTE____________________ believes to be necessary to effect an arrest or hold someone in custody and of any force which he reasonably believes to be necessary to defend himself or another from bodily harm. Provocation by mere insulting or threatening words will not excuse a physical assault by a law enforcement officer. Mere words, without more, do not constitute provocation or aggression on the part of the person saying those words. No law 134 (...continued) Cobb, 905 F.2d 784, 789 (4th Cir. 1990). 135 O’Malley, Grenig & Lee, Federal Jury Practice and Instructions § 29.04 (5th ed. 2000). See United States v. Ramey, 336 F.2d 512, 515-16 (4th Cir. 1964) (“under color of law” means under pretense of law, and includes misuse of power possessed by virtue of state law and made possible only because the wrongdoer is clothed with authority of state law); Screws v. United States, 325 U.S. 91, 111 (1945) (acts of officers who undertake to perform their official duties are included whether they hew to the line of their authority or overstep it). 136 18 U.S.C. §§ 831(f)(5), 1365(g)(4), 1515(a)(5), and 1864(d)(2). See also Perkins, 470 at 161 (“physical pain alone or any injury to the body, no matter how fleeting, suffices” to establish bodily injury). 137 United States v. Ramey, 336 F.2d 512, 514 (4th Cir. 1964). 55 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 59 of 684 TITLE 18 enforcement officer is entitled to use force against someone based on that person’s verbal statements alone. In determining whether the force used in this case was excessive or unwarranted, you should consider such factors as the need for the application of force, the relationship between the need and the amount of force that was used, the extent of injury inflicted, and whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm. 905 F.2d at 787-88. Regarding the element of willfulness, the district court instructed as follows: [The government] must show that a defendant had the specific intent to deprive [the victim] of his right not to be subjected to unreasonable and excessive force. If you find that a defendant knew what he was doing and that he intended to do what he was doing, and if you find that he did violate a constitutional right, then you may conclude that the defendant acted with the specific intent to deprive the victim of that constitutional right. Id. at 788. 017 7/2 In Cobb, the victim’s constitutional right was a Fourteenth Amendment right to be free from the use of excessive force that amounted to punishment. Id. at 788. Therefore, it would have been appropriate for the trial court to have instructed the jury that to have been excessive, the use of force must have been intended as punishment. Although the instruction was far from perfect, it fairly stated the controlling law. e iew 313 U.S. 299, 323 (1941). Voter bribery The right to vote. United States v. Classic, ,v and honest elections fall26 42 U.S.C. § 1973i. United States v. McLean, 808 under F.2d 1044, 1046 (4th 2 1987). 4Cir. 16-a crime. In re Quarles, 158 U.S. 532, 535 (1895). The right to report . Noto testify at trial. United States v. Thevis, 665 F.2d 616, 626-27 (5th Cir. The right Other protected rights include the following: P P P 7/2 d0 Unit B 1982), superseded on other grounds by rule, Fed. R. Evid. 804(b)(6). P P The right not to be deprived of liberty without due process of law. This right includes the right to be kept free from harm while in official custody. “No person may ever be physically assaulted, intimidated, or otherwise abused intentionally and without justification by a person acting under the color of the laws of any state.” United States v. Bigham, 812 F.2d 943, 949 (5th Cir. 1987). P 56 The right not to be subject to cruel and unusual punishment. United States v. LaVallee, 439 F.3d 670, 686 (10th Cir. 2006). The right to enjoy public accommodations. 42 U.S.C. § 2000a. The presence of electronic video games turns a convenience store into a supplier of entertainment and therefore a place of public accommodation. United States v. Baird, 85 F.3d 450, 454 (9th Cir. 1996). In United States v. Piche, 981 F.2d 706 (4th Cir. 1992), superseded on other grounds by statute, 18 U.S.C. § 3664, the defendant was prosecuted for interfering with Asian-American men because they were enjoying the goods and services of a public facility. The district court charged the jury that “[a] place of public accommodation is any establishment that is used by members of the general public for entertainment, that is, recreation, fun, or pleasure, and in which the sources of entertainment move in interstate commerce.” 981 F.2d at 716. Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 60 of 684 TITLE 18 A pretrial detainee has a Fourteenth Amendment right to be from the use of excessive force, an arrestee has a Fourth Amendment right to be free from unreasonable seizures, and a convict has an Eighth Amendment right to be free from cruel and unusual punishment. United States v. Cobb, 905 F.2d 784, 788 and 788 n.7 (4th Cir. 1990). 18 U.S.C. § 287 FALSE, FICTITIOUS OR FRAUDULENT CLAIMS[L A S T UPDATED : 7/3/14] Title 18, United States Code, Section 287 makes it a crime to present a false claim for money to an agency of the United States. For you to find the defendant guilty, the government must prove each of the following beyond a reasonable doubt: P First, that the defendant made or presented a false, fictitious, or fraudulent claim to an agency of the United States; P Second, that the defendant knew at the time that the claim was false, fictitious, or fraudulent;138 and P [Third, that the claim was material.]139 The word “claim” relates solely to the payment or approval of a claim for money or property to which a right is asserted against the government, based upon the government’s own liability to the claimant.140 017 is capable 2 A statement (or claim) is material if it has a natural tendency to influence, or 27It/is irrelevant whether of influencing, the decision of the body to which it was addressed. 07/ the false statement (or claim) actually influenced or affected the decision-making process. d The capacity to influence must be measured at the point in time that the statement (or claim) we e was made. , vi this section that the government received its It is no defense to a prosecution under 226 4 money’s worth. 16. No 141 142 138 A defendant must also proceed “with a consciousness that he was doing something which was wrong or which violated the law.” United States v. Maher, 582 F.2d 842, 847 (4th Cir. 1978). 139 In United States v. Greenberg, No. 87-5089, 1988 WL 21229 at *4 n.2 (4th Cir. Mar. 8, 1988), the court indicated that “[w]e do not here decide whether materiality is an element of § 287 and note that some courts have recently concluded that it is not.” The Second, Fifth, Sixth, Ninth and Tenth Circuits have all concluded materiality is not an element. However, in United States v. Snider, 502 F.2d 645 (4th Cir. 1974), the court reversed the conviction of a Quaker tax protester for violating 26 U.S.C. § 7205. In dicta, the court stated that materiality has been required as an element of § 287 in the same manner as under § 1001 and cited Johnson v. United States, 410 F.2d 38, 46 (8th Cir. 1969), where the Eighth Circuit approved an instruction that included materiality. Snider, 502 F.2d at 652 n.12. But see United States v. Kellogg Brown & Root, Inc., 525 F.3d 370, 378 (4th Cir. 2008) (materiality an element under the civil False Claims Act, 31 U.S.C. §§ 3729 et seq.). 140 United States v. Duncan, 816 F.2d 153, 155 (4th Cir. 1987) (citing United States v. Cohn, 270 U.S. 339, 345-46 (1926)). “Regardless of whether a false voucher is submitted for a credit or for reimbursement, the government potentially suffers a monetary loss. Therefore, we hold that a voucher for reduction of liability for advanced funds is a ‘claim’ under § 287.” Id. at 155. Duncan dealt with a free airline ticket. During deliberations, the trial court instructed the jury that ownership of the ticket was irrelevant. The Fourth Circuit reversed, holding that the government was required to prove ownership of the free ticket. 141 United States v. Sarihifard, 155 F.3d 301, 306 (4th Cir. 1998). 142 United States v. Blecker, 657 F.2d 629, 634 (4th Cir. 1981) (§ 287 does not require a showing of specific intent to defraud the government). 57 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 61 of 684 TITLE 18 ____________________NOTE____________________ United States v. Ewing, 957 F.2d 115, 119 (4th Cir. 1992) (noting two elements of offense). In United States v. Maher, 582 F.2d 842 (4th Cir. 1978), the Fourth Circuit held the district court had properly instructed the jury that § 287 may be violated by the “submission of a false claim, a fictitious claim or a fraudulent claim, if, in each instance, the defendant acted with knowledge that the claim was false or fictitious or fraudulent and with a consciousness that he was either doing something which was wrong or which violated the law.” 582 F.2d at 847. Section 287 does not specify an intent to defraud as an element. Id. “[T]he submission of a false claim to a state agency to obtain federal funds that were provided to the state falls within the parameters of § 287.” United States v. Bolden, 325 F.3d 471, 494 n.28 (4th Cir. 2003). In United States v. Blecker, 657 F.2d 629 (4th Cir. 1981), the defendant argued that the government got its money’s worth. The court found that [t]his quantum meruit argument is simply a restatement of the contention that conviction for violating § 287 requires a showing of specific intent to defraud the government a contention that we [have previously rejected] .... [Section] 287 is phrased in the disjunctive, and a conviction under that statute may therefore be based on proof that a claim submitted to the government is either false, fictitious or fraudulent. [E]vidence that the government got its money’s worth was no defense to this proof. 017 7/2 7/2 d0 we ieprepared, or where it was presented to the Venue lies either where the claim v was 26, government, or where “the false claim was submitted to an intermediary in one district who 2 paid the claim and then transmitted a claim for reimbursement based on that payment, as a 6-4 agency in another district.” Id. at 633. Computer Sciences 1 matter of course, to . government o acontracted with the General Services Administration (GSA) to provide Corporation (CSC) N 657 F.2d at 634. computer and data processing services. CSC subcontracted with Blecker for consulting services, and his claims were submitted to CSC. The Fourth Circuit rejected Blecker’s defense, relying on the “cause” language in 18 U.S.C. § 2(b), although apparently § 2 was not charged in the indictment. In Blecker, there was substantial evidence that Blecker submitted the invoices for hourly rates based on falsified resumes with knowledge that CSC would seek reimbursement for the payment of the invoices from the GSA. Venue also may be proper in a district into which the victimized government agency had passed the subject claim after its initial presentation to that agency, either by the defendant or an intermediary. United States v. Ebersole, 411 F.3d 517, 530 (4th Cir. 2005). 18 U.S.C. § 371 CONSPIRACY Title 18, United States Code, Section 371 makes it a crime to conspire with someone else to commit an offense made illegal by federal law [or to defraud the United States].143 A conspiracy is an agreement between two or more persons to join together to accomplish some unlawful purpose. It is a kind of partnership in crime in which each member becomes 143 United States v. Ellis, 121 F.3d 908, 913 (4th Cir. 1997) (noting § 371 “criminalizes two types of conspiracies ....”). 58 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 62 of 684 TITLE 18 the agent of every other member. For you to find the defendant guilty, the government must prove each of the following beyond a reasonable doubt: Conspiracy to Commit Offense Against the United States P First, that two or more persons agreed to do something which federal law prohibits, that is, [here, set forth the elements of the object of the conspiracy, as charged in the indictment, or by reference to a substantive count, if that is the object of the conspiracy];144 P Second, that the defendant knew of the conspiracy and willfully joined the conspiracy; and P Third, that at some time during the existence of the conspiracy or agreement [and within the limitations period145 ], one of the members of the conspiracy knowingly performed, in the District of South Carolina, one of the overt acts charged in the indictment in order to accomplish the object or purpose of the agreement.146 Conspiracy to Defraud the United States147 P First, that two or more persons agreed to defraud the United States; P Second, that at some time during the existence of the conspiracy or agreement [and within the limitations period148 ], one of the members of the conspiracy knowingly performed one of the overt acts charged in the indictment in order to accomplish the object or purpose of the agreement; and 017 States. P Third, that the defendant had the intent to agree to defraud/2 United 27 the /to cheat the government out To conspire to defraud the United States means primarily 07 the purpose of impairing, of property or money, but it also includes any conspiracy for ed obstructing, or defeating the lawful functionew department of government. of any , vi 226 4 16o. Nconspiracy, two different types of intent are generally required–the basic intent to “In a 149 150 144 agree, which is necessary to establish the existence of the conspiracy, and the more traditional intent to effectuate the object of the conspiracy.” United States v. United States Gypsum Co., 438 U.S. 422, 444 n.20 (1978). See also United States v. Kingrea, 573 F.3d 186, 191 (4th Cir. 2009) (conspiracy indictments must allege all elements of offense which defendant is accused of conspiring to commit); United States v. Atkinson, 966 F.2d 1270, 1275 (9th Cir. 1992) (“and (3) the requisite intent to commit the underlying substantive offense.”). 145 In United States v. Head, 641 F.2d 174 (4th Cir. 1981), the defendant was convicted of a single conspiracy to commit three separate offenses, one of which was a tax violation with a different statute of limitations. The Fourth Circuit found error when the district court instructed the jury that “it could convict defendant if it found that he conspired to violate any one or more of the three criminal statutes but declined and failed to instruct the jury that it had to find an overt act in furtherance of that conspiracy committed within the applicable period of limitations.” 641 F.2d at 176. 146 See United States v. Singh, 518 F.3d 236, 252 (4th Cir. 2008). 147 An indictment drawn under this portion of the statute need refer to no statute other than § 371. United States v. Vogt, 910 F.2d 1184, 1200 (4th Cir. 1990). 148 See Head, 641 F.2d at 176 (reversed district court that failed to failed to instruct that jury had to find overt act in furtherance of that conspiracy committed within applicable period of limitations). 149 United States v. Winfield, 997 F.2d 1076, 1082 (4th Cir. 1993) (noting three elements). See also United States v. Tedder, 801 F.2d 1437, 1446 (4th Cir. 1986) (same). 150 Tedder, 801 F.2d at 1446; United States v. Arch Trading Co., 987 F.2d 1087, 1091-92 (4th Cir. 1993) (citation omitted). 59 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 63 of 684 TITLE 18 The government must prove that the conspiracy came into existence during or reasonably near the period of time charged in the indictment and the defendant knowingly joined in the conspiracy within or reasonably near the same time period.151 A conspiracy may exist even if a conspirator does not agree to commit or facilitate each and every part of the substantive offense. The partners in a criminal plan must agree to pursue the same criminal objective and may divide up the work, yet each is responsible for the acts of each other.152 You may find that a defendant was a member of the conspiracy only from evidence of his own acts and statements.153 The essence of the crime of conspiracy is an agreement to commit a criminal act. But there does not have to be evidence that the agreement was specific or explicit. By its very nature, a conspiracy is clandestine and covert, thereby frequently resulting in little direct evidence of such an agreement. Therefore, the government may prove a conspiracy by circumstantial evidence. Circumstantial evidence tending to prove a conspiracy may consist of a defendant’s relationship with other members of the conspiracy, the length of this association, the defendant’s attitude and conduct, and the nature of the conspiracy. One may be a member of a conspiracy without knowing the full scope of the conspiracy, or all of its members, and without taking part in the full range of its activities or over the whole period of its existence. The conspiracy does not need a discrete, identifiable organizational structure. The fact that a conspiracy is loosely-knit, haphazard, or ill-conceived does not render it any less a conspiracy. The government need not prove that the defendant knew the particulars of the conspiracy or all of his co-conspirators. It is sufficient if the defendant played only a minor part in the conspiracy. Thus, a variety of conduct can constitute participation in a conspiracy. Moreover, a defendant may change his role in the conspiracy. 017 7/2 7/2 d0 e iew ,v 226 6-4 Once it has been shown that a conspiracy exists, the evidence need only establish a slight connection between the defendant and the conspiracy. The government must produce evidence to prove the defendant’s connection beyond a reasonable doubt, but the connection itself may be slight, because the defendant does not need to know all of his co-conspirators, understand the reach of the conspiracy, participate in all the enterprises of the conspiracy, or have joined the conspiracy from its inception. o. 1 N Presence at the scene of criminal activity is material and probative in the totality of the circumstances in determining the defendant’s participation in the conspiracy. Mere presence alone is not sufficient to prove participation in the conspiracy, but proof beyond a 151 In United States v. Queen, 132 F.3d 991 (4th Cir. 1997), the defendant was charged with conspiring to tamper with a witness during the period from February 1994 to March 1995. The district court charged that the first two elements of conspiracy are proved if you find beyond a reasonable doubt that a conspiracy as charged in the indictment came into existence at any point in time within or reasonably near to the window from February 1994 to March 1995, and that [the defendant] knowingly joined in the conspiracy at some point within or reasonably near to that same window .... Id. at 999 n.5. The Fourth Circuit concluded that the jury “may find that the starting date of a conspiracy begins anytime in the time window alleged, so long as the time frame alleged places the defendant sufficiently on notice of the acts with which he is charged.” Id. at 999. 152 Salinas v. United States, 522 U.S. 52, 63-64 (1997). 153 See United States v. Lanese, 890 F.2d 1284, 1290 (2d Cir. 1989) (approving citing jury instructions). 60 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 64 of 684 TITLE 18 reasonable doubt of presence coupled with an act that advances the conspiracy is sufficient to establish participation in the conspiracy.154 A conspirator must intend to further an endeavor which, if completed, would [be a federal crime], but it suffices that he adopt the goal of furthering or facilitating the criminal endeavor. He may do so in any number of ways short of agreeing to undertake all of the acts necessary for the crime’s completion. One can be a conspirator by agreeing to facilitate only some of the acts leading to the [criminal objective].155 Mere presence at the scene of an alleged transaction or event, mere association with persons conducting the alleged activity, or mere similarity of conduct among various persons and the fact that they may have associated with each other, and may have assembled together and discussed common aims and interests, does not necessarily establish proof of the existence of a conspiracy. Also, a person who has no knowledge of a conspiracy, but who happens to act in a way which advances some object or purpose of a conspiracy, does not thereby become a conspirator.156 The statements and actions of an alleged co-conspirator may be considered in determining the existence of the conspiracy.157 The jury may find knowledge and voluntary participation from evidence of presence when the presence is such that it would be unreasonable for anyone other than a knowledgeable participant in the conspiracy to be present.158 017 7/2 An overt act is any act, even one which may be entirely innocent when considered alone, but which is knowingly committed by a conspirator in an effort to accomplish some object of the conspiracy.159 Each conspirator is liable for overt acts of every other conspirator done in furtherance of the conspiracy, whether the acts occurred before or after he joined the conspiracy.160 7/2 d0 e iew ,v 226 A member of a conspiracy who commits another crime during the existence or life of -4 16this other crime in order to further or somehow advance the goals a conspiracy and commits . or objectives Nthe conspiracy, may be found by you to be acting as the agent of the other of o members of the conspiracy. The illegal actions of this person in committing this other crime Pinkerton Liability 161 may be attributed to other individuals who are then members of the conspiracy. Under certain conditions, therefore, a defendant may be found guilty of this other crime even though he or she did not participate directly in the acts constituting the offense. If you find 154 See United States v. Burgos, 94 F.3d 849, 857-61, 869 (4th Cir. 1996) (en banc). Salinas, 522 U.S. at 65. 156 United States v. Heater, 63 F.3d 311, 326 (4th Cir. 1995) (approvingly quoting jury instruction). See also United States v. Fleschner, 98 F.3d 155, 160 (4th Cir. 1996) (same). 157 United States v. Neal, 78 F.3d 901, 905 (4th Cir. 1996). See Bourjaily v. United States, 483 U.S. 171 (1987): 1. it is for the trial court, not the jury, to determine the existence of the defendant’s involvement in the alleged conspiracy before admitting co-conspirator hearsay, Fed. R. Evid. 801(d)(2)(E); 2. burden of proof is by a preponderance of the evidence; and 3. the statements themselves might be considered in making the ruling. 158 United States v. Gallardo-Trapero, 185 F.3d 307, 322 (5th Cir. 1999). 159 Fleschner, 98 F.3d at 159. 160 United States v. Read, 658 F.2d 1225, 1230 (7th Cir. 1980). 161 Pinkerton v. United States, 328 U.S. 640 (1946). “Proper application of the Pinkerton theory depends on appropriate instructions to the jury.” United States v. Chorman, 910 F.2d 102, 111 (4th Cir. 1990). 155 61 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 65 of 684 TITLE 18 that the government has proven a defendant guilty of conspiracy as charged in the indictment, you may also find him guilty of the crimes alleged in any other counts of the indictment in which he is charged provided you find that the essential elements of these counts as defined in these instructions have been established beyond a reasonable doubt. And further that you also find beyond a reasonable doubt that the substantive offense was committed by a member of the conspiracy, that the substantive crime was committed during the existence or life of and in furtherance of the goals of the conspiracy, and that at the time this offense was committed the defendant was a member of the conspiracy.162 In order to hold a co-conspirator criminally liable for acts of other members of the conspiracy, the act must be done in furtherance of the conspiracy and be reasonably foreseeable as a necessary or natural consequence of the conspiracy. In order to be reasonably foreseeable to another member of the criminal organization, and thus to hold a co-conspirator criminally liable, acts of a co-conspirator must fall within the scope of the agreement between the specific individual and the co-conspirator.163 The government need not prove that the alleged conspirators entered into any formal agreement, or that they directly stated between/among themselves all the details of the agreement. The government need not prove that all of the details of the agreement alleged in the indictment were actually agreed upon or carried out. The government need not prove that all of the persons alleged to have been members of the conspiracy were in fact members of the conspiracy, only that the defendant and at least one other person were members. Finally, the government need not prove that the alleged conspirators actually accomplished the unlawful objective of their agreement. 017 7/2 7/2 d0 Whenever it appears beyond a reasonable doubt from the evidence in the case that a conspiracy existed and that the defendant was one of the members, then you may consider as evidence against the defendant the statements knowingly made and acts knowingly done by another person likewise found to be a member of the conspiracy, even though the statements and the acts may have occurred in the absence of and without the knowledge of the defendant, provided such statements and acts were knowingly made and done during the continuance of such conspiracy and in furtherance of some object or purpose of the conspiracy.164 e iew ,v o. 1 N 226 6-4 “A statement by a co-conspirator is made in furtherance of a conspiracy if it was intended to promote the conspiracy’s objectives, whether or not it actually has that effect. For example, statements made by a conspirator to a non-member of the conspiracy are considered to be in furtherance of the conspiracy if they are designed to induce that party either to join the conspiracy or to act in a way that will assist the conspiracy in accomplishing its objectives.”165 162 United States v. Irvin, 2 F.3d 72, 75 (4th Cir. 1993). In United States v. Aramony, 88 F.3d 1369, 1380 (4th Cir. 1996), the court held that the district court did not abuse its discretion in omitting the “reasonably foreseeable” language from the instruction. However, in light of Irvin, the district court would be better advised to include language regarding reasonably foreseeable. 163 Irvin, 2 F.3d 72. 164 See Chorman, 910 F.2d at 111, where a similarly worded instruction “fairly expressed the Pinkerton principle.” The Fourth Circuit has specifically approved this instruction holding the defendant responsible for statements and acts of co-conspirators without referring to substantive crimes. The substantive offense need not be a charged object of the conspiracy. Id. at 110-12. See Aramony, 88 F.3d at 1381 (district court did not abuse discretion in omitting “reasonably foreseeable” language from Pinkerton instruction). 165 United States v. Smith, 441 F.3d 254, 262 (4th Cir. 2006) (quotations and citations (continued...) 62 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 66 of 684 TITLE 18 Multiple versus Single Conspiracy166 The government has charged a particular conspiracy, and the government has to prove that the defendant was a member of the conspiracy charged in the indictment. If the government does not prove that, then you must find the defendant not guilty, even if you find that he was a member of some other conspiracy not charged in the indictment. Proof that a defendant was a member of some other conspiracy is not enough to convict unless the government also proves beyond a reasonable doubt that the defendant was a member of the conspiracy charged in the indictment.167 Whether the evidence proves a single conspiracy or, instead, multiple conspiracies, is an issue for you, the jury.168 A single conspiracy exists where there is one overall agreement, or one general business venture. Whether there is a single conspiracy or multiple conspiracies depends upon the overlap of key actors, methods, and goals.169 A single conspiracy exists when the conspiracy has the same objective, the same goal, the same nature, the same geographic spread, the same results, and the same product.170 A single overall agreement need not be manifested by continuous activity. A conspiracy may suspend active operations for a period: for logistical reasons, to escape detection, or even to afford its members an opportunity to spend their ill-gotten gains. The question is not the timing of the conspiracy’s operations but whether it functioned as an ongoing unit.171 017 7/2 7/2 d0 e iew “A court need only instruct on, v 6 multiple conspiracies if such an instruction is supported by the facts.” United States v. Bowens, 224 F.3d 302, 307 (4th Cir. 2000) (quoting United States v. 22 Mills, 995 F.2d 480, 485 (4th-4 1993)). “A multiple conspiracy instruction is not required unless Cir. the proof demonstrates that6 defendant was involved only in a separate conspiracy unrelated to the . 1 the overall conspiracy o charged in the indictment.” United States v. Squillacote, 221 F.3d 542, 574 (4th N Cir. 2000) (quotation and citation omitted). The Double Jeopardy Clause prevents the government 165 (...continued) omitted). 166 from splitting a single conspiracy into multiple offenses. The Fourth Circuit employs a totality of the circumstances test to decide whether two conspiracies are distinct. Five factors guide this determination: 1. the time periods covered by the alleged conspiracies; 2. the places where the conspiracies are alleged to have occurred; 3. the persons charged as co-conspirators; 4. the overt acts alleged to have been committed in furtherance of the conspiracies, or any other descriptions of the offense charged which indicate the nature and scope of the activities being prosecuted; and 5. the substantive statutes alleged to have been violated. United States v. Ragins, 840 F.2d 1184, 1189 (4th Cir. 1988). The test is a flexible one; some factors may be more important than others depending on the circumstances of the case. United States v. Alvarado, 440 F.3d 191, 198 (4th Cir. 2006). 167 This instruction was approved as correct and fair in United States v. Sullivan, 455 F.3d 248, 259 (4th Cir. 2006). 168 United States v. Banks, 10 F.3d 1044, 1051 (4th Cir. 1993); United States v. Harris, 39 F.3d 1262, 1267 (4th Cir. 1994). 169 Squillacote, 221 F.3d at 574 (quotation and citation omitted). 170 United States v. Johnson, 54 F.3d 1150, 1154 (4th Cir. 1995). 171 United States v. Leavis, 853 F.2d 215, 218-19 (4th Cir. 1988). 63 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 67 of 684 TITLE 18 You may find a single conspiracy, despite looseness of organization structure, changing membership, shifting roles of participants, limited roles and knowledge of some members.172 A conspiracy is an ongoing crime, and if a criminal conspiracy is established, it is presumed to continue until its termination is affirmatively shown.173 Withdrawal174 If the government proves that a conspiracy existed, and that the defendant willfully joined the conspiracy, you may conclude that the conspiracy continued unless or until the defendant shows that the conspiracy was terminated or the defendant withdrew from it. The defendant must show affirmative acts inconsistent with the object of the conspiracy and communicated in a manner reasonably calculated to reach his co-conspirators.175 A member of a conspiracy remains in the conspiracy unless he can show that at some point he completely withdrew from the conspiracy. A partial or temporary withdrawal is not sufficient. The defense of withdrawal requires the defendant to make a substantial showing that he took some affirmative step to terminate or abandon his participation in the conspiracy. In other words, the defendant must demonstrate some type of affirmative action which disavowed or defeated the purpose of the conspiracy. This would include, for example, voluntarily going to the police and telling them about the conspiracy; telling the other conspirators that he did not want to have anything more to do with the agreement; or any other affirmative act that was inconsistent with the object of the conspiracy which was communicated to other members of the conspiracy.176 Merely doing nothing or avoiding contact with other members of the conspiracy is not enough. 017 7/2 7/2 d0 The defendant has the burden of proving that he withdrew from the conspiracy, by a preponderance of the evidence. To prove something by a preponderance of the evidence means that when all the relevant evidence is considered, the fact alleged is more likely so than not so.177 The government may refute evidence from the defendant that he withdrew from the conspiracy by showing beyond a reasonable doubt that the defendant did not withdraw from the conspiracy as claimed.178 e iew ,v o. 1 N 226 6-4 ____________________NOTE____________________ 172 Banks, 10 F.3d at 1051. United States v. Barsanti, 943 F.2d 428, 437 (4th Cir. 1991). A conspiracy is presumed to continue until there is affirmative evidence of abandonment or defeat of its purposes. Leavis, 853 F.2d at 218. 174 W ithdrawal is a complete defense to the crime of conspiracy only when it is coupled with the defense of the statute of limitations. A defendant’s withdrawal from the conspiracy starts the running of the statute of limitations as to him. United States v. Read, 658 F.2d 1225, 1233 (7th Cir. 1981). Otherwise, by definition, the defendant is criminally responsible for acts committed by the conspiracy prior to his withdrawal. 173 W ithdrawal would limit the defendant’s responsibility for substantive offenses committed after his withdrawal, and would impact the defendant’s culpability for drug amounts under United States v. Collins, 415 F.3d 304 (4th Cir. 2005). 175 United States v. Walker, 796 F.2d 43, 49 (4th Cir. 1986). 176 “These acts or statements need not be known or communicated to all other co-conspirators as long as they are communicated in a manner reasonably calculated to reach some of them.” Read, 658 F.2d at 1231. 177 Hyde v. United States, 225 U.S. 347, 369 (1912). See also United States v. United States Gypsum Co., 438 U.S. 422, 464-65 (1978); United States v. Cardwell, 433 F.3d 378 (4th Cir. 2005); Walker, 796 F.2d at 49. 178 United States v. West, 877 F.2d 281, 289 (4th Cir. 1989). 64 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 68 of 684 TITLE 18 See United States v. Hedgepeth, 418 F.3d 411, 420 (4th Cir. 2005) (noting elements of § 371 conspiracy); United States v. Tucker, 376 F.3d 236, 238 (4th Cir. 2004) (same). There are two objects of the conspiracy statute: to commit any offense against the United States, or to defraud the United States. If the object is, for example, to thwart the efforts of the IRS to determine and collect income taxes (often termed a “Klein conspiracy”), see United States v. Klein, 247 F.2d 908, 916 (2d Cir. 1957), a conviction will not stand where impeding the government agency was only a collateral effect of the conspiracy. United States v. Hairston, 46 F.3d 361, 374 (4th Cir. 1995). The two prongs of § 371, to commit an offense and to defraud, “are not mutually exclusive.” United States v. Arch Trading Co., 987 F.2d 1087, 1091 (4th Cir. 1993). The jury must be instructed on the elements of the object of the conspiracy. If the object of the conspiracy is charged in a separate substantive count of the indictment, the instruction can be by reference to that portion of the charge. United States v. Kingrea, 573 F.3d 186 (4th Cir. 2009). Violation of an executive order can constitute an offense as that term is used in § 371. For example, 50 U.S.C. § 1705(b) makes it a crime to disobey an order issued under the International Emergency Economic Powers Act (IEEPA). Arch Trading Co., 987 F.2d at 1091. 017 7/2 Because of accomplice liability, a defendant can be found guilty of a substantive offense committed by a co-conspirator in furtherance of the conspiracy. Pinkerton v. United States, 328 U.S. 640 (1946). 7/2 d0 Section 371 does not require a greater mens rea than does the substantive offense which is the object of the conspiracy. “[W]here a substantive offense embodies only a requirement of mens rea as to each of its elements, [§ 371] requires no more.” United States v. Feola, 420 U.S. 671, 692 (1975). e iew ,v 226 6-4 The government may present evidence of acts committed in furtherance of the conspiracy even though they are not specified in the indictment. United States v. Janati, 374 F.3d 263, 270 (4th Cir. 2004). o. 1 N “A prosecution for conspiracy is timely if, during some portion of the limitations period, (1) the agreement between the conspirators was in existence; and (2) at least one overt act in furtherance of that conspiratorial agreement occurred.” United States v. United Med. and Surgical Supply Corp., 989 F.2d 1390, 1398 (4th Cir. 1993). “A person ... may be liable for conspiracy even though he was incapable of committing the substantive offense.” Salinas v. United States, 522 U.S. 52, 64 (1997). A defendant may be convicted of conspiracy even if his co-conspirator is acquitted. United States v. Collins, 412 F.3d 515, 520 (4th Cir. 2005). Known as “Wharton’s Rule,” an agreement by two persons to commit a particular crime cannot be prosecuted as a conspiracy when the crime is of such a nature as to necessarily require the participation of two persons for its commission. Iannelli v. United States, 420 U.S. 770, 773 n.5 (1975). The classic examples are adultery, incest, bigamy, and dueling. However, “Wharton’s Rule is inapplicable when the conspiracy involves the cooperation of a greater number of persons than is required for commission of the substantive offense.” United States v. Walker, 796 F.2d 43, 47 (4th Cir. 1986). In United States v. Lechuga, 994 F.2d 346 (7th Cir. 1993), the Seventh Circuit explained that when a crime requires the joint action of two people to commit (prostitution, [for example]), a charge of conspiracy involves no additional element unless someone 65 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 69 of 684 TITLE 18 else is involved besides the two persons whose agreement is the sine qua non of the substantive crime.… What is required for conspiracy in such a case is an agreement to commit some other crime beyond the crime constituted by the agreement itself.… A person who sells a gun knowing that the buyer intends to murder someone may or may not be an aider or abettor of the murder, but he is not a conspirator, because he and his buyer do not have an agreement to murder anyone. 994 F.2d at 349. A defendant may be convicted of a § 924(c) charge on the basis of a co-conspirator’s use of a gun if the use was in furtherance of the conspiracy and was reasonably foreseeable to the defendant. United States v. Wilson, 135 F.3d 291, 305 (4th Cir. 1998). Buyer-Seller “District judges should inform juries that repeated transactions do not constitute a conspiracy .... Furthermore, because the line between a conspiracy and a mere buyer-seller relationship is difficult to discern, district judges should instruct juries in appropriate situations on the distinction.” United States v. Gee, 226 F.3d 885, 895 (7th Cir. 2000). “The buy-sell transaction is simply not probative of an agreement to join together to accomplish a criminal objective beyond that already being accomplished by the transaction.” United States v. Townsend, 924 F.2d 1385, 1394 (7th Cir. 1991). 017 7/2 “[O]ne does not become a party to a conspiracy by aiding and abetting it, through sales of supplies or otherwise, unless he knows of the conspiracy; and the inference of such knowledge cannot be drawn merely from knowledge the buyer will use the goods illegally.” Direct Sales Co., Inc. v. United States, 319 U.S. 703, 709 (1943). 7/2 d0 e iew ,v One who acts as a government agent and enters into a purported conspiracy in the secret role of an informer cannot be a co-conspirator. United States v. Chase, 372 F.2d 453, 459 (4th Cir. 1967). 226 6-4 .1 ocontinues until the “spoils are divided among the miscreants,” and the A conspiracy N Termination payments made constitute overt acts made in furtherance of the conspiracy. United States v. Automated Sciences Grp., Inc., No. 91-5063, 1992 WL 103647 (4th Cir. May 18, 1992) (collecting cases). In Automated Sciences, one of the objects of the conspiracy involved sharing money. The scope of the conspiratorial agreement determines both the duration of the conspiracy and whether the act relied on as an overt act may properly be regarded as in furtherance of the conspiracy. In Grunewald v. United States, 353 U.S. 391 (1957), the Supreme Court rejected the government’s theory that an agreement to conceal a conspiracy can be deemed part of the conspiracy and can extend the duration of the conspiracy for purposes of the statute of limitations. A “distinction must be made between acts of concealment done in furtherance of the main criminal objectives of the conspiracy, and acts of concealment done after these central objectives have been attained, for the purpose only of covering up after the crime.” 353 U.S. at 405. Actions taken to conceal a conspiracy after its accomplishment do not postpone the running of the statute of limitations, where concealing the crime was not an objective of the conspiracy. Id. at 399. However, in United States v. Neal, 78 F.3d 901, 905 (4th Cir. 1996), the Fourth Circuit stated that “[e]scaping detection and apprehension by police officers furthered the continued viability of the conspiracy.” (Citation omitted). 66 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 70 of 684 TITLE 18 A conspiracy ends as to a particular co-conspirator upon his arrest. United States v. Chase, 372 F.2d 453, 459 (4th Cir. 1967). A conspiracy ends when its central purpose has been accomplished. United States v. United Med. and Surgical Supply Corp., 989 F.2d 1390, 1399 (4th Cir. 1993). “As the overt acts give jurisdiction for trial, it is not essential where the conspiracy is formed, so far as the jurisdiction of the court in which the indictment is found and tried is concerned.” Hyde v. United States, 225 U.S. 347, 367 (1912). In United States v. Stewart, 256 F.3d 231, 241 n.3 (4th Cir. 2001), the court noted that “venue in the Eastern District of Virginia arguably would have been improper on the conspiracy count ... unless ... the Government was able to [demonstrate that the defendant] knowingly and voluntarily entered into a conspiracy involving the Eastern District of Virginia.” Aiding and abetting is not a lesser included offense of conspiracy. United States v. Price, 763 F.2d 640, 642 (4th Cir. 1985). After a conspiracy has ended, acts of a conspirator occurring thereafter are admissible against former co-conspirators only where they are relevant to show the previous existence of the conspiracy or the attainment of its illegal ends; and subsequent declarations, if otherwise relevant, are admissible only against the declarant. Chase, 372 F.2d at 460. 017 7/2 “Factual impossibility exists where the objective is proscribed by the criminal law but a factual circumstance unknown to the actor prevents him from bringing it about.” United States v. Hamrick, 43 F.3d 877, 885 (4th Cir. 1995) (en banc). However, factual impossibility is not a defense to an attempt crime or conspiracy. 7/2 d0 e iew ,v As long as the evidence establishes a conspiracy, the indictment need not specifically name anyone other than the defendant. United States v. Anderson, 611 F.2d 504, 511 (4th Cir. 1979). 226 6-4 CONSPIRACY TO IMPEDE OFFICER 1 o. States Code, Section 372 makes it a crime for two or more persons to Title 18,N United 18 U.S.C. § 372 conspire to interfere with any officer of the United States. For you to find the defendant guilty, the government must prove each of the following beyond a reasonable doubt: P First, that the defendant agreed with at least one other person to do one of the following: 1. 2. to induce, by force, intimidation, or threat, any officer of the United States to leave the place where his duties as an officer are required to be performed; 3. to injure an officer of the United States, or his property, on account of his lawful discharge of the duties of his office, or while engaged in the lawful discharge of his duties; or 4. P to prevent, by force, intimidation, or threat, any person from accepting or holding any office, trust, or place of confidence under the United States, or from discharging any duties of such office; to injure the property of an officer of the United States so as to molest, interrupt, hinder, or impede him in the discharge of his official duties; and Second, that the defendant knew of the agreement and willfully participated in the agreement. ____________________NOTE____________________ 67 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 71 of 684 TITLE 18 See jury instructions for 18 U.S.C. § 371. There is authority for the proposition that an agreement to interfere with a government officer’s performance of his official duties by causing him to be arrested unlawfully is a violation of § 372. United States v. Hall, 342 F.2d 849, 852 (4th Cir. 1965). In United States v. Joiner, 418 F.3d 863 (8th Cir. 2005), the Eighth Circuit affirmed the convictions of two defendants for violating § 372. They were confined in federal prison in Arkansas, where they caused to be filed false Uniform Commercial Code (UCC) Financing Statements against Alabama real property owned by the federal judge, United States Attorney, and Assistant United States Attorney from their drug conviction trial. The Eighth Circuit held that real estate is property within the meaning of the statute. The defendants argued that the UCC does not apply to real property, and even if it did, the Arkansas filings would have no effect on the Alabama property. The Eighth Circuit rejected the argument because the success of the endeavor is irrelevant to a charge of conspiracy. The crime is conspiring to injure, not causing an injury. “[C]onspiring to file unfounded liens against prosecutors and judges in retaliation for a criminal conviction is nonetheless an illegal purpose.” Id. at 867. 18 U.S.C. § 373 SOLICITATION TO COMMIT A CRIME OF VIOLENCE [LAST UPDATED : 8/13/14] 017 7/2 Title 18, United States Code, Section 373 makes it a crime to solicit another person to commit a crime of violence. For you to find the defendant guilty, the government must prove each of the following beyond a reasonable doubt: 7/2 0 P First, that the defendant had the intent that another person commit a federal felony edor threatened use of physical force w that has as an element the use, attempted use, vie against property or against the person of another; and 26, strongly corroborative of that intent, the P Second, that under circumstances 2 defendant solicited, commanded, induced, or otherwise endeavored to persuade 6-4 such other.person to engage in such conduct. o 1 N L The court should identify the federal felony involved, and instruct the jury on the 179 elements of that offense. AFFIRMATIVE DEFENSE The defendant has the burden of proving, by a preponderance of the evidence, that, under circumstances manifesting a voluntary and complete renunciation of his criminal intent, he prevented the commission of the crime solicited. A renunciation is not voluntary and complete if it is motivated in whole or in part by a decision to postpone the commission of the crime until another time or to substitute another victim or another but similar objective. [§ 373(b)] ____________________NOTE____________________ 179 The Fourth Circuit has recently described the essential elements of § 373(a) as: “(1) a solicitation, command, or similar entreaty; (2) to commit a federal felony; (3) involving the actual or inchoate use of force against person or property; (4) made under such conditions or within such context that the overture may reasonably be regarded as sincere.” United States v. Barefoot, 754 F.3d 226, 237 (4th Cir. 2014) (quoting United States v. Buckalew, 859 F.2d 1052, 1054 (1st Cir. 1988)) (quoted for proposition that § 373(a) “is designed to cover any situation where a person seriously seeks to persuade another person to engage in criminal conduct.”). But see United States v. Cardwell, 433 F.3d 378, 390 (4th Cir. 2005) (listing only two elements of offense). 68 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 72 of 684 TITLE 18 “Congress has provided examples of ‘strongly corroborative circumstances’ that are highly probative of intent: (i) the fact that the defendant offered or promised payment or some other benefit to the person solicited if he would commit the offense; (ii) the fact that the defendant threatened harm or some other detriment to the person solicited if he would not commit the offense; (iii) the fact that the defendant repeatedly solicited the commission of the offense, held forth at length in soliciting the commission of the offense, or made express protestation of seriousness in soliciting the commission of the offense; (iv) the fact that the defendant believed or was aware that the person solicited had previously committed similar offenses; and (v) the fact that the defendant acquired weapons, tools or information suited for use by the person solicited in the commission of the offense, or made other apparent preparations for the commission of the offense by the person solicited.” United States v. Gabriel, 810 F.2d 627, 635 (7th Cir. 1987) (citation omitted). “The above factors are not exclusive or conclusive indicators of intent to solicit.” Id. It is not a defense that the person solicited could not be convicted of the crime because he lacked the state of mind required for its commission, because he was incompetent or irresponsible, or because he is immune from prosecution or is not subject to prosecution. [§ 373(c)] 017 7/2 7/2 d0 Because the penalty for § 373 depends on the punishment for the crime solicited, if the government charges more than one qualifying federal felony which a defendant is alleged to have solicited, the court should submit special interrogatories to the jury. See United States v. Udeozor, 515 F.3d 260, 271 (4th Cir. 2008) (“whether to use a special verdict form is a matter of the district court’s discretion.”) (citation omitted). e iew ,v 226 6-4 CONTEMPT OF [L U o. 1 States Code, COURT 401 makes it a: 3/14/14]to obstruct the N 18, United Section crime 18 U.S.C. § 401 AST PDATED Title administration of justice or disobey a lawful court order. For you to find the defendant guilty, the government must prove each of the following beyond a reasonable doubt: § 401(1) P First, that the defendant misbehaved; P Second, that the misbehavior was in or near to the presence of the court; P Third, that the misbehavior obstructed the administration of justice; and P Fourth, that the misbehavior was committed with criminal intent.180 § 401(2) P First, that the defendant was an officer of a court of the United States; P Second, that the defendant misbehaved; P Third, that the misbehavior was in the defendant’s official transactions; and P Fourth, that the misbehavior was committed with criminal intent. § 401(3) 180 United States v. Warlick, 742 F.2d 113, 115 (4th Cir. 1984). 69 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 73 of 684 TITLE 18 P First, that there was a lawful writ, process, order, rule, decree, or command of a court of the United States which was definite, clear, and specific; P Second, that the defendant violated the writ, process, order, rule, decree, or command; and P Third, that the defendant did so willfully, contumaciously, intentionally, and with a wrongful state of mind.181 “Contempt of court” includes any act which is calculated to embarrass, hinder, or obstruct a court in administration of justice, or which is calculated to lessen its authority or dignity.182 Obstruction of the administration of justice requires some act that will interrupt the orderly process of the administration of justice, or thwart the judicial process.183 “Near” means conduct taking place near actual court proceedings, in time or location.184 “Criminal intent” is defined as a volitional act done by one who knows or should reasonably be aware that his conduct is wrongful. Of course, an actual design to subvert the administration of justice is a more grievous and perhaps more culpable state of mind, but proof of such an evil motive is unnecessary to establish the intent.185 017 charge of A good faith effort to comply with the court’s order is a7/2 to a defense contempt, but delaying tactics or indifference to the court’s order are not. 7/2 0 The government is required to prove that the defendant had the ability to comply with ed ability to comply with the court’s w the court’s order. If you find that the defendant lacked the vie violated the court’s order. order, you cannot find that the defendant willfully 26, 2 ____________________NOTE____________________ 6-4 1 See generally . oUnited States v. United Mine Workers, 330 U.S. 258 (1946). N Willfulness does not exist where there is a good faith pursuit of a plausible though mistaken alternative.186 187 188 In In re: Gates, 600 F.3d 333 (4th Cir. 2010), the Fourth Circuit reversed the summary contempt citation of an attorney who was late to court. “[T]he mere failure to appear in court at a scheduled proceeding is not an act committed in the actual presence of the court and is therefore not punishable summarily under Fed.R.Crim.P. 42(b).” 600 F.3d at 339 (quotation marks and citation omitted). Criminal Rule of Procedure 42(a), by contrast, applies to indirect contempts, giving the alleged contemnor 181 See In re: Gates, 600 F.3d 333, 338-39 (4th Cir. 2010) (citation omitted); United States v. McMahon, 104 F.3d 638, 642 (4th Cir. 1997) (citation omitted). 182 United States v. Tigney, 367 F.3d 200, 202 (4th Cir. 2004). 183 Warlick, 742 F.2d at 115-16. “To satisfy the obstruction element it suffices if the defendant’s conduct ‘interrupt[ed] the orderly process of the administration of justice’ by distracting court personnel from, and delaying them in, completing their duties.” United States v. Peoples, 698 F.3d 185, 191 (4th Cir. 2012). 184 Peoples, 698 F.3d at 192. 185 United States v. Marx, 553 F.2d 874, 876 (4th Cir. 1977). 186 United States v. McMahon, 104 F.3d 638, 645 (4th Cir. 1997). 187 United States v. Rylander, 714 F.2d 996, 1003 (9th Cir. 1983). 188 Id. at 1002. 70 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 74 of 684 TITLE 18 three essential procedural safeguards: notice of contempt charges against him, the appointment of an independent prosecutor, and disposition after a trial .... The requisite notice must (1) state the essential facts constituting the charged criminal contempt and describe it as such, (2) permit the alleged contemnor a reasonable time to prepare a defense, and (3) include the trial date. Id. at 338 (citations and internal quotes omitted). Addressing the merits, the court wrote that because contempt requires criminal intent, “absence or tardiness alone is not contemptuous; the reasons for the failure to appear at the appointment are of central importance.” Id. at 339. The court found the record lacked any evidence from which the district court could find that Gates had the requisite criminal intent to support a conviction under § 403(3). Criminal contempt proceedings require such protections as the Sixth Amendment right to counsel, the Fifth Amendment right not to take the witness stand, the “beyond a reasonable doubt” burden of proof, and, in some instances, the right to a jury trial, if the penalty will exceed six months. See United States v. Rylander, 714 F.2d 996, 998 (9th Cir. 1983). In United States v. Warlick, 742 F.2d 113, 117 (4th Cir. 1984), the Fourth Circuit acknowledged the split of authority on whether § 401(3) applied to Rules to Show Cause and similar orders, or to standing rules or local rules, and ruled it was not necessary to face that issue as Warlick was convicted under both § 401(1) and § 401(3). 017 7/2 A lawyer’s willful absence from his client’s trial without a legitimate reason is contemptuous. His disobedience to the order of the court setting the trial date violates § 401(3). United States v. Marx, 553 F.2d 874, 876 (4th Cir. 1977). 7/2 of language. However, 0 Criminal contempt requires more than just the vehemence ed at the court may form the basis courts repeatedly have found that offensive words directed w for a contempt charge. United States v. Peoples, 698 F.3d 185, 190 (4th Cir. 2012). vie 26, In United States v. Snider, 502 F.2d 645, 646 (4th Cir. 1974), the Fourth Circuit held 2 that refusal to rise is not6-4 misbehavior which obstructs the administration of justice within the meaning of § 401.1 o. Njudge is misbehavior in the court’s presence and punishable under § 401. Lying to a United States v. Temple, 349 F.2d 116, 117 (4th Cir. 1965). Unit of Prosecution In United States v. Murphy, 326 F.3d 501 (4th Cir. 2003), the defendant was cited by the district court three times for insulting outbursts during his sentencing hearing. On appeal, the defendant did not dispute that his conduct rose to the level of criminal contempt, but argued that the district court erred in convicting him of three separate contempt offenses. The Fourth Circuit vacated two of the three contempt convictions, concluding that § 401 was ambiguous with regard to the allowable unit of prosecution, and the rule of lenity dictated that the ambiguity be resolved in Murphy’s favor. 18 U.S.C. § 471 COUNTERFEITING OBLIGATIONS OF THE UNITED STATES Title 18, United States Code, Section 471 makes it a crime to make counterfeit obligations of the United States. For you to find the defendant guilty, the government must prove each of the following beyond a reasonable doubt: P First, that the defendant falsely made, forged, counterfeited, or altered; P Second, any obligation or other security of the United States; and 71 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 75 of 684 TITLE 18 P Third, that the defendant did so with the intent to defraud. The term “obligation or other security of the United States” includes all bonds, certificates of indebtedness, national bank currency, Federal Reserve notes, Federal Reserve bank notes, coupons, United States notes, Treasury notes, gold certificates, silver certificates, fractional notes, certificates of deposit, bills, checks, or drafts for money, drawn by or upon authorized officers of the United States, stamps and other representatives of value, of whatever denomination, issued under any Act of Congress, and canceled United States stamps. [18 U.S.C. § 8] An obligation is “counterfeit” if it bears such a likeness or a resemblance to a genuine obligation or security issued under the authority of the United States as is calculated to deceive an honest, sensible and unsuspecting person of ordinary observation and care dealing with a person supposed to be honest and upright.189 Forge means to fabricate, construct, or prepare one thing in imitation of another thing, with the intention of substituting the false for the genuine.190 To act with an “intent to defraud” means to act with a specific intent to deceive or cheat, ordinarily, for the purpose of either causing some financial loss to another or bringing about some financial gain to one’s self. It is not necessary, however, to prove that anyone was, in fact defrauded, as long as it is established that the defendant acted with the intent to defraud or mislead.191 017 ____________________NOTE____________________ 7/2 2v. LeMon, 622 F.2d 1022, Each act of counterfeiting is a separate offense. United States 07/ 1024 (10th Cir. 1980). d we e , vi COUNTERFEIT 18 U.S.C. § 472 PASSING OR POSSESSING 226 OBLIGATIONS OF THE UNITED STATES -4 Title 18, United16 Code, Section 472 makes it a crime to pass or possess States . counterfeit obligations of the United States. For you to find the defendant guilty, the No each of the following beyond a reasonable doubt: government must prove P First, that the defendant passed, uttered, published, or sold, or attempted to pass, utter, publish, or sell, or brought into the United States, or kept in his possession or concealed; P Second, an obligation or other security of the United States that was falsely made, forged, counterfeited or altered; P Third, that at the time, the defendant knew the obligation or security was a falsely made, forged, counterfeited, or altered obligation or other security of the United States; and 189 United States v. Ross, 844 F.2d 187, 190 (4th Cir. 1988). In Ross, the Fourth Circuit reversed a conviction because the so-called counterfeit money (a black and white photocopy of the face of a U.S. one dollar bill inserted into a coin change machine) was not “of such falsity in purport as to fool an ‘honest, sensible and unsuspecting person of ordinary observation and care.’” Id. at 189. 190 United States v. Cowan, 116 F.3d 1360, 1362 (10th Cir. 1997) (18 U.S.C. § 505 prosecution). 191 United States v. Ellis, 326 F.3d 550, 556 (4th Cir. 2003). 72 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 76 of 684 TITLE 18 P Fourth, that the defendant did so with the intent to defraud.192 The term “obligation or other security of the United States” includes all bonds, certificates of indebtedness, national bank currency, Federal Reserve notes, Federal Reserve bank notes, coupons, United States notes, Treasury notes, gold certificates, silver certificates, fractional notes, certificates of deposit, bills, checks, or drafts for money, drawn by or upon authorized officers of the United States, stamps and other representatives of value, of whatever denomination, issued under any Act of Congress, and canceled United States stamps. [18 U.S.C. § 8] An obligation is “counterfeit” if it bears such a likeness or a resemblance to a genuine obligation or security issued under the authority of the United States as is calculated to deceive an honest, sensible and unsuspecting person of ordinary observation and care dealing with a person supposed to be honest and upright.193 “To pass or utter” means to offer the obligation or security, such as, to another person or to a bank, with intent to defraud. It is not necessary to prove that anything of value was actually received in exchange. In other words, it is not necessary that the instrument be accepted.194 Forge means to fabricate, construct, or prepare one thing in imitation of another thing, with the intention of substituting the false for the genuine.195 017 7/2 To act with an “intent to defraud” means to act with a specific intent to deceive or cheat, ordinarily, for the purpose of either causing some financial loss to another or bringing about some financial gain to one’s self. It is not necessary, however, to prove that anyone was, in fact defrauded, as long as it is established that the defendant acted with the intent to defraud or mislead.196 7/2 d0 18 U.S.C. § 473 e iew ,v 226 6-4 DEALING IN COUNTERFEIT OBLIGATIONS OF THE UNITED STATES o. 1 N Title 18, United States Code, Section 473 makes it a crime to buy, sell, or receive counterfeit obligations of the United States. For you to find the defendant guilty, the government must prove each of the following beyond a reasonable doubt: P First, that the defendant bought, sold, exchanged, transferred, received, or delivered; P Second, any false, forged, counterfeited, or altered obligation or other security of the United States; and P Third, that the defendant did so with the intent that it be passed, published, or used as true and genuine. The term “obligation or other security of the United States” includes all bonds, certificates of indebtedness, national bank currency, Federal Reserve notes, Federal Reserve 192 United States v. Leftenant, 341 F.3d 338, 347 (4th Cir. 2003). Both knowledge and intent are necessary elements of § 472. 193 Ross, 844 F.2d at 190. In Ross, the Fourth Circuit reversed a conviction because the counterfeit money (a black and white photocopy of the face of a U.S. one dollar bill inserted into a coin change machine) was not “of such falsity in purport as to fool an ‘honest, sensible and unsuspecting person of ordinary observation and care.’” Id. at 189. 194 See United States v. Jenkins, 347 F.2d 345, 347 (4th Cir. 1965) (citation omitted). 195 Cowan, 116 F.3d at 1362 (18 U.S.C. § 505 prosecution). 196 Ellis, 326 F.3d at 556. 73 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 77 of 684 TITLE 18 bank notes, coupons, United States notes, Treasury notes, gold certificates, silver certificates, fractional notes, certificates of deposit, bills, checks, or drafts for money, drawn by or upon authorized officers of the United States, stamps and other representatives of value, of whatever denomination, issued under any Act of Congress, and canceled United States stamps. [18 U.S.C. § 8] An obligation is “counterfeit” if it bears such a likeness or a resemblance to a genuine obligation or security issued under the authority of the United States as is calculated to deceive an honest, sensible and unsuspecting person of ordinary observation and care dealing with a person supposed to be honest and upright.197 ____________________NOTE____________________ Section 473 requires the involvement of an obligation or security of the United States. In United States v. Scott, 159 F.3d 916, 921 (5th Cir. 1998), the Fifth Circuit reversed a § 473 conviction where the credit enhancement scheme involved fraudulently reflecting that the defendants owned millions of dollars in treasury notes, which were leased to victims to enhance their creditworthiness. What were transferred were the alleged certificates of ownership, not the treasury notes themselves. 18 U.S.C. § 484 CONNECTING PARTS OF DIFFERENT NOTES 017 7/2 Title 18, United States Code, Section 484 makes it a crime to connect parts of different Federal Reserve Notes. For you to find the defendant guilty, the government must prove each of the following beyond a reasonable doubt: 7/2different parts of two or 0 P First, that the defendant placed or connected together ed more notes, bills, or other genuine instruments issued under the authority of the w United States [or by any foreignie v government or corporation] to produce one instrument; and 26, so with intent to defraud. 2 P Second, that the defendant did 6-4 defraud” means to act with a specific intent to deceive or 1 To act with an “intent to o. the purpose of either causing some financial loss to another or bringing cheat, ordinarily, for N about some financial gain to one’s self. It is not necessary, however, to prove that anyone was, in fact defrauded, as long as it is established that the defendant acted with the intent to defraud or mislead.198 18 U.S.C. § 498 FORGING MILITARY DISCHARGE CERTIFICATES Title 18, United States Code, Section 498 makes it a crime to forge or use a forged military discharge certificate. For you to find the defendant guilty, the government must prove each of the following beyond a reasonable doubt: P First, that the defendant forged, counterfeited, or falsely altered; and P Second, a certificate of discharge from the military or naval service of the United States. OR 197 United States v. Ross, 844 F.2d 187, 190 (4th Cir. 1988). In Ross, the Fourth Circuit reversed a conviction because the counterfeit money (a black and white photocopy of the face of a U.S. one dollar bill inserted into a coin change machine) was not “of such falsity in purport as to fool an ‘honest, sensible and unsuspecting person of ordinary observation and care.’” Id. at 189. 198 United States v. Ellis, 326 F.3d 550, 556 (4th Cir. 2003). 74 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 78 of 684 TITLE 18 P First, that the defendant used, unlawfully possessed, or exhibited; P Second, a forged, counterfeited, or falsely altered certificate of discharge from the military or naval service of the United States; and P Third, the defendant knew the certificate of discharge was forged, counterfeited, or falsely altered. Forge means to fabricate, construct, or prepare one thing in imitation of another thing, with the intention of substituting the false for the genuine.199 ____________________NOTE____________________ See United States v. Ross, 844 F.2d 187, 190 (4th Cir. 1988), where the Fourth Circuit stated that currency is “counterfeit” if it bears such a likeness or a resemblance to a genuine obligation or security issued under the authority of the United States as is calculated to deceive an honest, sensible and unsuspecting person of ordinary observation and care dealing with a person supposed to be honest and upright. Intent to defraud is not an element of § 498. See United States v. Cowan, 116 F.3d 1360, 1363 (10th Cir. 1997) (18 U.S.C. § 505 prosecution). 18 U.S.C. § 500 017 7/2 POSTAL MONEY ORDERS Title 18, United States Code, Section 500 makes criminal certain acts relating to postal money orders. For you to find the defendant guilty, the government must prove each of the following beyond a reasonable doubt: 7/2 d0 e iew counterfeited, engraved, or printed; P First, that the defendant falsely made, forged, 6, v P Second, any order in imitation of or purporting to be a blank money order or a 22 money order issued4 or under the direction of the Postal Service; and - by 16 P Third, the . defendant did so with intent to defraud. No ¶2 ¶1 P First, that the defendant forged or counterfeited the signature or initials of any person authorized to issue money orders; P Second, that the forged or counterfeited signature or initials were upon or to any money order, postal note, or blank money order or postal note provided or issued by or under the direction of the Postal Service [or post office department or corporation of any foreign country and payable in the United States]; and P Third, that the defendant did so knowingly. OR P First, that the defendant forged or counterfeited any material signature or indorsement; P Second, on any money order, postal note, or blank money order or postal note provided or issued by or under the direction of the Postal Service [or post office department or corporation of any foreign country and payable in the United States]; and 199 United States v. Cowan, 116 F.3d 1360, 1362 (10th Cir. 1997) (18 U.S.C. § 505 prosecution). 75 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 79 of 684 TITLE 18 P Third, that the defendant did so knowingly. OR P First, that the defendant forged or counterfeited any material signature; P Second, to any receipt or certificate of identification of any money order, postal note, or blank money order or postal note provided or issued by or under the direction of the Postal Service [or post office department or corporation of any foreign country and payable in the United States]; and P Third, that the defendant did so knowingly. ¶3 P First, that the defendant falsely altered; P Second, any money order, postal note, or blank money order or postal note provided or issued by or under the direction of the Postal Service [or post office department or corporation of any foreign country and payable in the United States];200 P Third, that the alteration was material; and P Fourth, that the defendant did so with intent to defraud.201 017 7/2 Fraudulently filling out blank money orders can be considered “altering” money orders.202 7/2 d0 ¶4 P First, that the defendant passed, uttered, published, or attempted to pass, utter, or publish a postal money order; e iew initials, signature, stamp impression or Second, that the money order had material indorsement which was/were false, forged, or counterfeited, or had a material 6, v 2 alteration which had been falsely made; -42 knew that the postal money order contained a material Third, that the 6 o. 1defendant made; and alteration which was falsely N P P P Fourth, that the defendant did so with intent to defraud.203 The government does not have to prove how the defendant came into possession of the postal money order.204 A signature may consist of initials only, when the initials are contemplated to be representative of the person making the initials.205 A signature is forged if the signature is false in any material part and calculated to induce another to give credit to it as genuine.206 ¶5 200 “[A]ny such money order” in ¶ 3 refers to ¶ 2 and therefore includes a blank postal money order. United States v. Turner, 28 F.3d 981, 984 (9th Cir. 1994). 201 United States v. Walls, 134 F. App’x 825 (6th Cir. 2005). 202 Turner, 28 F.3d at 984. 203 See United States v. Prewitt, 553 F.2d 1082, 1087 (7th Cir. 1977). 204 United States v. Tasher, 453 F.2d 244, 246 (10th Cir. 1972). 205 Id. 206 Id. 76 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 80 of 684 TITLE 18 P First, that the defendant issued a money order or postal note without having previously received or paid the full amount of money payable for the money order or postal note; P Second, that the defendant did so with the purpose of fraudulently obtaining or receiving, or fraudulently enabling any other person, either directly or indirectly, to obtain or receive from the United States or the Postal Service, or any officer, employee, or agent of the United States or the Postal Service, any sum of money. ¶6 P First, that the defendant embezzled, stole, or knowingly converted to his own use or to the use of another, or without authority converted or disposed of; P Second, any blank money order form provided by or under the authority of the Post Service; and P Third, that the defendant did so knowingly and willfully. ¶7 P First, that the defendant received or possessed a stolen blank postal money order; P Second, that the defendant did so with intent to convert it to his own use or gain or the use or gain of another; and P Third, that the defendant did so knowing the money order had been embezzled, stolen, or converted.207 ¶8 P P 017 7/2 7/2 to be transmitted or 0 First, that the defendant transmitted, presented, or caused ed presented; w vie that Second, any money order or postal note 26, counterfeited signature, initials, or any stamped (1) contained any42 forged or 6impression, or o. 1 any material alteration unlawfully made, or (2) N contained (3) had been unlawfully issued without previous payment of the amount required to be paid upon the issue of such money order or postal note, or (4) had been stamped without lawful authorization; P Third, that the defendant knew the money order or postal note [fit one of the four categories listed above];208 and P Fourth, that the defendant did so with intent to defraud the United States, the Postal Service, or any person. ¶9 Title 18, United States Code, Section 500 makes it a crime to steal or receive a stolen postal money order machine. For you to find the defendant guilty, the government must prove each of the following beyond a reasonable doubt: 207 United States v. Bryant, 612 F.2d 806, 812 (4th Cir. 1979). See also United States v. Smith, 527 F.2d 692, 696 (10th Cir. 1975); United States v. Broadus, 664 F. Supp. 592, 599 (D.D.C. 1987). “Any such money order” in ¶ 7 refers to the phrase “any blank money order form” in ¶ 6.” Bryant, 612 F.2d at 803. 208 United States v. Sahadi, 292 F.2d 565, 566 (2d Cir. 1961). 77 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 81 of 684 TITLE 18 P First, that the defendant stole a postal money order machine [or any stamp, tool, or instrument specifically designed to be used in preparing or filling out the blanks on postal money order forms]; and P Second, that the defendant did so with intent to deprive the United States Postal Service, temporarily or permanently, of the rights and benefits of ownership.209 OR P First, that the defendant did receive, possess, or dispose of or attempt to dispose of any postal money order machine [or any stamp, tool, or instrument specifically designed to be used in preparing or filling out the blanks on postal money order forms]; and P Second, that the defendant did so with intent to defraud or without being lawfully authorized by the Postal Service. An obligation is “counterfeit” if it bears such a likeness or a resemblance to a genuine obligation or security issued under the authority of the United States as is calculated to deceive an honest, sensible and unsuspecting person of ordinary observation and care dealing with a person supposed to be honest and upright.210 Forge means to fabricate, construct, or prepare one thing in imitation of another thing, with the intention of substituting the false for the genuine.211 017 7/2 “To pass or utter” means to offer the obligation or security, such as, to another person or to a bank, with intent to defraud. It is not necessary to prove that anything of value was actually received in exchange. In other words, it is not necessary that the instrument be accepted.212 7/2 d0 e iew ,v To act with an “intent to defraud” means to act with a specific intent to deceive or cheat, ordinarily, for the purpose of either causing some financial loss to another or bringing about some financial gain to one’s self. It is not necessary, however, to prove that anyone was, in fact defrauded, as long as it is established that the defendant acted with the intent to defraud or mislead.213 226 6-4 1 o. claim) is material if it has a natural tendency to influence, or is capable A statement (or N of influencing, the decision of the body to which it was addressed. It is irrelevant whether the false statement (or claim) actually influenced or affected the decision-making process. The capacity to influence must be measured at the point in time that the statement (or claim) was made.214 Possession of recently stolen property, if not satisfactorily explained, is ordinarily a circumstance from which you may reasonably draw the inference and find, in the light of the surrounding circumstances shown by the evidence in the case, that the person in 209 See United States v. Merchant, 731 F.2d 186, 190 (4th Cir. 1984). United States v. Ross, 844 F.2d 187, 190 (4th Cir. 1988). In Ross, the Fourth Circuit reversed a conviction because the so-called counterfeit money (a black and white photocopy of the face of a U.S. one dollar bill inserted into a coin change machine) was not “of such falsity in purport as to fool an ‘honest, sensible and unsuspecting person of ordinary observation and care.’” 844 F.2d at 189. 211 United States v. Cowan, 116 F.3d 1360, 1362 (10th Cir. 1997) (18 U.S.C. § 505 prosecution). 212 See United States v. Jenkins, 347 F.2d 345, 347 (4th Cir. 1965) (citation omitted). 213 United States v. Ellis, 326 F.3d 550, 556 (4th Cir. 2003). 214 United States v. Sarihifard, 155 F.3d 301, 306 (4th Cir. 1998). 210 78 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 82 of 684 TITLE 18 possession participated in some way in the theft of the property215 or knew the property had been stolen. The same inference may reasonably be drawn from a false explanation of such possession.216 However, you are never required to make this inference. It is the exclusive province of the jury to determine whether the facts and circumstances shown by the evidence in this case warrant any inference which the law permits the jury to draw from the possession of recently stolen property. The term “recently” is a relative term, and has no fixed meaning. Whether property may be considered as recently stolen depends upon the nature of the property, and all the facts and circumstances shown by the evidence in the case. The longer the period of time since the theft the more doubtful becomes the inference which may reasonably be drawn from unexplained possession. You may infer that the defendant knew the property was stolen from circumstances that would convince a person of ordinary intelligence that such was the fact. In deciding whether the defendant knew the property was stolen, you should consider the entire conduct of the defendant that you deem relevant and which occurred at or near the time the offenses are alleged to have been committed. Sale and purchase at a substantially discounted price permits, but does not require, an inference that the defendant knew the property was stolen.217 Possession may be satisfactorily explained through other circumstances, other evidence, independent of any testimony of the defendant.218 You are reminded that the Constitution never imposes on a defendant the burden of testifying or of explaining possession, and it is the jury’s province to draw or reject any inference from possession.219 017 7/2 7/2 d0 e iew that “a false representation is not a Concerning ¶ 4, the Ninth Circuitv held , has necessary element for passing a 26 money order.” United States v. Nuanez, No. 96forged 10357, 1997 WL 133252 (9th Cir. Mar. 21, 1997) (citation omitted). 42 6-Di Pietroantonio, 289 F.2d 122 (2d Cir. 1961) (defendant See United States v. o. 1signatures on money orders charged with falsely altering money counterfeited N material orders). ____________________NOTE____________________ 18 U.S.C. § 505 FORGING A JUDGE’S SIGNATURE Title 18, United States Code, Section 505 makes it a crime to forge the signature of a federal judge. For you to find the defendant guilty, the government must prove each of the following beyond a reasonable doubt: P First, that the defendant forged the signature of any judge, register, or other officer of any court of the United States, [or forged or counterfeited the seal of any such court][or knowingly concurred in using a forged or counterfeited signature or seal]; and P Second, that the defendant did so for the purpose of authenticating any proceeding or document. 215 United States v. Long, 538 F.2d 580, 581 n.1 (4th Cir. 1976). Id. 217 United States v. Gallo, 543 F.2d 361, 368 n.6 (D.C. Cir. 1976). 218 See Barnes v. United States, 412 U.S. 837, 840 n.3 (1973) (instruction in prosecution under 18 USC § 1708). 219 See United States v. Chorman, 910 F.2d 102, 108 (4th Cir. 1990). 216 79 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 83 of 684 TITLE 18 OR P First, that the defendant tendered in evidence any proceeding [sic]or document with a false or counterfeit signature of any judge, register, or other officer of any court of the United States, or a false or counterfeit seal of the court, subscribed or attached to it; and P Second, that the defendant knew the signature or seal to be false or counterfeit. Forge means to fabricate, construct, or prepare one thing in imitation of another thing, with the intention of substituting the false for the genuine.220 The government need not prove any financial gain or loss.221 ____________________NOTE____________________ Intent to defraud is not an element of § 505. United States v. Cowan, 116 F.3d 1360, 1361 (10th Cir. 1997). In Cowan, the Tenth Circuit found that this section’s purpose is to “protect the reputation and integrity of the federal courts, their official documents and proceedings, rather than simply to outlaw a narrow category of fraud.” Id. at 1362. The court found that the statute applies when an individual forges a federal judge’s signature “in order to make that document appear authentic. A forged signature on a document which the forger intends to appear authentic is the only intent requirement of § 505.” Id. at 1363. 017 7/2 7/2 forge the endorsements Title 18, United States Code, Section 510 makes it a crime to d0 eTreasury checks. For you to find the on Treasury checks, or buy, sell, or receive forged w defendant guilty, the government must prove each of the following beyond a reasonable vie doubt: 26, 2 § 510(a)(1) 6-4 P First, that . defendant falsely made or forged any endorsement or signature on o the1 or bond or security of the United States; and N a Treasury check 18 U.S.C. § 510 FORGING TREASURY CHECKS P Second, that the face value of the Treasury check or bond or security of the United States, or the aggregate face value, if more than one Treasury check or bond or security of the United States, exceeded $1,000; and P Third, that the defendant did so with intent to defraud. § 510(a)(2) P First, that the defendant passed, uttered, or published, or attempted to pass, utter, or publish a Treasury check or bond or security of the United States; P Second, that the check, bond, or security bore a falsely made or forged endorsement or signature; P Third, that the defendant knew that the check, bond, or security bore a falsely made or forged endorsement or signature; P Fourth, that the face value of the Treasury check or bond or security of the United States, or the aggregate face value, if more than one Treasury check or bond or security of the United States, exceeded $1,000; and 220 221 80 United States v. Cowan, 116 F.3d 1360, 1362 (10th Cir. 1997). Id. Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 84 of 684 TITLE 18 P Fifth, that the defendant did so with intent to defraud.222 § 510(b) P First, that the defendant bought, sold, exchanged, received, delivered, retained, or concealed a Treasury check or bond or security of the United States that was stolen, or which bore a falsely made or forged endorsement or signature; P Second, that the face value of the Treasury check or bond or security of the United States, or the aggregate face value, if more than one Treasury check or bond or security of the United States, exceeded $1,000; and P Third, that the defendant knew that the Treasury check or bond or security of the United States was stolen or bore a falsely made or forged endorsement or signature. L If there is an issue about whether the face value of the Treasury check or bond or security, or the aggregate face value, if more than one, does not exceed $1,000, the court should consider giving a lesser included offense instruction. Forge means to fabricate, construct, or prepare one thing in imitation of another thing, with the intention of substituting the false for the genuine.223 “To pass or utter” means to offer the obligation or security, such as, to another person or to a bank, with intent to defraud. It is not necessary to prove that anything of value was actually received in exchange. In other words, it is not necessary that the instrument be accepted.224 017 2 ____________________NOTE____________________ 27/ 07/ Treasury check or bond or There is a lesser included offense if the face value of the d security, or the aggregate face value, if more than e does not exceed $1,000. 18 U.S.C. w one, e § 510(c). , vi 26 2VEHICLE IDENTIFICATION NUMBERS 4 18 U.S.C. § 511 ALTERING 16§ 511(a)(1)o. N Title 18, United States Code, Section 511 makes it a crime to remove or alter a vehicle identification number. For you to find the defendant guilty, the government must prove each of the following beyond a reasonable doubt: P First, that the defendant removed, obliterated, tampered with, or altered; P Second, an identification number for a motor vehicle; and P Third, that the defendant did so knowingly. § 511(a)(2) Title 18, United States Code, Section 511 makes it a crime to remove or alter a motor vehicle decal or device. For you to find the defendant guilty, the government must prove each of the following beyond a reasonable doubt: P First, that the defendant removed, obliterated, tampered with, or altered; P Second, a decal or device affixed to a motor vehicle pursuant to the Motor Vehicle Theft Prevention Act; and 222 See United States v. Rosario, 118 F.3d 160, 163 (3d Cir. 1997); United States v. Hill, 40 F.3d 164, 167 (7th Cir. 1994). 223 Cowan, 116 F.3d at 1362 (18 U.S.C. § 505 prosecution). 224 See United States v. Jenkins, 347 F.2d 345, 347 (4th Cir. 1965) (citation omitted). 81 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 85 of 684 TITLE 18 P Third, that the defendant did so knowingly and with intent to further the theft of a motor vehicle. “Tampered with” includes covering a program decal or device affixed to a motor vehicle pursuant to the Motor Vehicle Theft Prevention Act for the purpose of obstructing its visibility. [§ 511(d)] “Motor vehicle” means a vehicle driven or drawn by mechanical power and manufactured primarily for use on public streets, roads, and highways, but does not include a vehicle operated only on a rail line. [49 U.S.C. § 32101(7)] “Identification number” means a number or symbol that is inscribed or affixed for purposes of identification [under chapter 301 and part C of subtitle VI of Title 49]. [§ 511(c)(1)] ____________________NOTE____________________ United States v. Chorman, 910 F.2d 102 (4th Cir. 1990). Section 511(a) does not require specific intent, but only that the defendant act knowingly. Knowingly in this context means only knowing action by the defendant. See United States v. Enochs, 857 F.2d 491, 492-94 (8th Cir. 1989). 18 U.S.C. § 513 017 7/2 UTTERING FORGED SECURITIES § 513(a) 7/2 d0 Title 18, United States Code, Section 513(a) makes it a crime to make, utter, or possess a forged security of an organization with intent to deceive another. For you to find the defendant guilty, the government must prove each of the following beyond a reasonable doubt: P P P e iew ,v 226 security; Second, a forged or4 counterfeited 16Third, of . organization which operates in or the activities of which affect an No interstate commerce; and First, that the defendant made, uttered, or possessed; 225 P Fourth, that the defendant did so with intent to deceive another person, organization, or government.226 § 513(b) Title 18, United States Code, Section 513(b) makes it a crime to make, receive, possess, or otherwise transfer an implement designed for making a forged security, with the intent that the implement be so used. For you to find the defendant guilty, the government must prove each of the following beyond a reasonable doubt: P First, that the defendant made, received, possessed, or otherwise transferred; 225 An interstate commerce nexus is an essential element of this section, but it is incorporated in “organization,” which is a term of art defined in the statute. United States v. Wicks, 187 F.3d 426, 428 (4th Cir. 1999). The organization may be the account holder, or the bank at which the organization has its account. United States v. Chappell, 6 F.3d 1095, 1099 (5th Cir. 1993) (finding that “section 513 does not expressly or impliedly state that a document may be the security of only one organization.”). 226 United States v. Lessington, 372 F. App’x 379 (4th Cir. 2010). If the victim is an organization, ordinarily the government is required to prove the organization’s connection to interstate commerce. Not so if the victim is a person. Chappell, 6 F.3d at 1099. 82 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 86 of 684 TITLE 18 P Second, an implement designed for or particularly suited for making a forged security; and P Third, that the defendant did so with the intent that the implement be used to make a counterfeit or forged security. “To pass or utter” means to offer the obligation or security, such as, to another person or to a bank, with intent to defraud. It is not necessary to prove that anything of value was actually received in exchange. In other words, it is not necessary that the instrument be accepted.227 “Counterfeited” means a document that purports to be genuine but is not, because it has been falsely made or manufactured in its entirety. [§ 513 (c)(1)] “Forged” means a document that purports to be genuine but is not because it has been falsely altered, completed, signed, or endorsed, or contains a false addition thereto or insertion therein, or is a combination of parts of two or more genuine documents. [§ 513 (c)(2)] “Security” means (A) a note, stock certificate, treasury stock certificate, bond, treasury bond, debenture, certificate of deposit, interest coupon, bill, check, draft, warrant, debit instrument as defined in section 916(c) of the Electronic Fund Transfer Act, money order, traveler’s check, letter of credit, warehouse receipt, negotiable bill of lading, evidence of indebtedness, certificate of interest in or participation in any profit-sharing agreement, collateral-trust certificate, pre-reorganization certificate of subscription, transferable share, investment contract, voting trust certificate, or certificate of interest in tangible or intangible property; 017 7/2 7/2 d0 e iew ,v (B) an instrument evidencing ownership of goods, wares, or merchandise; 226 of participation in, certificate for, receipt for, 4 (D) a certificate of interest in, certificate 16-other right to subscribe to or purchase, any of the foregoing; or or warrant or option or . No of any of the foregoing. [§ 513(c)(3)] (E) a blank form (C) any other written instrument commonly known as a security; “Organization” means a legal entity, other than a government, established or organized for any purpose, and includes a corporation, company, association, firm, partnership, joint stock company, foundation, institution, society, union, or any other association of persons which operates in or the activities of which affect interstate or foreign commerce. [§ 513 (c)(4)] “Interstate commerce” includes commerce between one State, Territory, Possession, or the District of Columbia and another State, Territory, Possession, or the District of Columbia. [18 U.S.C. § 10] “Foreign commerce” includes commerce with a foreign country. [18 U.S.C. § 10] ____________________NOTE____________________ In United States v. Chappell, 6 F.3d 1095 (5th Cir. 1993), the defendants were convicted of cashing counterfeit Mississippi Power and Light (MP&L) payroll checks drawn on Trustmark National Bank. The government failed to prove that MP&L was an organization operating in interstate commerce. The Fifth Circuit affirmed the conviction, holding that “section 513 does not expressly or impliedly state that a document may be the 227 See Jenkins, 347 F.2d at 347 (citation omitted). 83 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 87 of 684 TITLE 18 security of only one organization,” which included the bank on which the counterfeit checks were drawn. 6 F.3d at 1099. In United States v. Barone, 71 F.3d 1442 (9th Cir. 1995), the defendant was convicted of uttering checks drawn on a non-existent shell company. The Ninth Circuit reversed, holding that issuance of false checks by a company not otherwise engaged in interstate commerce did not satisfy the jurisdictional element. In a footnote, the Ninth Circuit observed that the government might have been able to prove the interstate jurisdictional element by showing that the banks which issued the check operated in interstate commerce, citing Chappell, but the government failed to present any evidence on that theory either. The Fourth Circuit has not addressed this issue. Congress “did not require in subsection (b) that the implement ... be one for making a security of any particular kind of entity.” United States v. Pebworth,112 F.3d 168, (4th Cir. 1997) Thus, implements include blank checks of defunct organizations. Implements also include items such as signature stamps, tools, instruments, and distinctive papers. United States v. Holloman, 981 F.2d 690, 692 (3d Cir. 1992). 18 U.S.C. § 521 CRIMINAL STREET GANGS 017 7/2 Title 18, United States Code, Section 521 makes it a crime to commit certain crimes while participating in a criminal street gang. For you to find the defendant guilty, the government must prove each of the following beyond a reasonable doubt: P P P 7/2 gang with knowledge Second, that the defendant participated in the criminal street d0 eseries of [federal drug felonies and/or that its members engaged in a continuing ew federal felony crimes of violence, i conspiracies to commit either]; v or 6, Third, that the defendant2 [committed or conspired to commit a federal drug felony, 2 or a federal felony 4 6-crime of violence thatofhas as an element the use or attempted use of physical force against the person another]; o. 1 defendant’s general purpose in committing [the drug felony or N Fourth, that the First, that there was a criminal street gang; 228 P crime of violence felony] was to promote or further the criminal activities of the street gang or to maintain or increase his position in the gang;229 and P Fifth, that the defendant had been convicted within the past five years for [one of the enumerated offenses]. “Criminal street gang” means (1) an ongoing group, club, organization, or association of 5 or more persons that has as one of its primary purposes the commission of one or more [of the offenses enumerated in § 521(c)]; (2) the members of the street gang engage, or have engaged within the past five years, in a continuing series [of the offenses enumerated in § 521(c)]; and (3) the activities of the criminal street gang affect interstate or foreign commerce. [§ 521(a)]. 228 The court should have already instructed on the predicate offense. See United States v. Fiel, 35 F.3d 997, 1003 (4th Cir. 1994) (18 U.S.C. § 1959 prosecution). 229 84 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 88 of 684 TITLE 18 “Interstate commerce” includes commerce between one State, Territory, Possession, or the District of Columbia and another State, Territory, Possession, or the District of Columbia. [18 U.S.C. § 10] “Foreign commerce” includes commerce with a foreign country. [18 U.S.C. § 10] The government must prove that the street gang, or the activities of the street gang, had some effect upon interstate commerce. This effect on interstate commerce can occur in any way and it need only be minimal.230 The government does not need to show a connection between interstate commerce and the specific crime alleged.231 ____________________NOTE____________________ Section 521 is a sentence enhancement statute. United States v. Matthews, 178 F.3d 295, 302 (5th Cir. 1999). Cases interpreting 18 U.S.C. § 1959 might be informative. 18 U.S.C. § 541 ENTRY OF GOODS FALSELY CLASSIFIED Title 18, United States Code, Section 541 makes it a crime to effect the entry of goods into the United States through false classification of such goods. For you to find the defendant guilty, the government must prove each of the following beyond a reasonable doubt: 017 7/2 7/2 d0 P First, that the defendant brought into the United States any goods, wares, or merchandise; P Second, that the defendant did so at less than the true weight or measure, or upon a false classification as to quality or value, or by the payment of less than the amount of duty legally due; and e iew ,v 226so knowingly. -4 P Third, that the defendant did 16prove that it suffered any loss of revenue. The government o. not N need 232 ____________________NOTE____________________ For “value,” see 19 U.S.C. § 1401a. Transaction value is defined as the price actually paid or payable for the merchandise, exclusive of any costs, charges, or expenses incurred for transportation, insurance, and related services incident to the international shipment of the merchandise. See United States v. Ismail, 97 F.3d 50, 62 (4th Cir. 1996) (quoting 19 U.S.C. §§ 1401a(b)(1) and 1401a(b)(4)(A)). In United States v. Godinez, 922 F.2d 752, 756 (11th Cir. 1991), the district court did not instruct the jury on the definition of “entry” contained in 19 C.F.R. § 141.0a(a). The Eleventh Circuit agreed that a special jury instruction on the term “entry” was not necessary as the plain meaning of the word was apparent. 18 U.S.C. § 542 ENTRY OF GOODS BY MEANS OF FALSE STATEMENTS 230 See United States v. Fernandez, 388 F.3d 1199, 1249 (9th Cir. 2004) (18 U.S.C. § 1959 prosecution). 231 See id. at 1250. See also United States v. Feliciano, 223 F.3d 102, 117 (2d Cir. 2000). 232 See United States v. Ahmad, 213 F.3d 805, 811 (4th Cir. 2000). 85 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 89 of 684 TITLE 18 Title 18, United States Code, Section 542 makes it a crime to effect the entry of goods into the United States by means of false statements. For you to find the defendant guilty, the government must prove each of the following beyond a reasonable doubt: P First, that the defendant entered or introduced, or attempted to enter or introduce, into the commerce of the United States any imported merchandise; P Second, that the defendant did so by means of any false or fraudulent invoice, declaration, affidavit, letter, paper, statement, or practice; and P Third, that the defendant did so knowingly. OR P First, that the defendant made, or procured the making of, a false statement in any declaration without reasonable cause to believe the truth of such statement; P Second, that the false statement was material to the introduction of imported merchandise into the commerce of the United States; P Third, that the defendant knew the statement was false; and P Fourth, the defendant introduced or attempted to introduce imported goods into interstate commerce.233 017 7/2 A statement (or claim) is material if it has a natural tendency to influence, or is capable of influencing, the decision of the body to which it was addressed. It is irrelevant whether the false statement (or claim) actually influenced or affected the decision-making process. The capacity to influence must be measured at the point in time that the statement (or claim) was made.234 7/2 d0 e iew ,v The government need not prove that it suffered any loss of revenue.235 226 271 F.3d 574 (4th Cir. 2001) (prosecution under §§ 4 See United States v. Hassanzadeh, 542 and 545). 16. For “value,” see 19 U.S.C. § 1401a. Transaction value is defined as the price actually No ____________________NOTE____________________ paid or payable for the merchandise, exclusive of any costs, charges, or expenses incurred for transportation, insurance, and related services incident to the international shipment of the merchandise. United States v. Ismail, 97 F.3d 50, 62 (4th Cir. 1996) (quoting 19 U.S.C. §§ 1401a(b)(1) and 1401a(b)(4)(A)). Section 542 is more specific than § 541. 18 U.S.C. § 545 SMUGGLING Title 18, United States Code, Section 545 makes it a crime to smuggle goods into the United States. For you to find the defendant guilty, the government must prove each of the following beyond a reasonable doubt: ¶1 P First, that the defendant smuggled or clandestinely introduced or attempted to smuggle or clandestinely introduce into the United States any merchandise which should have been invoiced, or made out or passed, or attempted to pass, through 233 234 235 86 United States v. Ackerman, 704 F.2d 1344, 1347 (5th Cir. 1983). United States v. Sarihifard, 155 F.3d 301, 306 (4th Cir. 1998). Ahmad, 213 F.3d at 811. Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 90 of 684 TITLE 18 the customhouse any false, forged, or fraudulent invoice or other document or paper; and P Second, that the defendant did so knowingly, willfully, and with intent to defraud the United States. ¶2 P First, that the defendant imported or brought into the United States, any merchandise; P Second, that the importation was contrary to law [the court should identify the elements of the law allegedly violated236 ]; and P Third, that the defendant did so fraudulently or knowingly.237 OR P First, that the defendant received, concealed, bought, sold, or in any manner facilitated the transportation, concealment, or sale of merchandise which had been imported into the United States contrary to law [the court should identify the elements of the law allegedly violated]; and P Second, that the defendant knew the merchandise had been imported or brought into the United States contrary to law. 017 7/2 To act with an “intent to defraud” means to act with a specific intent to deceive or cheat, ordinarily, for the purpose of either causing some financial loss to another or bringing about some financial gain to one’s self. It is not necessary, however, to prove that anyone was, in fact defrauded, as long as it is established that the defendant acted with the intent to defraud or mislead.238 7/2 d0 e iew ,v The government need not prove that it suffered any loss of revenue.239 226 6-4 ____________________NOTE____________________ o. 1 N See United States v. Hassanzadeh, 271 F.3d 574 (4th Cir. 2001) (prosecution under §§ 542 and 545). “Contrary to law” encompasses substantive or legislative-type regulations that have the force and effect of law. United States v. Mitchell, 39 F.3d 465, 476 (4th Cir. 1994). The regulation must have been promulgated pursuant to a congressional grant of quasi-legislative authority and in conformity with congressionally-imposed procedural requirements. Id. at 470. In Mitchell, the defendant imported untanned animal hides and thereby violated Fish and Wildlife Service and Department of Agriculture regulations. Specific intent to defraud is not an element of the second paragraph of § 545. United States v. Davis, 597 F.2d 1237, 1238 (9th Cir. 1979). 18 U.S.C. § 546 SMUGGLING INTO FOREIGN COUNTRIES Title 18, United States Code, Section 546 makes it a crime to smuggle goods into a foreign country. For you to find the defendant guilty, the government must prove each of the following beyond a reasonable doubt: 236 237 238 239 See United States v. Davis, 597 F.2d 1237, 1239 (9th Cir. 1979). Id. at 1238. The mens rea is either fraudulently or knowingly, but not both. Id. at 1239. United States v. Ellis, 326 F.3d 550, 556 (4th Cir. 2003). United States v. Ahmad, 213 F.3d 805, 811 (4th Cir. 2000). 87 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 91 of 684 TITLE 18 P First, that the defendant: 1. owned in whole or in part any vessel of the United States; or 2. was a citizen of the United States, or domiciled in the United States, or was a corporation incorporated in the United States and controlled or substantially participated in the control of a vessel, directly or indirectly, through ownership of corporate shares or otherwise; or 3. was found, or discovered to have been on board the vessel and participating or assisting in the criminal venture; P Second, that the defendant employed, or participated in, or allowed the employment of the vessel for the purpose of smuggling, or attempting to smuggle, or assisting in smuggling, any merchandise into the territory of any foreign government in violation of the laws of that foreign government [the court should identify the elements of the law allegedly violated]; and P Third, that the laws of the foreign government prohibit smuggling into the United States.240 18 U.S.C. § 641 THEFT OF GOVERNMENT PROPERTY 017 7/2 Title 18, United States Code, Section 641 makes it a crime to steal property, or possess stolen property, belonging to the United States. For you to find the defendant guilty, the government must prove each of the following beyond a reasonable doubt: 7/2 0 P First, that the defendant embezzled, stole, purloined, or knowingly converted to ed voucher, money or thing of value; his/her own use or the use of another any record, iew vmoney or thing of value belonged to the United P Second, that the record, voucher, 26, of $1,000.00; and States and was valued2 excess in 6-4 did so willfully. P Third, that the defendant o. 1 OR N ¶1 P First, that the defendant sold, conveyed, or disposed of any record, voucher, money, or thing of value; P Second, that the record, voucher, money or thing of value belonged to the United States and was valued in excess of $1,000.00; P Third, that the defendant did so without authority; and P Fourth, that the defendant knew that the property belonged to the United States.241 ¶2 P First, that the defendant received, concealed, or retained with intent to convert to his use or gain any record, voucher, money or thing of value; P Second, that the record, voucher, money or thing of value belonged to the United States and was valued in excess of $1,000.00; and P Third, that the defendant knew the record, voucher, money or thing of value had been embezzled, stolen, purloined, or converted. 240 See Pasquantino v. United States, 544 U.S. 349, 380 (2005) (Ginsburg, J., dissenting). United States v. Yokum, 417 F.2d 253, 255 (4th Cir. 1969). See also United States v. Fowler, 932 F.2d 306 (4th Cir. 1991); United States v. Zettl, 889 F.2d 51, 53 (4th Cir. 1989). 241 88 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 92 of 684 TITLE 18 L If there is an issue that the value did not exceed $1,000, the court should consider giving a lesser included offense instruction. “Value” means face, par, or market value, or cost price, either wholesale or retail, whichever is greater. [§ 641]242 “Embezzle” means the deliberate taking or retaining of the property of another with the intent to deprive the owner of its use or benefit by a person who has lawfully come into the possession of the property.243 “Steal” means to take away from a person in lawful possession without right with the intention to keep wrongfully.244 Conversion is the act of control or dominion over the property of another that seriously interferes with the rights of the owner. The act of control or dominion must be without authorization from the owner. The government must prove both that the defendant knew the property belonged to another and that the taking was not authorized.245 Conversion, however, may be consummated without any intent to keep and without any wrongful taking, where the initial possession by the converter was entirely lawful. Conversion may include misuse or abuse of property. It may reach use in an unauthorized manner or to an unauthorized extent of property placed in one’s custody for limited use. Money rightfully taken into one’s custody may be converted without any intent to keep or embezzle it merely by commingling it with the custodian’s own, if he was under a duty to keep it separate and in tact.246 017 2 The government does not have to prove ownership, but the government must prove that 27/ the United States had some interest in the property. 07/ d The government must prove that the property belonged to the United States but the we knew that the property belonged to government does not have to prove that theidefendant ve the United States. The government6, to prove that the defendant knew the property has 2 belonged to someone other than himself. -42 . 16 No 247 248 242 W here the stolen property is blank money order forms, the Fifth Circuit has rejected the argument that the money orders are valueless “beyond the paper on which they are printed and have held that the value requirement may be met by the face value of, or the amount received for, filled in blank money orders, or the value of the blanks in a thieves’ market for blank money orders.” United States v. Wright, 661 F.2d 60, 61 (5th Cir. 1981). 243 See United States v. Smith, 373 F.3d 561, 564-65 (4th Cir. 2004). Lawful possession need not be acquired through a relationship of trust. Moore v. United States, 160 U.S. 268, 269-70 (1895). “Embezzlement is the fraudulent appropriation of property by a person to whom such property has been intrusted, or into whose hands it has lawfully come.” Id. at 269. 244 Morissette v. United States, 342 U.S. 246, 271 (1952). 245 See United States v. Stockton, 788 F.2d 210, 216 (4th Cir. 1986). 246 Morissette, 342 U.S. at 271-72. 247 United States v. Mack, No. 89-5520, 1990 W L 26880 (4th Cir. Feb. 26, 1990) (citing United States v. Benefield, 721 F.2d 128, 129 (4th Cir. 1983)). “The Fourth Circuit takes a broad view of what constitutes a ‘thing of value of the United States.’” United States v. Gill, 193 F.3d 802, 804 (4th Cir. 1999). 248 In Morissette, 342 U.S. at 270-71, the Supreme Court held that “knowing conversion requires more than knowledge that defendant was taking the property into his possession. He must have had knowledge of the facts, though not necessarily the law, that made the taking a conversion. [I]t is not apparent how M orissette could have knowingly or intentionally converted property that he did not know could be converted, as would be the case if it was in fact abandoned or if he truly believed it to be abandoned and unwanted property.” In United States v. X-Citement Video, Inc., 513 (continued...) 89 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 93 of 684 TITLE 18 Possession of recently stolen property, if not satisfactorily explained, is ordinarily a circumstance from which you may reasonably draw the inference and find, in the light of the surrounding circumstances shown by the evidence in the case, that the person in possession participated in some way in the theft of the property249 or knew the property had been stolen. The same inference may reasonably be drawn from a false explanation of such possession.250 However, you are never required to make this inference. It is the exclusive province of the jury to determine whether the facts and circumstances shown by the evidence in this case warrant any inference which the law permits the jury to draw from the possession of recently stolen property. The term “recently” is a relative term, and has no fixed meaning. Whether property may be considered as recently stolen depends upon the nature of the property, and all the facts and circumstances shown by the evidence in the case. The longer the period of time since the theft the more doubtful becomes the inference which may reasonably be drawn from unexplained possession. You may infer that the defendant knew the property was stolen from circumstances that would convince a person of ordinary intelligence that such was the fact. In deciding whether the defendant knew the property was stolen, you should consider the entire conduct of the defendant that you deem relevant and which occurred at or near the time the offenses are alleged to have been committed. Sale and purchase at a substantially discounted price permits, but does not require, an inference that the defendant knew the property was stolen.251 017 /2 Possession may be satisfactorily explained through other circumstances, other 27are reminded that the evidence, independent of any testimony of the defendant.7 You 0of /testifying or of explaining Constitution never imposes on a defendant the ed burden possession, and it is the jury’s province to drawwreject any inference from possession. or vie The government does not have6, to prove an actual property loss. 2 It is not enough for the-42 government to prove that the conveyance was without authority. The government must16 prove that the defendant either knew that he was conveying the also o. record, voucher, money, or thing of value without authority or acted with reckless disregard N 252 253 254 as to whether he had authority.255 248 (...continued) U.S. 64 (1994), the Supreme Court noted that it had “used the background presumption of evil intent to conclude that the term ‘knowingly’ also require[s] that the defendant have knowledge of the facts that made the taking a conversion — i.e., that the property belonged to the United States.” 513 U.S. at 70 (citing Morissette, 342 U.S. at 271). In United States v. LaPorta, 46 F.3d 152 (2d Cir. 1994), the Second Circuit clarified that government ownership is a jurisdictional fact. “Morissette does not require that the defendant know the property in fact belonged to the U. S. government; it requires merely that the defendant know it belongs to someone other than himself.” 46 F.3d at 158. 249 United States v. Long, 538 F.2d 580, 581 n.1 (4th Cir. 1976). 250 Id. 251 United States v. Gallo, 543 F.2d 361, 368 n.6 (D.C. Cir. 1976). 252 See Barnes v. United States, 412 U.S. 837, 840 n.3 (1973) (instruction in prosecution under 18 USC § 1708). 253 See United States v. Chorman, 910 F.2d 102, 108 (4th Cir. 1990). 254 United States v. Stockton, 788 F.2d 210, 219 n.13 (4th Cir. 1986) (29 U.S.C. § 501 prosecution). But see United States v. Collins, 464 F.2d 1163, 1165 (9th Cir. 1972) (essential element that the government have suffered an actual property loss). 255 In United States v. Fowler, 932 F.2d 306 (4th Cir. 1991), the defendant complained that (continued...) 90 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 94 of 684 TITLE 18 It is a defense to a charge of conveyance without authority that the defendant either had actual authority or that he believed he had authority and that this belief was reasonable under all of the circumstances.256 ____________________NOTE____________________ The Fourth Circuit takes a broad view of what constitutes a “thing of value of the United States.” In United States v. Benefield, 721 F.2d 128, 128-30 (4th Cir. 1983), a cashier at an Officer’s Club owned by the United States took a check intended as tip money for all employees and wrote in her own name as the payee. The tip money was “a thing of value of the United States” until disbursed to the entitled employees. In United States v. Littriello, 866 F.2d 713, 717 (4th Cir. 1989), the Fourth Circuit held that money embezzled from the American Postal Workers Union Health Plan was “a thing of value of the United States” because of the extensive federal control and supervision over the fund. In United States v. Gill, 193 F.3d 802, 803 n.1 (4th Cir. 1999), the defendant intercepted social security checks, endorsed them, and drew out funds for her own benefit — thus preventing the money from reaching the government’s intended beneficiary. “In most cases finding the government interest insufficient to convict under § 641, title, ownership, or control had passed fully from the federal government.” Id. at 804 n.2. Secret Navy documents and photographs are United States property. United States v. Morison, 844 F.2d 1057, 1076 (4th Cir. 1988). 017 7/2 Because information is a species of property and a thing of value, conversion and conveyance of governmental information can violate § 641. United States v. Fowler, 932 F.2d 306, 310 (4th Cir. 1991). 7/2 0 Embezzlement may constitute a continuing offense for statute of limitations purposes. ed United States v. Smith, 373 F.3d 561, 564 (4th w 2004). Cir. vie Aggregation 26,of time may constitute a single larceny when each A series of takings over a2 period 6-4 taking is the result of a continuing larcenous impulse or intent on the part of the thief, or has 1 been carried out o. a single plan or scheme. 53 A.L.R. 3d 398. under N In determining whether a series of takings are properly aggregated, the fact-finder must examine the intent of the actor at the first taking. “If the actor formulated a plan or scheme or [set] up a mechanism which, when put into operation, [would] result in the taking or diversion of sums of money on a recurring basis, the crime may be charged in a single count.” Smith, 373 F.3d at 564. 18 U.S.C. § 656 EMBEZZLING FROM A BANK 255 (...continued) a “reckless disregard” instruction might be proper only if given with an instruction on “conscious avoidance.” 932 F.2d at 317. The district court later instructed concerning “a conscious purpose as opposed to negligence or mistake to avoid learning an existing fact.” The court ruled that although the district court did not combine these principles in one instruction, the instructions satisfied the rationale of United States v. Biggs,761 F.2d 184, 188 (4th Cir. 1985), that an instruction on reckless disregard is proper when the court also instructs on conscious avoidance. 256 In Fowler, the defendant complained that the instruction told the jury his belief must be objectively reasonable. The court found that the jury was not instructed expressly or impliedly that the defendant’s belief had to be objectively reasonable. M oreover, “[w]hen the court spoke of ‘all of the circumstances,’ it was referring to the factual circumstances under which Fowler obtained the documents and how he handled them afterwards.” 932 F.2d at 318. The Fourth Circuit did not believe the word “reasonable” misled the jury; if the instruction was erroneous, it was harmless. 91 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 95 of 684 TITLE 18 Title 18, United States Code, Section 656 makes it a crime to embezzle or misapply funds from a federally-insured bank. For you to find the defendant guilty, the government must prove each of the following beyond a reasonable doubt: P First, that the defendant was an officer, agent, or employee of or connected in any capacity with the bank at the time alleged in the indictment; P Second, that the accounts of the bank were federally insured at the time alleged in the indictment [or some other basis for federal jurisdiction]; P Third, that the defendant embezzled, abstracted, purloined, or misapplied more than $1,000.00 in funds [or other things of value] belonging to, or entrusted to the care of, the bank; P Fourth, that the defendant did so willfully; and P Fifth, that the defendant did so with the intent to inflict financial injury to the bank or to defraud the bank.257 L If there is an issue that the value did not exceed $1,000, the court should consider giving a lesser included offense instruction. “Embezzle” means the deliberate taking or retaining of the property of another with the intent to deprive the owner of its use or benefit by a person who has lawfully come into the possession of the property.258 017 7/2 To “abstract” means to take or withdraw from the possession and control of the bank the moneys and funds alleged to be so abstracted, without the knowledge and consent of the bank, and with the intent to injure or defraud the bank.259 7/2 0 To “misapply” a bank’s money or property means the willful conversion or taking by ed use or benefit, or the use and w a bank employee of such money or property for his own vie benefit of another, whether or not such money or property has been intrusted to his care, and 6, with intent to defraud the bank.2 It is not necessary that the defendant be in actual 2 6-4 o. 1 N 260 257 The fifth element is a judicially created element of the offense. United States v. Cherry, 330 F.3d 658, 664 (4th Cir. 2003) (quoting United States v. Caldwell, 544 F.2d 691, 696 (4th Cir. 1976)). The additional language of “pecuniary injury” comes from United States v. Arthur, 602 F.2d 660 (4th Cir. 1979). “It is settled that an essential element of misapplication of bank funds ... is the intent to injure or defraud the bank.” 602 F.2d at 663. “[A] jury ... must be properly instructed that intent to inflict pecuniary injury to the bank is an essential element of the offense, but that a jury may properly find that such intent existed when the proof shows the expenditure of bank funds to bribe public officials.” Id. Intent to injure and intent to defraud are not the same. Intent to injure is met when “the [ ] officer engaged in acts, the natural tendency of which would be to injure the bank. Intent to defraud the bank, on the other hand, means to take financial advantage of a confidential relationship and does not require any intent to injure the bank” United States v. Bates, 96 F.3d 964, 968 (7th Cir. 1996) (quotations and citation omitted). 258 See United States v. Smith, 373 F.3d 561, 564-65 (4th Cir. 2004). Lawful possession need not be acquired through a relationship of trust. Moore v. United States, 160 U.S. 268, 269-70 (1895). “Embezzlement is the fraudulent appropriation of property by a person to whom such property has been intrusted, or into whose hands it has lawfully come.” Id. at 269. 259 United States v. Northway, 120 U.S. 327, 334 (1887). 260 United States v. Blackwood, 735 F.2d 142, 144 (4th Cir. 1984). “In order to misapply the funds of the bank it is not necessary that the officer charged should be in actual possession of them by virtue of a trust committed to him.” Northway, 120 U.S. at 332. 92 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 96 of 684 TITLE 18 possession of the money or property by virtue of a trust committed to him.261 For example, using nominee borrowers to obtain money from a bank for a person who does not otherwise qualify for a bank loan constitutes a willful misapplication of bank funds.262 “Intent to injure or defraud” can be established by proving that the defendant acted in reckless disregard of the bank’s interest.263 To act with intent to injure or defraud means to act with intent to deceive or cheat, for the purpose of causing a financial loss to the bank, although it is not necessary that the bank has suffered an actual loss, or to bring financial gain or benefit to one’s self.264 The term “injure” includes only pecuniary loss to the bank.265 The evidence does not have to show that the bank actually lost money as a result of the embezzlement or misapplication of funds. Nor is proof of personal gain necessary. It is sufficient that the defendant at least temporarily deprived the bank of the possession, control, or use of the funds.266 It is not essential that the proof show that the defendant intended to deprive the bank of its property permanently.267 ____________________NOTE____________________ Subsequent restitution may be relevant on the issue of intent, but it is not a defense since the crime is complete when the embezzlement or misapplication occurs. See United States v. Duncan, 598 F.2d 839, 858 (4th Cir. 1979). 017 7/2 In United States v. Luke, 701 F.2d 1104, 1107 (4th Cir. 1983), the Fourth Circuit adopted the three categories of “misapplications” established in United States v. Gens, 493 F.2d 216, 221-22 (1st Cir. 1974), as follows: 7/2 d0 e iew ,v 1. those in which bank officials knew that the named debtor was either fictitious or unaware his name was being used; 226 6-4 2. those in which bank officials knew that the named debtor was financially incapable of paying the loan; and o. 1 N 3. those in which bank officials assured the named debtor that they would look only to the third party who actually received the loan proceeds for repayment. These loans can be characterized as “sham” or “dummy” loans, because there is little likelihood or expectation that the named debtor will repay. “The knowing participation of bank officials in such loans could consequently be found to have a ‘natural tendency’ to injure or defraud their banks and thus constitute willful misapplication within the meaning of § 656.” United States v. Blackwood, 735 F.2d 142, 145 (4th Cir. 1984). The use of bank funds for the illegal purposes of bribing state officials or making unlawful political contributions constitutes a misapplication within the meaning of [§ 656] 261 Northway, 120 U.S. at 332. United States v. Luke, 701 F.2d 1104, 1107 (4th Cir. 1983); United States v. Gens, 493 F.2d 216, 222 (1st Cir. 1974). 263 United States v. Hoffman, No. 95-5181, 1996 W L 469901 (4th Cir. Aug. 20, 1996) (citations omitted). 264 See Blackwood, 735 F.2d at 144-45. 265 “W hile damage to a bank’s reputation may eventually result in some deterioration in the bank’s financial condition, such loss would be too indirect and speculative and we decline to construe [§ 656] as comprehending it.” United States v. Arthur, 544 F.2d 730, 736 (4th Cir. 1976). 266 United States v. Duncan, 598 F.2d 839, 858 (4th Cir. 1979). 267 Arthur, 602 F.2d at 662. 262 93 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 97 of 684 TITLE 18 regardless of any anticipated benefit to the bank. United States v. Arthur, 544 F.2d 730, 734 (4th Cir. 1976). 18 U.S.C. § 657 EMBEZZLING FROM A CREDIT UNION [LAST UPDATED 7/3/14] Title 18, United States Code, Section 657 makes it a crime to embezzle or misapply funds from a federally-insured credit union or other similar institution. For you to find the defendant guilty, the government must prove each of the following beyond a reasonable doubt: P First, that the defendant was an officer, agent, or employee of or connected in any capacity with the institution at the time alleged in the indictment; P Second, that the accounts of the [lending, credit, or insurance institution] were federally insured at the time alleged in the indictment; P Third, that the defendant embezzled or misapplied more than $1,000.00 in funds [or other things of value] belonging to, or entrusted to the care of, the institution; P Fourth, the defendant did so willfully; and P Fifth, the defendant did so with the intent to inflict financial injury to the institution or to defraud the institution.268 017 7/2 L If there is an issue that the value did not exceed $1,000, the court should consider giving a lesser included offense instruction. 7/2 d0 “Embezzle” means the deliberate taking or retaining of the property of another with the intent to deprive the owner of its use or benefit by a person who has lawfully come into the possession of the property.269 e iew means the willful conversion or To “misapply” an institution’s money or property ,v taking by an institution employee26 money or property for his own use or benefit, or of such the use and benefit of another, whether or not such money or property has been intrusted to -42 6defraud the institution. For example, using nominee borrowers his care, and with intent to o. 1 institution for a person who does not otherwise qualify for a loan to obtain money from an N constitutes a willful misapplication of institution funds. 270 271 “Intent to injure or defraud” can be established by proving that the defendant acted in reckless disregard of the institution’s interest.272 To act with intent to injure or defraud 268 This is a judicially created element of the offense. United States v. Cherry, 330 F.3d 658, 664 (4th Cir. 2003) (quoting United States v. Caldwell, 544 F.2d 691, 696 (4th Cir. 1976)). The additional language of “pecuniary injury” comes from United States v. Arthur, 602 F.2d 660 (4th Cir. 1979). “It is settled that an essential element of misapplication of bank funds ... is the intent to injure or defraud the bank.” 602 F.2d at 663. “[A] jury ... must be properly instructed that intent to inflict pecuniary injury to the bank is an essential element of the offense, but that a jury may properly find that such intent existed when the proof shows the expenditure of bank funds to bribe public officials.” Id. 269 See United States v. Smith, 373 F.3d 561, 564-65 (4th Cir. 2004). Lawful possession need not be acquired through a relationship of trust. Moore v. United States, 160 U.S. 268, 269-70 (1895). “Embezzlement is the fraudulent appropriation of property by a person to whom such property has been intrusted, or into whose hands it has lawfully come.” Id. at 269. 270 United States v. Blackwood, 735 F.2d 142, 144 (4th Cir. 1984). 271 United States v. Luke, 701 F.2d 1104, 1107 (4th Cir. 1983); United States v. Gens, 493 F.2d 216, 222 (1st Cir. 1974). 272 United States v. Hoffman, No. 95-5181, 1996 W L 469901 (4th Cir. Aug. 20, 1996) (continued...) 94 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 98 of 684 TITLE 18 means to act with intent to deceive or cheat, for the purpose of causing a financial loss to the financial institution, although it is not necessary that the institution has suffered an actual loss, or to bring financial gain or benefit to one’s self.273 The term “injure” includes only pecuniary loss to the institution.274 The evidence does not have to show that the institution actually lost money as a result of the embezzlement or misapplication of funds. Nor is proof of personal gain necessary. It is sufficient that the defendant at least temporarily deprived the institution of the possession, control, or use of the funds.275 It is not essential that the proof show that the defendant intended to deprive the institution of its property permanently.276 To be “connected in any capacity with” the institution, the person should exercise some control and/or be active in the affairs of the institution.277 The government does not have to prove that the defendant performed the ministerial task of disbursing funds.278 ____________________NOTE____________________ Subsequent restitution may be relevant on the issue of intent, but it is not a defense since the crime is complete when the [embezzlement or] misapplication occurs. United States v. Duncan, 598 F.2d 839, 858 (4th Cir. 1979). 017 7/2 In United States v. Luke, 701 F.2d 1104, 1107 (4th Cir. 1983), the Fourth Circuit adopted the three categories of “misapplications” established in United States v. Gens, 493 F.2d 216, 221-22 (1st Cir. 1974), as follows: 7/2 was either fictitious or 1. those in which bank officials knew that the d 0 debtor named unaware his name was being used; we e 2. those in which bank officials knew that the named debtor was financially incapable , vi of paying the loan; and 26 42 3. those in which 6- officials assured the named debtor that they would look only bank to the third party who actually received the loan proceeds for repayment. o. 1 N See Luke, 701 F.2d at 1107. These loans can be characterized as “sham” or “dummy” loans, because there is little likelihood or expectation that the named debtor will repay. “The knowing participation of bank officials in such loans could consequently be found to have a ‘natural tendency’ to injure or defraud their banks and thus constitute willful misapplication within the meaning of § 656.” United States v. Blackwood, 735 F.2d 142, 145 (4th Cir. 1984). The use of institution funds for the illegal purposes of bribing state officials or making unlawful political contributions constitutes a misapplication within the meaning of [§ 656] 272 (...continued) (citations omitted). 273 See Blackwood, 735 F.2d at 144-45. 274 “W hile damage to a bank’s reputation may eventually result in some deterioration in the bank’s financial condition, such loss would be too indirect and speculative and we decline to construe [§ 656] as comprehending it.” United States v. Arthur, 544 F.2d 730, 736 (4th Cir. 1976). 275 United States v. Duncan, 598 F.2d 839 (4th Cir. 1979). 276 Arthur, 602 F.2d at 662. 277 United States v. Davis, 953 F.2d 1482, 1490 (10th Cir. 1992). 278 Id. 95 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 99 of 684 TITLE 18 regardless of any anticipated benefit to the bank. United States v. Arthur, 544 F.2d 730, 734 (4th Cir. 1976). Actual disbursement of money is not required under § 657. United States v. Stuart, 718 F.2d 931, 934 (9th Cir. 1983). The Ninth Circuit does not require “that a conversion either be proven or alleged in a misapplication charge” because conversion is not a necessary element of misapplication. United States v. Musacchio, 968 F.2d 782, 787-88 (9th Cir. 1991) In a case where funds are actually disbursed, the crime is complete when the funds leave the control of the institution from which they were misapplied. Id. at 790. In United States v. Davis, 953 F.2d 1482, 1489 (10th Cir. 1992), the Tenth Circuit reiterated that the person “connected in any capacity with” language of § 657 should be given a broad interpretation. Thus, a property manager who diverts funds from an apartment complex owned by a savings and loan association, a stockholder who exerts control, a financial adviser of a credit union, and the president of a real estate subsidiary wholly owned by a savings and loan may be within reach of the statute. See id. at 1489-90. If the trier of fact determines that a principal within the class has committed bank fraud, a person outside the class such as a bank customer may be held liable as an aider and abetter. Id. at 1489 n.6. 18 U.S.C. § 658 017 7/2 CONVERTING PROPERTY PLEDGED TO FARM CREDIT AGENCIES 2 7/to convert property pledged 0 Title 18, United States Code, Section 658 makes it a crime ed to the Farm Credit Administration or other production credit association or other similar w institution. For you to find the defendant guilty, the government must prove each of the vie following beyond a reasonable doubt: , 26 2concealed, removed, disposed of, or converted to his own P First, that the defendant 4 use or to that of another; 16. P Second, property mortgaged or pledged to, or held by, [identify the agency or No institution from the statute identified in the indictment]; P Third, that the defendant did so knowingly and with intent to defraud; and P Fourth, that the value of the property converted exceeded $1,000. L If there is an issue that the value did not exceed $1,000, the court should consider giving a lesser included offense instruction. To act with an “intent to defraud” means to act with a specific intent to deceive or cheat, ordinarily, for the purpose of either causing some financial loss to another or bringing about some financial gain to one’s self. It is not necessary, however, to prove that anyone was, in fact defrauded, as long as it is established that the defendant acted with the intent to defraud or mislead.279 ____________________NOTE____________________ See United States v. Lott, 751 F.2d 717 (4th Cir. 1985) (citing United States v. Mitchell, 666 F.2d 1385, 1388 (11th Cir. 1982)) (an advance received on crops subjected to an FHA lien constituted proceeds and fell within the provisions of this statute)). 279 96 United States v. Ellis, 326 F.3d 550, 556 (4th Cir. 2003). Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 100 of 684 TITLE 18 18 U.S.C. § 659 THEFT FROM AN INTERSTATE SHIPMENT Title 18, United States Code, Section 659 makes it a crime to steal property from an interstate shipment or interstate carrier. For you to find the defendant guilty, the government must prove each of the following beyond a reasonable doubt: ¶1 P First, that the defendant embezzled, stole, or unlawfully took, carried away, or concealed, or obtained by fraud or deception from [the facility or vehicle as set forth in the statute and charged in the indictment] goods or chattels; P Second, that the value of the goods or chattels was $1,000.00 or greater; P Third, that the property was moving as, was a part of, or constituted an interstate or foreign shipment of freight, express, or other property; and P Fourth, that the defendant did so unlawfully and with intent to convert the property to his own use. ¶2 P First, that the defendant bought, received, or had in his possession property; P Second, that the property had been embezzled, stolen, or unlawfully taken, carried away, or concealed, or obtained by fraud or deception from [the facility or vehicle as set forth in the statute and charged in the indictment], and was moving as, was a part of, or constituted an interstate or foreign shipment of freight, express, or other property; 017 7/2 7or2 and 0 / P Third, that the value of the property was $1,000.00 greater; d P Fourth, that the defendant knew the property had been embezzled or stolen. we ie The government must prove that thev , defendant knew the property was stolen, but the government does not have to prove that the defendant knew it was stolen from an interstate 226 4 shipment. 16. ¶3 No the defendant embezzled, stole, or unlawfully took, carried away, or P First, that 280 obtained by fraud or deception any baggage; P Second, that the baggage had come into the possession of any common carrier for transportation in interstate or foreign commerce; P Third, that the value of the baggage was $1,000.00 or greater; and P Fourth, that the defendant did so unlawfully and with intent to convert the property to his own use. OR P First, that the defendant broke into, stole, took, carried away, or concealed any of the contents of baggage; P Second, that the baggage had come into the possession of any common carrier for transportation in interstate or foreign commerce; and P Third, that the value of the baggage was $1,000.00 or greater. OR 280 Thomas v. United States, 11 F.2d 27, 28 (4th Cir. 1926). 97 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 101 of 684 TITLE 18 P First, that the defendant bought, received, or had in his possession baggage or the contents of baggage; P Second, that the baggage or the contents of baggage had come into the possession of any common carrier for transportation in interstate or foreign commerce; P Third, that the value of the baggage or its contents was $1,000.00 or greater; and P Fourth, that the defendant knew the baggage or contents had been embezzled or stolen. The government must prove that the defendant knew the property was stolen, but the government does not have to prove that the defendant knew it was stolen from an interstate shipment.281 ¶4 P First, that the defendant embezzled, stole, or unlawfully took by any fraudulent device, scheme, or game any money, baggage, goods, or property; P Second, that the property was taken from any railroad car, bus, vehicle, steamboat, vessel, or aircraft operated by any common carrier, or from any passenger on any railroad car, bus, vehicle, steamboat, vessel or aircraft operated by any common carrier moving in interstate or foreign commerce; and P Third, that the value of the property was $1,000 or greater. 017 7/2 OR P P P 7/2 d0 First, that the defendant bought, received, or had in his possession money, baggage, goods, or property embezzled or stolen from any railroad car, bus, vehicle, steamboat, vessel, aircraft, or any passenger on any railroad car, bus, vehicle, steamboat, vessel or aircraft operated by any common carrier moving in interstate or foreign commerce; e iew ,v 226property was $1,000.00 or greater; and Second, that the value of the 6-4 1defendant knew the money, baggage, goods, or property had been Third, that the . embezzled or stolen. No L If there is an issue that the value did not exceed $1,000, the court should consider giving a lesser included offense instruction. The government must prove that the defendant knew the property was stolen, but the government does not have to prove that the defendant knew it was stolen from an interstate shipment.282 “Value” means face, par, or market value, or cost price, either wholesale or retail, whichever is greater.283 “Embezzle” means the deliberate taking or retaining of the property of another with the intent to deprive the owner of its use or benefit by a person who has lawfully come into the possession of the property.284 281 282 283 284 98 Id. Id. 18 U.S.C. § 641. See also United States v. Watson, 570 F.2d 282, 283-84 (8th Cir. 1978). See United States v. Smith, 373 F.3d 561 (4th Cir. 2004) (a § 641 prosecution). Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 102 of 684 TITLE 18 “Steal” means to take away from a person in lawful possession without right with the intention to keep wrongfully.285 Conversion is the act of control or dominion over the property of another that seriously interferes with the rights of the owner. The act of control or dominion must be without authorization from the owner. The government must prove both that the defendant knew the property belonged to another and that the taking was not authorized.286 Conversion, however, may be consummated without any intent to keep and without any wrongful taking, where the initial possession by the converter was entirely lawful. Conversion may include misuse or abuse of property. It may reach use in an unauthorized manner or to an unauthorized extent of property placed in one’s custody for limited use. Money rightfully taken into one’s custody may be converted without any intent to keep or embezzle it merely by commingling it with the custodian’s own, if he was under a duty to keep it separate and in tact.287 “Interstate commerce” includes commerce between one State, Territory, Possession, or the District of Columbia and another State, Territory, Possession, or the District of Columbia. [18 U.S.C. § 10] “Foreign commerce” includes commerce with a foreign country. [18 U.S.C. § 10] An interstate or foreign shipment of goods or property begins when the property is segregated for interstate shipment and comes into the possession of those who are assisting its course in interstate transportation and continues until the property arrives at its destination and is there delivered.288 017 7/2 7/2 d0 It is not necessary that the goods be actually moving in interstate commerce at the time of the theft. It is sufficient if they are a part of an interstate shipment.289 e iew ,v There is no absolute requirement that the flow of commerce be continuous if there is the clear intention to resume the journey after a brief pause.290 226 is interstate is essentially a practical one based on The determination that 4 a shipment common sense. It depends on such indicia of interstate commerce as the relationship of the 16o. consignee, consignor, and carrier, if they are separate entities, the physical location of the Nstolen, whether the goods have been delivered to a carrier at the time of shipment when theft, where there is no carrier what steps the owner has taken to carry out an interstate shipment, and the certainty with which interstate shipment is contemplated, as evidenced by shipping documents.291 Possession of recently stolen property, if not satisfactorily explained, is ordinarily a circumstance from which you may reasonably draw the inference and find, in the light of the surrounding circumstances shown by the evidence in the case, that the person in possession participated in some way in the theft of the property292 or knew the property had been stolen. The same inference may reasonably be drawn from a false explanation of such 285 286 287 288 289 290 291 292 Morissette v. United States, 342 U.S. 246, 271 (1952). See United States v. Stockton, 788 F.2d 210, 216 (4th Cir. 1986). Morissette, 342 U.S. at 271-72. United States v. Williams, 559 F.2d 1243, 1246 (4th Cir. 1977). Id. at 1247. United States v. Maddox, 394 F.2d 297, 300 (4th Cir. 1968). United States v. Astolas, 487 F.2d 275, 279-80 (2d Cir. 1973). United States v. Long, 538 F.2d 580, 581 n.1 (4th Cir. 1976). 99 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 103 of 684 TITLE 18 possession.293 However, you are never required to make this inference. It is the exclusive province of the jury to determine whether the facts and circumstances shown by the evidence in this case warrant any inference which the law permits the jury to draw from the possession of recently stolen property. The term “recently” is a relative term, and has no fixed meaning. Whether property may be considered as recently stolen depends upon the nature of the property, and all the facts and circumstances shown by the evidence in the case. The longer the period of time since the theft the more doubtful becomes the inference which may reasonably be drawn from unexplained possession. You may infer that the defendant knew the property was stolen from circumstances that would convince a person of ordinary intelligence that such was the fact. In deciding whether the defendant knew the property was stolen, you should consider the entire conduct of the defendant that you deem relevant and which occurred at or near the time the offenses are alleged to have been committed. Sale and purchase at a substantially discounted price permits, but does not require, an inference that the defendant knew the property was stolen.294 Possession may be satisfactorily explained through other circumstances, other evidence, independent of any testimony of the defendant.295 You are reminded that the Constitution never imposes on a defendant the burden of testifying or of explaining possession, and it is the jury’s province to draw or reject any inference from possession.296 017 7/2 7/2 interstate shall be prima 0 The removal of property from a pipeline system which extends ed of the property. facie evidence of the interstate character of thew ie shipmenta relationship of trust. Moore v. Lawful possession need not be , v 6 acquired through is the fraudulent appropriation 2 United States, 160 U.S. 268, 269-70 (1895). “Embezzlement -42 of property by a person to whom such property has been intrusted, or into whose hands it has lawfully come.” Id. at 269. . 16 No There are three ways in which the commerce requirement can be met: the goods can ____________________NOTE____________________ 297 be (1) moving as an interstate shipment, (2) part of an interstate shipment, or (3) constituting an interstate shipment. United States v. Astolas, 487 F.2d 275, 279 (2d Cir. 1973). Although § 659 contains its own venue provision, it is a continuing offense, and therefore 18 U.S.C. § 3237 also applies. United States v. Hankish, 502 F.2d 71, 75 (4th Cir. 1974). The Hankish court also stated that the crime “is not crossing a state line with stolen goods, but carrying or transporting stolen goods.” Id. Thus, the interstate commerce nexus “is simply a jurisdictional peg without which the offense could not be tried in the federal courts but it is not, strictly speaking, an element of the criminal offense.” Id. at 76. It is, nevertheless, a jurisdictional element which the government must prove. 293 Id. United States v. Gallo, 543 F.2d 361, 368 n.6 (D.C. Cir. 1976). 295 See Barnes v. United States, 412 U.S. 837, 840 n.3 (1973) (instruction in prosecution under 18 USC § 1708). 296 See United States v. Chorman, 910 F.2d 102, 108 (4th Cir. 1990). 297 18 U.S.C. § 659 ¶ 8. See also United States v. Williams, 559 F.2d 1243, 1246 (4th Cir. 1977). 294 100 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 104 of 684 TITLE 18 A series of takings over a period of time may constitute a single larceny when each taking is the result of a continuing larcenous impulse or intent on the part of the thief, or has been carried out under a single plan or scheme. 53 A.L.R. 3d 398. Aggregation of individual offenses to exceed $1,000 is proper when each was part of a single scheme or plan. United States v. Smith, 373 F.3d 561 (4th Cir. 2004) ( a § 641 case). 18 U.S.C. § 660 EMBEZZLEMENT FROM COMMON CARRIER [LAST UPDATED 7/3/14] Title 18, United States Code, Section 660 makes it a crime to embezzle from a common carrier. For you to find the defendant guilty, the government must prove each of the following beyond a reasonable doubt: P First, that the defendant was a president, director, officer, or manager, of a firm, association, or corporation engaged in commerce as a common carrier; OR P First, that the defendant was an employee of a common carrier riding in or upon any railroad car, motor truck, steamboat, vessel, aircraft, or other vehicle of such carrier moving in interstate commerce; P Second, that the defendant embezzled, stole, abstracted, or willfully misapplied, or willfully permitted to be misapplied, or willfully or knowingly converted to his own use or to the use of another any of the moneys, funds, credits, securities, property, or assets of such firm, association, or corporation arising or accruing from, or used in, such commerce, in whole or in part. 017 7/2 2 7/property of another with the “Embezzle” means the deliberate taking or retaining 0 the d of intent to deprive the owner of its use or benefit wa person who has lawfully come into the by e e possession of the property. , vi “Steal” and “convert” mean the wrongful taking of property belonging to another with 226 benefit either temporarily or permanently. intent to deprive the owner-4its use or 6 of 1means one who holds himself, or itself, out to the public as engaged . “Common carrier” No in the business of transporting persons or property from place to place, for compensation, 298 offering its services to the public generally.299 ____________________NOTE____________________ Lawful possession need not be acquired through a relationship of trust. Moore v. United States, 160 U.S. 268, 269-70 (1895). “Embezzlement is the fraudulent appropriation of property by a person to whom such property has been intrusted, or into whose hands it has lawfully come.” Id. at 269. See also United States v. Stockton, 788 F.2d 210 (4th Cir. 1986) (embezzlement under 29 U.S.C. § 501(c); relationship of trust not required). Although §§ 659 and 660 contain their own venue provision, embezzlement is a continuing offense, and therefore 18 U.S.C. § 3237 also applies. United States v. Hankish, 502 F.2d 71, 75 (4th Cir. 1974). The Hankish court also stated that the crime “is not crossing a state line with stolen goods, but carrying or transporting stolen goods.” 502 F.2d at 76. Thus, the interstate commerce nexus “is simply a jurisdictional peg without which the 298 See United States v. Smith, 373 F.3d 561 (4th Cir. 2004) (a § 641 prosecution). See United States v. Jones, 712 F.2d 1316, 1322 (9th Cir. 1983); United States v. Queen, 445 F.2d 358, 361 (10th Cir. 1971). See also 13 Am. Jur. 2d Car § 2. 299 101 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 105 of 684 TITLE 18 offense could not be tried in the federal courts but it is not, strictly speaking, an element of the criminal offense.” Id. It is, nevertheless, a jurisdictional element which must be proven. A series of takings over a period of time may constitute a single larceny when each taking is the result of a continuing larcenous impulse or intent on the part of the thief, or has been carried out under a single plan or scheme. 53 A.L.R. 3d 398. 18 U.S.C. § 661 THEFT OF PERSONAL PROPERTY Title 18, United States Code, Section 661 makes it a crime to steal personal property within the special territorial jurisdiction of the United States. For you to find the defendant guilty, the government must prove each of the following beyond a reasonable doubt: P First, that the defendant took and carried away; P Second, personal property of another person; P Third, valued in excess of $1,000.00; P Fourth, that the defendant did so with intent to steal or purloin; and P Fifth, that the conduct occurred within the special maritime and territorial jurisdiction of the United States.300 017 7/2 L If there is an issue that the value did not exceed $1,000, the court should consider giving a lesser included offense instruction. 7/2 d0 “Special maritime and territorial jurisdiction of the United States” includes lands reserved or acquired for the use of the United States, and under the exclusive or concurrent jurisdiction of the United States, or any place purchased or otherwise acquired by the United States by consent of the legislature of the State in which the land is situated, for the building of a fort, arsenal, dock, or other needed building.301 e iew ,v 226 whereby a person, by some wrongful act, willfully 4 To steal or purloin means any taking 16- of property belonging to another without the permission or obtains or retains possession . beyond any permission given with the intent to deprive the owner of the benefit of No ownership. 302 The government is not required to prove that the defendant intended to deprive the owner of his property permanently.303 ____________________NOTE____________________ 300 See United States v. Love, 516 F.3d 683, 687 (8th Cir. 2008); United States v. Spencer, 905 F.2d 1260, 1262 (9th Cir. 1990). 301 See 18 U.S.C. § 7 (listing other definitions). In United States v. Passaro, 577 F.3d 207 (4th Cir. 2009), the Fourth Circuit construed § 7(9) as reaching only fixed locations. An inexhaustive list of factors relevant in determining whether a particular location qualifies as the premises of a United States mission include “the size of a given military mission’s premises, the length of United States control over those premises, the substantiality of its improvements, actual use of the premises, the occupation of the premises by a significant number of United States personnel, and the host nation’s consent (whether formal or informal) to the presence of the United States.” 577 F.3d at 214. In Passaro, the court found that Asadabad Firebase in Afghanistan came within the statutory definition, such that Passaro, a civilian contractor, could be prosecuted for assaulting a prisoner, in violation of 18 U.S.C. § 113. 302 Instruction given by district court and approved in United States v. Henry, 447 F.2d 283, 286 (3d Cir. 1971). 303 Id. 102 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 106 of 684 TITLE 18 For cases discussing special jurisdiction, especially pertaining to Fort Jackson, see the following: United States v. Lavender, 602 F.2d 639 (4th Cir. 1979); United States v. Lovely, 319 F.2d 673 (4th Cir. 1963); United States v. Benson, 495 F.2d 475 (5th Cir. 1974); and State v. Zeigler, 274 S.C. 6, 260 S.E.2d 182 (S.C. 1979), overruled on other grounds by Joseph v. State, 351 S.C. 551, 571 S.E.2d 280 (S.C. 2002). Special territorial jurisdiction does not include proprietary jurisdiction. Most federal buildings, such as courthouses and office buildings, are proprietary jurisdictions, and are usually covered only by regulations of the General Services Administration published in the Code of Federal Regulations. A series of takings over a period of time may constitute a single larceny when each taking is the result of a continuing larcenous impulse or intent on the part of the thief, or has been carried out under a single plan or scheme. 53 A.L.R. 3d 398. In determining whether a series of takings are properly aggregated, the fact-finder must examine the intent of the actor at the first taking. “If the actor formulated ‘a plan or scheme or [set] up a mechanism which, when put into operation, [would] result in the taking or diversion of sums of money on a recurring basis,’ the crime may be charged in a single count.” United States v. Smith, 373 F.3d 561, 564 (4th Cir. 2004) (a § 641 case). The Smith majority also believed that the specific conduct at issue in that case (appropriating the Social Security checks of the defendant’s deceased mother) “is more properly characterized as a continuing offense rather than a series of separate acts” for statute of limitations purposes. Id. The court noted that not all conduct constituting embezzlement may necessarily be treated as a continuing offense as opposed to merely a series of acts that occur over a period of time. 017 7/2 7/2 d0 18 U.S.C. § 662 e iew ,v RECEIVING STOLEN PROPERTY 226 6-4 Title 18, United States Code, Section 662 makes it a crime to receive stolen property within the special territorial jurisdiction of the United States. For you to find the defendant guilty, the government must prove each of the following beyond a reasonable doubt: P P o.the1 First, that N defendant bought, received or concealed; Second, money, goods or other thing which had been feloniously taken, stolen or embezzled; P Third, that the money, goods or other thing had a value in excess of $1,000.00; P Fourth, that the defendant did so within the special maritime and territorial jurisdiction of the United States; and P Fifth, that the defendant knew the property was feloniously taken, stolen, or embezzled.304 L If there is an issue that the value did not exceed $1,000, the court should consider giving a lesser included offense instruction. “Feloniously taken” means taken with intent to steal.305 “Special maritime and territorial jurisdiction of the United States” includes lands reserved or acquired for the use of the United States, and under the exclusive or concurrent jurisdiction of the United States, or any place purchased or otherwise acquired by the United 304 See United States v. Jones, 797 F.2d 184, 186 (4th Cir. 1986). United States v. Simmons, 247 F.3d 118, 123 (4th Cir. 2001). “The government need not show that the underlying theft was a felony.” Id. at 124. 305 103 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 107 of 684 TITLE 18 States by consent of the legislature of the State in which the land is situated, for the building of a fort, arsenal, dock, or other needed building.306 Possession of recently stolen property, if not satisfactorily explained, is ordinarily a circumstance from which you may reasonably draw the inference and find, in the light of the surrounding circumstances shown by the evidence in the case, that the person in possession participated in some way in the theft of the property307 or knew the property had been stolen. The same inference may reasonably be drawn from a false explanation of such possession.308 However, you are never required to make this inference. It is the exclusive province of the jury to determine whether the facts and circumstances shown by the evidence in this case warrant any inference which the law permits the jury to draw from the possession of recently stolen property. The term “recently” is a relative term, and has no fixed meaning. Whether property may be considered as recently stolen depends upon the nature of the property, and all the facts and circumstances shown by the evidence in the case. The longer the period of time since the theft the more doubtful becomes the inference which may reasonably be drawn from unexplained possession. You may infer that the defendant knew the property was stolen from circumstances that would convince a person of ordinary intelligence that such was the fact. In deciding whether the defendant knew the property was stolen, you should consider the entire conduct of the defendant that you deem relevant and which occurred at or near the time the offenses are alleged to have been committed. Sale and purchase at a substantially discounted price permits, but does not require, an inference that the defendant knew the property was stolen.309 017 7/2 7/2 d0 e iew ,v Possession may be satisfactorily explained through other circumstances, other evidence, independent of any testimony of the defendant.310 You are reminded that the Constitution never imposes on a defendant the burden of testifying or of explaining possession, and it is the jury’s province to draw or reject any inference from possession.311 226 6-4 o. 1 N____________________NOTE____________________ For cases discussing special jurisdiction, especially pertaining to Fort Jackson, see the following: United States v. Lavender, 602 F.2d 639 (4th Cir. 1979); United States v. Lovely, 319 F.2d 673 (4th Cir. 1963); United States v. Benson, 495 F.2d 475 (5th Cir. 1974); and 306 See 18 U.S.C. § 7 (listing other definitions). In Passaro, the Fourth Circuit construed § 7(9) as reaching only fixed locations. An inexhaustive list of factors relevant in determining whether a particular location qualifies as the premises of a United States mission include “the size of a given military mission’s premises, the length of United States control over those premises, the substantiality of its improvements, actual use of the premises, the occupation of the premises by a significant number of United States personnel, and the host nation’s consent (whether formal or informal) to the presence of the United States.” Id. at 214. In Passaro, the court found that Asadabad Firebase in Afghanistan came within the statutory definition, such that Passaro, a civilian contractor, could be prosecuted for assaulting a prisoner, in violation of 18 U.S.C. § 113. 307 United States v. Long, 538 F.2d 580, 581 n.1 (4th Cir. 1976). 308 Id. 309 United States v. Gallo, 543 F.2d 361, 368 n.6 (D.C. Cir. 1976). 310 See Barnes v. United States, 412 U.S. 837, 840 n.3 (1973) (instruction in prosecution under 18 USC § 1708). 311 See United States v. Chorman, 910 F.2d 102, 108 (4th Cir. 1990). 104 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 108 of 684 TITLE 18 State v. Zeigler, 274 S.C. 6, 260 S.E.2d 182 (S.C. 1979), overruled on other grounds, Joseph v. State, 351 S.C. 551, 571 S.E.2d 280 (S.C. 2002). Special territorial jurisdiction does not include proprietary jurisdiction. Most federal buildings, such as courthouses and office buildings, are proprietary jurisdictions, and are usually covered only by regulations of the General Services Administration published in the Code of Federal Regulations. If a disputed issue is whether the property stolen had a value exceeding $1,000, the court should consider giving a lesser included offense instruction. 18 U.S.C. § 664 THEFT FROM EMPLOYEE BENEFIT PLAN Title 18, United States Code, Section 664 makes it a crime to steal from an employee benefit plan. For you to find the defendant guilty, the government must prove each of the following beyond a reasonable doubt: P First, that the defendant embezzled, stole, abstracted, or converted to his own use or to the use of another; P Second, any of the moneys, funds, securities, premiums, credits, property, or other assets of any employee welfare benefit plan or employee pension benefit plan, or of any fund connected with either plan; and P Third, that the defendant did so with the specific intent to deprive the plan of its moneys, funds, property, or other assets.312 017 7/2 7/2 d0 In determining whether the defendant acted willfully in causing a disbursement of moneys by a plan or connected fund, you may consider whether or not the defendant had a good faith belief that the disbursement was authorized.313 e iew ,v 226 6-4 “Embezzle” means the deliberate taking or retaining of the property of another with the intent to deprive the owner of its use or benefit by a person who has lawfully come into the possession of the property.314 .1 ointent to return embezzled funds does not negate a showing that the A good N faith defendant acted with the intent to embezzle the funds in the first place.315 “Steal” means to take away from a person in lawful possession without right and with the intention to keep wrongfully.316 Conversion is the act of control or dominion over the property of another that seriously interferes with the rights of the owner. The act of control or dominion must be without 312 United States v. Jackson, 524 F.3d 532, 544 (4th Cir. 2008), vacated on other grounds, 555 U.S. 1163 (2009). Jackson involved unpaid employer contributions. On certiorari to the Supreme Court, the Solicitor General confessed error that unpaid employer contributions are not assets of an ERISA plan. On remand, the ERISA convictions were vacated. United States v. Jackson, 336 F. App’x 282 (4th Cir. 2009). 313 United States v. Shipsey, 190 F.3d 1081, 1084 (9th Cir. 1999). 314 See United States v. Smith, 373 F.3d 561, 565 (4th Cir. 2004) (a § 641 case). Lawful possession need not be acquired through a relationship of trust. Moore v. United States, 160 U.S. 268, 269-70 (1895). “Embezzlement is the fraudulent appropriation of property by a person to whom such property has been intrusted, or into whose hands it has lawfully come.” Id. at 269. Therefore, a fiduciary relationship is not an essential element of embezzlement under this statute under § 641 (unlike others, such as 18 U.S.C. §§ 656 and 666, and 29 U.S.C. § 501). 315 United States v. Busacca, 936 F.2d 232, 240 (6th Cir. 1991). 316 Morissette v. United States, 342 U.S. 246, 271 (1952). 105 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 109 of 684 TITLE 18 authorization from the owner. The government must prove both that the defendant knew the property belonged to another and that the taking was not authorized.317 Conversion includes using, in a manner or to an extent not authorized by the owner of property placed in one’s custody for a limited use or purpose.318 Conversion can occur without any intent to keep and without any wrongful taking, and the initial possession by the converter may be entirely lawful. Conversion may include misuse or abuse of property. It may reach use in an unauthorized manner or to an unauthorized extent of property placed in one’s custody for limited use.319 ____________________NOTE____________________ See discussion of embezzlement under 29 U.S.C. § 501. United States v. Jackson, 524 F.3d 532 (4th Cir. 2008), discusses what constitutes an asset of the plan. See also 29 U.S.C. § 1103. In United States v. Busacca, 936 F.2d 232, 239 (6th Cir. 1991), the defendant argued that the government had split up one offense of embezzlement into six separate offenses. The Sixth Circuit held that the allowable unit of prosecution was each time the defendant caused a check to be issued by the Fund which inflicted a separate injury on the members of the Fund. 017 7/2 See United States v. Parris, 88 F. Supp. 2d 555, 564 (E.D. Va. 2000), where the court stated the defendant could not be found guilty unless he removed, without authorization, funds from the Trust beyond the amount that he actually contributed. 7/2 d0 In United States v. Shipsey, 190 F.3d 1081 (9th Cir. 1999), the Ninth Circuit reversed a § 664 conviction. The district court instructed the jury that it could convict if it found any wrongful taking from the pension fund. The Ninth Circuit ruled that the indictment charged only theft by false pretenses. The indictment [poorly drafted] incorporated by reference the language from the related mail and wire fraud counts, which involved false representations, as the means by which the defendant stole money from the fund. However, the district court’s jury instructions permitted the jury to convict the defendant if he obtained the pension fund money by a wrongful act or if he converted the money. The Ninth Circuit considered this constructively amending the indictment. e iew ,v o. 1 N 226 6-4 A series of takings over a period of time may constitute a single larceny when each taking is the result of a continuing larcenous impulse or intent on the part of the thief, or has been carried out under a single plan or scheme. 53 A.L.R. 3d 398. In determining whether a series of takings are properly aggregated, the fact-finder must examine the intent of the actor at the first taking. “If the actor formulated ‘a plan or scheme or [set] up a mechanism which, when put into operation, [would] result in the taking or diversion of sums of money on a recurring basis,’ the crime may be charged in a single count.” United States v. Smith, 373 F.3d 561, 564 (4th Cir. 2004) (defendant convicted of violating 18 U.S.C. § 641). The Smith majority also believed that the specific conduct at issue in that case (appropriating the Social Security checks of the defendant’s deceased mother) “is more properly characterized as a continuing offense rather than a series of separate acts” for statute of limitations purposes. Id. at 568. The court did note that not all conduct constituting embezzlement may necessarily be treated as a continuing offense as opposed to merely a series of acts that occur over a period of time. 317 318 319 106 See United States v. Stockton, 788 F.2d 210, 216 (4th Cir. 1986). Morissette, 342 U.S. at 271-72. Id. Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 110 of 684 TITLE 18 18 U.S.C. § 665 THEFT FROM EMPLOYMENT AND TRAINING FUNDS Title 18, United States Code, Section 665 makes it a crime to steal Job Training Partnership Act funds. For you to find the defendant guilty, the government must prove each of the following beyond a reasonable doubt: § 665(a) P First, that the defendant was an officer, director, agent, or employee of, or connected in any capacity with any agency or organization receiving financial assistance or any funds under the Job Training Partnership Act or the Workforce Investment Act; P Second, that the defendant embezzled, willfully misapplied, stole, or obtained by fraud [or enrolled an ineligible participant]; P Third, any of the moneys, funds, assets, or property320 which are the subject of a financial assistance agreement or contract pursuant to the Job Training Partnership Act or the Workforce Investment Act; P Fourth, that the amount of moneys, funds, assets, or property exceeded $1,000.00; and 017 2 L If there is an issue that the value did not exceed $1,000, the court should consider 27/ giving a lesser included offense instruction. 07/ d § 665(b) we e P First, that the defendant inducedvi person to give up any money or thing of any ,an any value to any person (including organization or agency receiving funds under the 226 or the Workforce Investment Act); and Job Training Partnership Act -4 16defendant did so by threat or procuring dismissal of any person P Second, that the . No from employment or of refusal to employ or refusal to renew a contract of P Fifth, that the defendant did so knowingly, and with intent to defraud and injure [the United States].321 employment in connection with a financial assistance agreement or contract under the Job Training Partnership Act or the Workforce Investment Act. § 665(c) P First, that the defendant obstructed or impeded or endeavored to obstruct or impede an investigation or inquiry under the Job Training Partnership Act or the Workforce Investment Act, or the regulations issued pursuant to either Act; and P Second, the defendant did so willfully. 320 In United States v. Coleman, 590 F.2d 228, 231 (7th Cir. 1979), the Seventh Circuit held that the services of trainees compensated by CETA grant funds were property. 321 See Coleman, 590 F.2d. at 230. See also United States v. Garcia, 751 F.2d 1033, 1035 (9th Cir. 1985) (relying on cases interpreting 18 U.S.C. § 656 to hold that “an intent to injure or defraud the United States” was an element of “willfully misapply.”). But see United States v. Hamilton, 726 F.2d 317, 320 (7th Cir. 1984) (court relied on cases interpreting 18 U.S.C. § 641 to hold government did not have to prove that defendant aware of federal interest in the funds). 107 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 111 of 684 TITLE 18 “Embezzle” means the deliberate taking or retaining of the property of another with the intent to deprive the owner of its use or benefit by a person who has lawfully come into the possession of the property.322 Steal means the wrongful and dishonest taking of property with the intent to deprive the owner, temporarily or permanently, of the rights and benefits of ownership.323 To misapply money or property means a willful conversion or taking of such money or property to one’s own use and benefit or the use and benefit for another, with intent to defraud.324 ____________________NOTE____________________ See discussion of embezzlement under 29 U.S.C. § 501. A series of takings over a period of time may constitute a single larceny when each taking is the result of a continuing larcenous impulse or intent on the part of the thief, or has been carried out under a single plan or scheme. 53 A.L.R. 3d 398. In determining whether a series of takings are properly aggregated, the court must examine the intent of the actor at the first taking. “If the actor formulated ‘a plan or scheme or [set] up a mechanism which, when put into operation, [would] result in the taking or diversion of sums of money on a recurring basis,’ the crime may be charged in a single count.” United States v. Smith, 373 F.3d 561, 564 (4th Cir. 2004) (defendant convicted of violating 18 U.S.C. § 641). The Smith majority also believed that the specific conduct at issue in that case (appropriating the Social Security checks of the defendant’s deceased mother) “is more properly characterized as a continuing offense rather than a series of separate acts” for statute of limitations purposes. Id. at 568. The court did note that not all conduct constituting embezzlement may necessarily be treated as a continuing offense as opposed to merely a series of acts that occur over a period of time. 017 7/2 7/2 d0 e iew ,v 18 U.S.C. § 666 226 6-4 THEFT OR BRIBERY CONCERNING PROGRAMS RECEIVING FEDERAL FUNDS 1 o. States Code, Section 666 makes it a crime to [steal property from an Title 18,N United agency that receives federal funds] [accept a bribe as, or give a bribe to, an agent of an agency that receives federal funds]. For you to find the defendant guilty, the government must prove each of the following beyond a reasonable doubt: § 666(a)(1)(A) P First, that the defendant was, at the time alleged in the indictment, an agent of an organization or of any state or local government or agency that received, in any one year period, benefits in excess of $10,000 under a Federal program involving any form of Federal assistance; and 322 United States v. Smith, 373 F.3d 561, 565 (4th Cir. 2004). In United States v. Turley, 353 U.S. 407, 411 (1957), the Supreme Court held that “the meaning of the federal statute should not be dependent on state law” and defined “stolen” to include “all felonious takings of [property] with intent to deprive the owner of the rights and benefits of ownership, regardless of whether or not the theft constitutes common-law larceny.” 353 U.S. at 417. See also Morissette v. United States, 342 U.S. 246, 271 (1952). 324 United States v. Tamargo, 637 F. 2d 346, 350 (5th Cir. 1981). See also United States v. Brown, 742 F.2d 363, 366-67 (7th Cir. 1984) (conversion of [JTPA] funds for the use of uncertified workers when defendant knew of their uncertified status was willful misapplication of funds for purposes of § 665). 323 108 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 112 of 684 TITLE 18 P Second, that the defendant embezzled, stole, obtained by fraud, without authority knowingly converted to the use of any person other than the rightful owner, or intentionally misapplied property valued at $5,000 or more owned by or under the care, custody or control of said agency. § 666(a)(1)(B) P First, that the defendant was, at the time alleged in the indictment, an agent of an organization or of any state or local government or agency that received, in any one year period, benefits in excess of $10,000 under a Federal program involving any form of Federal assistance; and P Second, that the defendant solicited or demanded for the benefit of any person, or accepted or agreed to accept, anything of value from any person; P Third, that the defendant intended to be influenced or rewarded in connection with any business, transaction, or series of transactions of the organization, state or local government or agency involving any thing of value of $5,000 or more; and P Fourth, that the defendant did so corruptly. § 666(a)(2) P First, that the defendant gave, offered, or agreed to give anything of value to any person; P Second, that the defendant did so with intent to influence or reward an agent of an organization or of a state or local government or agency that received, in any one year period, benefits in excess of $10,000 under a Federal program involving any form of Federal assistance in connection with any business, transaction, or series of transactions of that organization, government, or agency involving anything of value of $5,000 or more; and P 017 7/2 7/2 d0 e iew ,v 226 6-4 Third, that the defendant did so corruptly. 1 o. organization means a person authorized to act on behalf of another An agent of an N person or a government and, in the case of an organization or government, includes a servant or employee, and a partner, director, officer, manager, and representative. [§ 666(d)(1)] “One year period” means a continuous period that commences no earlier than twelve months before the commission of the offense or that ends no later than twelve months after the commission of the offense. Such period may include time both before and after the commission of the offense. [§ 666(d)(5)] The government does not have to prove that federal funds were involved in the bribery transaction, or that the bribe had any particular influence on federal funds.325 An act is done “corruptly” if it is done with the intent to engage in some more or less specific quid pro quo,326 that is, to receive a specific benefit in return for the payment,327 or to induce a specific act.328 A payment is made with corrupt intent only if it was made or promised with the intent to corrupt the particular official. Not every payment made to influence or reward an official 325 Salinas v. United States, 522 U.S. 52, 60, 61 (1997). United States v. Jennings, 160 F.3d 1006, 1021 n.6 (4th Cir. 1998) (citing United States v. Arthur, 544 F.2d 730, 734 (4th Cir. 1976)). 327 Id. at 1013. 328 Id. at 1021. 326 109 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 113 of 684 TITLE 18 is intended to corrupt him. One has the intent to corrupt an official only if he makes a payment or promise with the intent to engage in a fairly specific quid pro quo with that official. The defendant must have intended for the official to engage in some specific act or omission or course of action or inaction in return for the payment charged in the indictment.329 To influence means that a payment was made before the official action. To reward means that a payment was made afterwards. Payments made to influence official action and to reward official action are both prohibited, but payments made without corrupt intent are not criminal acts.330 Payments, sometimes referred to as goodwill gifts, made with no more than some generalized hope or expectation of ultimate benefit on the part of the donor are neither bribes nor gratuities, since they are made neither with the intent to engage in a relatively specific quid pro quo with an official nor for or because of a specific official act.331 ____________________NOTE____________________ In United States v. Jennings, 160 F.3d 1006 (4th Cir. 1998), the defendant was convicted of violating § 666(a)(2) for giving payments to a Baltimore city housing official. On appeal, Jennings argued that § 666 outlawed only bribes, not gratuities. The Fourth Circuit discussed at length the distinction between bribes and gratuities in § 201. “Whether a payment is a bribe or an illegal gratuity under § 201 depends on the intent of the payor.” Id. at 1013. The Fourth Circuit assumed that the “reward” language in § 666(a)(2) clarifies that “the distinction between a bribe and a gratuity is a matter of intent, not simply a matter of timing ....” Id. at 1015, n.3. Moreover, under § 666(a)(2), it is the intent of the payor, not the intent of the payee, that is determinative of whether a crime occurred. Id. at 1017. Because the Fourth Circuit held that the evidence was sufficient to prove that Jennings committed bribery, it specifically reserved the question whether § 666 prohibits gratuities. 017 7/2 7/2 d0 e iew ,v 226 6-4 Section 666(a)(2) does not reach mere goodwill gifts. o. 1 N In United States v. Grubb, 11 F.3d 426, 434 (4th Cir. 1993), the court rejected the defendant’s argument that § 666(a)(2) did not apply to the granting of employment in exchange for political contributions. The court’s discussion of § 201 in Jennings is helpful. See NOTE section for 18 U.S.C. § 201. In Salinas v. United States, 522 U.S. 52 (1997), the Supreme Court held that “as to the bribes forbidden and the entities covered,” there is no support for the appellant’s interpretation that federal funds must be affected to violate § 666(a)(1)(B). “The prohibition is not confined to a business or transaction which affects federal funds.” Id. at 57. Where multiple conversions are part of a single scheme, it is appropriate to aggregate the value of property stolen in order to reach the $5,000 minimum required for prosecution. United States v. Sanderson, 966 F.2d 184, 189 (6th Cir. 1992). A series of takings over a period of time may constitute a single larceny when each taking is the result of a continuing larcenous impulse or intent on the part of the thief, or has been carried out under a single plan or scheme. 53 A.L.R. 3d 398. 329 330 331 110 Id. at 1018-19. Id. at 1020. United States v. Jennings, 160 F.3d 1006, 1020 n.5 (4th Cir. 1998). Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 114 of 684 TITLE 18 In determining whether a series of takings are properly aggregated, the court must examine the intent of the actor at the first taking. “If the actor formulated ‘a plan or scheme or [set] up a mechanism which, when put into operation, [would] result in the taking or diversion of sums of money on a recurring basis,’ the crime may be charged in a single count.” United States v. Smith, 373 F.3d 561, 564 (4th Cir. 2004) (defendant convicted of violating 18 U.S.C. § 641). The Smith majority also believed that the specific conduct at issue in that case (appropriating the Social Security checks of the defendant’s deceased mother) “is more properly characterized as a continuing offense rather than a series of separate acts” for statute of limitations purposes. Id. at 568. The court did note that not all conduct constituting embezzlement may necessarily be treated as a continuing offense as opposed to merely a series of acts that occur over a period of time. 18 U.S.C. § 751 ESCAPE Title 18, United States Code, Section 751 makes it a crime to escape from federal custody. For you to find the defendant guilty, the government must prove each of the following beyond a reasonable doubt: P First, that the defendant had been in the custody of the Attorney General; The government can satisfy this burden by demonstrating that the defendant was: 017 7/2 (1) in the custody of the Attorney General or his authorized representative, (2) in any institution or facility in which he was confined by direction of the Attorney General, P P /2 7issued under the laws of the 0 (3) in custody under or by virtue of any process ed United States by any court, judge, or magistrate judge, or w (4) in the custody of an officer or employee of the United States pursuant to a vie lawful arrest; 26, -42 Second, that the defendant’s custody was as the result of a conviction [or by virtue 6for a felony]; and 1 of being arrested o.the defendant escaped, or attempted to escape, from that custody. N Third, that 332 L The court should consider giving a lesser included offense instruction if the custody is for extradition, immigration proceedings, because of an arrest for a misdemeanor, or committed before the defendant’s 18th birthday. [18 U.S.C. §§ 751(a) and (b).] Escape means absenting oneself from custody without permission.333 Custody does not require actual physical restraint.334 The government must prove that the defendant knew his actions would result in his leaving physical confinement without permission.335 AFFIRMATIVE DEFENSE The defendant is excused from committing a crime if the defendant committed the crime because of duress [or compulsion or coercion]. 332 333 334 335 See United States v. Evans, 159 F.3d 908, 910 (4th Cir. 1998). United States v. Bailey, 444 U.S. 394, 407 (1980). Evans, 159 F.3d at 911. Bailey, 444 U.S. at 408. “Intent to avoid confinement” is not an element of § 751(a). Id. 111 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 115 of 684 TITLE 18 To establish the defense of duress, the defendant must show, by a preponderance of the evidence,336 the existence of all of the following conditions: P First, that the defendant-prisoner was faced with a specific threat of death or substantial bodily injury in the immediate future; P Second, that there was no time for a complaint to the authorities or there must exist a history of futile complaints which make any benefit from such complaints illusory; P Third, that there was no evidence of force or violence used towards prison personnel or other innocent persons in the escape attempt; and P Fourth, that the defendant-prisoner must intend to report immediately to the proper authorities when he attains a position of safety from the immediate threat.337 The defendant must prove that he made a bona fide effort to surrender or return to custody as soon as the claimed duress or necessity lost its coercive force.338 Imminent means ready to take place, near at hand, likely to occur at any moment, impending.339 ____________________NOTE____________________ 017 7/2 A writ of habeas corpus ad prosequendum does not effect a transfer of custody for purposes of § 751. Thus, a federal prisoner loaned to a local jurisdiction pursuant to such a writ who escapes is subject to prosecution for violating § 751. United States v. Evans, 159 F.3d 908 (4th Cir. 1998). 7/2 where a federal prisoner See also United States v. Wilson, 262 F.3d 305 (4th Cir. 2001), d0 eInterstate Agreement on Detainers Act at F.C.I. Butner was transferred to Nevada under the w to answer to state theft charges. He was released by Nevada authorities, and prosecuted in vie 6, the Eastern District of North Carolina for escape. The Fourth Circuit affirmed that venue 2Wilson “remained in the legal custody of Butner when was in the Eastern District,-42 because he was sent to Nevada on detainer. [Thus] he escaped from the constructive custody of 16 . federal authorities in the Eastern District of North Carolina.” 262 F.3d at 321. No Duress does not controvert an element of the offense which the government must prove beyond a reasonable doubt. As the Supreme Court stated in Dixon v. United States, 548 U.S. 1, 7-8 (2006), “[l]ike the defense of necessity, the defense of duress does not negate a defendant’s criminal state of mind when the applicable offense requires a defendant to have acted knowingly or willfully; instead, it allows the defendant to avoid liability because coercive conditions or necessity negates a conclusion of guilt even though the necessary mens rea was present.” See also United States v. Aragon, 983 F.2d 1306 (4th Cir. 1993). In United States v. Bailey, 444 U.S. 394 (1980), the Court discussed the differences between duress and necessity. 336 “In the context of the firearms offenses at issue [18 U.S.C. §§ 922(a)(6) and (n)] — as will usually be the case, given the long-established common-law rule — we presume that Congress intended the petitioner to bear the burden of proving the defense of duress by a preponderance of the evidence.” Dixon v. United States, 548 U.S.1, 17 (2006). 337 United States v. Sarno, 24 F.3d 618, 620 (4th Cir. 1994) (citing United States v. Bifield, 702 F.2d 342, 345-46 (2d Cir. 1983)). 338 Bailey, 444 U.S. at 415. 339 United States v. Hua, 207 F. App’x 311 (4th Cir. 2006) (citing Buczek v. Continental Cas. Ins. Co., 378 F.3d 284, 291 (3d Cir. 2004)). 112 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 116 of 684 TITLE 18 Common law historically distinguished between the defenses of duress and necessity. Duress was said to excuse criminal conduct where the actor was under an unlawful threat of imminent death or serious bodily injury, which threat caused the actor to engage in conduct violating the literal terms of the criminal law. While the defense of duress covered the situation where the coercion had its source in the actions of other human beings, the defense of necessity, or choice of evils, traditionally covered the situation where physical forces beyond the actor’s control rendered illegal conduct the lesser of two evils. Thus, where A destroyed a dike because B threatened to kill him if he did not, A would argue that he acted under duress, whereas if A destroyed the dike in order to protect more valuable property from flooding, A could claim a defense of necessity. *** Under any definition of these defenses one principle remains constant: if there was a reasonable, legal alternative to violating the law, a chance both to refuse to do the criminal act and also to avoid the threatened harm, the defenses will fail. 444 U.S. at 410. Modern cases have blurred the distinction. An escapee is not entitled to claim a defense of duress or necessity unless and until he demonstrates that, given the imminence of the threat, escape was his only reasonable alternative. An escapee must first offer evidence justifying his continued absence from custody as well as his initial departure and that an indispensable element of such an offer is testimony of a bona fide effort to surrender or return to custody as soon as the claimed duress or necessity had lost its coercive force. Id. at 410-13. 017 /2 If an affirmative defense consists of several elements [as duress does] and testimony 27the trial court and jury supporting one element is insufficient to sustain it even if believed, 07/ of the defense. Id. at 416. d need not be burdened with testimony supporting other elements wecan be held liable for failure to return e Escape is a continuing offense, and aniescapee ,v to custody as well as for his initial departure. Id. at 413. 226 4 18 U.S.C. § 752 ASSISTING ESCAPE 16. Title 18,No States Code, Section 752 makes it a crime to assist a federal prisoner United to escape from custody. For you to find the defendant guilty, the government must prove each of the following beyond a reasonable doubt: § 752(a) P First, that the defendant rescued or attempted to rescue, or instigated, aided or assisted the escape or attempt to escape; P Second, of a person (a) arrested upon a warrant or other process issued under any law of the United States; or (b) committed to the custody of the Attorney General or to any institution or facility by his direction; P Third, that the custody or confinement was by virtue of an arrest on a charge of a felony, or conviction of any offense; and P Fourth, that the defendant acted willfully.340 340 See United States v. Sanders, 862 F.2d 79, 83 (4th Cir. 1988) (§ 2233 prosecution; holding forcible rescue of seized property requires willfulness). 113 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 117 of 684 TITLE 18 L If the custody or confinement was for extradition, for exclusion or expulsion proceedings under the immigration laws, by virtue of an arrest or charge of or for a misdemeanor, and prior to conviction, the court should consider giving a lesser included offense charge. [18 U.S.C. § 752(a).] § 752(b) P First, that the defendant rescued or attempted to rescue, or instigated, aided or assisted the escape or attempt to escape; P Second, of a person (a) in the custody of the Attorney General or his authorized representative; (b) arrested upon a warrant or other process issued under any law of the United States; or (c) from any institution or facility in which that person was confined by the direction of the Attorney General; P Third, that the custody or confinement was by virtue of a lawful arrest for a violation of any law of the United States not punishable by death or life imprisonment and committed before the person’s eighteenth birthday, and the Attorney General had not specifically directed the institution of criminal proceedings, or by virtue of a commitment as a juvenile delinquent [under 18 U.S.C. § 5034]; and 017 7/2 7/2 d0 “Rescue” means taking a person in a manner that defies and frustrates the government’s ehas lawfully asserted dominion and w possession of that person, where the government vie lawfully maintained custody. , 26that the defendant knew the person being rescued or The government need not 2 prove 6-4 assisted was in federal custody. o. 1 N 18 U.S.C. § 793 TRANSMITTING DEFENSE INFORMATION P Fourth, that the defendant acted willfully.341 Escape means absenting oneself from custody without permission.342 343 344 § 793(a) Title 18, United States Code, Section 793(a) makes it a crime to obtain defense information to injure the United States or to help a foreign nation. For you to find the defendant guilty, the government must prove each of the following beyond a reasonable doubt: P First, that the defendant went upon, entered, flew over, or otherwise obtained information concerning any vessel, aircraft, work of defense, navy yard, naval 341 Id. United States v. Bailey, 444 U.S. 394, 407 (1980). 343 Sanders, 862 F.2d at 83. 344 In United States v. Aragon, 983 F.2d 1306 (4th Cir. 1993), the defendant was charged with attempting to rescue a federal prisoner. Appellant argued that the government was required to prove he was aware of the federal status of the intended target. The Fourth Circuit found that “[b]ecause knowledge is not explicitly mentioned, it is not an essential element of [this] offense and, therefore, is unnecessary for the government to prove.” 983 F.2d at 1310. 342 114 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 118 of 684 TITLE 18 station, submarine base, fueling station, fort, battery, torpedo station, dockyard, canal, railroad, arsenal, camp, factory, mine, telegraph, telephone, wireless, or signal station, building, office, research laboratory or station or other place connected with the national defense owned or constructed, or in progress of construction by the United States or under the control of the United States, or of any of its officers, departments, or agencies, or within the exclusive jurisdiction of the United States, or any place in which any vessel, aircraft, arms, munitions, or other materials or instruments for use in time of war were being made, prepared, repaired, stored, or were the subject of research or development, under any contract or agreement with the United States, or any department or agency thereof, or with any person on behalf of the United States, or otherwise on behalf of the United States, or any prohibited place so designated by the President by proclamation in time of war or in case of national emergency in which anything for the use of the Army, Navy, or Air Force was being prepared or constructed or stored, information as to which prohibited place the President had determined would be prejudicial to the national defense; P Second, that the defendant did so for the purpose of obtaining information respecting the national defense; and P Third, that the defendant did so with intent or reason to believe that the information was to be used to the injury of the United States or to the advantage of any foreign nation. 017 7/2 7/a2crime to make copies of 0 Title 18, United States Code, Section 793(b) makes it defense information to injure the United States or ed a foreign nation. For you to find to help w the defendant guilty, the government must prove each of the following beyond a reasonable vie doubt: 26, took, made, or obtained, or attempted to copy, 2 P First, that the defendant copied, 6-4 take, make, or obtain; . oany1 photograph, photographic negative, blueprint, plan, map, P Second, N sketch, § 793(b) model, instrument, appliance, document, writing, or note of anything connected with the national defense; P Third, that the defendant did so for the purpose of obtaining information respecting the national defense; and P Fourth, that the defendant did so with intent or reason to believe that the information was to be used to the injury of the United States or to the advantage of any foreign nation. § 793(c) Title 18, United States Code, Section 793(c) makes it a crime to receive defense information to injure the United States or to help a foreign nation. For you to find the defendant guilty, the government must prove each of the following beyond a reasonable doubt: P First, that the defendant received or obtained, or agreed or attempted to receive or obtain from any person or any source whatever; 115 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 119 of 684 TITLE 18 P Second, any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note, or anything connected with the national defense; P Third, that the defendant did so for the purpose of obtaining information respecting the national defense with intent or reason to believe that the material would be used to the injury of the United States or to the advantage of any foreign nation; and P Fourth, that the defendant knew, or had reason to believe, at the time the defendant received or obtained, or agreed or attempted to receive or obtain, the above material, that the material had been or would be obtained, taken, made, or disposed of by any person contrary to law, that is, with intent or reason to believe that the information was to be used to the injury of the United States or to the advantage of any foreign nation. § 793(d) 345 Title 18, United States Code, Section 793(d) makes it a crime to deliver defense information to any person not entitled to receive it. For you to find the defendant guilty, the government must prove each of the following beyond a reasonable doubt: P First, that the defendant had lawful possession of, access to, control over, or was entrusted with; P Fourth, that the defendant retained the above material and failed to deliver it on demand to the officer or employee of the United States entitled to receive it; and P Fifth, that the defendant did so willfully. 017 P Second, any document, writing, code book, signal book, 2 sketch, photograph, 27/ appliance, or note photographic negative, blueprint, plan, map, model, instrument, 7/ relating to the national defense, or information 0 relating to the national defense; ed P Third, that the defendant had reason tow believe the information could be used to the e injury of the United States or, vi advantage of any foreign nation; to the P Fourth, that the defendant communicated, delivered, or transmitted (or attempted 226 4 or caused to be communicated, delivered, or transmitted) the above material to any 16- to receive it; person not.entitled No OR § 793(e)346 Title 18, United States Code, Section 793(e) makes it a crime to deliver defense information to any person not entitled to receive it. For you to find the defendant guilty, the government must prove each of the following beyond a reasonable doubt: P First, that the defendant, without authorization, had possession of, access to, or control over; 345 Defendant had access to national defense information (NDI) by virtue of his official position. See United States v. Rosen, 445 F. Supp. 2d 602 (E.D. Va. 2006). 346 This provision applies where the defendant had no employment or contractual relationship with the government, and therefore did not exploit a relationship of trust to obtain the NDI, but instead generally obtained the NDI from one who did violate such a trust. See id. 116 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 120 of 684 TITLE 18 P Second, any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, or information relating to the national defense; P Third, that the defendant had reason to believe the information could be used to the injury of the United States or to the advantage of any foreign nation; P Fourth, that the defendant communicated, delivered, or transmitted (or attempted or caused to be communicated, delivered, or transmitted) the above material to any person not entitled to receive it; OR P Fourth, that the defendant retained the above material and failed to deliver it to the officer or employee of the United States entitled to receive it; and P Fifth, that the defendant did so willfully.347 § 793(f)(1) Title 18, United States Code, Section 793(f)(1) makes it a crime to allow defense information to be lost or stolen through gross negligence. For you to find the defendant guilty, the government must prove each of the following beyond a reasonable doubt: P First, that the defendant had been entrusted with or had lawful possession or control of; 017 P Second, any document, writing, code book, signal book, 2 / sketch, photograph, photographic negative, blueprint, plan, map, model, /27 instrument, appliance, note, or information relating to the national defense; 07 d P Third, that the defendant permitted the e wabove material to be removed from its proper place of custody or deliverede anyone in violation of the defendant’s trust, to , videstroyed; and 6 or to be lost, stolen, abstracted, or 2 P Fourth, that the defendant did so through gross negligence. -42 16 § 793(f)(2) o. N Title 18, United States Code, Section 793(f)(2) makes it a crime to fail to report the loss or destruction of defense information. For you to find the defendant guilty, the government must prove each of the following beyond a reasonable doubt: P First, that the defendant had been entrusted with or had lawful possession or control of; P Second, any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, note, or information relating to the national defense; P Third, that the defendant knew that the above material had been illegally removed from its proper place of custody or delivered to anyone in violation of the defendant’s trust, or had been lost, stolen, abstracted, or destroyed; and 347 Unlike § 793(d), § 793(e) requires one with unlawful possession of national defense information to return it to the government even in the absence of a demand for that information. Id. at 613. 117 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 121 of 684 TITLE 18 P Fourth, that the defendant failed to make prompt report of such loss, theft, abstraction or destruction to a superior officer. “Information” applies to both tangible and intangible information.348 The term “national defense” includes all matters that are directly connected, or may reasonably be connected, with the defense of the United States against any of its enemies. It refers to the military and naval establishments and the related activities of national preparedness. To prove that the information or material in question related to national defense there are two things that the government must prove: First, that the information was closely held by the government in that it had not been made public and was not available to the general public. Where the information has been made public by the United States government and is found in sources lawfully available to the general public, the information does not relate to the national defense. Similarly, where sources of information are lawfully available to the public and the United States government has made no effort to guard such information, the information itself does not relate to the national defense.349 Second, that disclosure of the information would be potentially damaging to the United States or might be useful to an enemy of the United States.350 “Not entitled to receive” means not authorized to receive. The government can prove that a person was not authorized to receive national defense information if a validly promulgated executive branch regulation or order restricted the disclosure of information to a certain set of identifiable people, and that person was outside this set.351 017 7/2 7/2 d0 An act is done “willfully” if it is done voluntarily and intentionally and with the specific intent to do something that the law forbids, that is to say, with a bad purpose either to disobey or to disregard the law.352 e iew ,v 226 6-4 “Reason to believe” means that the defendant knew facts from which he could conclude or reasonably should have concluded that the information could be used for the prohibited purposes. It does not mean that the defendant acted negligently.353 o. 1 N The official nature of documents involved in the case are pertinent to whether their transmission would injure the United States or aid a foreign nation.354 Moreover, you, the jury, must find that the information transmitted was not available in the public domain.355 ____________________NOTE____________________ 348 Id. at 616 (statute defines tangibles and describes intangibles: “information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation”) (quotation and citation omitted). 349 United States v. Squillacote, 221 F.3d 542, 576 (4th Cir. 2000); United States v. Dedeyan, 584 F.2d 36, 39-40 (4th Cir. 1978). 350 See United States v. Morison, 844 F.2d 1057, 1071-72 (4th Cir. 1988). 351 See id. at 1076; United States v. Rosen, 445 F. Supp. 2d 602, 643 (E.D. Va. 2006). 352 Morison, 844 F.2d at 1071. 353 United States v. Truong Dinh Hung, 629 F.2d 908, 919 (4th Cir.1980). 354 Id. at 918 n.9. 355 See id. 118 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 122 of 684 TITLE 18 Section 793(g) contains a separate conspiracy provision. See United States v. Rosen, 445 F. Supp. 2d 602, 623-26 (E.D. Va. 2006), where the court characterized the elements of § 793(d) and (e) as the following: P First, that the defendant knew the information was national defense information, that is, the information was closely held by the government and that the disclosure of the information would be damaging to the national security; P Second, that the defendant knew the persons to whom the disclosures would be made were not authorized to receive the information; P Third, that the defendant knew the disclosures would be unlawful; P Fourth, that the defendant had reason to believe the information disclosed could be used to the injury of the United States or to the aid of a foreign nation; and P Fifth, that the defendant intended that such injury to the United States or aid to the foreign nation result from the disclosure. Congress intended to create a hierarchy of offenses against national security, ranging from “classic spying” to merely losing classified materials through gross negligence. United States v. McGuinness, 35 M.J. 149, 153 (CMA, 1992). 017 7/2 The government must notify the defendant of the portions of the material that it expects to rely on to establish the national defense or classified information element of the offense. 18 U.S.C. App. 3 § 10. 7/2 0 18 U.S.C. § 794 DELIVERING DEFENSE INFORMATION ed TO AID FOREIGN GOVERNMENT w vie § 794(a) 26, 794(a) makes it a crime to deliver defense Title 18, United States42 Section Code, 6- government. For you to find the defendant guilty, the information to help a foreign government must prove each of the following beyond a reasonable doubt: o. 1 N P First, that the defendant communicated, delivered, or transmitted, or attempted to communicate, deliver, or transmit; P Second, to a foreign government, or any faction or party or military or naval force within a foreign country, or to any representative, officer, agent, employee, subject, or citizen of a foreign country; P Third, a document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, note, instrument, appliance, or information relating to the national defense; and P Fourth, that the defendant did so with intent or reason to believe that it was to be used to the injury of the United States or to the advantage of a foreign nation.356 356 United States v. Drummond, 354 F.2d 132, 152 (2d Cir. 1965). The government does not have to prove both “injury” and “advantage,” or both “intent” and “reason to believe.” The statute reads in the alternative. Id. at 153. 119 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 123 of 684 TITLE 18 “Information” applies to both tangible and intangible information.357 The term “national defense” includes all matters that directly or may reasonably be connected with the defense of the United States against any of its enemies. It refers to the military and naval establishments and the related activities of national preparedness. To prove that the information or material in question related to national defense there are two things that the government must prove: First, that the information was closely held by the government in that it had not been made public and was not available to the general public. Where the information has been made public by the United States government and is found in sources lawfully available to the general public, the information does not relate to the national defense. Similarly, where sources of information are lawfully available to the public and the Untied States government has made no effort to guard such information, the information itself does not relate to the national defense.358 Second, that disclosure of the information would be potentially damaging to the United States or might be useful to an enemy of the United States.359 “Reason to believe” means that the defendant knew facts from which he could conclude or reasonably should have concluded that the information could be used for the prohibited purposes. It does not mean that the defendant acted negligently.360 017 2 Moreover, you, the jury, must find that the information transmitted was not available 27/ in the public domain. 07/ d DEATH PENALTY FACTORS we e 1. Did the offense result in the identification by a foreign power of an individual acting , vi death of that individual? as an agent of the United States and the 226 directly concern nuclear weaponry, military 2. Did the information4 16- communicated spacecraft or satellites, early warning systems, or other means of defense or retaliation . against large-scale attack; war plans, communications intelligence or cryptographic No The official nature of documents involved in the case are pertinent to whether their transmission would injure the United States or aid a foreign nation.361 362 information; or any other major weapons system or major element of defense strategy? ____________________NOTE____________________ Section 794(c) contains a separate conspiracy provision. 357 United States v. Rosen, 445 F. Supp. 2d 602, 616 (E.D. Va. 2006) (statute defines all types of tangibles and describes intangibles: “information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation”) (quotation and citation omitted). 358 United States v. Squillacote, 221 F.3d 542, 576 (4th Cir. 2000); United States v. Dedeyan, 584 F.2d 36, 39-40 (4th Cir. 1978). 359 See United States v. Morison, 844 F.2d 1057, 1071-72 (4th Cir. 1988). See also United States v. Truong Dinh Hung, 629 F.2d 908, 918 (4th Cir. 1980); United States v. Drummond, 354 F.2d 132, 151 (2d Cir. 1965). 360 Truong Dinh Hung, 629 F.2d at 919. 361 Id. at 918 n.9. 362 See id. 120 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 124 of 684 TITLE 18 United States v. Walker, 796 F.2d 43 (4th Cir. 1986). This is a specific intent crime. See United States v. Lee, 589 F.2d 980, 986 (9th Cir. 1979). The government must notify the defendant of the portions of the material that it expects to rely on to establish the national defense or classified information element of the offense. 18 U.S.C. App. 3 § 10. 18 U.S.C. § 844(d) TRANSPORTING OR RECEIVING AN EXPLOSIVE Title 18, United States Code, Section 844(d) makes it a crime to transport or receive in interstate commerce any explosive with knowledge or intent that it would be used to kill, injure, or intimidate any individual or damage or destroy any building. For you to find the defendant guilty, the government must prove each of the following beyond a reasonable doubt: P First, that the defendant transported or received, or attempted to transport or receive in interstate commerce any explosive; and P Second, that the defendant did so with the knowledge or the intent that it would be used to kill, injure, or intimidate any individual, or unlawfully to damage or destroy any building, vehicle, or other real or personal property.363 7 01safety officer 1. Did personal injury result to any person, including any /2 /27 public performing duties, as a direct or proximate result of defendant’s conduct? 7 0safety officer performing duties, d 2. Did death result to any person, including any public we as a direct or proximate result of defendant’s conduct? e , vi between one State, Territory, Possession, “Interstate commerce” includes commerce 26 or the District of Columbia42 another State, Territory, Possession, or the District of and Columbia. [18 U.S.C.16. § 10]includes commerce with a foreign country. [18 U.S.C. § 10] “Foreign commerce” No AGGRAVATED PENALTIES 18 U.S.C. § 844(h) USING FIRE TO COMMIT A FELONY Title 18, United States Code, Section 844(h) makes it a crime to use fire or an explosive to commit a felony, or carry an explosive during the commission of a felony. For you to find the defendant guilty, the government must prove each of the following beyond a reasonable doubt: § 844(h)(1) P First, that the defendant used fire or an explosive; and P Second, that the defendant did so to commit a felony which may be prosecuted in federal court.364 363 See United States v. Yousef, 327 F.3d 56, 158 (2d Cir. 2003). “The district court must either instruct the jury as to all the essential elements of the underlying crime or refer to its previous instruction of those elements with regard to the underlying crime.” United States v. Johnson, 71 F.3d 139, 145 (4th Cir. 1995). 364 121 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 125 of 684 TITLE 18 The use of fire or an explosive need not result in damage or destruction of property.365 § 844(h)(2) P First, that the defendant carried an explosive; and P Second, that the defendant did so during the commission of a felony which may be prosecuted in federal court.366 The government does not have to prove a relationship between the explosive carried and the underlying felony.367 ____________________NOTE____________________ United States v. Nguyen, 28 F.3d 477, 481 (5th Cir. 1994). “The ‘use’ of fire covered by this provision is not limited to arson and encompasses, for example, the use of fire to intimidate or threaten another person.” United States v. Martin, 523 F.3d 281, 288 (4th Cir. 2008). The Fourth Circuit has recognized that § 844(h) is almost identical to § 924(c). United States v. Barnette, 211 F.3d 803, 813 (4th Cir. 2000). Therefore, venue lies where the underlying crime of violence occurred. In United States v. Sutton, 961 F.2d 476, 479 (4th Cir. 1992), a § 924(c) prosecution, the defendant argued that the indictment was defective for not alleging scienter. The Fourth Circuit rejected the argument because the indictment tracked the statutory language of the section, language that does not include the element of scienter, and because the defendant failed to raise the objection prior to verdict, which warranted a more permissive review of the sufficiency of the charge. 017 7/2 7/2 d0 e iew ,v The defendant need not be convicted of the predicate offense, as long as all of the elements of that offense are proved and found beyond a reasonable doubt. United States v. Crump, 120 F.3d 462, 466 (4th Cir. 1997) (§ 924(c) prosecution). This assumes proper instruction on the elements of the predicate offense. o. 1 N 226 6-4 For example, using fire to commit mail fraud requires the government to connect the arson to the mail fraud. The statutory elements of arson and mail fraud can be met in a single prosecution without the government connecting the two crimes. Therefore, using fire to commit mail fraud has an additional element which makes it a separate offense from the combination or arson and mail fraud. United States v. Martin, 523 F.3d 281, 293 (4th Cir. 2008) (citing United States v. Patel, 370 F.3d 108, 117 (1st Cir. 2004)). There is no mens rea supplied for § 844(h). Therefore, it would appear that the mens rea from the underlying felony supplies the mens rea. 18 U.S.C. § 844(i) ARSON 365 United States v. Martin, 523 F.3d 281, 292 (4th Cir. 2008) (“[T]he ‘malicious damage’ element in the arson statute is not an element of proof in the using fire statute.”). 366 Johnson, 71 F.3d at 145 (“The district court must either instruct the jury as to all the essential elements of the underlying crime or refer to its previous instruction of those elements with regard to the underlying crime.”) 367 United States v. Ressam, 553 U.S. 272 (2008). The required link is temporal, not relational. 122 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 126 of 684 TITLE 18 Title 18, United States Code, Section 844(i) makes it a crime to damage or destroy by fire or explosive any property used in interstate commerce. For you to find the defendant guilty, the government must prove each of the following beyond a reasonable doubt: P First, that the defendant damaged or destroyed, or attempted to damage or destroy, any building, vehicle, or other real or personal property; P Second, that the defendant did so by means of fire or an explosive; P Third, that the building, vehicle, real or personal property was used in interstate or foreign commerce or in any activity affecting interstate commerce; and P Fourth, that the defendant did so maliciously.368 “Maliciously” means acting intentionally or with willful disregard of the likelihood that damage or injury will result.369 “Used in an activity affecting commerce” means active employment for commercial purposes, and not merely passive, passing, or past connection to commerce.370 ____________________NOTE____________________ In United States v. Gullett, 75 F.3d 941 (4th Cir. 1996), the explosion occurred in the parking lot of a machine shop, but damaged rental property nearby. The appellant stipulated that the rental property was used in an activity affecting interstate commerce, but argued that he did not maliciously intend to damage the rental property. The Fourth Circuit approved the following charge: 017 7/2 7/2 d0 A defendant may not be excused from responsibility for the harmful consequences of his actions simply because that harm was not precisely the harm in which he intended. That is, if the only difference between what a defendant intended to flow from his action and what actually occurred as a result of his action is that some property was damaged other than that which the defendant intended, the defendant, under the law, may still be held responsible to the same extent that he would have been responsible had the intended harm resulted, so long as the actual result is similar to and not remote from the intended result. Of course, the defendant must have acted maliciously and with specific intent, and the government must prove all of the essential elements of the offense beyond a reasonable doubt in order for you to find the defendant guilty. e iew ,v o. 1 N 226 6-4 75 F.3d at 948. The court stated this was “a correct statement of the law,” as Gullett “may’ be legally responsible for his actions even though some ‘property was damaged other than that which the defendant intended.’” Id. 368 See United States v. Gullett, 75 F.3d 941, 948 (4th Cir. 1996). Id. 370 United States v. Cristobal, 293 F.3d 134, 146 (4th Cir. 2002). See also Jones v. United States, 529 U.S. 848, 854 (2000) (“The proper inquiry ... ‘is into the function of the building itself, and then a determination of whether that function affects interstate commerce.’”). Jones held that an owner-occupied residence not used for any commercial purpose does not qualify as property “used in” commerce or commerce-affecting activity. Receiving natural gas, being subject to a mortgage, or being insured are not enough. 369 123 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 127 of 684 TITLE 18 Regarding the interstate character of the property, the first inquiry is into the function of the property itself, and second whether the function affects interstate commerce. United States v. Cristobal, 293 F.3d 134, 145 (4th Cir. 2002). 18 U.S.C. § 871 THREATS AGAINST THE PRESIDENT Title 18, United States Code, Section 871 makes it a crime to threaten the President of the United States.371 For you to find the defendant guilty, the government must prove each of the following beyond a reasonable doubt: P First, that the defendant deposited or caused to be delivered by mail a communication; P Second, that the communication contained a threat to kill, kidnap, or injure the President of the United States [or other official listed in the statute]; and P Third, that the defendant did so knowingly and willfully. OR P First, that the defendant made a threat to kill, kidnap, or injure the President of the United States [or other official listed in the statute]; and P Second, that the defendant did so knowingly and willfully. 017 7/2 The threat must be a true threat372 [as opposed to political hyperbole] accompanied by a present intention either to injure the [President or other official listed in the statute], or incite others to injure him, or to restrict his movements. The jury may find evidence of this intention from how the threat was communicated, that is, whether the defendant making the threat might reasonably anticipate that it would be transmitted to law enforcement officers and others charged with the security of the [President or other official listed in the statute].373 7/2 d0 e iew ,v 226 4 ____________________NOTE____________________ 16- must amount to a “true threat” rather than mere political A threatening.statement o hyperbole or N chatter. Watts v. United States, 394 U.S. 705, 708 (1969). In Watts, the idle Supreme Court identified four factors in determining that the statement was not a true threat. The Court noted that the communication was: (1) made in jest; (2) to a public audience; (3) in political opposition to the President; and (4) conditioned upon an event the speaker himself vowed would never happen. Id. at 707-08. Unlike other threat statutes, § 871 has obvious First Amendment implications. In Watts, the Supreme Court reversed a conviction where the “threat” was “[i]f they ever make me carry a rifle the first man I want to get in my sights is L.B.J.” Id. at 705. The court stated that the government must prove a true threat. “We do not believe that the kind of political hyperbole indulged in by petitioner fits within that statutory term.” Id. at 708. Moreover, the court was concerned about the “expressly conditional nature of the statement.” Id. 371 The statute extends to “the President-elect, the Vice President or other officer next in the order of succession to the office of President of the United States, or the Vice President-elect ....” 18 U.S.C. § 871. 372 United States v. Lockhart, 382 F.3d 447, 450 (4th Cir. 2004). 373 United States v. Patillo, 438 F.2d 13, 16 (4th Cir. 1971) (en banc). 124 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 128 of 684 TITLE 18 “[W]here ... a true threat against the person of the President is uttered without communication to the President intended, the threat can form a basis for conviction ... only if made with a present intention to do injury to the President.” United States v. Patillo, 438 F.2d 13, 15 (4th Cir. 1971) (en banc). “When a threat is published with an intent to disrupt presidential activity, we think there is sufficient mens rea under the secondary sanction of the statute.” Id. at 15-16. “[A] defendant must knowingly deposit a threatening communication in the mail.” United States v. Maxton, 940 F.2d 103, 106 (4th Cir. 1991). Or the defendant must cause the communication to be mailed. In Petschel v. United States, 369 F.2d 769 (8th Cir. 1966), the inmate-defendant admitted writing and addressing the threatening letter, but testified he gave it to a fellow inmate to deliver personally. The fellow inmate testified that instead of personally delivering the letter, he mailed it. The Eighth Circuit affirmed the conviction, stating “[i]t is well-established that proof of mailing and causing mailing may be made by circumstantial evidence [and] ‘[w]here one does an act with knowledge that the use of the mails will follow in the ordinary course of business, or where such use can reasonably be foreseen, even though not actually intended, then he “causes” the mails to be used.’” 369 F.2d at 772. See NOTE Sections for §§ 875 and 876. 017 7/2 18 U.S.C. § 875 INTERSTATE THREATENING COMMUNICATIONS [L A S T UPDATED : 1/20/2016] 7/2 d0 Title 18, United States Code, Section 875 makes it a crime to transmit in interstate commerce a threatening communication. For you to find the defendant guilty, the government must prove each of the following beyond a reasonable doubt: § 875(a) P P e iew ,v 226 6-4 First, that the defendant transmitted in interstate or foreign commerce a communication; o. 1 communication contained a demand or request for a ransom or Second, that the N reward for the release of any kidnapped person; and P Third, that the defendant did so knowingly. § 875(b) P First, that the defendant transmitted in interstate or foreign commerce a communication; P Second, that the communication contained a threat to kidnap any person or a threat to injure a person; and P Third, that the defendant did so with intent to extort any money or other thing of value from any person, firm, association, or corporation. § 875(c) P First, that the defendant knowingly transmitted a communication in interstate or foreign commerce; P Second, that the defendant subjectively intended the communication as a threat; and 125 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 129 of 684 TITLE 18 P Third, that the content of the communication contained a “true threat” to kidnap or injure.374 To prove the second element of a § 875(c) conviction, the Government “must establish that the defendant transmitted the communication ‘for the purpose of issuing a threat, or with knowledge that the communication will be viewed as a threat,’ or, perhaps, with reckless disregard for the likelihood that the communication will be viewed as a threat.”375 To prove the third element of a § 875(c) conviction, “the [Government] must show that an ordinary, reasonable recipient who is familiar with the context in which the statement is made would interpret it as a serious expression of an intent to do harm.”376 § 875(d) P First, that the defendant transmitted in interstate or foreign commerce a communication; P Second, that the communication contained a threat to injure the property or reputation of the addressee or of another or the reputation of a deceased person or any threat to accuse the addressee or any other person of a crime; and P Third, that the defendant did so with intent to extort any money or other thing of value from any person, firm, association, or corporation. 017 7/2 “Interstate commerce” includes commerce between one State, Territory, Possession, or the District of Columbia and another State, Territory, Possession, or the District of Columbia. [18 U.S.C. § 10] 7/2 0 While the government must prove that the communication was transmitted in interstate ed commerce, the government need not prove ew defendant knew the communication vi that the would be transmitted in interstate commerce. 26, 2 ____________________NOTE____________________ 6-4 See generally . A.L.R.Fed. 874 concerning mailing threatening communications. o301 N A threatening statement must amount to a “true threat” rather than mere political “Foreign commerce” includes commerce with a foreign country. [18 U.S.C. § 10] 377 hyperbole or idle chatter. Watts v. United States, 394 U.S. 705, 708 (1969). In Watts, the Supreme Court identified four factors in determining that the statement was not a true threat. The Court noted that the communication was: (1) made in jest; (2) to a public audience; (3) in political opposition to the President; and (4) conditioned upon an event the speaker himself vowed would never happen. Id. at 707-08. “True threats have been characterized by the Supreme Court as statements made by a speaker who ‘means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group.’” United States v. Bly, 510 F.3d 453, 458 (4th Cir. 2007) (quoting Virginia v. Black, 538 U.S. 343, 359 (2003)). 374 United States v. White, 810 F.3d 212, 221 (4th Cir. 2016); United States v. Elonis, 135 S. Ct. 2001 (2015). 375 White, 810 F.3d at 221. 376 Id. 377 See United States v. Darby, 37 F.3d 1059, 1066 (4th Cir. 1994), abrogated on other grounds in United States v. Elonis, 135 S. Ct. 2001 (2015). 126 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 130 of 684 TITLE 18 18 U.S.C. § 876 MAILING THREATENING COMMUNICATIONS [LAST UPDATED : 7/3/14] Title 18, United States Code, Section 876 makes it a crime to mail a threatening communication. For you to find the defendant guilty, the government must prove each of the following beyond a reasonable doubt: § 876(a) P First, that the defendant deposited a communication in any post office or authorized depository for mail, to be sent or delivered by the Postal Service or caused to be delivered by mail; P Second, that the communication contained a demand or request for ransom or reward for the release of a kidnapped person; and P Third, that the defendant did so knowingly. § 876(b) P First, that the defendant deposited a communication in any post office or authorized depository for mail, to be sent or delivered by the Postal Service or caused to be delivered by mail; P Second, that the communication contained a threat to kidnap any person or a threat to injure the person to whom the letter was addressed or another person; and 017 7/2 2 7/any money or other thing 0 P Third, that the defendant did so with intent to extort ed of value. w vie § 876(c) 6, P First, that the defendant 2 deposited a communication in any post office or 2 authorized depository for mail, to be sent or delivered by the Postal Service or 6-4 by mail; caused to . 1 obe delivered N P Second, that the communication contained a threat to kidnap any person or a 378 threat to injure the person to whom the letter was addressed or another person; and P Third, that the defendant did so knowingly. AGGRAVATED PENALTY 1. Was the communication addressed to a United States judge, a Federal law enforcement officer, or a federal official [covered by 18 U.S.C. § 1114]? § 876(d) P First, that the defendant deposited a communication in any post office or authorized depository for mail, to be sent or delivered by the Postal Service or caused to be delivered by mail; 378 See United States v. Bly, 510 F.3d 453, 460-61 (4th Cir. 2007), in which the court referred to the second element as the “Threat Element” and the third element as the “Extortion Element.” The Threat Element is limited to live persons, the Extortion Element is not, and may include corporate entities. 127 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 131 of 684 TITLE 18 P Second, that the communication contained a threat to injure the property or reputation of the person to whom the letter was addressed or another person, or the reputation of a deceased person, or a threat to accuse the person to whom the letter was addressed or another person of a crime; and P Third, that the defendant did so knowingly and with intent to extort any money or other thing of value. AGGRAVATED PENALTY 1. Was the communication addressed to a United States judge, a Federal law enforcement officer, or a federal official [covered by 18 U.S.C. § 1114]? A person causes the mails to be used when one does an act with knowledge that the use of the mails will follow in the ordinary course of business, or where such use can reasonably be foreseen, even though not actually intended.379 The government must establish that the defendant intended to transmit the interstate communication and that the communication contained a “true threat.” A communication constitutes a “true threat” if an ordinary reasonable recipient who is familiar with the context of the communication would interpret the communication as a threat of injury.380 017 The government need not prove intent or ability to carry out7/2 the threat. 7/2 transmitted in While the government must prove that the communication was 0 interstate commerce, the government need not proved the defendant knew the e that w communication would be transmitted in interstate commerce. vie ____________________NOTE____________________ 26, -42 See generally 3016 Fed. 874 concerning mailing threatening communications. A.L.R. . A threatening statement must amount to a “true threat” rather than mere political No The government does not have to prove that the defendant subjectively intended for the recipient to understand the communication as a threat.381 382 383 hyperbole or idle chatter. Watts v. United States, 394 U.S. 705, 708 (1969). In Watts, the Supreme Court identified four factors in determining that the statement was not a true threat. The Court noted that the communication was: (1) made in jest; (2) to a public audience; (3) in political opposition to the President; and (4) conditioned upon an event the speaker himself vowed would never happen. Id. at 707-08. Section 876 does not require specific intent to threaten. The government is required to prove only a general intent to threaten. The only proof of specific intent required is that the defendant knowingly deposited a threatening letter in the mails, not that he intended or was able to carry out the threat. United States v. Worrell, 313 F.3d 867, 874 (4th Cir. 2002). See also United States v. Darby, 37 F.3d 1059 (4th Cir. 1994); United 379 380 381 382 383 128 Petschel v. United States, 369 F.2d 769, 772 (8th Cir. 1966). United States v. Armel, 585 F.3d 182, 185 (4th Cir. 2009). United States v. Darby, 37 F.3d 1059, 1066 (4th Cir. 1994). Id. at 1064 n.3. Id. at 1067. Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 132 of 684 TITLE 18 States v. Maxton, 940 F.2d 103, 106 (4th Cir. 1991) (“[A] defendant must knowingly deposit a threatening communication in the mail.”). Or the defendant must cause the communication to be mailed. In Petschel v. United States, 369 F.2d 769 (8th Cir. 1966), the inmate-defendant admitted writing and addressing the threatening letter, but testified he gave it to a fellow inmate to deliver personally. The fellow inmate testified that instead of personally delivering the letter, he mailed it. The Eighth Circuit affirmed the conviction, stating “[i]t is well-established that proof of mailing and causing mailing may be made by circumstantial evidence [and] ... ‘[w]here one does an act with knowledge that the use of the mails will follow in the ordinary course of business, or where such use can reasonably be foreseen, even though not actually intended, then he “causes” the mails to be used.’” 369 F.2d at 772 (quoting Pereira v. United States, 347 U.S. 1, 8, 9 (1954)). “If there is substantial evidence that tends to show beyond a reasonable doubt that an ordinary, reasonable recipient who is familiar with the context of the letter would interpret it as a threat of injury, the court should submit the case to the jury.” Maxton, 940 F.2d at 106. “[T]he defendant must have a general intent to threaten the recipient at the time of the mailing. [M]ost of the time such intent can be gleaned from the very nature of the words used in the communication; extrinsic evidence to prove an intent to threaten should only be necessary when the threatening nature of the communication is ambiguous.” Id. 017 7/2 “True threats have been characterized by the Supreme Court as statements made by a speaker who ‘means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group.’” United States v. Bly, 510 F.3d 453, 458 (4th Cir. 2007) (quoting Virginia v. Black, 538 U.S. 343, 359 (2003)). 7/2 d0 e iewthan one meaning — one of which is a “Whether a letter that is susceptiblev more of threat of physical injury — constitutes,a threat must be determined in the light of the 6 2 context in which it was written.” United States v. Maisonet, 484 F.2d 1356, 1358 (4th -42 Cir. 1973). . 1v.6 See United States Barcley, 452 F.2d 930, 932-34 n.6 (8th Cir. 1971): No Written words or phrases take their character as threatening or harmless from the context in which they are used, measured by the common experience of the society in which they are published. * * * * [W]hen [language is] employed by members of our society in context with an extortion demand its necessary implications are precisely clear. * * * * In order to sustain its burden or proof under Section 876, the government must present evidence sufficiently strong to establish beyond a reasonable doubt that the communication in question conveys a threat of injury. Where a communication contains language which is equally susceptible of two interpretations, one threatening, and the other nonthreatening, the government carries the burden of presenting evidence serving to remove that ambiguity. Absent such proof, the trial court must direct a verdict of acquittal. * * * * In prosecutions for extortion, proof of the effect of an allegedly threatening communication upon the victim may be crucial. [Citations omitted.] [I]t seems that proof of the effect of an allegedly threatening letter upon the addressee would throw light upon the intent of the sender within the context of the dialogue between the parties to the correspondence. 129 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 133 of 684 TITLE 18 “The only proof of specific intent required to support a conviction ... is that the defendant knowingly deposits a threatening letter in the mails, not that he intended or was able to carry out the threat.” United States v. Chatman, 584 F.2d 1358, 1361 (4th Cir. 1978). In United States v. Rendelman, 641 F.3d 36 (4th Cir. 2011), the court stated that the person or entity to whom the threatening communication is addressed is not an essential element of a § 876(c) offense. “The phrase ‘addressed to any other person’ simply means that an accused does not violate that provision by mailing a threatening communication addressed to himself.” Id. at 44. Rendelman had mailed letters to the United States Marshal in which he threatened the President. The Fourth Circuit determined that § 876(c) “deals with threatening communications and not just the envelopes containing them.” Id. at 48. The court recognized that its ruling in this regard was at odds with the Ninth Circuit’s ruling in United States v. Havelock, 619 F.3d 1091 (9th Cir. 2010), which concluded that a “communication” under § 876(c) is only “addressed to” the person named on the envelope. Id. at 48 n.13. 18 U.S.C. § 892 MAKING EXTORTIONATE EXTENSIONS OF CREDIT 017 7/2 Title 18, United States Code, Section 892 makes it a crime to make any extortionate extension of credit. For you to find the defendant guilty, the government must prove each of the following beyond a reasonable doubt: 7/2 d0 P First, that the defendant made, or conspired to make, an extortionate extension of credit; and P Second, that the defendant did so knowingly. e iew ,v 226 6-4 To extend credit means to make or renew any loan, or to enter into any agreement, tacit or express, whereby the repayment or satisfaction of any debt or claim, whether acknowledged or disputed, valid or invalid, and however arising, may or will be deferred. [§ 891(1)] o. 1 N “Creditor” refers to any person making that extension of credit, or to any person claiming by, under, or through any person making that extension of credit. [§ 891(2)] “Debtor” refers to any person to whom that extension of credit is made, or to any person who guarantees the repayment of that extension of credit, or in any manner undertakes to indemnify the creditor against loss resulting from the failure of any person to whom that extension of credit is made to repay the extension of credit. [§ 891(3)] The repayment of any extension of credit includes the repayment, satisfaction, or discharge in whole or in part of any debt or claim, acknowledged or disputed, valid or invalid, resulting from or in connection with that extension of credit. [§ 891(4)] To collect an extension of credit means to induce in any way any person to make repayment of the extension of credit. [§ 891(5)] An extortionate extension of credit is any extension of credit with respect to which it is the understanding of the creditor and the debtor at the time it is made that delay in making repayment or failure to make repayment could result in the use of violence or other criminal means to cause harm to the person, reputation, or property of any person. [§ 891(6)] 130 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 134 of 684 TITLE 18 An extortionate means is any means which involves the use, or an express or implicit threat of use, of violence or other criminal means to cause harm to the person, reputation, or property of any person. [§ 891(7)] “Understanding” means comprehending, rather than agreeing.384 ____________________NOTE____________________ See United States v. Natale, 526 F.2d 1160 (2d Cir. 1975). The act of making the agreement to make an extortionate extension of credit could be an extension of credit within the meaning of the statute, and thus, the crime is complete when the credit agreement is made. United States v. Totaro, 550 F.2d 957, 958 (4th Cir. 1977). 18 U.S.C. § 894 COLLECTION OF EXTENSIONS OF CREDIT BY EXTORTIONATE MEANS Title 18, United States Code, Section 894 makes it a crime to use extortionate means to collect any extension of credit, or to punish any person for not repaying an extension of credit. For you to find the defendant guilty, the government must prove each of the following beyond a reasonable doubt: 017 7/2 P First, that the defendant participated in any way, or conspired to do so, in the use of any extortionate means; P Second, to collect or attempt to collect any extension of credit, or to punish any person for not repaying an extension of credit; and P Third, that the defendant did so knowingly. 7/2 d0 e iew ,v 226 6-4 To extend credit means to make or renew any loan, or to enter into any agreement, tacit or express, whereby the repayment or satisfaction of any debt or claim, whether acknowledged or disputed, valid or invalid, and however arising, may or will be deferred. [§ 891(1)] o. 1 N “Creditor” refers to any person making that extension of credit, or to any person claiming by, under, or through any person making that extension of credit. [§ 891(2)] “Debtor” refers to any person to whom that extension of credit is made, or to any person who guarantees the repayment of that extension of credit, or in any manner undertakes to indemnify the creditor against loss resulting from the failure of any person to whom that extension of credit is made to repay the extension of credit. [§ 891(3)] The repayment of any extension of credit includes the repayment, satisfaction, or discharge in whole or in part of any debt or claim, acknowledged or disputed, valid or invalid, resulting from or in connection with that extension of credit. [§ 891(4)] To collect an extension of credit means to induce in any way any person to make repayment of the extension of credit. [§ 891(5)] An extortionate extension of credit is any extension of credit with respect to which it is the understanding of the creditor and the debtor at the time it is made that delay in making repayment or failure to make repayment could result in the use of violence or 384 United States v. Zizzo, 120 F.3d 1338, 1353 (7th Cir. 1997). 131 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 135 of 684 TITLE 18 other criminal means to cause harm to the person, reputation, or property of any person. [§ 891(6)] An extortionate means is any means which involves the use, or an express or implicit threat of use, of violence or other criminal means to cause harm to the person, reputation, or property of any person. [§ 891(7)] ____________________NOTE____________________ See United States v. Natale, 526 F.2d 1160 (2d Cir. 1975). It is irrelevant that the debt is disputed or that it did not arise from a typical scenario involving a loan. United States v. Brinkman, 739 F.2d 977, 983 (4th Cir. 1984). Section 894 does not make it a crime to use extortion to collect debts, but only to exact repayment of credit previously extended. Agreement to defer payment is conduct within the reach of § 894. Id. at 983 n.5. Convictions under § 894 have been sustained although the victim denied that a defendant used extortionate means during attempts to collect extensions of credit. A jury may discount a loan-sharking victim’s unwillingness to testify and may base its verdict on independent evidence of extortion. United States v. Isaacs, 947 F.2d 112, 114 (4th Cir. 1991). 017 2 18 U.S.C. § 911 REPRESENTING ONESELF TO BE A UNITED STATES 27/ CITIZEN [L U : 5/1/14] 7/ 0crime to falsely and willfully Title 18, United States Code, Section 911 makes it a d represent oneself to be a citizen of the United States. For you to find the defendant we e guilty, the government must prove each of the following beyond a reasonable doubt: , vi 6 P First, that the defendant 2 2 falsely represented himself to be a United States citizen; and 6-4 P Second, that the defendant did so willfully. o. 1 N AST PDATED 385 The defendant must state or claim to be a citizen of the United States. To claim to be born in a state or territory of the United States is not sufficient to constitute a claim of United States citizenship.386 18 U.S.C. § 912 IMPERSONATING A FEDERAL EMPLOYEE Title 18, United States Code, Section 912 makes it a crime to impersonate a federal employee. For you to find the defendant guilty, the government must prove each of the following beyond a reasonable doubt: P First, that the defendant falsely assumed or pretended to have been a federal agent, officer, or employee; and 385 United States v. Castillo-Pena, 675 F.3d 318, 320 (4th Cir. 2012). The Ninth Circuit requires an additional element necessary for a § 911 conviction; that is, that the misrepresentation be “conveyed to someone with good reason to inquire into [the defendant’s] citizenship status.” United States v. Karaouni, 379 F.3d 1139, 1142 & n.7 (9th Cir. 2004). The Fourth Circuit did not reach this issue based upon the facts of the case before it. Castillo-Pena, 675 F.3d at 320 n.1. 386 Jury instruction cited approvingly in Castillo-Pena, 675 F.3d at 322. 132 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 136 of 684 TITLE 18 P Second, that the defendant acted as such.387 OR P Second, that the defendant demanded or obtained any money, paper, document, or other thing of value in such pretended character.388 Concerning acting “as such,” the government need only show that the defendant asserted his pretended authority over another person in some fashion, not that he sought or obtained any material advantage.389 This act must involve an assertion of claimed authority derived from the office which the defendant pretended to hold.390 ____________________NOTE____________________ Intent to defraud is not an element of a charge under part (1) of § 912. United States v. Guthrie, 387 F.2d 569, 571 (4th Cir. 1967). In Guthrie, the Fourth Circuit respectfully declined to follow Honea v. United States, 344 F.2d 798, 803-04 (5th Cir. 1965), in which the Fifth Circuit held fatally defective an indictment under part (2) of § 912 that failed to allege “intent to defraud.” However, in United States v. Parker, 699 F.2d 177, 180 (4th Cir. 1983), the Fourth Circuit said that the general intent to make false utterances is inherently an element of this crime. 017 7/2 The statute defines two separate and distinct offenses: one, pretending to be an employee acting under the authority of the United States and acting as such, and two, in such pretended character, demanding or obtaining something of value. United States v. Leggett, 312 F.2d 566, 569 (4th Cir. 1962). 7/2 d0 e iew ,v Although the government does not need to allege an “overt” act which describes how the defendant “acted as” a federal agent, id. at 569, the element of “acting as such” requires more than a mere representation of being a federal officer or employee. In Parker, the defendant satisfied this element by asserting false authority over another individual when he claimed that he was investigating a report that taxes were not being paid. Parker, 699 F.2d at 179. o. 1 N 226 6-4 The prohibition in § 912 is on impersonating the officer or employee that the person is not, regardless of what the person’s actual position may be. United States v. Roe, 606 F.3d 180, 186 (4th Cir. 2010). Thus, an employee of one department of the government may be held guilty of falsely impersonating an officer of another department. Acting “as such” should be understood to mean performing an overt act that asserts, implicitly or explicitly, authority that the impersonator claims to have by virtue of the office he pretends to hold. The defendant must do something more than simply assert his status as a federal employee. United States v. Rosser, 528 F.2d 652 (D.C. Cir. 1976). The following are not defenses: nonexistence of the office which the impersonator pretends to hold, and the authority claimed by the impersonator is not actually possessed by any officer or employee of the United States. Id. 387 388 389 390 United States v. Parker, 699 F.2d 177, 178 (4th Cir. 1983). Id. Id. at 180. United States v. Rosser, 528 F.2d 652, 658 (D.C. Cir. 1976). 133 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 137 of 684 TITLE 18 18 U.S.C. § 915 IMPERSONATING A FOREIGN DIPLOMAT Title 18, United States Code, Section 915 makes it a crime to impersonate a foreign diplomat. For you to find the defendant guilty, the government must prove each of the following beyond a reasonable doubt: P First, that the defendant falsely assumed or pretended to have been a diplomatic, consular or other official of a foreign government duly accredited as such to the United States; and P Second, that the defendant acted as such. OR P Second, that the defendant demanded, obtained, or attempted to obtain any money, paper, document, or other things of value in such pretended character.391 ____________________NOTE____________________ Since this statute is similar to 18 U.S.C. § 912, cases interpreting § 912 should be instructive. In United States v. Shaabu El, 275 F. App’x 205 (4th Cir. 2008), the court stated that “to prove its case under [§ 915], the government must demonstrate that a defendant intended to falsely represent himself as a diplomat, and that he intended to gain a thing of value by doing so.” The court cited Cortez v. United States, 328 F.2d 51, 52 (5th Cir. 1964), where the Fifth Circuit identified the elements of this statute as follows: 017 7/2 7/2 d0 1. false assumption or pretension to be a consular official duly accredited as such to the United States; e iew ,v 2. in such pretended character the obtaining of a thing of value; and 226 483, 487 (11th Cir. 1992) (indictment under 4 But see United States v. Gayle, 967 F.2d § 912 “need not allege an intent to defraud because such intent can be inferred from the 16. alleged acts”). o N 3. an intent to defraud. In United States v. Parker, 699 F.2d 177, 179 (4th Cir. 1983), the Fourth Circuit said that specific intent to defraud is not an element of § 912, but the general intent to make false utterances is inherently an element of that section. See also United States v. Callaway, 446 F.2d 753 (3d Cir. 1971). 18 U.S.C. § 921 DEFINITIONS [LAST UPDATED : 2/14/14] “Interstate or foreign commerce” includes commerce between any place in a State and any place outside of that State, or within any possession of the United States (not including the Canal Zone) or the District of Columbia, but such term does not include commerce between places within the same State but through any place outside of that State. The term “State” includes the District of Columbia, the Commonwealth of Puerto Rico, and the possessions of the United States (not including the Canal Zone). [§ 921(a)(2)] 391 134 See Parker, 699 F.2d 177. Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 138 of 684 TITLE 18 “Firearm” means (A) any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive; (B) the frame or receiver of any such weapon; (C) any firearm muffler or firearm silencer; or (D) any destructive device. The term “firearm” does not include an antique firearm. [§ 921(a)(3)]392 The government does not have to prove that the firearm was operable.393 “Destructive device” means (A) any explosive, incendiary, or poison gas– (i) bomb, (ii) grenade, (iii) rocket having a propellant charge of more than four ounces, (iv) missile having an explosive or incendiary charge of more than one-quarter ounce, (v) mine, or (vi) device similar to any of the devices described in the preceding clauses; (B) any type of weapon (other than a shotgun or a shotgun shell which the Attorney General finds is generally recognized as particularly suitable for sporting purposes) by whatever name known which will, or which may be readily converted to, expel a projectile by the action of an explosive or other propellant, and which has any barrel with a bore of more than one-half inch in diameter; and 017 7/2 7/2 d0 (C) any combination of parts either designed or intended for use in converting any device into any destructive device described in subparagraph (A) or (B) and from which a destructive device may be readily assembled. The term “destructive device” shall not include any device which is neither designed nor redesigned for use as a weapon; any device, although originally designed for use as a weapon, which is redesigned for use as a signaling, pyrotechnic, line throwing, safety, or similar device; surplus ordinance sold, loaned, or given by the Secretary of the Army pursuant to the provisions of section 4684(2), 4685, or 4686 of title 10; or any other device which the Attorney General finds is not likely to be used as a weapon, is an antique, or is a rifle which the owner intends to use solely for sporting, recreational or cultural purposes. [§ 921(a)(4)] e iew ,v o. 1 N 226 6-4 “Shotgun” means a weapon designed or redesigned, made or remade, and intended to be fired from the shoulder and designed or redesigned and made or remade to use the energy of an explosive to fire through a smooth bore either a number of ball shot or a single projectile for each single pull of the trigger. [§ 921(a)(5)] “Short-barreled shotgun” means a shotgun having one or more barrels less than eighteen inches in length and any weapon made from a shotgun (whether by alteration, modification or otherwise) if such a weapon as modified has an overall length of less than twenty-six inches. [§ 921 (a)(6)] 392 The antique firearms exception is an affirmative defense to a charge under § 922(g). United States v. Royal, 731 F.3d 333, 338 (4th Cir. 2013). 393 See United States v. Williams, 445 F.3d 724, 732 n.3 (4th Cir. 2006); United States v. Willis, 992 F.2d 489, 491 n.2 (4th Cir. 1993). 135 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 139 of 684 TITLE 18 “Rifle” means a weapon designed or redesigned, made or remade, and intended to be fired from the shoulder and designed or redesigned and made or remade to use the energy of an explosive to fire only a single projectile through a rifled bore for each single pull of the trigger. [§ 921(a)(7)] “Short-barreled rifle” means a rifle having one or more barrels less than sixteen inches in length and any weapon made from rifle (whether by alteration, modification, or otherwise) if such weapon, as modified, has an overall length of less than twenty-six inches. [§ 921(a)(8)] “Importer” means any person engaged in the business of importing or bringing firearms or ammunition into the United States for purposes of sale or distribution; and the term “licensed importer” means any such person licensed under the provisions of this chapter. [§ 921(a)(9)] “Manufacturer” means any person engaged in the business of manufacturing firearms or ammunition for purposes of sale or distribution; and the term “licensed manufacturer” means any such person licensed under the provisions of this chapter. [§ 921(a)(10)] “Dealer” means any person engaged in the business of selling firearms at wholesale or retail, any person engaged in the business of repairing firearms or of making or fitting special barrels, stocks, or trigger mechanisms to firearms, or any person who is a pawnbroker. [§ 921(a)(11)] 17 0with a “Antique firearm” means (A) any firearm (including any7/2 /2 firearmmanufactured in matchlock, flintlock, percussion cap, or similar type of ignition system) 07 or before 1898; or (B) any replica of any firearm such firearm if such replica is not d designed or redesigned for using rimfire or conventional centerfire fixed ammunition, or we which is not longer uses rimfire or conventional centerfire fixed ammunition vie ,which is not readily available in the ordinary manufactured in the United States and 226any muzzle loading rifle, muzzle loading shotgun, channels of commercial trade; or (C) 4 or muzzle loading pistol, which is designed to use black powder, or a black powder 16. substitute, and which cannot use fixed ammunition. For purposes of this subparagraph, No 394 the term “antique firearm” shall not include any weapon which incorporates a firearm frame or receiver, any firearm which is converted into a muzzle loading weapon, or any muzzle loading weapon which can be readily converted to fire fixed ammunition by replacing the barrel, bolt, breechblock, or any combination thereof. [§ 921(a)(16)] “Ammunition” means ammunition or cartridge cases, primers, bullets, or propellent powder designed for use in any firearm. [§ 921(a)(17)(A)] “Armor piercing ammunition” means (i) a projectile or projectile core which may be used in a handgun and which is constructed entirely (excluding the presence of traces of other substances) from one or a combination of tungsten alloys, steel, iron, brass, bronze, beryllium copper, or depleted uranium; or (ii) a full jacketed projectile larger than .22 caliber designed and intended for use in a handgun and whose jacket has a weight of more than 25 percent of the total weight of the projectile. [§ 921(a)(17)(B)] “Engaged in the business” means, as applied to a dealer in firearms, a person who devotes time, attention, and labor to dealing in firearms as a regular course of trade or 394 The antique firearms exception is an affirmative defense to a prosecution under § 922(g). Royal, 731 F.3d at 338. 136 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 140 of 684 TITLE 18 business with the principal objective of livelihood and profit through the repetitive purchase and resale of firearms, but such term shall not include a person who makes occasional sales, exchanges, or purchases of firearms for the enhancement of a personal collection or for a hobby, or who sells all or part of his personal collection of firearms. [§ 921(a)(21)(C)]380 “Principal objective of livelihood and profit” means the intent underlying the sale or disposition of firearms is predominantly one of obtaining livelihood and pecuniary gain, as opposed to other intents, such as improving or liquidating a personal firearms collection; Provided, That proof of profit shall not be required as to a person who engages in the regular and repetitive purchase and disposition of firearms for criminal purposes or terrorism. [§ 921(a)(22)] “Machinegun” means any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger. The term shall also include the frame or receiver of any such weapon, any part designed and intended solely and exclusively, or combination of parts designed and intended, for use in converting a weapon into a machinegun, and any combination of parts from which a machinegun can be assembled if such parts are in the possession or under the control of a person. [§ 921(a)(23), 26 U.S.C. § 5845(b)] 017 7/2 “Firearm silencer” and “firearm muffler” mean any device for silencing, muffling, or diminishing the report of a portable firearm, including a combination of parts, designed or redesigned, and intended for use in assembling or fabricating a firearm silencer or firearm muffler, and any part intended only for use in such assembly or fabrication. [§ 921(a)(24)] 7/2 d0 e iew ,v “Semiautomatic rifle” means any repeating rifle which utilizes a portion of the energy of a firing cartridge to extract the fired cartridge case and chamber the next round, which requires a separate pull of the trigger to fire each cartridge. [§ 921(a)(28)] 226 which has a short stock and is designed to be held “Handgun” means (A)4 firearm -a and fired by the use of a6 1 single hand; and (B) any combination of parts from which a . firearm described in subparagraph (A) can be assembled. [§ 921(a)(29)] No ____________________NOTE____________________ To convict a defendant of a violation of § 922, the government does not need to prove that the defendant knew that possession of a particular type of firearm was prohibited. See United States v. Jones, 471 F.3d 535, 540 (4th Cir. 2006) (to establish knowing violation of § 922(g), Government ‘must prove defendant’s knowledge with respect to possession of the firearm but not with respect to other elements of the offense’).” However, when a defendant’s status “as a convicted felon turns, under state law pertaining to restoration of civil rights, on his possession of a particular type of firearm, the Government must prove, under appropriate instructions, not only that he possessed such a firearm, but that he did so knowing of its particular nature.” United States v. Tomlinson, 67 F.3d 508, 513 (4th Cir. 1995). The antique firearms exception is an affirmative defense to a prosecution under § 922(g). United States v. Royal, 731 F.3d 333, 338 (4th Cir. 2013). 380 See subsection for variations as to manufacturer/importer, and as to ammunition instead of firearm. 137 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 141 of 684 TITLE 18 18 U.S.C. § 922(a)(1) DEALING IN FIREARMS WITHOUT A LICENSE Title 18, United States Code, Section 922(a)(1) makes it a crime to engage in the business of importing, manufacturing or dealing in firearms or ammunition without a federal license. For you to find the defendant guilty, the government must prove each of the following beyond a reasonable doubt: P First, that the defendant did not have a federal firearms license; P Second, that the defendant engaged in the business of importing, manufacturing or dealing in firearms or ammunition; and P Third, that the defendant did so willfully.381 “Dealer” means any person engaged in the business of selling firearms at wholesale or retail, any person engaged in the business of repairing firearms or of making or fitting special barrels, stocks, or trigger mechanisms to firearms, or any person who is a pawnbroker. [18 U.S.C. § 921(a)(11)] “Engaged in the business” means devoting time, attention, and labor to dealing in firearms as a regular course of trade or business with the principal objective of livelihood and profit through the repetitive purchase and resale of firearms, but such term shall not include a person who makes occasional sales, exchanges, or purchases of firearms for the enhancement of a personal collection or for a hobby, or who sells all or part of his personal collection of firearms. [18 U.S.C. § 921(a)(21)(C)] 017 /2 “Principal objective of livelihood and profit” means the intent underlying the sale or 27and pecuniary gain, as 7/ disposition of firearms is predominantly one of obtaining livelihood 0personal firearms collection, d opposed to other intents, such as improving or liquidating a we except proof of profit is not required as to a person who engages in the regular and e repetitive purchase and disposition of firearms for criminal purposes or terrorism. [18 , vi U.S.C. § 921(a)(23)] 226 4 The government need not prove that the defendant’s primary business was dealing 16- made a profit from such dealing. The government must . in firearms or that he necessarily No on the defendant’s part to deal, a profit motive, and a greater degree prove a willingness of activity than occasional sales by a hobbyist. The government may do this by showing that the defendant had guns on hand or was ready and able to procure guns and sell them to such persons as might accept them as customers.382 A person acts willfully if he acts intentionally and purposely and with the intent to do something the law forbids, although the person need not be aware of the specific law or rule that his conduct may be violating. In other words, the government is not required to prove that the defendant knew that a federal license was required.383 ____________________NOTE____________________ 381 18 U.S.C. § 924(a)(1)(D). United States v. Masters, 622 F.2d 83, 88 (4th Cir. 1980). 383 See Bryan v. United States, 524 U.S. 184 (1998), which explicitly rejected the position that the government must prove that a defendant acted with knowledge of the § 922(a)(1)(A) licensing requirement. 382 138 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 142 of 684 TITLE 18 “[To the extent an otherwise federally licensed firearms dealer conducts business at locations not specified on his or her license and in a manner not otherwise authorized by federal law, he or she exceeds the scope of his or her license and acts as an unlicensed dealer in violation of 18 U.S.C. § 922(a)(1)(A).” United States v. Ogles, 406 F.3d 586, 595 (9th Cir. 2005). Contra United States v. Caldwell, 49 F.3d 251 (6th Cir. 1995) (statute contains no language stripping dealer’s license status for selling firearms away from licensed premises). 18 U.S.C. § 922(a)(6) FALSE STATEMENTS TO A FIREARMS DEALER Title 18, United States Code, Section 922(a)(6) makes it a crime to make a false statement in connection with the acquisition of a firearm or ammunition. For you to find the defendant guilty, the government must prove each of the following beyond a reasonable doubt: P First, that the defendant acquired or attempted to acquire a firearm [or ammunition] from a federally-licensed firearms dealer; P Second, that in doing so, the defendant made a false or fictitious oral or written statement or furnished or exhibited any false, fictitious, or misrepresented identification intended or likely to deceive the firearms dealer; 017 7/2 P Third, that the false statement or identification was material to the lawfulness of the sale of the firearm [or ammunition]; and 2 7/the nature of the statement 0 A false statement or identification is likely to deceive if ed or identification, considering all of the surrounding circumstances at the time it is made, w is such that a reasonable person of ordinaryiprudence would have been actually deceived ve or misled. 26a,natural tendency to influence, or is capable of A statement is material if it has 42 6is-irrelevant whether the false statement actually influenced or influencing, the dealer. It o. 1 affected the decision-making process of the dealer. N P Fourth, that the defendant did so knowingly.384 385 386 The government does not need to prove that the defendant knew the dealer from whom he purchased the firearm was federally licensed.387 384 18 U.S.C. § 924(a)(2). See also United States v. Rahman, 83 F.3d 89, 92 (4th Cir.1996). This instruction was approved in Rahman, 83 F.3d at 92. Appellant argued that the false statement must be likely to deceive the specific dealer, not a reasonable dealer. The Fourth Circuit held that the instruction “properly directed the jury to apply an objective, or reasonable person, standard in evaluating the likelihood that a statement would deceive anyone.” Id. at 92-93. The government may carry its burden with respect to the second element in either of two ways. It may prove that a defendant’s statement was intended to deceive the dealer or that the statement was likely to deceive the dealer. “Intended to deceive” focuses on the subjective mental state of the defendant. Under the “likely to deceive” prong, the intent of the defendant to deceive the dealer is irrelevant. Id. at 93 n.* 386 See United States v. Gaudin, 515 U.S. 506 (1995). 387 United States v. Green, 544 F.2d 746, 747 (4th Cir. 1976) (“[K]nowledge that the dealer has a federal license is not an essential element of the crime. The fact that the dealer was licensed serves only to establish a basis for federal jurisdiction.”) 385 139 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 143 of 684 TITLE 18 18 U.S.C. § 922(b) SELLING OR DELIVERING FIREARM(S) OR AMMUNITION TO PROHIBITED PERSONS Title 18, United States Code, Section 922(b) makes it a crime to sell or deliver a firearm or ammunition to a prohibited person. For you to find the defendant guilty, the government must prove each of the following beyond a reasonable doubt: § 922(b)(1) P First, that the defendant was a federally licensed importer, manufacturer, dealer, or collector; P Second, that the defendant sold or delivered a firearm or ammunition to any person the defendant knew or had reason to know was less than 18 years of age [or less than 21, if the firearm is other than a shotgun or rifle, or ammunition for a shotgun or rifle]; and P Third, that the defendant did so willfully.388 § 922(b)(2) P First, that the defendant was a federally licensed importer, manufacturer, dealer, or collector; P Second, that the defendant sold or delivered a firearm to any person in a state where the purchase or possession by that person of that firearm was in violation of state law [or any published ordinance applicable at the place of sale, delivery, etc]; and 7/2 d0 P Third, that the defendant did so willfully.389 e iewlicensed importer, manufacturer, dealer, First, that the defendant was a federally 6, v or collector; 2 -42 Second, that the defendant sold or delivered a firearm or ammunition to any 16 person the.defendant knew or had reason to believe did not reside in [South Carolina–the state in which the defendant’s place of business was located]; No § 922(b)(3)390 P P 017 7/2 P Third, that the person to whom the firearm or ammunition was transferred was not a licensed dealer, importer, manufacturer, or collector; and P Fourth, that the defendant did so willfully.391 § 922(b)(4) 388 18 U.S.C. § 924(a)(1)(D). Id. 390 In United States v. Douglas, 974 F.2d 1046, 1049 (9th Cir. 1992), the Ninth Circuit interpreted § 922(b)(3) to mean that a dealer licensed in one state, who attends a gun show in another state, may display and possess guns, negotiate price, and receive money for guns as long as the transfer of the firearm is through a licensee of the state in which the gun show is located. That licensee must fill out the appropriate forms. 391 18 U.S.C. § 924(a)(1)(D). See United States v. Kelly, 276 F. App’x 261, 266 (4th Cir. 2007) (“The willfulness (and knowledge) requirement does not apply to the ‘dealer to dealer’ provision in section 922(b), which is an exception to the statute’s application and not an element of the offense.”; Government is not required to prove that defendant knew that transferee not federally licensed firearms dealer). 389 140 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 144 of 684 TITLE 18 P First, that the defendant was a federally licensed importer, manufacturer, dealer, or collector; P Second, that the defendant sold or delivered a destructive device, machine gun, short-barreled shotgun, or short-barreled rifle to any person except as specifically authorized; and P Third, that the defendant did so willfully.392 § 922(b)(5) P First, that the defendant was a federally licensed importer, manufacturer, dealer, or collector; P Second, that the defendant sold or delivered a firearm or armor-piercing ammunition without noting in his records, required to be kept, the name, age, and place of residence of the person [or identity and principal and local places of business if a business]; and P Third, that the defendant did so willfully.393 18 U.S.C. § 922(d) SELLING OR DISPOSING OF FIREARM(S) OR AMMUNITION TO PROHIBITED PERSONS 017 7/2 Title 18, United States Code, Section 922(d) makes it a crime to sell or dispose of a firearm or ammunition to prohibited persons. For you to find the defendant guilty, the government must prove each of the following beyond a reasonable doubt: 7/2 d0 P First, that the defendant sold or otherwise disposed of a firearm or ammunition; e iew or ammunition was transferred: Third, that the person to whom the firearm 6,orvhad been convicted in some court of, a crime 1. was under indictment for, 22 punishable 6-imprisonment for a term exceeding one year; by 4 1 2. waso. a fugitive from justice; N 3. was an unlawful user of, or addicted to any controlled substance; P Second, that the defendant acted knowingly; P 394 4. had been adjudicated as a mental defective or had been committed to a mental institution; 5. was an alien illegally in the United States or admitted under a nonimmigrant visa [see exceptions at § 922(y)(2)]; 6. had been discharged from the Armed Forces under dishonorable conditions; 392 18 U.S.C. § 924(a)(1)(D). Id. 394 “Crime punishable by imprisonment for a term exceeding one year” has exclusions in § 921(a)(20), and the court may have to address this element if it is an issue. The determination of what constitutes a disabling conviction, including the restoration of civil rights, is governed by the law of the convicting jurisdiction. Beecham v. United States, 511 U.S. 368, 371, 372 (1994). 393 Foreign convictions are not included. Small v. United States, 544 U.S. 385 (2005). Convictions from United States military courts are included. United States v. Grant, 753 F.3d 480 (4th Cir. 2014). 141 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 145 of 684 TITLE 18 7. having been a citizen of the United States, had renounced his citizenship; 8. was subject to a court order that restrained that person from harassing, stalking, or threatening an intimate partner or child of such intimate partner or such person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; provided, the court order was issued after a hearing of which the person received actual notice and had an opportunity to participate and the order included a finding that the person represented a credible threat to the physical safety of such partner or child or by its terms explicitly prohibited the use, attempted use, or threatened use of physical force against such partner or child that would be reasonably expected to cause bodily injury; or 9. had been convicted of a misdemeanor crime of domestic violence;395 and P Fourth, that at the time of the transfer of the firearm or ammunition, the defendant either knew or had reasonable cause to believe that the recipient of the firearm or ammunition [fit the category identified above.]396 ____________________NOTE____________________ In United States v. Parker, 262 F.3d 415 (4th Cir. 2001), the government introduced a certificate of non-pardon from the state of Maryland and a certificate of non-restoration of civil rights from the Department of the Treasury. One of the issues was the status of the felony conviction on the date of the offense. The Fourth Circuit reiterated the general principle “that a condition once shown to exist is presumed to continue,” 262 F.3d at 423, and discussed two previous cases: United States v. Essick, 935 F.2d 28 (4th Cir. 1991), and United States v. Thomas, 52 F.3d 82 (4th Cir. 1995). These two cases arose from prior North Carolina convictions. North Carolina law restores to a convicted felon limited rights to possess firearms five years after his unconditional release from state supervision. In Essick, because the North Carolina felony occurred more than five years before the § 922(g)(1) offense, the government had to prove the continuing vitality of the state felony. In Thomas, however, the North Carolina felony had occurred less than one year before the § 922(g)(1) offense, and therefore the government did not have the burden of proving that fact independently. Thus, it appears that the fact that the defendant’s civil rights have been restored is an affirmative defense, and the opposite fact is not an element of a § 922 offense. See Parker, at 422-23. 017 7/2 7/2 d0 e iew ,v o. 1 N 226 6-4 395 The misdemeanor crime of domestic violence must have, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, committed by a current or former spouse, parent, or guardian of the victim, by a person with whom the victim shares a child in common, by a person who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian, or by a person similarly situated to a spouse, parent or guardian of the victim. In addition, the person must have been represented by counsel in the case, or knowingly and intelligently waived the right to counsel in the case, and, if entitled to a jury trial, either tried by a jury or knowingly and intelligently waived the right to have the case tried by a jury, by guilty plea or otherwise. The determination of what constitutes a disabling conviction, including the restoration of civil rights, is governed by the law of the convicting jurisdiction. Beecham, 511 U.S. at 371, 372. 396 United States v. Parker, 262 F.3d 415, 423 (4th Cir. 2001). 142 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 146 of 684 TITLE 18 18 U.S.C. § 922(e) DELIVERING A FIREARM TO A COMMON CARRIER Title 18, United States Code, Section 922(e) makes it a crime to deliver a firearm to a common carrier without written notice. For you to find the defendant guilty, the government must prove each of the following beyond a reasonable doubt: P First, that the defendant delivered or caused to be delivered to any common or contract carrier for transportation or shipment in interstate or foreign commerce a package or container in which there was a firearm or ammunition; P Second, that the package or container was to be delivered to a person other than a licensed importer, manufacturer, dealer, or collector; and P Third, that the defendant did so without giving written notice to the carrier that a firearm or ammunition was being transported or shipped. ____________________NOTE____________________ Failure to give notice to the carrier requires only general intent. United States v. Wilson, 721 F.2d 967, 973 (4th Cir. 1983). 18 U.S.C. § 922(g)(1) POSSESSION OF FIREARM BY CONVICTED FELON 017 7/2 [LAST UPDATED : 12/10/14] Title 18, United States Code, Section 922(g)(1) makes it a crime for a person who has been convicted of certain crimes to possess a firearm or ammunition. For you to find the defendant guilty, the government must prove each of the following beyond a reasonable doubt: 7/2 d0 e iew ,v P First, that the defendant had been convicted in some court of a crime punishable by imprisonment for a term exceeding one year;397 397 o. 1 N 226 6-4 “Crime punishable by imprisonment for a term exceeding one year” has exclusions in § 921(a)(20), and the court may have to address this element if it is an issue. The determination of what constitutes a disabling conviction, including the restoration of civil rights, is governed by the law of the convicting jurisdiction. Beecham, 511 U.S. at 371, 372. Foreign convictions are not included. Small, 544 U.S. 385. Convictions from United States military courts are included. Grant, 753 F.3d 480. The nature of the conviction is not a necessary element. United States v. Poore, 594 F.2d 39, 41 (4th Cir. 1979). Therefore, when the defendant stipulates to the prior conviction, there is no need to describe the nature of the conviction. However, the defendant cannot keep out any reference to a prior conviction by stipulating, because a prior conviction is an element of the offense which must be proved. United States v. Milton, 52 F.3d 78, 81 (4th Cir. 1995). A stipulation does not render evidence tending to prove the underlying stipulation irrelevant under Rule of Evidence 401 or 402. Old Chief v. United States, 519 U.S. 172, 178-79 (1997); United States v. Dunford, 148 F.3d 385, 394-95 (4th Cir. 1998). Exclusion must rest on Rule of Evidence 403. In Old Chief, the Supreme Court held that Rule 403 prohibited the government from introducing the name or nature of a prior felony conviction in a § 922(g)(1) case when such information would tend to “lure a juror into a sequence of bad character reasoning” regarding a defendant who had stipulated to his felon status. Old Chief, 519 U.S. at 185. The test is the maximum sentence that a particular defendant could have received, not the sentence that any hypothetical defendant charged with the crime could have received. CarachuriRosendo v. Holder, 560 U.S. 563 (2010); United States v. Simmons, 649 F.3d 237 (4th Cir. 2011) 143 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 147 of 684 TITLE 18 P Second, that the defendant possessed [or shipped or transported in interstate commerce, or received] a firearm or ammunition; P Third, that the firearm or ammunition had traveled in interstate or foreign commerce at some point during its existence; and P Fourth, that the defendant did so knowingly; that is, the defendant must know that the item was a firearm [or ammunition] and the possession must be voluntary and intentional.398 The government need not prove that the defendant knew of his status as a result of the prior conviction or that the firearm or ammunition had been shipped or transported in interstate commerce.399 The government may establish the interstate commerce requirement by showing that the firearm or ammunition at any time had traveled across a state boundary line, or was manufactured outside the state where the defendant possessed it.400 The government must prove that the defendant voluntarily and intentionally possessed the firearm [or ammunition].401 To possess an item or property means to exercise control or authority over the item or property, voluntarily and intentionally. 017 7/2 Possession may be either sole, by the defendant alone, or joint, that is, it may be shared with other persons, as long as the defendant exercised control or authority over the item or property. 7/2 0 Actual possession is knowingly having direct physical control or authority over the ed w item or property. vie 26, 2 6-4 o. 1 N (noting Carachuri-Rosendo’s overruling of United States v. Harp, 406 F.3d 242 (4th Cir. 2005)). Possession may be either actual or constructive. “[T]he firearms prosecution does not open the predicate conviction to a new form of collateral attack.” In other words, the defendant cannot relitigate the validity of the underlying conviction. Lewis v. United States, 445 U.S. 55, 67 (1980) (prosecution under predecessor statute, 18 U.S.C. App. § 1202). 398 United States v. Scott, 424 F.3d 431, 435 (4th Cir. 2005); United States v. Langley, 62 F.3d 602, 605-06 (4th Cir. 1995) (en banc). The court’s three elements have been subdivided into four, by putting “knowingly” into a separate element. 399 Langley, 62 F.3d at 605-06. To convict a defendant of a violation of § 922, the Government does not need to prove that the defendant knew that possession of a particular type of firearm was prohibited. See United States v. Jones, 471 F.3d 535, 540 (4th Cir. 2006) (to establish knowing violation of § 922(g), Government ‘must prove defendant’s knowledge with respect to possession of the firearm but not with respect to other elements of the offense’).” However, when “a defendant’s status as a convicted felon turns, under state law pertaining to restoration of civil rights, on his possession of a particular type of firearm, the Government must prove, under appropriate instructions, not only that he possessed such a firearm, but that he did so knowing of its particular nature.” United States v. Tomlinson, 67 F.3d 508, 513 (4th Cir. 1995). 400 United States v. Gallimore, 247 F.3d 134, 138 (4th Cir. 2001); United States v. Nathan, 202 F.3d 230, 234 (4th Cir. 2000). 401 Scott, 424 F.3d at 435. 144 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 148 of 684 TITLE 18 Constructive possession is when a person does not have direct physical control or authority, but has the power and the intention to exercise control or authority over the item or property, sometimes through another person.402 Constructive possession can be established by evidence, either direct or circumstantial, showing ownership, control or authority over the item or property itself, or the premises, vehicle, or container where the item or property is, such that a person exercises or has the power and intention to exercise control or authority over that item or property.403 Proof of constructive possession requires proof that the defendant had knowledge of the presence of the item or property.404 A defendant’s mere presence at, or joint tenancy of, a location where an item is found, or his mere association with another person who possesses that item, is not sufficient to establish constructive possession. However, proximity to the item coupled with actual or inferred knowledge of its presence may be sufficient proof to establish constructive possession. Constructive possession does not require proof that the defendant actually owned the property on which the item was found.405 L [W hen the defendant is charged with possessing more than one firearm, the jury should be instructed that they must agree unanimously on the specific firearm possessed: 017 7/2 You must also agree, all of you, that the defendant possessed the same firearm. You cannot convict, for example, if six of you believe he possessed one of the guns, and six of you believe he possessed another of the guns. You have to unanimously agree that he possessed the firearms charged or ... one of the firearms charged before he can be convicted.]406 7/2 d0 e iew ,v 402 o. 1 N 226 6-4 To prove constructive possession under § 922(g)(1), the government must prove that the defendant “intentionally exercised dominion and control over the firearm, or had the power and the intention to exercise dominion and control over the firearm. Constructive possession of the firearm must also be voluntary.” Id. 424 F.3d at 435-36. See also United States v. Herder, 594 F.3d 352, 358 (4th Cir. 2010). 403 United States v. Scott, 424 F.3d 431, 435-36 (4th Cir. 2005); United States v. Shorter, 328 F.3d 167, 172 (4th Cir. 2003) (quoting United States v. Jackson, 124 F.3d 607, 610 (4th Cir. 1997)); United States v. Gallimore, 247 F.3d 134, 137 (4th Cir. 2001). See also United States v. Pearce, 65 F.3d 22, 26 (4th Cir. 1995) (citations omitted). 404 Herder, 594 F.3d at 358. 405 See Shorter, 328 F.3d 167 (contraband found in defendant’s residence permitted inference of constructive possession; inference bolstered by evidence that contraband was in plain view or material associated with contraband found in closet of bedroom where defendant’s personal papers located). See also United States v. Rusher, 966 F.2d 868, 878 (4th Cir. 1992) (mere presence on the premises or association with the possessor is insufficient to establish possession). 406 United States v. Saunders, 501 F.3d 384, 393-94 (4th Cir. 2007). The Fourth Circuit “assume[d], without deciding, that a conviction under § 922(g)(1) requires the jury to agree unanimously on the specific gun possessed by the defendant.” 501 F.3d at 393. The court cited, but ultimately disagreed with, cases from the Sixth, First, and Fifth Circuits that concluded a conviction under § 922(g) does not require juror unanimity on the specific gun possessed. An acceptable alternative is to submit a special verdict form. However, one was not needed in Saunders, in light of the specific unanimity instruction. 145 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 149 of 684 TITLE 18 JUSTIFICATION DEFENSE In certain circumstances, a prohibited person is justified in possessing a firearm. The defendant has the burden of proving the following by a preponderance of the evidence:407 P First, that the defendant or someone else was under an unlawful and present threat of death or serious bodily injury;408 P Second, that the defendant did not recklessly place himself in the situation where he would be forced to engage in criminal conduct; P Third, that the defendant had no reasonable legal alternative that would avoid both the criminal conduct and the threatened harm; and P Fourth, that there was a direct causal relationship between the criminal act and the avoidance of the threatened harm.409 The defendant must show that he had actually tried the alternative or had no time to try it, or that a history of futile attempts revealed the illusionary benefit of the alternative.410 In addition, the defendant must produce evidence that he took reasonable steps to dispossess himself of the firearm, and/or ammunition, once the threat was over.411 1 0the7 /2 Fourth In United States v. Langley, 62 F.3d 602 (4th Cir. 1995) (en banc), 7 Circuit held that the government need not prove that the defendant knew of his felony 7/2guilty to, or is convicted 0 status or interstate nexus of the firearm. “[A] person d pleads who eexpect to be free from regulation by a jury of, a felony cannot, thereafter, reasonably w when possessing a firearm, notwithstanding his or her unawareness of his or her felony vie status or the firearm’s interstate nexus.” 62 F.3d at 607. 26, 2 Intent is an element of4 922(g)(1). In United States v. Scott, 424 F.3d 431 (4th Cir. 6- § prosecution, the court emphasized that the jury must be 2005), a constructive 1 . possession odefendant intentionally exercised dominion and control over the instructed that the N ____________________NOTE____________________ firearm, or had the power and intention to exercise dominion and control over the firearm. Constructive possession of the firearm must also be voluntary. Therefore, in defining constructive possession, the best practice is to reemphasize the mens rea element of knowingly exercising dominion and control. 407 United States v. Mooney, 497 F.3d 397,409 n.2 (4th Cir. 2007). The burden of proving affirmative defenses, such as justification, rests on the defendant. See Dixon v. United States, 548 U.S. 1, 17 (2006). 408 Generalized fears do not support the defense of justification. United States v. Crittendon, 883 F.2d 326, 330 (4th Cir. 1989). 409 United States v. Perrin, 45 F.3d 869, 873-74 (4th Cir. 1995); See also Crittendon, 883 F.2d at 330. 410 United States v. Izac, 239 F. App’x 1 (4th Cir. 2007) (citing United States v. Gant, 691 F.2d 1159, 1164 (5th Cir. 1982)). 411 United States v. Ricks, 573 F.3d 198, 203 (4th Cir. 2009). 146 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 150 of 684 TITLE 18 In United States v. Parker, 262 F.3d 415 (4th Cir. 2001), the government introduced a certificate of non-pardon from the state of Maryland and a certificate of non-restoration of civil rights from the Department of the Treasury. One of the issues was the status of the felony conviction on the date of the offense. The Fourth Circuit reiterated the general principle “that a condition once shown to exist is presumed to continue,” 262 F.3d at 423, and discussed two previous cases: United States v. Essick, 935 F.2d 28 (4th Cir. 1991), and United States v. Thomas, 52 F.3d 82 (4th Cir. 1995). These two cases arose from prior North Carolina convictions. North Carolina law restores to a convicted felon limited rights to possess firearms five years after his unconditional release from state supervision. In Essick, because the North Carolina felony occurred more than five years before the § 922(g)(1) offense, the government had to prove the continuing vitality of the state felony. In Thomas, however, the North Carolina felony had occurred less than one year before the § 922(g)(1) offense, and therefore the government did not have the burden of proving that fact independently. Thus, it appears that the fact that the defendant’s civil rights have been restored is an affirmative defense, and the opposite fact is not an element of a § 922 offense. See Parker, at 422-23. Whether the defendant is a member of one of the disqualifying classes, or all, a single act of possession constitutes a single offense. United States v. Dunford, 148 F.3d 385, 388 (4th Cir. 1998). In addition, possession of multiple firearms and ammunition seized at the same time from the defendant’s house supported only one conviction of § 922(g), unless there is evidence that the weapons were stored in different places or acquired at different times. Id. at 390. 017 7/2 /2 72006), the defendant refused In United States v. Adams, 194 F. App’x 115 (4th 0 ed Cir. to stipulate that he was a convicted felon. A special verdict form was provided to the jury w to determine whether Adams had been convicted of each of his seven prior convictions. vie It was not unfairly prejudicial to submit this question to the jury. 26, In United States v. Xavier, 2 F.3d 1281 (3d Cir. 1993), the Third Circuit held that -42 6liability for aiding and abetting a violation of § 922(g)(1) “there can be no criminal o.or1 cause to believe the possessor’s status as a felon.” 2 F.3d at without knowledge having N 1286. “INNOCENT POSSESSION” DEFENSE The Fourth Circuit has joined the Seventh and Tenth Circuits in rejecting the innocent and transitory possession defense. United States v. Gilbert, 430 F.3d 215, 21820 (4th Cir. 2005). VOLUNTARY INTOXICATION DEFENSE Section 922(g)(1) is a general intent crime. Therefore, voluntary intoxication is not a defense. United States v. Fuller, 436 F. App’x 167 (4th Cir. 2011). 18 U.S.C. § 922(g)(2)-(7) POSSESSION OF FIREARM BY PROHIBITED PERSONS [LAST UPDATED : 4/7/14] Title 18, United States Code, Section 922(g) makes it a crime for certain individuals to transport firearms or ammunition in interstate commerce, possess firearms or ammunition in or affecting commerce, or receive firearms or ammunition which have been shipped in interstate commerce. For you to find the defendant guilty, the government must prove each of the following beyond a reasonable doubt: 147 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 151 of 684 TITLE 18 P First, that the defendant [was a fugitive from justice] [was an unlawful user of, or addicted to any controlled substance] [had been adjudicated as a mental defective or had been committed412 to a mental institution] [was an alien illegally or unlawfully in the United States] [had been discharged from the Armed Forces under dishonorable conditions] [had renounced his citizenship in the United States]; P Second, that the defendant possessed [or shipped or transported in interstate commerce, or received] a firearm or ammunition; P Third, that the firearm or ammunition had traveled in interstate or foreign commerce at some point during its existence; and P Fourth, that the defendant did so knowingly; that is, the defendant must know that the item was a firearm [or ammunition] and the possession must be voluntary and intentional,413 and the defendant must know of his status or acted in deliberate disregard for the truth with a conscious purpose to avoid learning the truth.414 L for § 922(g)(2) 017 7/2 7/2 d0 “Fugitive from justice” means any person who has fled from any state to avoid prosecution for a crime or to avoid giving testimony in any criminal proceeding. [§ 921(a)(15)] e iew that criminal charges are pending, This term includes any person who, knowing 6, v purposely leaves the jurisdiction where the charges are pending and refuses to 2 answer those charges by 2 -4 appearing before a court in that jurisdiction. L for § 922(g)(3) . 16 No “Unlawful user of any controlled substance” is not defined in the statute. The 415 government must prove that the defendant was an unlawful user or addict at the time the defendant possessed the firearm or ammunition in question.416 412 In United States v. Midgett, 198 F.3d 143, 146 (4th Cir. 1999), a judicial order was issued committing the defendant to a mental institution and he was actually confined there. 413 United States v. Langley, 62 F.3d 602, 605-06 (4th Cir. 1995) (en banc); United States v. Scott, 424 F.3d 431, 435 (4th Cir. 2005). 414 United States v. Hester, 880 F.2d 799, 803 n.4 (4th Cir. 1989). 415 United States v. Spillane, 913 F.2d 1079, 1082 (4th Cir. 1990). “The fact that he may not have been aware that his failure to appear led to the issuance of a warrant for his arrest is not an impediment to prosecution under § 922, as the appellant’s reckless disregard for the truth satisfies the scienter requirement of this statute.” Id. at 1082. The Spillane court used the term “reckless disregard” and cited Hester, 880 F.2d 799, which used the term “deliberate disregard.” See United States v. Ballentine, 4 F.3d 504, 506 (7th Cir. 1993) (collecting cases). 416 See United States v. Carter, 669 F.3d 411, 419 (4th Cir. 2012) (Section 922(g)(3) “only applies to persons who are currently unlawful users or addicts.”). In United States v. Jackson, 280 F.3d 403 (4th Cir. 2002), the Fourth Circuit rejected the defendant’s argument that one must be in (continued...) 148 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 152 of 684 TITLE 18 L for § 922(g)(4) “Committed” means to be placed officially in confinement or custody.417 The government need not prove that the defendant knew that the firearm or ammunition had been shipped or transported in interstate commerce.418 “Commerce” is defined as travel between one state, territory or possession of the United States and another state, territory, or possession of the United States, including the District of Columbia. The government may establish the interstate commerce requirement by showing that a firearm was manufactured outside the state where the defendant possessed it.419 The government must prove that the defendant possessed the firearm [or ammunition].420 To possess an item or property means to exercise control or authority over the item or property, voluntarily and intentionally. Possession may be either sole, by the defendant alone, or joint, that is, it may be shared with other persons, as long as the defendant exercised control or authority over the item or property. Possession may be either actual or constructive. 017 7/2 Actual possession is knowingly having direct physical control or authority over the item or property. 7/2 d0 Constructive possession is when a person does not have direct physical control or authority, but has the power and the intention to exercise control or authority over the item or property, sometimes through another person.421 e iewby evidence, either direct or Constructive possession can be established v circumstantial, showing ownership, 6, control or authority over the item or property itself, 2 or the premises, vehicle, or container where the item or property is, such that a person -42 exercises or has the power and intention to exercise control or authority over that item or . 16 property. No 422 416 (...continued) possession of a controlled substance at the same time one possesses a firearm. Section 922(g)(3) does not forbid possession of a firearm while unlawfully using a controlled substance. It forbids unlawful users from possessing firearms. In Jackson, the district court instructed the jury that the government must establish a pattern of use and recency of use. The Fourth Circuit held the district court “applied the statute reasonably.” Id. at 406. 417 See United States v. Midgett, 198 F.3d 143, 146 (4th Cir. 1999). 418 In United States v. Langley, 62 F.3d 602, 606 (4th Cir. 1995) (en banc). 419 United States v. Gallimore, 247 F.3d 134, 138 (4th Cir. 2001). 420 United States v. Scott, 424 F.3d 431, 435 (4th Cir. 2005). 421 To prove constructive possession under § 922(g)(1), the government must prove that the defendant “intentionally exercised dominion and control over the firearm, or had the power and the intention to exercise dominion and control over the firearm. Constructive possession of the firearm must also be voluntary.” Id. 424 F.3d at 435-36. See also United States v. Herder, 594 F.3d 352, 358 (4th Cir. 2010). 422 Scott, 424 F.3d at 435-36; United States v. Shorter, 328 F.3d 167, 172 (4th Cir. 2003) (quoting United States v. Jackson, 124 F.3d 607, 610 (4th Cir. 1997)); United States v. Gallimore, 247 (continued...) 149 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 153 of 684 TITLE 18 Proof of constructive possession requires proof that the defendant had knowledge of the presence of the item or property.423 A defendant’s mere presence at, or joint tenancy of, a location where an item is found, or his mere association with another person who possesses that item, is not sufficient to establish constructive possession. However, proximity to the item coupled with actual or inferred knowledge of its presence may be sufficient proof to establish constructive possession. Constructive possession does not require proof that the defendant actually owned the property on which the item was found.424 L [W hen the defendant is charged with possessing more than one firearm, the jury should be instructed that they must agree unanimously on the specific firearm possessed: You must also agree, all of you, that the defendant possessed the same firearm. You cannot convict, for example, if six of you believe he possessed one of the guns, and six of you believe he possessed another of the guns. You have to unanimously agree that he possessed the firearms charged or ... one of the firearms charged before he can be convicted.]425 JUSTIFICATION DEFENSE 017 7/2 In certain circumstances, a prohibited person is justified in possessing a firearm. The defendant has the burden of proving the following by a preponderance of the evidence:426 7/2 d0 P First, that he or someone else was under an unlawful and present threat of death or serious bodily injury;427 e iew ,v P Second, that he did not recklessly place himself in the situation where he would be forced to engage in criminal conduct; 226 6-4 P Third, that he had no reasonable legal alternative that would avoid both the criminal conduct and the threatened death or injury; and o. 1 N 422 (...continued) F.3d 134, 137 (4th Cir. 2001). See also United States v. Pearce, 65 F.3d 22, 26 (4th Cir. 1995) (citations omitted). 423 Herder, 594 F.3d at 358. 424 See Shorter, 328 F.3d 167 (contraband found in defendant’s residence permitted inference of constructive possession; inference bolstered by evidence that contraband was in plain view or material associated with contraband found in closet of bedroom where defendant’s personal papers located). See also United States v. Rusher, 966 F.2d 868, 878 (4th Cir. 1992) (mere presence on the premises or association with the possessor is insufficient to establish possession). 425 See United States v. Saunders, 501 F.3d 384, 393-94 (4th Cir. 2007). The Fourth Circuit “assume[d], without deciding, that a conviction under § 922(g)(1) requires the jury to agree unanimously on the specific gun possessed by the defendant.” Id. 393. The court did cite cases from the Sixth, First, and Fifth Circuits that concluded that a conviction under § 922(g) does not require juror unanimity on the specific gun possessed. An acceptable alternative is to submit a special verdict form. However, one was not needed in Saunders, in light of the specific unanimity instruction. 426 United States v. Mooney, 497 F.3d 397,409 n.2 (4th Cir. 2007). The burden of proving affirmative defenses, such as justification, rests on the defendant. 427 Generalized fears do not support the defense of justification. United States v. Crittendon, 883 F.2d 326, 330 (4th Cir. 1989). 150 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 154 of 684 TITLE 18 P Fourth, that there was a direct causal relationship between the criminal act and the avoidance of the threatened harm.428 The defendant must show that he had actually tried the alternative or had no time to try it, or that a history of futile attempts revealed the illusionary benefit of the alternative.429 In addition, the defendant must produce evidence that he took reasonable steps to dispossess himself of the firearm, and/or ammunition, once the threat was over.430 ____________________NOTE____________________ In United States v. Scott, 424 F.3d 431 (4th Cir. 2005), a constructive possession prosecution, the court emphasized that the jury must be instructed that the defendant intentionally exercised dominion and control over the firearm, or had the power and intention to exercise dominion and control over the firearm. Constructive possession of the firearm must also be voluntary. Therefore, in defining constructive possession, the best practice is to reemphasize the mens rea element of knowingly exercising dominion and control. Whether the defendant is a member of one of the disqualifying classes, or all, a single act of possession constitutes a single offense. United States v. Dunford, 148 F.3d 385, 388 (4th Cir. 1998). In addition, possession of multiple firearms and ammunition seized at the same time from the defendant’s house supported only one conviction of § 922(g), unless there is evidence that the weapons were stored in different places or acquired at different times. Id. at 390. 017 7/2 7/2 d0 e iew ,v “INNOCENT POSSESSION” DEFENSE The Fourth Circuit has joined the Seventh and Tenth Circuits in rejecting the innocent and transitory possession defense. United States v. Gilbert, 430 F.3d 215, 21820 (4th Cir. 2005). o. 1 18 U.S.C. § 922(g)(8) N 226 6-4 POSSESSION OF FIREARM BY A PERSON SUBJECT TO A DOMESTIC VIOLENCE PROTECTION ORDER [LAST UPDATED : 8/13/14] Title 18, United States Code, Section 922(g)(8) makes it a crime for a person subject to a domestic violence protection order to transport firearms or ammunition in interstate commerce, possess firearms or ammunition in or affecting commerce, or receive firearms or ammunition which have been shipped in interstate commerce. For you to find the defendant guilty, the government must prove each of the following beyond a reasonable doubt: P First, that the defendant was subject to a protection order that [must prove all three]: 428 United States v. Perrin, 45 F.3d 869, 873-74 (4th Cir. 1995). See also Crittendon, 883 F.2d at 330. 429 United States v. Izac, 239 F. App’x 1 (4th Cir. 2007) (citing United States v. Gant, 691 F.2d 1159, 1164 (5th Cir. 1982)). 430 United States v. Ricks, 573 F.3d 198, 203 (4th Cir. 2009). 151 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 155 of 684 TITLE 18 1. was issued after a hearing of which the defendant received actual notice and had an opportunity to participate; 2. restrains the defendant from harassing, stalking, or threatening his/her intimate partner or child of such intimate partner or the defendant, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; and 3. includes a finding that the defendant represents a credible threat to the physical safety of such partner or child or by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such partner or child that would be reasonably expected to cause bodily injury. P Second, that the defendant possessed [or shipped or transported in interstate commerce, or received] a firearm or ammunition; P Third, that the firearm or ammunition had traveled in interstate or foreign commerce at some point during its existence; and P Fourth, that the defendant did so knowingly; that is, the defendant must know that the item was a firearm [or ammunition] and the possession must be voluntary and intentional,431 and the defendant must know of his status or acted in deliberate disregard for the truth with a conscious purpose to avoid learning the truth.432 017 7/2 The government need not prove that the defendant knew that the firearm or ammunition had been shipped or transported in interstate commerce.433 7/2or possession of the 0 Commerce is defined as travel between one state, territory ed United States and another state, territory, or possession of the United States, including w the District of Columbia. The government may establish the interstate commerce vie requirement by showing that a firearm, ammunition was manufactured outside the state 6 or where the defendant possessed22 it. 4 The government must prove that the defendant possessed the firearm [or 16. ammunition].No 434 435 To possess an item or property means to exercise control or authority over the item or property, voluntarily and intentionally. Possession may be either sole, by the defendant alone, or joint, that is, it may be shared with other persons, as long as the defendant exercised control or authority over the item or property. Possession may be either actual or constructive. Actual possession is knowingly having direct physical control or authority over the item or property. 431 United States v. Langley, 62 F.3d 602, 605-06 (4th Cir. 1995) (en banc); United States v. Scott, 424 F.3d 431, 435 (4th Cir. 2005). 432 United States v. Hester, 880 F.2d 799, 803 n.4 (4th Cir. 1989). 433 Langley, 62 F.3d at 605-06. 434 United States v. Gallimore, 247 F.3d 134, 138 (4th Cir. 2001). 435 Scott, 424 F.3d at 435. 152 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 156 of 684 TITLE 18 Constructive possession is when a person does not have direct physical control or authority, but has the power and the intention to exercise control or authority over the item or property, sometimes through another person.436 Constructive possession can be established by evidence, either direct or circumstantial, showing ownership, control or authority over the item or property itself, or the premises, vehicle, or container where the item or property is, such that a person exercises or has the power and intention to exercise control or authority over that item or property.437 Proof of constructive possession requires proof that the defendant had knowledge of the presence of the item or property.438 A defendant’s mere presence at, or joint tenancy of, a location where an item is found, or his mere association with another person who possesses that item, is not sufficient to establish constructive possession. However, proximity to the item coupled with actual or inferred knowledge of its presence may be sufficient proof to establish constructive possession. Constructive possession does not require proof that the defendant actually owned the property on which the item was found.439 JUSTIFICATION DEFENSE In certain circumstances, a prohibited person is justified in possessing a firearm. The defendant has the burden of proving the following by a preponderance of the evidence:440 P 017 2 First, that he or someone else was under an unlawful and present threat of death 27/ or serious bodily injury; 07/ d Second, that he did not recklessly place himself in the situation where he would we be forced to engage in criminal vie , conduct; Third, that he had no reasonable legal alternative that would avoid both the 226 death or injury; and criminal conduct and the threatened 4 16. No 441 P P 436 To prove constructive possession under § 922(g)(1), the government must prove that the defendant “intentionally exercised dominion and control over the firearm, or had the power and the intention to exercise dominion and control over the firearm. Constructive possession of the firearm must also be voluntary.” United States v. Scott, 424 F.3d 431, 435-36 (4th Cir. 2005). See also United States v. Herder, 594 F.3d 352, 358 (4th Cir. 2010). 437 Scott, 424 F.3d at 435-36; United States v. Shorter, 328 F.3d 167, 172 (4th Cir. 2003) (quoting United States v. Jackson, 124 F.3d 607, 610 (4th Cir. 1997)); United States v. Gallimore, 247 F.3d 134, 137 (4th Cir. 2001). See also United States v. Pearce, 65 F.3d 22, 26 (4th Cir. 1995) (citations omitted) . 438 Herder, 594 F.3d at 358. 439 See Shorter, 328 F.3d 167 (contraband found in defendant’s residence permitted inference of constructive possession; inference bolstered by evidence that contraband was in plain view or material associated with contraband found in closet of bedroom where defendant’s personal papers located). See also United States v. Rusher, 966 F.2d 868, 878 (4th Cir. 1992) (mere presence on the premises or association with the possessor is insufficient to establish possession). 440 United States v. Mooney, 497 F.3d 397, 409 n.2 (4th Cir. 2007). The burden of proving affirmative defenses, such as justification, rests on the defendant. 441 Generalized fears do not support the defense of justification. United States v. Crittendon, 883 F.2d 326, 330 (4th Cir. 1989). 153 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 157 of 684 TITLE 18 P Fourth, that there was a direct causal relationship between the criminal act and the avoidance of the threatened harm.442 The defendant must show that he had actually tried the alternative or had no time to try it, or that a history of futile attempts revealed the illusionary benefit of the alternative.443 In addition, the defendant must produce evidence that he took reasonable steps to dispossess himself of the firearm, and/or ammunition, once the threat was over.444 ____________________NOTE____________________ In United States v. Bostic, 168 F.3d 718 (4th Cir. 1995), the Fourth Circuit rejected the appellant’s argument that § 922(g)(8) was unconstitutional because it violated the notice and fair warning principles embodied in the Fifth Amendment. “Like a felon [in United States v. Langley, 62 F.3d 602 (4th Cir. 1995) (en banc)], a person in Bostic’s position cannot reasonably expect to be free from regulation when possessing a firearm.” Id. at 722. Bostic knew he possessed a firearm and he knew he was subject to a domestic violence restraining order which included a finding that he represented a physical threat and/or prohibited him from abusing the mother or child. The court concluded “that due process does not entitle Bostic to notice that his conduct was illegal.” Id. at 723. In other words, the government does not have to prove that the defendant knew he was violating the law; the government has to prove that the defendant knew he possessed a firearm and that he was subject to an order which meets the statutory requirements. 017 7/2 7/2 d0 The validity of the final order is not relevant to the determination of whether the defendant violated § 922(g)(8). “[T]he overwhelming weight of federal case law precludes a defendant in a § 922(g)(8) prosecution from mounting a collateral attack on the merits of the underlying state protective order.” United States v. Reese, 627 F.3d 792, 804-05 (10th Cir. 2010). e iew ,v 226 431 (4th Cir. 2005), a constructive possession In United States v. Scott, 424 F.3d -4 prosecution, the court16 emphasized that the jury must be instructed that the defendant . intentionally exercised dominion and control over the firearm, or had the power and No dominion and control over the firearm. Constructive possession of intention to exercise the firearm must also be voluntary. Therefore, in defining constructive possession, the best practice is to reemphasize the mens rea element of knowingly exercising dominion and control. Whether the defendant is a member of one of the disqualifying classes, or all, a single act of possession constitutes a single offense. United States v. Dunford, 148 F.3d 385, 388 (4th Cir. 1998). In addition, possession of multiple firearms and ammunition seized at the same time from the defendant’s house supported only one conviction of § 922(g), unless there is evidence that the weapons were stored in different places or acquired at different times. Id. at 390. “INNOCENT POSSESSION” DEFENSE 442 United States v. Perrin, 45 F.3d 869, 873-74 (4th Cir. 1995). See also Crittendon, 883 F.2d at 330. 443 United States v. Izac, 239 F. App’x 1 (4th Cir. 2007) (citing United States v. Gant, 691 F.2d 1159, 1164 (5th Cir. 1982)). 444 United States v. Ricks, 573 F.3d 198, 203 (4th Cir. 2009). 154 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 158 of 684 TITLE 18 The Fourth Circuit has joined the Seventh and Tenth Circuits in rejecting the innocent and transitory possession defense. United States v. Gilbert, 430 F.3d 215, 21820 (4th Cir. 2005). 18 U.S.C. § 922(g)(9) POSSESSION OF FIREARM BY PERSON CONVICTED OF DOMESTIC VIOLENCE [LAST UPDATED : 8/15/16] Title 18, United States Code, Section 922(g)(9) makes it a crime for a person convicted of domestic violence to transport firearms or ammunition in interstate commerce, possess firearms or ammunition in or affecting commerce, or receive firearms or ammunition which have been shipped in interstate commerce. For you to find the defendant guilty, the government must prove each of the following beyond a reasonable doubt: P First, that the defendant had been convicted of a misdemeanor crime of domestic violence; P Second, that the defendant possessed [or shipped or transported in interstate commerce, or received] a firearm or ammunition; P Third, that the firearm or ammunition had traveled in interstate or foreign commerce at some point during its existence; and 7 01must know 2 P Fourth, that the defendant did so knowingly; that is, the defendant 27/ must be voluntary that the item was a firearm [or ammunition], the possession 07/ and intentional, and the defendant must know of his status or act in deliberate d disregard for the truth with a conscious purpose to avoid learning the truth. we e “Misdemeanor crime of domestic violence” means an offense that is a , vi law and has, as an element, the use or misdemeanor under Federal, State, or Tribal 26 2or the threatened use of a deadly weapon, committed by attempted use of physical force, 4 a current or former spouse, parent, or guardian of the victim, by a person with whom the 16. victim shares No in common, by a person who is cohabiting with or has cohabited a child with the victim as a spouse, parent, or guardian, or by a person similarly situated to a 445 446 spouse, parent or guardian of the victim.[§ 921(a)(33)(A)]447 “Physical force” includes means offensive touching.448 “Threatened use of a deadly weapon,” within the definition of “misdemeanor crime of domestic violence,” has three essential components: 445 United States v. Langley, 62 F.3d 602, 605-06 (4th Cir. 1995) (en banc);United States v. Scott, 424 F.3d 431, 435 (4th Cir. 2005). 446 United States v. Hester, 880 F.2d 799, 803 n.4 (4th Cir. 1989). 447 In United States v. Hayes, 555 U.S. 415, 429 (2009), the Supreme Court concluded that “Congress defined ‘misdemeanor crime of domestic violence’ to include an offense ‘committed by’ a person who had a specific domestic relationship with the victim, whether or not the misdemeanor statute itself designates the domestic relationship as an element of the crime.” In Voisine v. United States, the Supreme Court ruled that a misdemeanor crime of domestic violence includes offenses pursuant to state laws with a “recklessness” mens rea. 136 S. Ct. 2272, 2278 (2016). 448 United States v. Castleman, 572 U.S. __, 134 S. Ct. 1405, 1410 (2014). Castleman reversed the Fourth Circuit’s decision in United States v. White, 606 F.3d 144 (4th Cir. 2010). 155 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 159 of 684 TITLE 18 1. that one has threatened to use; 2. a weapon; and 3. that weapon is deadly.449 In addition, the defendant must have been represented by counsel in the misdemeanor domestic violence case, or knowingly and intelligently waived the right to counsel, and, if entitled to a jury trial, either tried by a jury or knowingly and intelligently waived the right to have the case tried by a jury, by guilty plea or otherwise. [§ 921(a)(33)(B)]450 The government need not prove that the defendant knew that the firearm had been shipped or transported in interstate commerce.451 Commerce is defined as travel between one state, territory or possession of the United States and another state, territory, or possession of the United States, including the District of Columbia. The government may establish the interstate commerce requirement by showing that the firearm or ammunition was manufactured outside the state where the defendant possessed it.452 The government must prove that the defendant voluntarily and intentionally possessed the firearm [or ammunition].453 017may be Possession may be either sole, by the defendant alone, or joint,2 is, it 27/ that /control or authority over shared with other persons, as long as the defendant exercised 07 the item or property. d we Possession may be either actual or constructive. e , vi direct physical control or authority over the Actual possession is knowingly having 226 item or property. 4 Constructive possession is when a person does not have direct physical control or 16. authority, butNo power and the intention to exercise control or authority over the has the item or property, sometimes through another person. To possess an item or property means to exercise control or authority over the item or property, voluntarily and intentionally. 454 Constructive possession can be established by evidence, either direct or circumstantial, showing ownership, control or authority over the item or property itself, or the premises, vehicle, or container where the item or property is, such that a person 449 United States v. Hayes, 482 F.3d 749 (4th Cir. 2007), rev’d on other grounds, 555 U.S. 415 (2009). 450 The determination of what constitutes a disabling conviction, including the restoration of civil rights, is governed by the law of the convicting jurisdiction. Beecham v. United States, 511 U.S. 368, 371, 372 (1994). 451 See United States v. Langley, 62 F.3d 602, 606 (4th Cir. 1995) (en banc). 452 United States v. Gallimore, 247 F.3d 134, 138 (4th Cir. 2001). 453 United States v. Scott, 424 F.3d 431, 435 (4th Cir. 2005). 454 To prove constructive possession under § 922(g)(1), the government must prove that the defendant “intentionally exercised dominion and control over the firearm, or had the power and the intention to exercise dominion and control over the firearm. Constructive possession of the firearm must also be voluntary.” Id. 424 F.3d at 435-36. See also United States v. Herder, 594 F.3d 352, 358 (4th Cir. 2010). 156 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 160 of 684 TITLE 18 exercises or has the power and intention to exercise control or authority over that item or property.455 Proof of constructive possession requires proof that the defendant had knowledge of the presence of the item or property.456 A defendant’s mere presence at, or joint tenancy of, a location where an item is found, or his mere association with another person who possesses that item, is not sufficient to establish constructive possession. However, proximity to the item coupled with actual or inferred knowledge of its presence may be sufficient proof to establish constructive possession. Constructive possession does not require proof that the defendant actually owned the property on which the item was found.457 JUSTIFICATION DEFENSE In certain circumstances, a prohibited person is justified in possessing a firearm. The defendant has the burden of proving the following by a preponderance of the evidence:458 P First, that he or someone else was under an unlawful and present threat of death or serious bodily injury;459 P Second, that he did not recklessly place himself in the situation where he would be forced to engage in criminal conduct; 017 7/2 P Third, that he had no reasonable legal alternative that would avoid both the criminal conduct and the threatened death or injury; and 7/2 d0 P Fourth, that there was a direct causal relationship between the criminal act and the avoidance of the threatened harm.460 e iew ,v The defendant must show that he had actually tried the alternative or had no time to try it, or that a history of futile attempts revealed the illusionary benefit of the alternative.461 o. 1 N 226 6-4 455 Scott, 424 F.3d at 435-36; United States v. Shorter, 328 F.3d 167, 172 (4th Cir. 2003) (quoting United States v. Jackson, 124 F.3d 607, 610 (4th Cir. 1997)); United States v. Gallimore, 247 F.3d 134, 137 (4th Cir. 2001). See also United States v. Pearce, 65 F.3d 22, 26 (4th Cir. 1995) (citations omitted). 456 Herder, 594 F.3d at 358. 457 See Shorter, 328 F.3d 167 (contraband found in defendant’s residence permitted inference of constructive possession; inference bolstered by evidence that contraband was in plain view or material associated with contraband found in closet of bedroom where defendant’s personal papers located). See also United States v. Rusher, 966 F.2d 868, 878 (4th Cir. 1992) (mere presence on the premises or association with the possessor is insufficient to establish possession). 458 United States v. Mooney, 497 F.3d 397, 409 n.2 (4th Cir. 2007). The burden of proving affirmative defenses, such as justification, rests on the defendant. 459 Generalized fears do not support the defense of justification. United States v. Crittendon, 883 F.2d 326, 330 (4th Cir. 1989). 460 United States v. Perrin, 45 F.3d 869, 873-74 (4th Cir. 1995). See also Crittendon, 883 F.2d at 330. 461 United States v. Izac, 239 F. App’x 1 (4th Cir. 2007) (citing United States v. Gant, 691 F.2d 1159, 1164 (5th Cir. 1982)). 157 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 161 of 684 TITLE 18 In addition, the defendant must produce evidence that he took reasonable steps to dispossess himself of the firearm, and/or ammunition, once the threat was over.462 ____________________NOTE____________________ In United States v. Scott, 424 F.3d 431 (4th Cir. 2005), a constructive possession prosecution, the court emphasized that the jury must be instructed that the defendant intentionally exercised dominion and control over the firearm, or had the power and intention to exercise dominion and control over the firearm. Constructive possession of the firearm must also be voluntary. Therefore, in defining constructive possession, the best practice is to reemphasize the mens rea element of knowingly exercising dominion and control. Whether the defendant is a member of one of the disqualifying classes, or all, a single act of possession constitutes a single offense. United States v. Dunford, 148 F.3d 385, 388 (4th Cir. 1998). In addition, possession of multiple firearms and ammunition seized at the same time from the defendant’s house supported only one conviction of § 922(g), unless there is evidence that the weapons were stored in different places or acquired at different times. Id. at 390. “INNOCENT POSSESSION” DEFENSE 017 7/2 The Fourth Circuit has joined the Seventh and Tenth Circuits in rejecting the innocent and transitory possession defense. United States v. Gilbert, 430 F.3d 215, 21820 (4th Cir. 2005). 18 U.S.C. § 922(h) 7/2 d0 e iew ,v POSSESSION OF FIREARM IN COURSE OF EMPLOYMENT [LAST UPDATED : 12/29/14] 226 6-4 Title 18, United States Code, Section 922(h) makes it a crime for a person to possess a firearm or ammunition while employed for certain prohibited persons. For you to find the defendant guilty, the government must prove each of the following beyond a reasonable doubt: o. 1 N P First, that the defendant possessed [or shipped, transported, or received] a firearm or ammunition; P Second, [that the defendant did so in or affecting interstate or foreign commerce] [that the firearm or ammunition had traveled in interstate or foreign commerce at some point during its existence]; P Third, that the defendant did so in the course of being employed for a prohibited person; P Fourth, that the defendant did so knowingly; that is, the defendant must know that the person for whom the defendant was employed was a prohibited person, that the item was a firearm [or ammunition] and the possession must be voluntary and intentional.463 462 United States v. Ricks, 573 F.3d 198, 203 (4th Cir. 2009). United States v. Weaver, No. 2:09-cr-00222, 2010 WL 2739979 at *4 (S.D. W.Va. July 9, 2010), rev’d on other grounds, 659 F.3d 353 (4th Cir. 2010). See also United States v. Lahey, 967 F. Supp. 2d 731, 745 (S.D.N.Y. 2013) (noting that § 922(h) not subject to arbitrary enforcement (continued...) 463 158 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 162 of 684 TITLE 18 “Prohibited person” means a person who: had been convicted in some court of a crime punishable by imprisonment for a term exceeding one year;464 was a fugitive from justice; was an unlawful user of, or addicted to any controlled substance; had been adjudicated as a mental defective or had been committed465 to a mental institution; was 463 (...continued) because the statute requires defendant must know he is being employed for a prohibited person when he possesses firearm); United States v. Weaver, No. 2:09-cr-00222, 2012 W L 727488 at *7 (S.D. W .Va. Mar. 6, 2012) (after remand from Fourth Circuit affirming that “implicit in the concept of ‘employment’ is an additional knowledge requirement [in] § 922(h): the defendant must know that he is carrying a firearm on behalf of a known prohibited person.”). 464 “Crime punishable by imprisonment for a term exceeding one year” has exclusions in § 921(a)(20), and the court may have to address this element if it is an issue. The determination of what constitutes a disabling conviction, including the restoration of civil rights, is governed by the law of the convicting jurisdiction. Beecham v. United States, 511 U.S. 368, 371, 372 (1994). Foreign convictions are not included. Small v. United States, 544 U.S. 385 (2005). Convictions from United States military courts are included. United States v. Grant, 753 F.3d 480 (4th Cir. 2014). The nature of the conviction is not a necessary element. United States v. Poore, 594 F.2d 39, 41 (4th Cir. 1979). Therefore, when the defendant stipulates to the prior conviction, there is no need to describe the nature of the conviction. However, the defendant cannot exclude the evidence by stipulating, because the prior conviction is an element of the offense which must be proved. United States v. Milton, 52 F.3d 78, 81 (4th Cir. 1995). 017 7/2 7/2 d0 e iew ,v A stipulation does not render evidence tending to prove the underlying stipulation irrelevant under Rule of Evidence 401 or 402. Old Chief v. United States, 519 U.S. 172, 178-79 (1997); United States v. Dunford, 148 F.3d 385, 394-95 (4th Cir. 1998). Exclusion must rest on Rule of Evidence 403. In Old Chief, the Supreme Court held that Rule 403 prohibited the government from introducing the name or nature of a prior felony conviction in a § 922(g)(1) case when such information would tend to “lure a juror into a sequence of bad character reasoning” regarding a defendant who had stipulated to his felon status. Old Chief, 519 U.S. at 185. 226 6-4 .1 othe maximum sentence that a particular defendant could have received, not the The test is N sentence that any hypothetical defendant charged with the crime may have received. CarachuriRosendo v. Holder, 560 U.S. 563 (2010); United States v. Simmons, 649 F.3d 237 (4th Cir. 2011) (noting Carachuri-Rosendo’s overruling of United States v. Harp, 406 F.3d 242 (4th Cir. 2005)). “[T]he firearms prosecution does not open the predicate conviction to a new form of collateral attack.” In other words, the defendant cannot relitigate the validity of the underlying conviction. Lewis v. United States, 445 U.S. 55, 67 (1980) (prosecution under predecessor statute). 465 See 27 C.F.R. § 478.11 (regulation applicable to § 922(g) definition which defines “committed to a mental institution” as “[a] formal commitment of a person to a mental institution by a court, board, commission, or other lawful authority. The term includes a commitment to a mental institution involuntarily. The term includes commitment for mental defectiveness or mental illness. It also includes commitments for other reasons, such as for drug use. The term does not include a person in a mental institution for observation or a voluntary admission to a mental institution.”) In United States v. Midgett, 198 F.3d 143 (4th Cir. 1999), the Fourth Circuit found a prior judicial proceeding sufficient even though it was not termed a formal commitment. The Fourth Circuit found that the confinement “f[ell] squarely” within the statutory meaning of § 922(g)(4) because: (1) [the defendant] was examined by a competent mental health practitioner; (2) he was represented by counsel; (3) factual findings were made by a judge who heard evidence; (4) a conclusion was reached by the judge that [the defendant] suffered from a mental illness to such a degree that he was in need of inpatient hospital care; (continued...) 159 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 163 of 684 TITLE 18 an alien illegally or unlawfully in the United States or admitted under a non-immigrant visa [see exceptions at § 922(y)(2)]; had been discharged from the Armed Forces under dishonorable conditions; had renounced his citizenship in the United States; was subject to an order of protection;466 or had been convicted in any court of a misdemeanor crime of domestic violence.467 465 (...continued) (5) a judicial order was issued committing [the defendant] to a mental institution; and (6) he was actually confined there. 198 F.3d at 146. 466 The government must prove the protection order meets all three of the following requirements: 1. it was issued after a hearing of which the person received actual notice and had an opportunity to participate; 2. the order restrains the person from harassing, stalking, or threatening his/her intimate partner or child of such intimate partner of the person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; and 3. the order includes a finding that the person represents a credible threat to the physical safety of such partner or child or by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such partner or child that would be reasonably expected to cause bodily injury. 017 7/2 7/2 d0 e iew ,v 226 6-4 18 U.S.C. § 922(g)(8)(A)-(C). 467 See 18 U.S.C. § 921(a)(33) (“Misdemeanor crime of domestic violence” means “an offense that is a misdemeanor under Federal, State, or Tribal law, and that has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, committed by a current or former spouse, parent, or guardian of the victim, by a person with whom the victim shares a child in common, by a person who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian, or by a person similarly situated to a spouse, parent or guardian of the victim.”). o. 1 N In addition, the defendant must have been represented by counsel in the case, or knowingly and intelligently waived the right to counsel in the case, and, if entitled to a jury trial, either tried by a jury or knowingly and intelligently waived the right to have the case tried by a jury, by guilty plea or otherwise. 18 U.S.C. § 921(a)(33)(B). “Threatened use of a deadly weapon” has three essential components: 1. that one has threatened to use; 2. a weapon; and 3. that weapon is deadly. United States v. Hayes, 482 F.3d 749 (4th Cir. 2007), overruled on other grounds, 555 U.S. 415 (2009). “The domestic relationship, although it must be established beyond a reasonable doubt in a § 922(g)(9) firearms possession prosecution, need not be a defining element of the predicate offense.” United States v. Hayes, 555 U.S. 415, 418 (2009). As applied to a different subsection of § 922, the Supreme Court has determined that the “common-law meaning of ‘force’ [applies] to § 921(a)(33)(A)’s definition of a ‘misdemeanor crime of domestic violence’ as an offense that ‘has, as an element, the use or attempted use of physical force.’ W e therefore hold that the requirement of ‘physical force’ is satisfied, for purposes of § 922(g)(9), by the degree of force that supports a common-law battery conviction.” United States v. Castleman, 572 U.S. __, __, 134 S. Ct. 1405, 1413 (2014) (discussing a conviction under 18 U.S.C. § 922(g)). 160 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 164 of 684 TITLE 18 “Employed for” is not limited to “an employer-employee relationship that is proven only by payment of wages or some other form of tangible compensation.”468 The government need not prove that the defendant knew that the firearm or ammunition had been shipped or transported in interstate commerce.469 “Interstate commerce” includes commerce between one state, territory, possession, or the District of Columbia and another state, territory, possession, or the District of Columbia. [18 U.S.C. § 10] The government may establish the interstate commerce requirement by showing that the firearm or ammunition at any time had traveled across a state boundary line, or was manufactured outside the state where the defendant possessed it.470 “Firearm” means any weapon including a starter gun which will or is designed to or may readily be converted to expel a projectile by the action of an explosive, the frame or receiver of any such weapon, any firearm muffler or firearm silencer, or any destructive device. [§ 921(a)(3)] “Ammunition” means ammunition or cartridge cases, primers, bullets, or propellent powder designed for use in any firearm. [§ 921(a)(17)(A)] The government must prove that the defendant voluntarily and intentionally had physical possession of the firearm [or ammunition].471 017 7/2 Possession may be established by proof of either actual or constructive possession.472 Actual possession is defined as physical control over property. Constructive possession occurs when a person exercises or has the power to exercise dominion and control over an item of property. 7/2 d0 e iew ,v Possession may also be either sole, by the defendant himself, or joint, with other persons, as long as the defendant exercised dominion and control over the firearm or ammunition. 6 22at, or joint tenancy of, a location where an item is 4 A defendant’s mere presence 16- with another person who possesses that item, is not found, or his mere association . sufficient to establish constructive possession. However, proximity to the item coupled No with inferred knowledge of its presence may be sufficient proof to establish constructive 468 United States v. Weaver, 659 F.3d 353 (4th Cir. 2011). Defendants were members of a motorcycle gang who carried firearms to protect the national vice president, who was a convicted felon. The district court found that the statute required the government to prove some form of payment to the defendants. The Fourth Circuit reversed, declining “to draft at this preliminary stage of proceedings a definitive definition of the disputed term,” but holding that “compensation cannot be the sine qua non of the words ‘employed for’ in § 922(h).” 659 F.3d at 358. The court noted that it had previously defined “employ” to mean “to make use of” or “to use advantageously.” Id. at 357 (quoting United States v. Murphy, 35 F.3d 143, 145 (4th Cir. 1994)). 469 Langley, 62 F.3d at 605-06. 470 United States v. Gallimore, 247 F.3d 134, 138 (4th Cir. 2001); United States v. Nathan, 202 F.3d 230, 234 (4th Cir. 2000). 471 United States v. Scott, 424 F.3d 431, 435 (4th Cir. 2005). 472 See NOTE for discussion of constructive possession. 161 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 165 of 684 TITLE 18 possession. Constructive possession does not require proof that the defendant actually owned the property on which the item was found.473 The government is not required to prove that the firearm was operable, only that it “may readily be converted to expel a projectile by the action of an explosive.” L [W hen the defendant is charged with possessing more than one firearm, the jury should be instructed that they must agree unanimously on the specific firearm possessed: You must also agree, all of you, that the defendant possessed the same firearm. You cannot convict, for example, if six of you believe he possessed one of the guns, and six of you believe he possessed another of the guns. You have to unanimously agree that he possessed the firearms charged or ... one of the firearms charged before he can be convicted.]474 ____________________NOTE____________________ The current version of Section 922(h) was enacted in 1986 “to prevent individuals listed in subsection(g) from circumventing the firearm prohibition by employing armed bodyguards.” United States v. Weaver, 659 F.3d 353, 357 (4th Cir. 2011). 017 7/2 There is very little case law interpreting this statute. Therefore, it has not been decided whether constructive possession is sufficient to sustain a conviction under § 922(h). If constructive possession is sufficient for conviction under § 922(h), the government must show that “the defendant intentionally exercised dominion and control over the firearm, or had the power and the intention to exercise dominion and control over the firearm. Constructive possession of the firearm must also be voluntary.” United States v. Scott, 424 F.3d 431, 436 (4th Cir. 2005). Constructive possession can be established by evidence showing ownership, dominion, or control over the item or property itself, or the premises, vehicle, or container in which the item or property is concealed, such that the defendant exercises or has the power to exercise dominion and control over that item or property. 7/2 d0 e iew ,v o. 1 N 226 6-4 18 U.S.C. § 922(i) TRANSPORTING STOLEN FIREARM 473 The definitive case in the Fourth Circuit on “mere proximity” is United States v. Herder, 594 F.3d 352 (4th Cir. 2010), in which the court reiterated the legal principle that proximity of a defendant to an item establishes accessibility only, not dominion and control. See also United States v. Shorter, 328 F.3d 167 (4th Cir. 2003) (contraband found in the defendant’s residence permitted an inference of constructive possession; inference bolstered by evidence that contraband was in plain view or that material associated with the contraband was found in the closet of the bedroom where defendant’s personal papers located); United States v. Rusher, 966 F.2d 868, 878 (4th Cir. 1992) (mere presence on the premises or association with the possessor is insufficient to establish possession). 474 The Fourth Circuit “assume[d], without deciding, that a conviction under § 922(g)(1) requires the jury to agree unanimously on the specific gun possessed by the defendant.” United States v. Saunders, 501 F.3d 384, 393 (4th Cir. 2007). The court cited cases from the First, Fifth, and Sixth Circuits that concluded that a conviction under § 922(g) does not require juror unanimity on the specific gun possessed. An acceptable alternative is to submit a special verdict form. However, one was not needed in Saunders, in light of the specific unanimity instruction. 162 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 166 of 684 TITLE 18 Title 18, United States Code, Section 922(i) makes it a crime to transport a stolen firearm or ammunition in interstate commerce. For you to find the defendant guilty, the government must prove each of the following beyond a reasonable doubt: P First, that the defendant transported or shipped in interstate or foreign commerce; P Second, a stolen firearm or ammunition; and P Third, that the defendant knew or had reasonable cause to believe the firearm or ammunition was stolen.475 The government must prove that the defendant possessed the firearm or ammunition. To possess an item or property means to exercise control or authority over the item or property, voluntarily and intentionally. Possession may be either sole, by the defendant alone, or joint, that is, it may be shared with other persons, as long as the defendant exercised control or authority over the item or property. Possession may be either actual or constructive. Actual possession is knowingly having direct physical control or authority over the item or property. 017 7/2 Constructive possession is when a person does not have direct physical control or authority, but has the power and the intention to exercise control or authority over the item or property, sometimes through another person.476 7/2 d0 e iew ,v Constructive possession can be established by evidence, either direct or circumstantial, showing ownership, control or authority over the item or property itself, or the premises, vehicle, or container where the item or property is, such that a person exercises or has the power and intention to exercise control or authority over that item or property.477 226 6-4 o. 1 possession requires proof that the defendant had knowledge Proof of constructive N of the presence of the item or property.478 A defendant’s mere presence at, or joint tenancy of, a location where an item is found, or his mere association with another person who possesses that item, is not sufficient to establish constructive possession. However, proximity to the item coupled with actual or inferred knowledge of its presence may be sufficient proof to establish 475 18 U.S.C. § 924(a)(2). To prove constructive possession under § 922(g)(1), the government must prove that the defendant “intentionally exercised dominion and control over the firearm, or had the power and the intention to exercise dominion and control over the firearm. Constructive possession of the firearm must also be voluntary.” United States v. Scott, 424 F.3d 431, 435-36 (4th Cir. 2005). See also United States v. Herder, 594 F.3d 352, 358 (4th Cir. 2010). 477 Scott, 424 F.3d at 435-36; United States v. Shorter, 328 F.3d 167, 172 (4th Cir. 2003) (quoting United States v. Jackson, 124 F.3d 607, 610 (4th Cir. 1997)); United States v. Gallimore, 247 F.3d 134, 137 (4th Cir. 2001). See also United States v. Pearce, 65 F.3d 22, 26 (4th Cir. 1995) (citations omitted). 478 Herder, 594 F.3d at 358. 476 163 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 167 of 684 TITLE 18 constructive possession. Constructive possession does not require proof that the defendant actually owned the property on which the item was found.479 Possession of recently stolen property, if not satisfactorily explained, is ordinarily a circumstance from which you may reasonably draw the inference and find, in the light of the surrounding circumstances shown by the evidence in the case, that the person in possession participated in some way in the theft of the property480 or knew the property had been stolen. The same inference may reasonably be drawn from a false explanation of such possession.481 However, you are never required to make this inference. It is the exclusive province of the jury to determine whether the facts and circumstances shown by the evidence in this case warrant any inference which the law permits the jury to draw from the possession of recently stolen property. The term “recently” is a relative term, and has no fixed meaning. Whether property may be considered as recently stolen depends upon the nature of the property, and all the facts and circumstances shown by the evidence in the case. The longer the period of time since the theft the more doubtful becomes the inference which may reasonably be drawn from unexplained possession. You may infer that the defendant knew the property was stolen from circumstances that would convince a person of ordinary intelligence that such was the fact. In deciding whether the defendant knew the property was stolen, you should consider the entire conduct of the defendant that you deem relevant and which occurred at or near the time the offenses are alleged to have been committed. Sale and purchase at a substantially discounted price permits, but does not require, an inference that the defendant knew the property was stolen.482 017 7/2 7/2 d0 e iew ,v Possession may be satisfactorily explained through other circumstances, other evidence, independent of any testimony of the defendant.483 You are reminded that the Constitution never imposes on a defendant the burden of testifying or of explaining possession, and it is the jury’s province to draw or reject any inference from possession.484 o. 1 N 18 U.S.C. § 922(j) 226 6-4 POSSESSION OF STOLEN FIREARM [LAST UPDATED : 4/7/14] Title 18, United States Code, Section 922(j) makes it a crime to possess, conceal, store, barter, sell, or dispose of a stolen firearm or ammunition which has been shipped or transported in interstate commerce. For you to find the defendant guilty, the government must prove each of the following beyond a reasonable doubt: 479 See Shorter, 328 F.3d 167 (contraband found in defendant’s residence permitted inference of constructive possession; inference bolstered by evidence that contraband was in plain view or material associated with contraband found in closet of bedroom where defendant’s personal papers located). See also United States v. Rusher, 966 F.2d 868, 878 (4th Cir. 1992) (mere presence on the premises or association with the possessor is insufficient to establish possession). 480 United States v. Long, 538 F.2d 580, 581 n.1 (4th Cir. 1976). 481 Id. 482 United States v. Gallo, 543 F.2d 361, 368 n.6 (D.C. Cir. 1976). 483 See Barnes v. United States, 412 U.S. 837, 840 n.3 (1973) (instruction in prosecution under 18 USC § 1708). 484 See United States v. Chorman, 910 F.2d 102, 108 (4th Cir. 1990). 164 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 168 of 684 TITLE 18 P First, that the defendant received, possessed, concealed, stored, bartered, sold, or disposed of, or pledged or accepted as security for a loan, a stolen firearm or ammunition; P Second, that the firearm or ammunition had been shipped or transported in interstate commerce before or after being stolen; and P Third, that the defendant knew or had reasonable cause to believe the firearm or ammunition was stolen.485 The government must prove that the defendant possessed the firearm or ammunition. To possess an item or property means to exercise control or authority over the item or property, voluntarily and intentionally. Possession may be either sole, by the defendant alone, or joint, that is, it may be shared with other persons, as long as the defendant exercised control or authority over the item or property. Possession may be either actual or constructive. Actual possession is knowingly having direct physical control or authority over the item or property. 017 7/2 Constructive possession is when a person does not have direct physical control or authority, but has the power and the intention to exercise control or authority over the item or property, sometimes through another person.486 7/2 d0 Constructive possession can be established by evidence, either direct or circumstantial, showing ownership, control or authority over the item or property itself, or the premises, vehicle, or container where the item or property is, such that a person exercises or has the power and intention to exercise control or authority over that item or property.487 e iew ,v 226 4 Proof of constructive possession requires proof that the defendant had knowledge 16-or property. . of the presence of the item No mere presence at, or joint tenancy of, a location where an item is A defendant’s 488 found, or his mere association with another person who possesses that item, is not sufficient to establish constructive possession. However, proximity to the item coupled with actual or inferred knowledge of its presence may be sufficient proof to establish constructive possession. Constructive possession does not require proof that the defendant actually owned the property on which the item was found.489 485 18 U.S.C. § 924(a)(2). See also United States v. Davis, 714 F.3d 809, 814 (4th Cir. 2013). To prove constructive possession under § 922(g)(1), the government must prove that the defendant “intentionally exercised dominion and control over the firearm, or had the power and the intention to exercise dominion and control over the firearm. Constructive possession of the firearm must also be voluntary.” United States v. Scott, 424 F.3d 431, 435-36 (4th Cir. 2005). See also United States v. Herder, 594 F.3d 352, 358 (4th Cir. 2010). 487 Scott, 424 F.3d at 435-36; United States v. Shorter, 328 F.3d 167, 172 (4th Cir. 2003) (quoting United States v. Jackson, 124 F.3d 607, 610 (4th Cir. 1997)); United States v. Gallimore, 247 F.3d 134, 137 (4th Cir. 2001). See also United States v. Pearce, 65 F.3d 22, 26 (4th Cir. 1995) (citations omitted). 488 Herder, 594 F.3d 352. 489 See Shorter, 328 F.3d 167 (contraband found in defendant’s residence permitted inference (continued...) 486 165 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 169 of 684 TITLE 18 Possession of recently stolen property, if not satisfactorily explained, is ordinarily a circumstance from which you may reasonably draw the inference and find, in the light of the surrounding circumstances shown by the evidence in the case, that the person in possession participated in some way in the theft of the property490 or knew the property had been stolen. The same inference may reasonably be drawn from a false explanation of such possession.491 However, you are never required to make this inference. It is the exclusive province of the jury to determine whether the facts and circumstances shown by the evidence in this case warrant any inference which the law permits the jury to draw from the possession of recently stolen property. The term “recently” is a relative term, and has no fixed meaning. Whether property may be considered as recently stolen depends upon the nature of the property, and all the facts and circumstances shown by the evidence in the case. The longer the period of time since the theft the more doubtful becomes the inference which may reasonably be drawn from unexplained possession. You may infer that the defendant knew the property was stolen from circumstances that would convince a person of ordinary intelligence that such was the fact. In deciding whether the defendant knew the property was stolen, you should consider the entire conduct of the defendant that you deem relevant and which occurred at or near the time the offenses are alleged to have been committed. Sale and purchase at a substantially discounted price permits, but does not require, an inference that the defendant knew the property was stolen.492 017 /2 Possession may be satisfactorily explained through other27 circumstances, other / evidence, independent of any testimony of the defendant. 7 0 You areorreminded that the d Constitution never imposes on a defendant the burden of testifying of explaining we possession, and it is the jury’s province to draw or reject any inference from e possession. , vi 226 -4 18 U.S.C. § 922(k) 16 POSSESSION OF FIREARM WITH . No OBLITERATED SERIAL NUMBER 493 494 Title 18, United States Code, Section 922(k) makes it a crime to transport or possess a firearm with an obliterated serial number. For you to find the defendant guilty, the government must prove each of the following beyond a reasonable doubt: P First, that the defendant transported, shipped, or received in interstate or foreign commerce; P Second, a firearm which has had the serial number removed, obliterated, or altered; and 489 (...continued) of constructive possession; inference bolstered by evidence that contraband was in plain view or material associated with contraband found in closet of bedroom where defendant’s personal papers located). See also United States v. Rusher, 966 F.2d 868, 878 (4th Cir. 1992) (mere presence on the premises or association with the possessor is insufficient to establish possession). 490 United States v. Long, 538 F.2d 580, 581 n.1 (4th Cir. 1976). 491 Id. 492 United States v. Gallo, 543 F.2d 361, 368 n.6 (D.C. Cir. 1976). 493 See Barnes v. United States, 412 U.S. 837, 840 n.3 (1973) (instruction in prosecution under 18 USC § 1708). 494 See United States v. Chorman, 910 F.2d 102, 108 (4th Cir. 1990). 166 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 170 of 684 TITLE 18 P Third, that the defendant did so knowingly; OR P First, that the defendant possessed or received a firearm; P Second, that the firearm had the serial number removed, obliterated, or altered; P Third, that the firearm had traveled in interstate or foreign commerce at some point during its existence; and P Fourth, that the defendant acted knowingly, including knowing that the serial number had been removed, obliterated, or altered.495 The government may establish the interstate commerce requirement by showing that the firearm at any time had traveled across a state boundary line, or was manufactured outside the state where the defendant possessed it.496 To possess an item or property means to exercise control or authority over the item or property, voluntarily and intentionally. Possession may be either sole, by the defendant alone, or joint, that is, it may be shared with other persons, as long as the defendant exercised control or authority over the item or property. 017 7/2 Possession may be either actual or constructive. Actual possession is knowingly having direct physical control or authority over the item or property. 7/2 d0 Constructive possession is when a person does not have direct physical control or authority, but has the power and the intention to exercise control or authority over the item or property, sometimes through another person.497 e iew evidence, either direct or Constructive possession can be established by 6, v or authority over the item or property itself, circumstantial, showing ownership, control 22 or the premises, vehicle,6-4 or container where the item or property is, such that a person exercises or has the.power and intention to exercise control or authority over that item or o 1 property. N 498 Proof of constructive possession requires proof that the defendant had knowledge of the presence of the item or property.499 A defendant’s mere presence at, or joint tenancy of, a location where an item is found, or his mere association with another person who possesses that item, is not sufficient to establish constructive possession. However, proximity to the item coupled 495 18 U.S.C. § 924(a)(1)(B). See also United States v. Santiago, 344 F. App’x 847 (4th Cir. 2009). 496 United States v. Gallimore, 247 F.3d 134, 138 (4th Cir. 2001). To prove constructive possession under § 922(g)(1), the government must prove that the defendant “intentionally exercised dominion and control over the firearm, or had the power and the intention to exercise dominion and control over the firearm. Constructive possession of the firearm must also be voluntary.” United States v. Scott, 424 F.3d 431, 435-36 (4th Cir. 2005). See also United States v. Herder, 594 F.3d 352, 358 (4th Cir. 2010). 498 Scott, 424 F.3d at 435-36; United States v. Shorter, 328 F.3d 167, 172 (4th Cir. 2003) (quoting United States v. Jackson, 124 F.3d 607, 610 (4th Cir. 1997)); United States v. Gallimore, 247 F.3d 134, 137 (4th Cir. 2001). See also United States v. Pearce, 65 F.3d 22, 26 (4th Cir. 1995) (citations omitted). 499 Herder, 594 F.3d at 358. 497 167 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 171 of 684 TITLE 18 with actual or inferred knowledge of its presence may be sufficient proof to establish constructive possession. Constructive possession does not require proof that the defendant actually owned the property on which the item was found.500 The government must prove that the defendant knew that the serial number had been removed, obliterated, or altered. You may infer this knowledge from evidence that the defendant possessed the firearm under conditions under which an ordinary person would have inspected the firearm and discovered that the serial number was removed, obliterated, or altered. The statute does not require that all serial numbers be removed, obliterated, or altered.501 ____________________NOTE____________________ Proof of the date on which a firearm was manufactured is not an element of § 922(k). United States v. Galloway, 55 F. App’x 634 (4th Cir. 2003). 18 U.S.C. § 922(n) SHIPPING OR RECEIVING OF FIREARM BY PERSON UNDER INDICTMENT Title 18, United States Code, Section 922(n) makes it a crime for a person under indictment to ship, transport, or receive a firearm or ammunition. For you to find the defendant guilty, the government must prove each of the following beyond a reasonable doubt: 017by P First, that the defendant was under indictment for a crime punishable 2 imprisonment for a term exceeding one year; 27/ 07/ P Second, that the defendant shipped or transported a firearm or ammunition in d interstate or foreign commerce, or received a firearm or ammunition that had we e been shipped or transported in interstate commerce; and , vi P Third, that the defendant did so willfully. In other words, the government 226 knew he was under indictment. must prove that the4 defendant 16. 18 U.S.C. § 922(o) POSSESSION OF MACHINEGUN No 502 503 Title 18, United States Code, Section 922(o) makes it a crime to possess a machinegun. For you to find the defendant guilty, the government must prove each of the following beyond a reasonable doubt: P First, that the defendant possessed a machinegun; and P Second, that the defendant did so knowingly.504 500 See Shorter, 328 F.3d 167 (contraband found in defendant’s residence permitted inference of constructive possession; inference bolstered by evidence that contraband was in plain view or material associated with contraband found in closet of bedroom where defendant’s personal papers located). See also United States v. Rusher, 966 F.2d 868, 878 (4th Cir. 1992) (mere presence on the premises or association with the possessor is insufficient to establish possession). 501 United States v. Sullivan, 455 F.3d 248, 261 (4th Cir. 2006) (citing United States v. Haywood, 363 F.3d 200, 206 (3d Cir. 2003) (collecting cases)). United States v. Johnson, 381 F.3d 506, 508 (5th Cir. 2004); United States v. Hooker, 997 F.2d 67, 72 (5th Cir. 1993) (two scienter elements, possession and that the serial number was removed). 502 18 U.S.C. § 924(a)(1)(D). 503 United States v. Forbes, 64 F.3d 928, 932 (4th Cir. 1995). 504 18 U.S.C. § 924(a)(2). 168 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 172 of 684 TITLE 18 Knowingly in this context includes not only that the defendant knew he possessed a machinegun but also that the defendant knew the firearm was a machinegun.505 A machinegun is defined as any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger. [§ 921(a)(23) incorporates the definition in 26 U.S.C. § 5845(b)]. To possess an item or property means to exercise control or authority over the item or property, voluntarily and intentionally. Possession may be either sole, by the defendant alone, or joint, that is, it may be shared with other persons, as long as the defendant exercised control or authority over the item or property. Possession may be either actual or constructive. Actual possession is knowingly having direct physical control or authority over the item or property. Constructive possession is when a person does not have direct physical control or authority, but has the power and the intention to exercise control or authority over the item or property, sometimes through another person.506 017 7/2 Constructive possession can be established by evidence, either direct or circumstantial, showing ownership, control or authority over the item or property itself, or the premises, vehicle, or container where the item or property is, such that a person exercises or has the power and intention to exercise control or authority over that item or property.507 7/2 d0 e iew ,v Proof of constructive possession requires proof that the defendant had knowledge of the presence of the item or property.508 226 6-4 A defendant’s mere presence at, or joint tenancy of, a location where an item is found, or his mere association with another person who possesses that item, is not sufficient to establish constructive possession. However, proximity to the item coupled with actual or inferred knowledge of its presence may be sufficient proof to establish constructive possession. Constructive possession does not require proof that the defendant actually owned the property on which the item was found.509 o. 1 N ____________________NOTE____________________ 505 United States v. Gravenmeir, 121 F.3d 526, 528 (9th Cir. 1997). To prove constructive possession under § 922(g)(1), the government must prove that the defendant “intentionally exercised dominion and control over the firearm, or had the power and the intention to exercise dominion and control over the firearm. Constructive possession of the firearm must also be voluntary.” United States v. Scott, 424 F.3d 431, 435-36 (4th Cir. 2005). See also United States v. Herder, 594 F.3d 352, 358 (4th Cir. 2010). 507 Scott, 424 F.3d at 435-36; United States v. Shorter, 328 F.3d 167, 172 (4th Cir. 2003) (quoting United States v. Jackson, 124 F.3d 607, 610 (4th Cir. 1997)); United States v. Gallimore, 247 F.3d 134, 137 (4th Cir. 2001). See also United States v. Pearce, 65 F.3d 22, 26 (4th Cir. 1995) (citations omitted). 508 Herder, 594 F.3d at 358. 509 See Shorter, 328 F.3d 167 (contraband found in defendant’s residence permitted inference of constructive possession; inference bolstered by evidence that contraband was in plain view or material associated with contraband found in closet of bedroom where defendant’s personal papers located). See also United States v. Rusher, 966 F.2d 868, 878 (4th Cir. 1992) (mere presence on the premises or association with the possessor is insufficient to establish possession). 506 169 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 173 of 684 TITLE 18 This is not a specific intent crime, but in Staples v. United States, 511 U.S. 600 (1994), a 26 U.S.C. § 5861 prosecution, the Supreme Court held that the defendant must in fact know that the firearm is a machinegun. Courts of Appeals have construed Staples as applying to § 922(o). See United States v. Gravenmeir, 121 F.3d 526, 528 (9th Cir. 1997). The statutory exceptions in § 922(o)(2) are affirmative defenses and the defendant bears the burden of proving he comes within the exceptions. Id. 18 U.S.C. § 922(q) POSSESSION OF FIREARM IN A SCHOOL ZONE Title 18, United States Code, Section 922(q) makes it a crime to possess or discharge a firearm in a school zone. For you to find the defendant guilty, the government must prove each of the following beyond a reasonable doubt: § 922(q)(2)(A) P First, that the defendant possessed a firearm in a school zone; P Second, that the firearm had traveled in interstate or foreign commerce at some point during its existence; P Third, that the defendant knew, or had reasonable cause to believe, he was in a school zone; and P Fourth, that the defendant acted knowingly.510 /2 7discharge a firearm in a 0 First, that the defendant discharged or attempted to ed school zone; w Second, that the firearm had traveled in interstate or foreign commerce at some vie point during its existence; 6 2 , 2 Third, that the defendant knew he was in a school zone; and 6-4 1 Fourth, o. the defendant acted knowingly or with reckless disregard for the that N safety of another. § 922(q)(3)(A) P P P P 017 7/2 511 “School zone” means in, or on the grounds of, a public, parochial, or private school, of within a distance of 1,000 feet from the grounds of a public, parochial, or private school. [§ 921(a)(25)] “School” means a school which provides elementary or secondary education, as determined under state law. [§ 921(a)(26)] The government may establish the interstate commerce requirement by showing that the firearm at any time had traveled across a state boundary line, or was manufactured outside the state where the defendant possessed it.512 The government need not prove that the defendant knew that the firearm had been shipped or transported in interstate commerce.513 510 18 U.S.C. § 924(a)(1)(B). Id. 512 United States v. Gallimore, 247 F.3d 134, 138 (4th Cir. 2001); United States v. Nathan, 202 F.3d 230, 234 (4th Cir. 2000). 513 See United States v. Langley, 62 F.3d 602, 605-06 (4th Cir. 1995) (en banc). 511 170 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 174 of 684 TITLE 18 The government must prove that the defendant possessed the firearm.514 To possess an item or property means to exercise control or authority over the item or property, voluntarily and intentionally. Possession may be either sole, by the defendant alone, or joint, that is, it may be shared with other persons, as long as the defendant exercised control or authority over the item or property. Possession may be either actual or constructive. Actual possession is knowingly having direct physical control or authority over the item or property. Constructive possession is when a person does not have direct physical control or authority, but has the power and the intention to exercise control or authority over the item or property, sometimes through another person.515 Constructive possession can be established by evidence, either direct or circumstantial, showing ownership, control or authority over the item or property itself, or the premises, vehicle, or container where the item or property is, such that a person exercises or has the power and intention to exercise control or authority over that item or property.516 017 is A defendant’s mere presence at, or joint tenancy of, a location /2 an item 7 where found, or his mere association with another person who possesses that item, is not 7/2 to the item coupled sufficient to establish constructive possession. However,0 ed proximity with actual or inferred knowledge of its presence may be sufficient proof to establish w constructive possession. Constructive possession does not require proof that the vie defendant actually owned the property on which the item was found. 26, 2 L [W hen the defendant is charged with possessing more than one firearm, the 6-4that they must agree unanimously on the specific jury should be . 1 o instructed firearm possessed: N Proof of constructive possession requires proof that the defendant had knowledge of the presence of the item or property.517 518 You must also agree, all of you, that the defendant possessed the same firearm. You cannot convict, for example, if six of you believe he possessed one of the guns, and six of you believe he possessed another of the guns. You have to 514 United States v. Scott, 424 F.3d 431, 435 (4th Cir. 2005). To prove constructive possession under § 922(g)(1), the government must prove that the defendant “intentionally exercised dominion and control over the firearm, or had the power and the intention to exercise dominion and control over the firearm. Constructive possession of the firearm must also be voluntary.” United States v. Scott, 424 F.3d 431, 435-36 (4th Cir. 2005). See also United States v. Herder, 594 F.3d 352, 358 (4th Cir. 2010). 516 Scott, 424 F.3d at 435-36; United States v. Shorter, 328 F.3d 167, 172 (4th Cir. 2003) (quoting United States v. Jackson, 124 F.3d 607, 610 (4th Cir. 1997)); United States v. Gallimore, 247 F.3d 134, 137 (4th Cir. 2001). See also United States v. Pearce, 65 F.3d 22, 26 (4th Cir. 1995) (citations omitted). 517 Herder, 594 F.3d at 358. 518 See Shorter, 328 F.3d 167 (contraband found in defendant’s residence permitted inference of constructive possession; inference bolstered by evidence that contraband was in plain view or material associated with contraband found in closet of bedroom where defendant’s personal papers located). See also United States v. Rusher, 966 F.2d 868, 878 (4th Cir. 1992) (mere presence on the premises or association with the possessor is insufficient to establish possession). 515 171 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 175 of 684 TITLE 18 unanimously agree that he possessed the firearms charged or ... one of the firearms charged before he can be convicted.]519 JUSTIFICATION DEFENSE In certain circumstances, a prohibited person is justified in possessing a firearm. The defendant has the burden of proving the following by a preponderance of the evidence:520 P First, that he or someone else was under an unlawful and present threat of death or serious bodily injury;521 P Second, that he did not recklessly place himself in the situation where he would be forced to engage in criminal conduct; P Third, that he had no reasonable legal alternative that would avoid both the criminal conduct and the threatened death or injury; and P Fourth, that there was a direct causal relationship between the criminal act and the avoidance of the threatened harm.522 The defendant must show that he had actually tried the alternative or had no time to try it, or that a history of futile attempts revealed the illusionary benefit of the alternative.523 017 7/2 In addition, the defendant must produce evidence that he took reasonable steps to dispossess himself of the firearm, and/or ammunition, once the threat was over.524 7/2 0 ____________________NOTE____________________ ed2005). United States v. Dorsey, 418 F.3d 1038ewCir. (9th vi (4th Cir. 2005), a constructive possession In United States v. Scott, 424 F.3d 431 26, prosecution, the court emphasized that the jury must be instructed that the defendant 2 intentionally exercised dominion and control over the firearm, or had the power and 6-4 and control over the firearm. Constructive possession of intention to exercise dominion o. 1 voluntary. Therefore, in defining constructive possession, the N the firearm must also be best practice is to reemphasize the mens rea element of knowingly exercising dominion and control. “INNOCENT POSSESSION” DEFENSE 519 The Fourth Circuit “assume[d], without deciding, that a conviction under § 922(g)(1) requires the jury to agree unanimously on the specific gun possessed by the defendant.” United States v. Saunders, 501 F.3d 384, 393 (4th Cir. 2007). The court cited, but ultimately disagreed with, cases from the Sixth, First, and Fifth Circuits concluding that a conviction under § 922(g) does not require juror unanimity on the specific gun possessed. An acceptable alternative is to submit a special verdict form. However, one was not needed in Saunders, in light of the specific unanimity instruction. 520 United States v. Mooney, 497 F.3d 397, 409 n.2 (4th Cir. 2007). The burden of proving affirmative defenses, such as justification, rests on the defendant. 521 Generalized fears do not support the defense of justification. United States v. Crittendon, 883 F.2d 326, 330 (4th Cir. 1989). 522 United States v. Perrin, 45 F.3d 869, 873-74 (4th Cir. 1995). See also Crittendon, 883 F.2d at 330. 523 United States v. Izac, 239 F. App’x 1 (4th Cir. 2007) (citing United States v. Gant, 691 F.2d 1159, 1164 (5th Cir. 1982)). 524 United States v. Ricks, 573 F.3d 198, 203 (4th Cir. 2009). 172 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 176 of 684 TITLE 18 The Fourth Circuit has joined the Seventh and Tenth Circuits in rejecting the innocent and transitory possession defense. United States v. Gilbert, 430 F.3d 215, 21820 (4th Cir. 2005). 18 U.S.C. § 922(u) STEALING FIREARMS FROM A DEALER Title 18, United States Code, Section 922(u) makes it a crime to steal firearms from a federally-licensed firearms dealer. For you to find the defendant guilty, the government must prove each of the following beyond a reasonable doubt: P First, that the defendant stole, took, or unlawfully carried away from the person or premises of a licensed firearms dealer, importer, or manufacturer; P Second, a firearm in the licensee's business inventory; P Third, that the firearm had been shipped and transported in interstate commerce; and P Fourth, the defendant did so knowingly.525 18 U.S.C. § 922(x) SELLING A HANDGUN TO A JUVENILE Title 18, United States Code, Section 922(x) makes it a crime to sell or transfer a handgun to a juvenile. For you to find the defendant guilty, the government must prove each of the following beyond a reasonable doubt: 017 /2 P First, that the defendant sold, delivered, or otherwise 27 transferred a handgun or / ammunition suitable for use only in a handgun;07 d P Second, to a juvenile; and we e P Third, that the defendant knew or i reasonable cause to believe the person , v had was a juvenile. 2 2who6 less than 18 years of age. [§ 922(x)(5)] “Juvenile” means a6-4 person is 1 . AGGRAVATED PENALTY No know or have reasonable cause to know that the juvenile 1. Did the defendant 526 intended to carry or otherwise possess or discharge or otherwise use the handgun or ammunition in the commission of a crime of violence?527 A “crime of violence” means an offense that is a felony and (A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or (B) that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense. [§ 924(c)(3)] ____________________NOTE____________________ Section 922(x) does not include an interstate commerce jurisdictional element. United States v. Michael R., 90 F.3d 340 (9th Cir. 1996). 18 U.S.C. § 924(a)(1)(A) FALSE STATEMENTS 525 526 18 U.S.C. § 924(i)(1). See 18 U.S.C. § 924(a)(6)(B). See also United States v. Parker, 262 F.3d 415, 423 (4th Cir. 2001). 527 18 U.S.C. § 924(a)(6)(B)(ii). 173 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 177 of 684 TITLE 18 Title 18, United States Code, Section 924(a)(1)(A) makes it a crime to make a false statement with respect to information required by federal firearms laws. For you to find the defendant guilty, the government must prove each of the following beyond a reasonable doubt: P First, that the defendant made a false statement or representation; P Second, that the statement or representation concerned information required by law in one of the following categories: (a) in the records of a federally-licensed dealer, importer, or manufacturer; (b) in applying for a federal license; or (c) in applying for any exemption or relief from disability under this law; and P Third, that the defendant did so knowingly.528 18 U.S.C. § 924(b) RECEIVING A FIREARM WITH INTENT TO COMMIT AN OFFENSE Title 18, United States Code, Section 924(b) makes it a crime to receive a firearm or ammunition with intent to commit an offense. For you to find the defendant guilty, the government must prove each of the following beyond a reasonable doubt: 017 7/2 P First, that the defendant shipped, transported, or received in interstate or foreign commerce a firearm or ammunition; and P Second, that the defendant did so with intent to commit an offense punishable by imprisonment for a term exceeding one year with the firearm or ammunition; OR P L 7/2 d0 e iew Second, that the defendant did so with knowledge or reasonable cause to 6, v by imprisonment for a term exceeding one 2 believe that an offense punishable -42 year was to be committed with the firearm or ammunition. . 16 No The court must either instruct the jury as to all the essential elements of the underlying crime or refer to its previous instruction of those elements. 529 ____________________NOTE____________________ “When the indictment charges the intent to violate a specifically designated statute, it follows logically that the defendant must be convicted only upon proof of the intent to violate each element of the underlying substantive offense.” United States v. Trevino, 720 F.2d 395, 400 (5th Cir. 1983). In Trevino, the defendant was convicted of violating § 924(b) with intent to violate 18 U.S.C. § 2113. The Fifth Circuit reversed, because the government did not prove all of the statutory elements of the underlying offense. In United States v. Wilson, 721 F.2d 967 (4th Cir. 1983), the Fourth Circuit vacated sentences imposed on § 924(b) and 22 U.S.C. § 2278 for violating double jeopardy. The § 2778 violations, which furnished the predicate felonies for the § 924(b) convictions, also proved the § 924(b) violations. 528 529 174 See United States v. Rahman, 83 F.3d 89, 92 (4th Cir. 1996). United States v. Johnson, 71 F.3d 139, 145 (4th Cir. 1995). Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 178 of 684 TITLE 18 18 U.S.C. § 924(c) USING OR CARRYING A FIREARM DURING A CRIME OF VIOLENCE OR DRUG TRAFFICKING CRIME, OR POSSESSING A FIREARM IN FURTHERANCE OF A CRIME OF VIOLENCE OR DRUG TRAFFICKING CRIME530 [LAST UPDATED : 4/30/14] § 924(c)(1)531 Title 18, United States Code, Section 924(c)(1) makes it a crime to use or carry a firearm during and in relation to a crime of violence or a drug trafficking crime, or to possess a firearm in furtherance of a crime of violence or a drug trafficking crime. For you to find the defendant guilty, the government must prove each of the following beyond a reasonable doubt: P First, that the defendant used or carried a firearm; and P Second, that the defendant did so during and in relation to a crime of violence or a drug trafficking crime which may be prosecuted in federal court [the court should instruct the jury as to all the essential elements of the underlying crime].532 OR 017 or a drug P Second, that the defendant did so in furtherance of a crime/2violence of 27 [the court should trafficking crime which may be prosecuted in federal court 7/ instruct the jury as to all the essential elements 0 the underlying crime]. of d we e , vi 226 -4 16v. King, 628 F.3d 693 (4th Cir. 2011), the Fourth Circuit found that § In United States . 924(c) penalizes two separate types of conduct: “use or carrying of a firearm during and in relation No P First, that the defendant possessed a firearm; 533 530 to” and “possession of a firearm in furtherance of” a crime of violence or drug trafficking crime. 628 F.3d at 699. On March 5, 2014, the Supreme Court held that to convict a defendant of aiding and abetting a violation of § 924(c), pursuant to 18 U.S.C. § 2, the Government must prove “the defendant actively participated in the underlying drug trafficking or violent crime with advance knowledge that a confederate would use or carry a gun during the crime’s commission.” Rosemond v. United States, 572 U.S. __, __, 134 S. Ct. 1240, 1243 (2014). A separate aiding and abetting instruction is set out infra. 531 See King, 628 F.3d 693. 532 United States v. Lipford, 203 F.3d 259, 266-67 (4th Cir. 2000). “[T]he predicate crime of violence or drug trafficking crime charged in the indictment is an essential element of a § 924(c) offense.” United States v. Randall, 171 F.3d 195, 200 (4th Cir. 1999). In United States v. Sutton, 961 F.2d 476, 479 (4th Cir. 1992), the appellant argued postconviction that the indictment was defective for not alleging scienter. The Fourth Circuit rejected the argument; the indictment tracked the statutory language of the section, language that does not include the element of scienter, and appellant failed to raise the objection prior to verdict. 533 Lipford, 203 F.3d at 266-67. “[T]he predicate crime of violence or drug trafficking crime charged in the indictment is an essential element of a § 924(c) offense.” Randall, 171 F.3d at 200. In Sutton, 961 F.2d at 479, the appellant argued post-conviction that the indictment was defective for not alleging scienter. The Fourth Circuit rejected the argument; the indictment tracked the statutory language of the section, language that does not include the element of scienter, and appellant failed to raise the objection prior to verdict. 175 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 179 of 684 TITLE 18 ADDITIONAL ELEMENTS, AS APPROPRIATE:534 1. that the firearm was brandished; 2. that the firearm was discharged; 3. that the firearm was a short-barreled rifle or short-barreled shotgun; 4. that the firearm was a machine gun or a destructive device, or was equipped with a firearm silencer or firearm muffler.535 § 924(c)(5) Title 18, United States Code, Section 924(c)(5) makes it a crime to use or carry armor piercing ammunition during and in relation to a crime of violence or a drug trafficking crime, or to possess armor piercing ammunition in furtherance of a crime of violence or a drug trafficking crime. For you to find the defendant guilty, the government must prove each of the following beyond a reasonable doubt: P First, that the defendant used or carried armor piercing ammunition; and P Second, that the defendant did so during and in relation to a crime of violence or a drug trafficking crime which may be prosecuted in federal court [the court should instruct the jury as to all the essential elements of the underlying crime].536 017 2 P Second, that the defendant did so in furtherance of a crime/ violence or a drug 27 of court should trafficking crime which may be prosecuted in federal court [the 07/ underlying crime]. instruct the jury as to all the essential elements of the d we ADDITIONAL ELEMENT, AS APPROPRIATE: ve , thei ammunition? 1. Did death result from the use of 226 4 16. No OR P First, that the defendant possessed armor piercing ammunition; and 537 534 Brandishing a firearm in violation of subsection (C)(1)(a)(ii) is an element which must be alleged in the indictment, submitted to the jury, and proved beyond a reasonable doubt. Alleyne v. United States, 570 U.S. __, 133 S. Ct. 2151 (2013), overruling Harris v. United States, 536 U.S. 545 (2002). By implication, discharging a firearm in violation of (C)(1)(a)(iii) would be an element rather than a sentencing factor. 535 United States v. O’Brien, 560 U.S. 218 (2010). “[T]he statute uses the word ‘machine gun’ (and similar words) to state an element of a separate offense.” Castillo v. United States, 530 U.S. 120, 121 (2000). 536 Lipford, 203 F.3d at 266-67. “[T]he predicate crime of violence or drug trafficking crime charged in the indictment is an essential element of a § 924(c) offense.” Randall, 171 F.3d at 200. In, Sutton, 961 F.2d at 479, the appellant argued post-conviction that the indictment was defective for not alleging scienter. The Fourth Circuit rejected the argument; the indictment tracked the statutory language of the section, language that does not include the element of scienter, and appellant failed to raise the objection prior to verdict. 537 United States v. Lipford, 203 F.3d 259, 266-67 (4th Cir. 2000). “[T]he predicate crime of violence or drug trafficking crime charged in the indictment is an essential element of a § 924(c) offense.” United States v. Randall, 171 F.3d 195, 200 (4th Cir. 1999). In United States v. Sutton, 961 F.2d 476, 479 (4th Cir. 1992), the appellant argued postconviction that the indictment was defective for not alleging scienter. The Fourth Circuit rejected the argument; the indictment tracked the statutory language of the section, language that does not include the element of scienter, and appellant failed to raise the objection prior to verdict. 176 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 180 of 684 TITLE 18 L See instructions for 18 U.S.C. §§ 1111 and 1112 if murder/manslaughter is an issue. “Crime of violence” means any federal felony that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or, that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense. [§ 924(c)(3)] Thus, “crime of violence” has three essential components: 1. that one uses, threatens, or attempts to use force; 2. that is physical; and 3. is against another person or his property.538 “Drug trafficking crime” means [any felony under Title 21, United States Code, Sections 801 et seq.] To “use” a firearm requires “active employment,” which includes brandishing, displaying, bartering, striking with, and firing or attempting to fire a firearm.539 However, it would not include storing a firearm near drugs or drug proceeds.540 The term “carry” requires knowing possession and movement, conveying, transporting, or bearing the firearm in some manner. However, the firearm does not have to be readily accessible.541 017 /2 “Brandish” means to display all or part of the firearm, or27 otherwise make the 7/ presence of the firearm known to another person, in order to intimidate that person, 0person. [§ 924(c)(4)] d regardless of whether the firearm is directly visible to that we to” a drug trafficking crime or A firearm, or ammunition, is carried “in relation ve , or ieffect with respect to the crime and if its crime of violence if it has some purpose presence was not the result of accident or coincidence. The firearm must facilitate, or 226 4 potentially facilitate, the61 crime. . To possesso item or property means to exercise control or authority over the item N an 542 or property, voluntarily and intentionally. Possession may be either sole, by the defendant alone, or joint, that is, it may be shared with other persons, as long as the defendant exercised control or authority over the item or property. 538 United States v. Hayes, 482 F.3d 749, 756 (4th Cir. April 16, 2007), rev’d on other grounds, 555 U.S. 415 (2009). 539 Bailey v. United States, 516 U.S. 137, 148 (1995). 540 In Bailey, 516 U.S. 137, the Supreme Court made clear that “use” involved “active employment” of a firearm, which would include bartering a firearm for drugs (Smith v. United States, 508 U.S. 223 (1993)), but would not include storing a firearm near drugs or drug proceeds. Storage, without its more active employment, is not reasonably distinguishable from possession. Thus, storage could be covered under the element of possession “in furtherance of ....” 541 United States v. Mitchell, 104 F.3d 649, 653 (4th Cir. 1997). 542 An example would be as protection for or to embolden the actor. Mitchell, 104 F.3d at 653-54. The relation between the firearm and the predicate crime is best established by their relation to each other, and not by the distance between the owner and gun at the moment of arrest. United States v. Lipford, 203 F.3d 259, 266 (4th Cir. 2000) (citing United States v. Molina, 102 F.3d 928, 932 (7th Cir. 1976)). 177 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 181 of 684 TITLE 18 Possession may be either actual or constructive. Actual possession is knowingly having direct physical control or authority over the item or property. Constructive possession is when a person does not have direct physical control or authority, but has the power and the intention to exercise control or authority over the item or property, sometimes through another person.543 Constructive possession can be established by evidence, either direct or circumstantial, showing ownership, control or authority over the item or property itself, or the premises, vehicle, or container where the item or property is, such that a person exercises or has the power and intention to exercise control or authority over that item or property.544 Proof of constructive possession requires proof that the defendant had knowledge of the presence of the item or property.545 A defendant’s mere presence at, or joint tenancy of, a location where an item is found, or his mere association with another person who possesses that item, is not sufficient to establish constructive possession. However, proximity to the item coupled with actual or inferred knowledge of its presence may be sufficient proof to establish constructive possession. Constructive possession does not require proof that the defendant actually owned the property on which the item was found.546 017 7/2 “In furtherance of” means the act of furthering, advancing, or helping forward. Therefore, the government must prove that the possession of a firearm furthered, advanced, or helped forward the crime of violence or drug trafficking crime.547 7/2 d0 e iew ,v The mere accidental or coincidental presence of a firearm at the scene of a drug trafficking offense is not enough to establish that it was possessed in furtherance of the drug offense.548 For drug trafficking crimes, factors which the jury may consider in making this determination may include the following: the type of drug activity that was being conducted, accessibility of the firearm, the type of firearm, whether the firearm was stolen, the status of the possession (whether it was legitimate or illegal), whether the firearm was loaded, the proximity of the firearm to either drugs or drug profits, the time and circumstances under which the firearm was found, whether the firearm provided a o. 1 N 543 226 6-4 To prove constructive possession under § 922(g)(1), the government must prove that the defendant “intentionally exercised dominion and control over the firearm, or had the power and the intention to exercise dominion and control over the firearm. Constructive possession of the firearm must also be voluntary.” United States v. Scott, 424 F.3d 431, 435-36 (4th Cir. 2005). See also United States v. Herder, 594 F.3d 352, 358 (4th Cir. 2010). 544 Scott, 424 F.3d at 435-36; United States v. Shorter, 328 F.3d 167, 172 (4th Cir. 2003) (quoting United States v. Jackson, 124 F.3d 607, 610 (4th Cir. 1997)); United States v. Gallimore, 247 F.3d 134, 137 (4th Cir. 2001). See also United States v. Pearce, 65 F.3d 22, 26 (4th Cir. 1995) (citations omitted). 545 Herder, 594 F.3d at 352. 546 See Shorter, 328 F.3d 167 (contraband found in defendant’s residence permitted inference of constructive possession; inference bolstered by evidence that contraband was in plain view or material associated with contraband found in closet of bedroom where defendant’s personal papers were located). See also United States v. Rusher, 966 F.2d 868, 878 (4th Cir. 1992)(mere presence on the premises or association with the possessor is insufficient to establish possession). 547 United States v. Sullivan, 455 F.3d 248, 260 (4th Cir. 2006) (citing United States v. Lomax, 293 F.3d 701, 705 (4th Cir. 2002)). 548 Id. See also United States v. Lipford, 203 F.3d 259, 266 (4th Cir. 2000). 178 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 182 of 684 TITLE 18 defense against the theft of drugs, and/or reduced the probability that such a theft might be attempted.549 The possession is in furtherance if the purpose of the firearm is to protect or embolden the defendant.550 The government does not have to prove that the firearm was loaded.551 The government does not have to prove that the firearm was operable, only that it “may readily be converted to expel a projectile by the action of an explosive.” [18 U.S.C. § 921(a)(3)]552 § 924(c) AID AND ABET USING/CARRYING FIREARM DURING AND IN RELATION TO DRUG TRAFFICKING CRIME/ CRIME OF VIOLENCE (18 U.S.C. § 2) To prove aiding and abetting the charge of using or carrying a firearm during and in relation to a drug trafficking crime or crime of violence, the government must prove beyond a reasonable doubt: P The [drug trafficking crime/crime of violence] was in fact committed by someone other than the defendant; P The defendant actively participated in the [drug trafficking crime/crime of violence] as something he wished to bring about; P The defendant associated himself with the [drug trafficking crime/crime of violence] with advance knowledge that someone else involved in the [drug trafficking crime/crime of violence] would use or carry a firearm during and in relation to the drug trafficking crime/crime of violence; and 017 7/2 7/2 venture succeed. P The defendant sought by his actions to make 0 criminal the edthat another person committed the Therefore, the first requirement is thatew vi you find aiding or abetting the criminal acts crime charged. Obviously, no one can , convicted of be 26 of another if no crime was committed by the other person in the first place. But if you do 2 6-4 o. 1 N 549 Lomax, 293 F.3d at 705. The Fourth Circuit indicated that in making a factual determination about “furtherance,” the jury is free to consider the numerous ways in which a firearm might further or advance drug trafficking. For example, a gun could provide a defense against someone trying to steal drugs or drug profits, or it might lessen the chance that a robbery would even be attempted. Additionally, a gun might enable a drug trafficker to ensure that he collects during a drug deal. And a gun could serve as protection in the event that a deal turns sour. Or it might prevent a transaction from turning sour in the first place. Furthermore, a firearm could help a drug trafficker defend his turf by deterring others from operating in the same area. Id. 550 Sullivan, 455 F.3d at 260. In United States v. Davis, 343 F. App’x 878 (4th Cir. 2009), the defendant, charged with violating § 924(c)(1), requested that the jury be instructed that “the mere possession of a firearm at the scene of the crime is not sufficient [to convict].” The Fourth Circuit wrote that the district court did not abuse its discretion by rejecting the proposed instruction because it “would not convey a complete portrait of the legal landscape on this issue, as mere possession of a firearm while committing a drug trafficking crime can be sufficient, if the possession is for protection or to embolden the actor.” 343 F. App’x at 881. 551 United States v. Coburn, 876 F.2d 372, 375 (5th Cir. 1989). 552 See United States v. Williams, 445 F.3d 724, 732 n.3 (4th Cir. 2006); United States v. Willis, 992 F.2d 489, 491 n.2 (4th Cir. 1993). 179 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 183 of 684 TITLE 18 find that a crime was committed, then you must consider whether the defendant aided or abetted the commission of the crime. In order to aid or abet another to commit an offense under Section 924(c), a defendant must have sufficient advance knowledge that someone else would use or carry a firearm during and in relation to the underlying [drug trafficking crime/crime of violence] and, given this advance knowledge, defendant must have chosen not to withdraw from the criminal venture. That is, defendant must have had a “‘realistic opportunity’ to refrain from engaging in the conduct at issue, but chose not to do so.553 Defendant also must voluntarily and knowingly seek by some act to help make the crime succeed. The mere presence of a defendant where a crime is being committed, even coupled with knowledge by the defendant that a crime is being committed, or the mere acquiescence by a defendant in the criminal conduct of others, even with guilty knowledge, is not sufficient to establish aiding and abetting. An aider and abettor must have some interest in the criminal venture. ____________________NOTE____________________ See generally United States v. Rodriguez-Moreno, 526 U.S. 275 (1999). 017 7/2 On March 5, 2014, the Supreme Court held that to convict a defendant of aiding and abetting under § 924(c), the Government must prove “the defendant actively participated in the underlying drug trafficking or violent crime with advance knowledge that a confederate would use or carry a gun during the crime’s commission.” Rosemond v. United States, 572 U.S. __, __, 134 S. Ct. 1240, 1243 (2014). The Fourth Circuit had previously held that if the defendant is charged as an accomplice, the government must “establish that the defendant knew ‘to a practical certainty that the principal would be [using] a gun.’” United States v. Donel, 211 F. App’x 180 (4th Cir. 2006) (citing United States v. Spinney, 65 F.3d 231, 238 (1st Cir. 1995)). “This essentially requires proof of actual knowledge that a gun would be used.” Id.554 7/2 d0 e iew ,v o. 1 N 226 6-4 “A defendant may be convicted of a § 924(c) charge on the basis of a coconspirator’s use of a gun [Pinkerton liability] if the use was in furtherance of the conspiracy and was reasonably foreseeable to the defendant.” United States v. Wilson, 135 F.3d 291, 305 (4th Cir. 1998) (citing United States v. Chorman, 910 F.2d 102, 11011 (4th Cir. 1990)). Neither aiding and abetting liability nor Pinkerton liability need be contained in the indictment. United States v. Blackman, 746 F.3d 137 (4th Cir. 2014). See also United States v. Ashley, 606 F.3d 135, 143 (4th Cir. 2010). Trading a gun for drugs constitutes use during and in relation to a drug trafficking offense. Smith v. United States, 508 U.S. 223 (1993). Trading drugs for a gun is not using a firearm during and in relation to a drug trafficking crime. Watson v. United States, 552 U.S. 74 (2007). However, the Supreme Court reserved the issue of whether trading drugs for a gun resulted in “possession in furtherance of a drug trafficking 553 Rosemond, 572 U.S. __, __, 134 S. Ct. 1240, 1253 (Alito, J., dissenting) (quoting Rosemond, 572 U.S. at __, 134 S. Ct. at 1249). 554 The standard is admittedly lower for an accomplice to armed bank robbery. The government need only show that the defendant was on notice of the likelihood that a gun or other dangerous weapon would be used in the robbery. United States v. McCaskill, 676 F.2d 995, 998 (4th Cir. 1982). See also United States v. Sanborn, 563 F.2d 488, 491 (1st Cir. 1977). See United States v. Spinney, 65 F.3d 231 (1st Cir. 1995) for excellent discussion of different standards for an accomplice to both § 2113(d) and § 924(c). 180 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 184 of 684 TITLE 18 crime.” Id. In United States v. Robinson, 627 F.3d 941 (4th Cir. 2010), the Fourth Circuit held that “trading drugs for guns constitutes possession in furtherance within the meaning of § 924(c).” 627 F. 3d at 955. If the crime of violence is a continuing crime, such as kidnapping, in violation of 18 U.S.C. § 1201, then venue for this offense is in any district where the kidnapping could be prosecuted. Rodriguez-Moreno, 526 U.S. at 282. The government is not required to establish that the destructive device operate as intended. United States v. Uzenski, 434 F.3d 690 (4th Cir. 2006) (citing United States v. Langan, 263 F.3d 613 (6th Cir. 2001)). In Langan, the defendant was convicted of bank robbery and using a destructive device in committing the robbery, in violation of § 924(c). The definition of destructive device in § 921(a)(4) is similar to the definition in 26 U.S.C. § 5845(f). The Sixth Circuit does not require that the destructive device operate as intended, or that any particular component be present for a device to qualify as a destructive device. The government must prove that the device is “capable of exploding or be readily made to explode.” Langan, 263 F.3d at 625. Proof of a predicate offense is an essential element of a § 924(c) violation. “[T]he government is under no obligation to specify a specific predicate offense in a § 924(c) charge.” United States v. Randall, 171 F.3d 195, 205 (4th Cir. 1999). However, “if the government specifies in the indictment a particular type of § 924(c) predicate offense ... the government is required to prove the essential elements of the specified predicate offense (or, at a minimum, a lesser included offense of the predicate offense).” Id. In Randall, the government alleged distribution, but proved possession with intent to distribute, and the Fourth Circuit reversed for a fatal variance. 017 7/2 7/2 d0 e iew ,v A § 924(c) conviction does not depend on a previous or contemporaneous conviction for the predicate offense. Indeed, the defendant need not even be charged with the underlying crime, so long as the underlying offense is one for which the defendant could be prosecuted and the elements of that offense are proved beyond a reasonable doubt. United States v. Hopkins, 310 F.3d 145, 152-53 (4th Cir. 2002); United States v. Crump, 120 F.3d 462, 466 (4th Cir. 1997). o. 1 N 226 6-4 Section 924(c) contains two distinct conduct elements for venue purposes, use of the firearm and commission of the drug offense. United States v. Smith, 452 F.3d 323, 335-36 (4th Cir. 2006). Simple possession of the statutory threshold amount of cocaine base can be a felony and therefore qualifies as a drug trafficking offense and a predicate offense under § 924(c). United States v. Garnett, 243 F.3d 824, 830-31 (4th Cir. 2001). In United States v. Perry, 560 F.3d 246 (4th Cir. 2009), the defendant complained that the district court erred in instructing the jury in the disjunctive on both the firearms and the predicate offenses, and in not requiring the jury to be unanimous as to which firearm supported the § 924(c) conviction. The court rejected his argument concerning the firearms, because where the charge involves multiple firearms, jury unanimity with respect to the particular firearm used or possessed in furtherance of a drug trafficking offense is generally not required for a § 924(c) conviction. The court cited United States v. Hernandez-Albino, 177 F.3d 33, 40 (1st Cir. 1999), for the proposition that the jury need not reach unanimous agreement on the identity of the weapon so long as none of the weapons justifies more than the statutory minimum sentence. The defendant’s argument concerning the multiple predicate offenses had “some initial appeal” to the court, but it was not necessary to decide the issue because Perry was not convicted of one of the alleged predicate offenses. Perry, 560 F.3d at 258. 181 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 185 of 684 TITLE 18 In light of Perry, district courts would be advised to instruct on unanimity if more than one predicate offense is alleged. In United States v. Luskin, 926 F.2d 372 (4th Cir. 1991), the Fourth Circuit stated that “[a]s long as the underlying crimes are not identical under the [United States v.] Blockburger[, 284 U.S. 299 (1932),] analysis, then consecutive section 924(c) sentences are permissible.” 926 F.2d at 377. “Multiple, consecutive sentences under § 924(c)(1) are appropriate whenever there have been multiple, separate acts of firearm use or carriage, even when all of those acts relate to a single predicate offense.” United States v. Lighty, 616 F.3d 321, 371 (4th Cir. 2010). SECOND CIRCUIT In United States v. Finley, 245 F.3d 199 (2d Cir. 2001), the Second Circuit was confronted with two predicate offenses, distribution and possession with intent, and a single gun continually possessed. After distributing, the defendant was arrested, and had more drugs in his possession. The defendant was convicted of two counts of § 924(c). The Second Circuit reversed because the “two criminal transactions [were] so inseparably intertwined.” 245 F.3d at 208. See also United States v. Wallace, 447 F.3d 184 (2d Cir. 2006) (defendant convicted of two counts of § 924(c) for using firearm during drug offense and during a drive-by shooting; remanded, citing Finley). 017 2 Employment of more than one firearm will not support more than one conviction 27/Correa-Ventura, 6 / under 924(c) based upon the same predicate crime. United 7 0 States v.that a different F.3d 1070, 1085 (5th Cir. 1993). However, the Fifth d e Circuit noted situation might be presented when the firearmsw within different classes of § 924(c)’s fall e proscribed weapons. 6 F.3d at 1087 n.35.v , i 6 2319 In United States v. Phipps, 2 F.3d 177 (5th Cir. 2003), the defendant used a single firearm a single time for a dual criminal purpose, carjacking and kidnapping. The 6-4 1that the unit of prosecution is not the use of the firearm, or the . Fifth Circuit concluded Nobut the two combined. Although the Fifth Circuit concluded that predicate offense, FIFTH CIRCUIT § 924(c) did not authorize multiple convictions for a single use of a single firearm based on multiple predicate offenses, it did not adopt the Second Circuit’s holding in Finley, “that § 924(c)(1) does not authorize multiple convictions based on ‘continuous’ possession of a firearm during ‘simultaneous’ predicate offenses consisting of ‘virtually’ the same conduct.” 319 F.3d at 188 n.11. 18 U.S.C. § 924(j) CAUSING DEATH THROUGH USE OR POSSESSION OF A FIREARM555 Title 18, United States Code, Section 924(j) makes it a crime to cause the death of another person through the use of a firearm during and in relation to a crime of violence or a drug trafficking crime, or the possession of a firearm in furtherance of a crime of violence or drug trafficking crime. For you to find the defendant guilty, the government must prove each of the following beyond a reasonable doubt: P First, that the defendant used or carried a firearm; P Second, that the defendant did so during and in relation to a crime of violence or a drug trafficking crime which may be prosecuted in federal court [the 555 182 See text and footnotes for § 924(c). Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 186 of 684 TITLE 18 court should instruct the jury as to all the essential elements of the underlying crime]; and P Third, that the defendant caused the death of a person through the use of the firearm. OR P First, that the defendant possessed a firearm; P Second, that the defendant did so in furtherance of a crime of violence or a drug trafficking crime which may be prosecuted in federal court [the court should instruct the jury as to all the essential elements of the underlying crime]; and P Third, that the defendant caused the death of a person through the use of the firearm.556 L The jury must determine if the killing was murder or manslaughter. Section 924(j) incorporates the definitions of murder and manslaughter found in §§ 1111 and 1112; therefore, the jury must be instructed on the elements of those offenses. ____________________NOTE____________________ 017 7/2 United States v. Robinson, 275 F.3d 371 (4th Cir. 2002); United States v. Ricketts, 317 F.3d 540 (6th Cir. 2003). 7/2 d0 Section 924(j) incorporates the statutory definitions of murder and manslaughter in §§ 1111 and 1112, but does not incorporate the jurisdictional requirement. Section 924(j) incorporates the jurisdictional requirement of § 924(c). United States v. Young, 248 F.3d 260, 275 (4th Cir. 2001). e iew ,v 226 4 Section 924(c) is itself a conduct element of § 924(j) for venue purposes. United 16- 336 (4th Cir. 2006). . States v. Smith, 452 F.3d 323, No See also United States v. Reid, 523 F.3d 310 (4th Cir. 2008). 18 U.S.C. § 924(k) SMUGGLING A FIREARM Title 18, United States Code, Section 924(k) makes it a crime to smuggle a firearm into the United States, with intent to promote a drug offense or crime of violence. For you to find the defendant guilty, the government must prove each of the following beyond a reasonable doubt: P First, that the defendant smuggled or brought into the United States a firearm, [or attempted to do so]; P Second, that the defendant did so with intent to engage in or to promote conduct that 1. constitutes a federal drug crime [as defined]; or 2. constitutes a state drug crime [as defined]; or 3. constitutes a crime of violence; and P Third, that the defendant did so knowingly. 556 See United States v. Foster, 507 F.3d 233, 245 (4th Cir. 2007). 183 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 187 of 684 TITLE 18 L The district court must instruct the jury as to all essential elements of the underlying crime. 557 18 U.S.C. § 924(l) THEFT OF FIREARM FROM AN INTERSTATE SHIPMENT Title 18, United States Code, Section 924(l) makes it a crime to steal firearms from an interstate shipment. For you to find the defendant guilty, the government must prove each of the following beyond a reasonable doubt: P First, that the defendant stole a firearm; P Second, that the firearm was moving as, was a part of, or had moved in interstate or foreign commerce; and P Third, that the defendant did so unlawfully. ____________________NOTE____________________ See instructions for 18 U.S.C. § 659. Section 924(l) is similar to § 659, but contains “or which has moved in” which § 659 does not. Thus, it could be argued that this section could be used to prosecute a person who stole any firearm, if the firearm had previously traveled in interstate commerce, and not just a firearm from an interstate shipment. 017 7/2 7/2 0 Title 18, United States Code, Section 924(m) makes it a crime to steal a firearm ed For you to find the w from a licensed importer, manufacturer, dealer, or collector. vie defendant guilty, the government must,prove each of the following beyond a reasonable doubt: 226 4 P First, that the61 defendant stole a firearm; . P Second, that the firearm was stolen from a federally licensed importer, No dealer, or collector; and manufacturer, 18 U.S.C. § 924(m) THEFT OF FIREARM FROM A LICENSED DEALER P Third, that the defendant did so unlawfully. 18 U.S.C. § 924(o) CONSPIRING TO VIOLATE § 924(c)558 Title 18, United States Code, Section 924(o) makes it a crime to conspire to use or carry a firearm during and in relation to a crime of violence or a drug trafficking crime, or to possess a firearm in furtherance of a crime of violence or a drug trafficking crime. For you to find the defendant guilty, the government must prove each of the following beyond a reasonable doubt: P First, that two or more persons agreed to do one of the following: 1. 2. 557 558 184 to use or carry a firearm during and in relation to a crime of violence or a drug trafficking crime which may be prosecuted in federal court ; or to possess a firearm in furtherance of a crime of violence or a drug trafficking crime which may be prosecuted in federal court [the court United States v. Johnson, 71 F.3d 139, 145 (4th Cir. 1995). See text and NOTES for Sections 924(c) and 371. Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 188 of 684 TITLE 18 should instruct the jury as to all the essential elements of the underlying crime]; P Second, that the defendant knew of this agreement, or conspiracy; and P Third, that the defendant knowingly and voluntarily participated in or became a part of this agreement or conspiracy. ADDITIONAL ELEMENT, AS APPROPRIATE: 1. Was the firearm a machinegun or destructive device, or was it equipped with a firearm silencer or muffler?559 18 U.S.C. § 930 POSSESSION OF FIREARMS AND DANGEROUS WEAPONS IN FEDERAL FACILITIES Title 18, United States Code, Section 930 makes it a crime for a person to possess a firearm or dangerous weapon in a federal facility. For you to find the defendant guilty, the government must prove each of the following beyond a reasonable doubt: § 930(a) P First, that the defendant possessed or caused to be present, or attempted to possess or cause to be present, a firearm or other dangerous weapon; P Second, in a Federal facility [other than a Federal court facility]; and P Third, that the defendant did so knowingly. § 930(b) 017 7/2 7/2 d0 e iew ,v P First, that the defendant possessed or caused to be present, or attempted to possess or cause to be present, a firearm or other dangerous weapon; P Second, in a Federal facility; 226 so knowingly; and Third, that the defendant did 64 1the. defendant so Fourth, that No weapon be useddid thewith the intent that the firearm or other dangerous in commission of a crime. P P 560 § 930(c) P First, that the defendant killed, or attempted or conspired to kill, another person; and P Second, that the death occurred in the course of possessing or causing to be present in a Federal facility or Federal court facility a firearm or other dangerous weapon, or in the course of an attack on a Federal facility involving the use of a firearm or other dangerous weapon. L See 18 U.S.C. §§ 1111 and 1112 for instructions on murder and manslaughter. § 930(e) P First, that the defendant possessed or caused to be present, or attempted to possess or cause to be present, a firearm or other dangerous weapon; 559 “[T]he statute uses the word ‘machine gun’ (and similar words) to state an element of a separate offense.” Castillo v. United States, 530 U.S. 120, 121 (2000). 560 See United States v. Hardy, 101 F.3d 1210, 1213 (7th Cir. 1996). 185 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 189 of 684 TITLE 18 P Second, in a Federal court facility; and P Third, that the defendant did so knowingly. “Federal facility” means a building or part of a building owned or leased by the Federal Government, where Federal employees are regularly present for the purpose of performing their official duties. [§ 930(g)(1)] “Dangerous weapon” means a weapon, device, instrument, material, or substance, animate or inanimate, that is used for, or is readily capable of, causing death or serious bodily injury, except that such term does not include a pocket knife with a blade of less than 2 ½ inches in length. [§ 930(g)(2)] “Federal court facility” means the courtroom, judges’ chambers, witness rooms, jury deliberation rooms, attorney conference rooms, prisoner holding cells, offices of the court clerks, the United States attorney, and the United States marshal, probation and parole offices, and adjoining corridors of any court of the United States. [§ 930(g)(3)] To possess an item or property means to exercise control or authority over the item or property, voluntarily and intentionally. Possession may be either sole, by the defendant alone, or joint, that is, it may be shared with other persons, as long as the defendant exercised control or authority over the item or property. 017 over the 2 Actual possession is knowingly having direct physical control/or authority 27 item or property. 07/direct physical control or Constructive possession is when a person doesd have we not authority, but has the power and the intention to exercise control or authority over the e item or property, sometimes through another person. , vi 26 Constructive possession 2 be established by evidence, either direct or can 4 circumstantial, showing 6over the item or 1 ownership, control or authority property is, such property itself, . or the premises, vehicle, or container where the item or that a person o Nthe power and intention to exercise control or authority over that item or exercises or has Possession may be either actual or constructive. 561 property.562 Proof of constructive possession requires proof that the defendant had knowledge of the presence of the item or property.563 A defendant’s mere presence at, or joint tenancy of, a location where an item is found, or his mere association with another person who possesses that item, is not sufficient to establish constructive possession. However, proximity to the item coupled with actual or inferred knowledge of its presence may be sufficient proof to establish 561 To prove constructive possession, the government must prove that the defendant “intentionally exercised dominion and control over the firearm, or had the power and the intention to exercise dominion and control over the firearm. Constructive possession of the firearm must also be voluntary.” United States v. Scott, 424 F.3d 431, 435-36 (4th Cir. 2005). See also United States v. Herder, 594 F.3d 352, 358 (4th Cir. 2010). 562 Scott, 424 F.3d at 435-36; United States v. Shorter, 328 F.3d 167, 172 (4th Cir. 2003) (quoting United States v. Jackson, 124 F.3d 607, 610 (4th Cir. 1997)); United States v. Gallimore, 247 F.3d 134, 137 (4th Cir. 2001). See also United States v. Pearce, 65 F.3d 22, 26 (4th Cir. 1995) (citations omitted). 563 Herder, 594 F.3d at 358. 186 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 190 of 684 TITLE 18 constructive possession. Constructive possession does not require proof that the defendant actually owned the property on which the item was found.564 AFFIRMATIVE DEFENSE565 [§ 930(h)] The defendant has introduced evidence that notice that possession of firearms or other dangerous weapons in a Federal facility is prohibited was lacking. The government must prove, beyond a reasonable doubt, that notice that possession of a firearm or other dangerous weapon in a Federal facility, with or without intent that the firearm or other dangerous weapon be used in the commission of a crime, is unlawful, was posted conspicuously at each public entrance. A notice is conspicuously posted in a public entrance if considering the manner and place of its posting, the notice is reasonably calculated to warn the public of the prohibition of the possession of a firearm or other dangerous weapon.566 JUSTIFICATION DEFENSE In certain circumstances, a prohibited person is justified in possessing a firearm. The defendant has the burden of proving the following by a preponderance of the evidence:567 P First, that he or someone else was under an unlawful and present threat of death or serious bodily injury;568 017 he P Second, that he did not recklessly place himself in the situation where /2 would be forced to engage in criminal conduct; /27 07 P Third, that he had no reasonable legal alternative that would avoid both the d criminal conduct and the threatenedwe or injury; and death ie relationship between the criminal act P Fourth, that there was a directv , causalharm. 2 threatened and the avoidance of the 6 -42that he had actually tried the alternative or had no time The defendant must show 16 to try it, or that ao. history of futile attempts revealed the illusionary benefit of the alternative. N 569 570 564 See Shorter, 328 F.3d 167 (contraband found in defendant’s residence permitted inference of constructive possession; inference bolstered by evidence that contraband was in plain view or material associated with contraband found in closet of bedroom where defendant’s personal papers located). See also United States v. Rusher, 966 F.2d 868, 878 (4th Cir. 1992) (mere presence on the premises or association with the possessor is insufficient to establish possession). 565 The Eleventh Circuit, in United States v. McArthur, 108 F.3d 1350, 1356 (11th Cir. 1997), construed the provisions of subsection (h) as establishing an affirmative defense, such that, unless the defendant introduces evidence that notice was lacking, the government “need not prove that notice of the ban on such possession was posted conspicuously at the facility.” 566 Instruction approved in United States v. Lunstedt, 997 F.2d 665, 668 (9th Cir. 1993). 567 United States v. Mooney, 497 F.3d 397, 409 n.2 (4th Cir. 2007). The burden of proving affirmative defenses, such as justification, rests on the defendant. 568 Generalized fears do not support the defense of justification. United States v. Crittendon, 883 F.2d 326, 330 (4th Cir. 1989). 569 United States v. Perrin, 45 F.3d 869, 873-74 (4th Cir. 1995). See also Crittendon, 883 F.2d at 330. 570 United States v. Izac, 239 F. App’x 1 (4th Cir. 2007) (citing United States v. Gant, 691 F.2d 1159, 1164 (5th Cir. 1982)). 187 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 191 of 684 TITLE 18 In addition, the defendant must produce evidence that he took reasonable steps to dispossess himself of the firearm, and/or ammunition, once the threat was over.571 ____________________NOTE____________________ “INNOCENT POSSESSION” DEFENSE The Fourth Circuit has joined the Seventh and Tenth Circuits in rejecting the innocent and transitory possession defense. United States v. Gilbert, 430 F.3d 215, 21820 (4th Cir. 2005). 18 U.S.C. § 931 POSSESSION OF BODY ARMOR BY VIOLENT FELON Title 18, United States Code, Section 931 makes it a crime for a person who has been convicted of certain crimes to possess body armor. For you to find the defendant guilty, the government must prove each of the following beyond a reasonable doubt: P First, that the defendant had been convicted of a crime of violence [as defined in 18 U.S.C. § 16, or of an offense under state law that would constitute a crime of violence if it occurred within the special maritime and territorial jurisdiction of the United States]; P Second, that the defendant purchased, owned, or possessed body armor; P Third, that the body armor had traveled in interstate or foreign commerce at some point during its existence; and P Fourth, that the defendant did so knowingly; that is, the defendant must know that the item was body armor and the possession must be voluntary and intentional.572 017 7/2 7/2 d0 e iew for sale, in interstate or foreign “Body armor” means any product sold or offered ,v commerce, as personal protective26 covering intended to protect against gunfire, body 2 regardless of whether the product is to be worn alone or is sold as a complement to 6-4 921(a)(35)] another product or garment. [§ o. 1 establish the interstate commerce requirement by showing The government may N that the body armor at any time had traveled across a state boundary line, or was manufactured outside the state where the defendant possessed it.573 The government must prove that the defendant voluntarily and intentionally had physical possession of the body armor.574 To possess an item or property means to exercise control or authority over the item or property, voluntarily and intentionally. Possession may be either sole, by the defendant alone, or joint, that is, it may be shared with other persons, as long as the defendant exercised control or authority over the item or property. Possession may be either actual or constructive. 571 United States v. Ricks, 573 F.3d 198, 203 (4th Cir. 2009). United States v. Langley, 62 F.3d 602, 605-06 (4th Cir. 1995) (en banc); United States v. Scott, 424 F.3d 431, 435 (4th Cir. 2005). 573 See United States v. Gallimore, 247 F.3d 134, 138 (4th Cir. 2001) (§ 922 case); United States v. Nathan, 202 F.3d 230, 234 (4th Cir. 2000) (same). 574 Scott, 424 F.3d at 435. 572 188 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 192 of 684 TITLE 18 Actual possession is knowingly having direct physical control or authority over the item or property. Constructive possession is when a person does not have direct physical control or authority, but has the power and the intention to exercise control or authority over the item or property, sometimes through another person.575 Constructive possession can be established by evidence, either direct or circumstantial, showing ownership, control or authority over the item or property itself, or the premises, vehicle, or container where the item or property is, such that a person exercises or has the power and intention to exercise control or authority over that item or property.576 Proof of constructive possession requires proof that the defendant had knowledge of the presence of the item or property.577 A defendant’s mere presence at, or joint tenancy of, a location where an item is found, or his mere association with another person who possesses that item, is not sufficient to establish constructive possession. However, proximity to the item coupled with actual or inferred knowledge of its presence may be sufficient proof to establish constructive possession. Constructive possession does not require proof that the defendant actually owned the property on which the item was found.578 017 7/2 AFFIRMATIVE DEFENSE [§ 931(b)]579 It is an affirmative defense if: 7/2 d0 (1) the defendant obtained prior written certification from his or her employer that the defendant’s purchase, use, or possession of body armor was necessary for the safe performance of lawful business activity, and e iew ,v 226 6-4 (2) the use and possession by the defendant were limited to the course of such performance. o. 1 N “Employer” means any other individual employed by the defendant’s business that supervises the defendant’s activity. [§ 931(b)(2)] ____________________NOTE____________________ 575 To prove constructive possession under § 922(g)(1), the government must prove that the defendant “intentionally exercised dominion and control over the firearm, or had the power and the intention to exercise dominion and control over the firearm. Constructive possession of the firearm must also be voluntary.” Id. 424 F.3d at 435-36. See also United States v. Herder, 594 F.3d 352, 358 (4th Cir. 2010). 576 Scott, 424 F.3d 435-36; United States v. Shorter, 328 F.3d 167, 172 (4th Cir. 2003) (quoting United States v. Jackson, 124 F.3d 607, 610 (4th Cir. 1997)); United States v. Gallimore, 247 F.3d 134, 137 (4th Cir. 2001). See also United States v. Pearce, 65 F.3d 22, 26 (4th Cir. 1995) (citations omitted). 577 Herder, 594 F.3d at 358. 578 See Shorter, 328 F.3d 167 (contraband found in defendant’s residence permitted inference of constructive possession; inference bolstered by evidence that contraband was in plain view or material associated with contraband found in closet of bedroom where defendant’s personal papers located). See also United States v. Rusher, 966 F.2d 868, 878 (4th Cir. 1992) (mere presence on the premises or association with the possessor is insufficient to establish possession). 579 United States v. Mooney, 497 F.3d 397, 408 n.2 (4th Cir. 2007). The burden of proving affirmative defenses, such as justification, rests on the defendant. 189 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 193 of 684 TITLE 18 See United States v. Patton, 451 F.3d 615 (10th Cir. 2006) (interstate nexus requirement treated same as for a firearm, as long as the body armor traveled in interstate commerce at some point). In United States v. Adams, 194 F. App’x 115 (4th Cir. 2006), the defendant refused to stipulate that he was a convicted felon. A special verdict form was provided to the jury to determine whether Adams had been convicted of each of his seven prior convictions. It was not unfairly prejudicial to submit this question to the jury. On the authority of United States v. Xavier, 2 F.3d 1281, 1286 (3d Cir. 1993), a § 922(g) case, there can be no criminal liability for aiding and abetting a violation of § 931 without knowledge or having cause to believe the possessor’s status as a felon. “INNOCENT POSSESSION” DEFENSE The Fourth Circuit has joined the Seventh and Tenth Circuits in rejecting the innocent and transitory possession defense. United States v. Gilbert, 430 F.3d 215, 21820 (4th Cir. 2005). 18 U.S.C. § 960 EXPEDITION AGAINST FRIENDLY NATION Title 18, United States Code, Section 960 makes it a crime to take part in any expedition against a friendly nation. For you to find the defendant guilty, the government must prove each of the following beyond a reasonable doubt: 017 7/2 P First, that the defendant began or set on foot or provided or prepared a means for or furnished the money for, or took part in, any military or naval expedition or enterprise to be carried on against the territory or dominion of any foreign state with whom the United States is at peace; 7/2 d0 e ew iknowingly. P Third, that the defendant did so 6, v 2 -42 ____________________NOTE____________________ .v.16 461 F.3d 477 (4th Cir. 2006). United States Khan, No P Second, that the defendant did so within the United States; and 18 U.S.C. § 982 FORFEITURE Title 18, United States Code, Section 982 provides that certain property shall be forfeited to the United States. For property to be forfeited, the government must prove the following by a preponderance of the evidence:580 § 982(a)(1) P First, that the defendant was convicted of [18 U.S.C. §§ 1956, 1957, or 1960]; and P Second, that the real or personal property was involved in the offense, or the property was traceable to property involved in the offense. § 982(a)(2) P First, that the defendant was convicted of [enumerated violation]; and 580 Because forfeiture represents a penalty, the preponderance standard governs. United States v. Cherry, 330 F.3d 658, 669 (4th Cir. 2003). 190 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 194 of 684 TITLE 18 P Second, that the property constituted, or was derived from, proceeds the defendant obtained directly or indirectly, as the result of such violation. § 982(a)(3) P First, that the defendant was convicted of [enumerated violation]; and P Second, that the offense involved the sale of assets acquired or held by the Resolution Trust Corporation, the Federal Deposit Insurance Corporation, as conservator or receiver for a financial institution or any other conservator for a financial institution appointed by the Office of the Comptroller of the Currency or the Office of Thrift Supervision, or the National Credit Union Administration; as conservator or liquidating agent or a financial institution; and P Third, that real or personal property represented or was traceable to the gross receipts obtained directly or indirectly, as the result of such violation.581 § 982(a)(5) P First, that the defendant was convicted of [enumerated violation]; and P Second, that the real or personal property represented or was traceable to the gross proceeds obtained directly or indirectly, as the result of such violation. 017 7/2 § 982(a)(6) P First, that the defendant was convicted of [enumerated violation]; and P Second, that the vehicle, vessel, or aircraft was used in the commission of the offense, or that the real or personal property constituted, or was derived from, or was traceable to proceeds obtained directly or indirectly from the commission of the offense, or was used to facilitate, or was intended to be used to facilitate, the commission of the offense. 7/2 d0 e iew ,v 226 6-4 1 o.that the real or personal property constituted, or was derived, directly N Second, § 982(a)(7) P First, that the defendant was convicted of [a health care offense]; and P or indirectly, from gross proceeds traceable to the commission of the offense. § 982(a)(8) P First, that the defendant was convicted of [enumerated violation]; and P Second, that the real or personal property was used or intended to be used to commit, to facilitate, or to promote the commission of the offense, and constituted, was derived from, or was traceable to the gross proceeds the defendant obtained directly or indirectly, as a result of such violation. For § 982(a)(1), “property involved in” criminal activity includes property that is substantially connected to that activity, in that it furthered, facilitated, or aided in the commission of the activity. The property need not have been indispensable to the commission of the crime as long as it played a significant role in the prohibited 581 If the offense involves a scheme to defraud, gross receipts includes any property obtained as a result of such offense. Section 982(a)(4). 191 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 195 of 684 TITLE 18 activity.582 But the property must have more than an incidental or fortuitous connection to the criminal activity.583 ____________________NOTE____________________ “A forfeiture violates the Excessive Fines Clause only if it is (1) punitive, and (2) grossly disproportional to the gravity of the defendant’s offense.” United States v. Jalaram, Inc.,599 F.3d 347, 351, 351 (4th Cir. 2010) (citing United States v. Bajakajian, 524 U.S. 321, 334 (1998)). The Fourth Circuit noted that the Supreme Court weighed a number of factors to determine whether the forfeiture was grossly disproportional to the charged offense: (1) the amount of the forfeiture and its relationship to the authorized penalty; (2) the nature and extent of the criminal activity; (3) the relationship between the crime charged and other crimes; and (4) the harm caused by the charged crime. Jalaram, 599 F.3d at 355-56. In Bajakajian, the defendant attempted to leave the United States without reporting the he was transporting more than $10,000 in currency, in violation of 31 U.S.C. § 5316. The government attempted to forfeit the entire, $357,144, pursuant to § 982(a)(1). The maximum fine for the reporting violation was $5,000. Apparently, the money was proceeds of legal activity and was to be used to repay a lawful debt. The Supreme Court held that forfeiture of the entire amount would violate the Excessive Fines Clause of the Eighth Amendment because it would be grossly disproportional to the gravity of the defendant’s offense. 7 01involved a 2 In United States v. Herder, 594 F.3d 352, 364 (4th Cir. 2010),/which 27 adopted the forfeiture pursuant to 21 U.S.C. § 853(a), the Fourth Circuit expressly 07/ “substantial connection” standard from case law interpreting the nearly identical civil d forfeiture language in 21 U.S.C. § 881. The government must establish that there was a we e “substantial connection between the property to be forfeited and the offense. Substantial , vithat use of the property made the prohibited connection may be established by showing 226 conduct less difficult or more or less free from obstruction or hindrance.” 594 F.3d at 4 364 (quotation and citation omitted). The government may rely on circumstantial 16. evidence. Id. No 18 U.S.C. § 1001 FALSE STATEMENT TO A FEDERAL AGENCY [LAST UPDATED : 7/3/14] Title 18, United States Code, Section 1001 makes it a crime to make a false statement to a government agency. For you to find the defendant guilty, the government must prove each of the following beyond a reasonable doubt: § 1001(a)(1) P First, that the defendant falsified, concealed, or covered up a material fact by any trick, scheme, or device; P Second, that the falsified, concealed, or covered up fact was material to a matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States; and 582 United States v. Matai, No. 97-4129, 1999 W L 61913 (4th Cir. Feb. 10, 1999). The court relied on United States v. Schifferli, 895 F.2d 987 (4th Cir. 1990), a 21 U.S.C. § 881 forfeiture of a dentist’s office. 583 Schifferli, 895 F.2d at 990. 192 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 196 of 684 TITLE 18 P Third, that the defendant acted knowingly and willfully.584 The government must prove that the material fact was affirmatively concealed by ruse or artifice, by scheme or device.585 § 1001(a)(2) P First, that the defendant made a false, fictitious, or fraudulent statement or representation; P Second, that the false, fictitious, or fraudulent statement or representation was material to a matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States; and P Third, that the defendant acted knowingly and willfully, that is, the defendant knew the statement or representation was false, fictitious, or fraudulent.586 § 1001(a)(3) P First, that the defendant made or used a false writing or document; P Second, that the defendant knew the writing or document contained a false, fictitious, or fraudulent statement or entry; P Third, that the false, fictitious, or fraudulent statement or entry was material to a matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States; and 017 P Fourth, that the defendant acted knowingly and willfully. 2 / /27 07 An act is done willfully if it is done deliberately and intentionally, as contrasted d with accidentally, carelessly, or unintentionally. e w ve “Within the jurisdiction” differentiates the official, or authorized functions of an , areiperipheral to the business of the agency or agency or department from matters that 226 or agency’s power to exercise authority in a department, and refers to the4 department’s 16- power need not include the power to make final or binding particular situation,.and that determinations. o N 587 588 589 584 United States v. Arch Trading Co., 987 F.2d 1087, 1095 (4th Cir. 1993). See United States v. Irwin, 654 F.2d 671, 678 (10th Cir. 1981) (as to concealment or nondisclosure of material facts, “it was incumbent on the Government to prove that the defendant had the duty to disclose the material facts at the time he was alleged to have concealed them.”). See also United States v. Safavian, 528 F.3d 957, 964, 965 n.8 (D.C. Cir. 2008) (“Concealment cases ... have found a duty to disclose material facts on the basis of specific requirements for disclosure of specific information[,]” and “concealment must be accomplished in a particular way: by a ‘trick, scheme, or device.’”). 585 The Fourth Circuit acknowledged Irwin in United States v. Richeson, 825 F.2d 17, 20 (4th Cir. 1987), where the court held that by operation of § 2(b), the defendant’s willful intent to cause a concealment combined with the financial institution’s duty to report, constituted the elements of actionable concealment under § 1001. 586 Arch Trading Co., 987 F.2d 1087. 587 Id. 588 United States v. Daughtry, 48 F.3d 829 (4th Cir. 1995), vacated on other grounds, 516 U.S. 984 (1995). 589 United States v. Jackson, 608 F.3d 193 (4th Cir. 2010). 193 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 197 of 684 TITLE 18 To establish that a statement was false, the government must negate any reasonable interpretation that would make the defendant’s statement factually correct.590 A statement is material if it has a natural tendency to influence, or is capable of influencing, the decision-making body to which it was addressed. It is irrelevant whether the false statement actually influenced or affected the decision-making process of the agency or fact finding body. A false statement’s capacity to influence must be measured at the point in time that the statement was made.591 To establish that a statement was false, the government must negate any reasonable interpretation that would make the defendant’s statement factually correct.592 The government does not need to prove that the defendant had actual knowledge that the matter was within the jurisdiction of the Government of the United States.593 ____________________NOTE____________________ See also United States v. Gaudin, 515 U.S. 506 (1995). Intent to deceive is immaterial under this statute. United States v. Sparks, 67 F.3d 1145, 1152 (4th Cir. 1995). Brogan v. United States, 522 U.S. 398 (1998), abrogated United States v. Cogdell, 844 F.2d 179, 183 (4th Cir. 1988), and every other Circuit Court decision which upheld the “exculpatory no” doctrine. “[T]he plain language of § 1001 admits of no exception for an ‘exculpatory no.’” 522 U.S. at 408. Brogan, a labor union official, accepted cash payments from a real estate company whose employees were represented by the union. Federal agents investigating the real estate company asked Brogan whether he had received any cash or gifts from the real estate company. He answered “no,” and was convicted of violating § 1001. 017 7/2 7/2 d0 e iew ,v 226 6-4 Multiple false statements charged in a single count may require a special unanimity instruction. In United States v. Holley, 942 F.2d 916, 925-29 (5th Cir. 1991), the Fifth Circuit concluded that the indictment was duplicitous for charging in one count multiple false statements which could be proven only by showing distinct facts. The court reversed because the district court did not give a special unanimity instruction. In United States v. Sarihifard, 155 F.3d 301, 310 (4th Cir. 1998), the trial judge did instruct the jury that “each member had to agree unanimously on one of the instances of conduct.” In United States v. Adams, 335 F. App’x 338 (4th Cir. 2009), the district court instructed the jury as follows: o. 1 N The government is not required to prove that all of these statements that are alleged in Counts Five and Six as false are in fact false. Each juror must agree, however, with each of the other jurors that the same statement or representation is in fact false, fictitious, or fraudulent. The jury need not unanimously agree on each such statement alleged, but in order to convict, must unanimously agree upon at least one such statement as false, fictitious, or fraudulent when knowingly made or used by the defendant. 335 F.App’x at 347-48. 590 United States v. Anderson, 579 F.2d 455, 460 (8th Cir. 1978). See also United States v. Race, 632 F.2d 1114 (4th Cir. 1980). 591 United States v. Sarihifard, 155 F.3d 301, 307 (4th Cir. 1998). 592 Anderson, 579 F.2d at 460. See also Race, 632 F.2d at 1114. 593 United States v. Yermian, 468 U.S. 63, 69, 75 (1984). 194 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 198 of 684 TITLE 18 See also O’Malley, Grenig & Lee, Federal Jury Practice and Instructions § 40.15 (5th ed. 2000): Each juror must agree with each of the other jurors that the same statement or representation, alleged to be false, fictitious, or fraudulent, is in fact false, fictitious, or fraudulent. The jury need not unanimously agree on each such statement alleged, but, in order to convict, must unanimously agree upon at least one such statement as false, fictitious or fraudulent when knowingly made or used by the defendant. In United States v. Race,632 F.2d 1114 (4th Cir. 1980), the court held that “one cannot be found guilty of a false statement under a contract beyond a reasonable doubt when his statement is within a reasonable construction of the contract.” 632 F.2d at 1120. Race was prosecuted for submitting false invoices for payment of services and materials under a Navy contract. The executive branch has the authority not to pay a false invoice, no matter through how many intermediaries’ hands it passes. United States v. Jackson, 608 F.3d 193 (4th Cir. 2010). A statement may concern a matter within the federal jurisdiction described in this section, even if the statement is not submitted directly to the federal department or agency involved, and the federal agency involvement is limited to reimbursement of expenditures. Id. at 197 (citing United States v. Stanford, 589 F.2d 285, 297 (7th Cir. 1978)). 017 7/2 7/2 d0 Venue lies in the district where the statement is made, used, or “passed through” by an intermediary. United States v. Barsanti, 943 F.2d 428, 435 (4th Cir. 1991) (defendant made the false statements in his attorney’s office in Washington, D.C., knowing that they would go to a lending institution in Virginia and then on to HUD in Washington, so “pass through” venue was proper in the Eastern District of Virginia.) e iew ,v 226 In United States v. Oceanpro Industries, Ltd., 674 F.3d 323 (4th Cir. 2012), the 4 defendant was convicted of making a false statement to a federal law enforcement officer 16- District of Columbia. The Fourth Circuit ruled that the . at the company office in the Noprohibited by statute is ‘making any materially false statement.’” 674 “essential conduct F.3d at 329 (quoting statute). In this case, proving materiality necessarily required evidence of the existence of a federal investigation in Maryland and the potential effect of the false statement on that investigation. Therefore, venue was proper in the District of Maryland. “There is no safe harbor for recantation or correction of a prior false statement that violates § 1001.” United States v. Fondren, 417 F. App’x 327, 336 (4th Cir. 2011) (quoting United States v. Stewart, 433 F.3d 273, 318 (2d Cir. 2006)). The government does not bear the initial burden of proving lack of authority. United States v. West, 666 F.2d 16, 19 (2d Cir. 1981). In West, the defendant argued that he had authority to sign his wife’s name on documents submitted to a credit union and a federal agency, in violation of §§ 1014 and 1001. The Second Circuit went on to write that the defendant’s “state of mind, including his reasonable belief that he had authority, was relevant to the question of whether he ‘knowingly’ submitted false documents.” Id. at 20. Literal truth is a complete defense to a charge of violating § 1001(a)(1). United States v. Safavian, 528 F.3d 957, 967 (D.C. Cir. 2008). 18 U.S.C. § 1005 FALSE ENTRY IN BANK’S BOOKS 195 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 199 of 684 TITLE 18 Title 18, United States Code, Section 1005 makes it a crime to make a false entry in the records of a federally-insured bank. For you to find the defendant guilty, the government must prove each of the following beyond a reasonable doubt: ¶1 P First, that the defendant was an officer, director, agent, or employee of the branch, agency, or organization or company operating under section 25 or section 25(a) of the Federal Reserve Act594 at the time alleged in the indictment;595 P Second, that the accounts of the bank were insured by the Federal Deposit Insurance Corporation [or some other basis of jurisdiction under the statute] at the time alleged in the indictment; P Third, that the defendant issued or put in circulation any notes of the [bank]; and P Fourth, that the defendant did so without authority from the directors of the [bank]. ¶2 P First, that the defendant made, drew, issued, put forth, or assigned; P Second, a certificate of deposit, draft, order, bill of exchange, acceptance, note, debenture, bond, or other obligation or mortgage, judgment or decree of a bank the accounts of which were insured by the Federal Deposit Insurance Corporation [or some other basis of jurisdiction under the statute]; and 017 7/2 P ¶3 P P 7/2 0 Third, that the defendant did so without ed authority from the directors of the w [bank]. vie 6, 2made a false entry in any book, report, or statement 2 First, that the defendant 6-4 of the [bank]; 1 o.that the accounts of the bank were federally insured at the time Second, N alleged in the indictment [or some other basis of jurisdiction under the statute]; P Third, that the defendant knew that the entry was false when it was made; and P Fourth, that the defendant did so with the intent to injure or defraud the bank or to deceive any officer of the bank or any agent or examiner appointed to examine the affairs of the bank.596 ¶4 594 “[A]ny Federal Reserve bank, member bank, depository institution holding company, national bank, insured bank, branch or agency of a foreign bank, or organization operating under section 25 or section 25(a) of the Federal Reserve Act ....” 18 U.S.C. § 1005. 595 The status of the defendant is an element of the first paragraph of § 1005, but not of the third paragraph. See United States v. Campbell, 64 F.3d 967, 974 (5th Cir. 1995). 596 “[A]part from an intent to injure and defraud, an intent to deceive the officers of the bank or the examining officials also violates § 1005.” United States v. Biggerstaff, 383 F.2d 675, 679 (4th Cir. 1967). 196 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 200 of 684 TITLE 18 P First, that the defendant participated or shared in or received directly or indirectly any money, profit, property, or benefits through any transaction, loan, commission, contract, or any other act of the bank; P Second, that the accounts of the bank were federally insured at the time alleged in the indictment [or some other basis of jurisdiction under the statute]; and P Third, that the defendant did so with intent to defraud the bank, the United States or any agency of the United States. “Intent to injure or defraud” can be established by proving that the defendant acted in reckless disregard of the bank’s interest.597 To act with intent to injure or defraud means to act with intent to deceive or cheat, for the purpose of causing a financial loss to someone else, although it is not necessary that the bank has suffered an actual loss, or to bring financial gain or benefit to one’s self.598 The term “injure” includes only pecuniary loss to the bank.599 ____________________NOTE____________________ 017 7/2 In United States v. Barel, 939 F.2d 26, 38-41 (3d Cir. 1991), the Third Circuit held that the legislative history of § 1005 shows that Congress intended the statute to apply only to bank insiders or their accomplices and not to bank customers acting on their own. 7/2 d0 In United States v. Hoffman, No. 95-5181, 1996 WL 469901 (4th Cir. Aug. 20, 1996), the Fourth Circuit did not need to decide that issue because Hoffman was convicted under 18 U.S.C. § 2 for aiding and abetting the false entry in a bank record made by a bank officer. e iew ,v 18 U.S.C. § 1006 226 6-4 FALSE ENTRY IN FINANCIAL RECORDS o. 1 N Title 18, United States Code, Section 1006 makes it a crime to make a false entry in the records of certain financial institutions. For you to find the defendant guilty, the government must prove each of the following beyond a reasonable doubt: P First, that the defendant was an officer, director, agent, or employee of or connected in some capacity with [the institution] at the time alleged in the indictment; P Second, that the accounts of the [named institution] were insured by [the Federal Deposit Insurance Corporation/National Credit Union Administration Board][or other basis for federal jurisdiction]; THEN, ONE GROUP OF THE FOLLOWING: P Third, that the defendant made a false entry in any book, report, or statement of the institution, or to the institution; 597 United States v. Hoffman, No. 95-5181, 1996 W L 469901 (4th Cir. Aug. 20, 1996) (citations omitted). 598 This charge has been modified to correct the language which the Fourth Circuit found erroneous in United States v. Blackwood, 735 F.2d 142, 145-46 (4th Cir. 1984). 599 “W hile damage to a bank’s reputation may eventually result in some deterioration in the bank’s financial condition, such loss would be too indirect and speculative and we decline to construe [§ 656] as comprehending it.” United States v. Arthur, 544 F.2d 730, 736 (4th Cir. 1976). 197 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 201 of 684 TITLE 18 P Fourth, that the defendant knew that the entry was false when it was made; and P Fifth, the defendant did so with the intent to injure or defraud the institution or any individual or to deceive any officer, auditor, examiner or agent of the institution, or department or agency of the United States.600 OR P Third, that the defendant drew an order or bill of exchange, or made an acceptance, or issued, put forth, or assigned a note, debenture, bond, or other obligation or draft, bill of exchange, mortgage, judgment or decree of [the institution]; P Fourth, that the defendant did so without being duly authorized; and P Fifth, that the defendant did so with the intent to injure or defraud the institution or any individual or to deceive any officer, auditor, examiner or agent of the institution, or department or agency of the United States.601 OR P Third, that the defendant participated or shared in or received directly or indirectly any money, profit, property, or benefits through any transaction, loan, commission, contract, or any other act of the institution; and P Fourth, that the defendant did so with intent to defraud the institution, the United States or any agency of the United States.602 017 7/2 7/2 d0 The defendant must personally benefit, either directly or indirectly, through the loan, transaction, or other act of the institution.603 e iew ,v “Intent to injure or defraud” can be established by proving that the defendant acted in reckless disregard of the bank’s interest.604 To act with intent to injure or defraud means to act with intent to deceive or cheat, for the purpose of causing a financial loss to someone else, although it is not necessary that the bank has suffered an actual loss, or to bring financial gain or benefit to one’s self.605 o. 1 N 226 6-4 The term “injure” includes only pecuniary loss to the bank.606 18 U.S.C. § 1007 FALSE STATEMENT TO FDIC Title 18, United States Code, Section 1007 makes it a crime to make a false statement to influence the actions of the Federal Deposit Insurance Corporation. For you 600 See Biggerstaff, 383 F.2d at 679 (§ 1005 prosecution; intent to injure and defraud as well as an intent to deceive officers of bank or examining officials violates § 1005). 601 United States v. Biggerstaff, 383 F.2d 675, 679 (4th Cir. 1967). 602 See United States v. Vebeliunas, 76 F.3d 1283, 1289 (2d Cir. 1996). 603 Id. at 1290. 604 United States v. Hoffman, No. 95-5181, 1996 W L 469901 (4th Cir. Aug. 20, 1996) (citations omitted). 605 This charge has been modified to correct the language which the Fourth Circuit found erroneous in United States v. Blackwood, 735 F.2d 142, 145-46 (4th Cir. 1984). 606 “W hile damage to a bank’s reputation may eventually result in some deterioration in the bank’s financial condition, such loss would be too indirect and speculative and we decline to construe [§ 656] as comprehending it.” United States v. Arthur, 544 F.2d 730, 736 (4th Cir. 1976). 198 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 202 of 684 TITLE 18 to find the defendant guilty, the government must prove each of the following beyond a reasonable doubt: P First, that the defendant made or invited reliance on a false, forged, or counterfeit statement, document, or thing; P Second, that the defendant knew that the statement, document, or thing, was false, forged, or counterfeit; and P Third, that the defendant did so for the purpose of influencing in any way the action of the Federal Deposit Insurance Corporation. ____________________NOTE____________________ See United States v. Burns, 162 F.3d 840, 850 (5th Cir. 1998); United States v. Taliaferro, 979 F.2d 1399, 1405 (10th Cir. 1992). 18 U.S.C. § 1010 FALSE STATEMENT TO HUD Title 18, United States Code, Section 1010 makes it a crime to make a false statement to influence the actions of the Department of Housing and Urban Development. For you to find the defendant guilty, the government must prove each of the following beyond a reasonable doubt: 017 7/2 P First, that the defendant made, passed, uttered, or published a false statement [or counterfeited any instrument, paper, or document / or uttered, published, or passed as true any altered, forged, or counterfeited instrument, paper, or document / or overvalued any security, asset, or income]; P Second, that the defendant did so for the purpose of obtaining any loan or advance of credit from any person, partnership, association, or corporation with the intent that such loan or advance of credit be offered to or accepted by the Department of Housing and Urban Development for insurance / or for the purpose of influencing in any way the action of the Department of Housing and Urban Development; and 7/2 d0 e iew ,v o. 1 N P 226 6-4 Third, that the defendant did so knowingly [concerning a false statement] or willfully [concerning overvaluing security, asset, or income]. ____________________NOTE____________________ See United States v. McLean, 131 F. App’x 34 (4th Cir. 2005). The district court charged that the government was required to prove defendants “knew that the mortgage notes were actually false or counterfeited” and that they “knew [the notes] would be offered for some purpose to HUD.” 131 F. App’x at 41. The court determined that “[a]s long as defendants knew the information on the documents they procured was false and that the documents were headed to HUD (i.e., Ginnie Mae), defendants’ belief that the scheme was lawful, even if true, was not a defense.” Id. “The essence of a violation of this section is the uttering and publishing of false documents with the intent to influence the F.H.A.” Bins v. United States, 331 F.2d 390, 392 (5th Cir. 1964). The filing of each false document would constitute a crime. Id. at 393. 18 U.S.C. § 1014 FALSE STATEMENT TO A BANK 199 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 203 of 684 TITLE 18 Title 18, United States Code, Section 1014 makes it a crime to make a false statement to influence the actions of a federally insured bank or other financial institution. For you to find the defendant guilty, the government must prove each of the following beyond a reasonable doubt: P First, that the defendant made a false statement or report, or overvalued any land, property or security; P Second, to a financial institution covered by the statute; P Third, that the defendant did so for the purpose of influencing in any way the actions of the financial institution; and P Fourth, that the defendant did so knowingly [concerning a false statement] or willfully [concerning overvaluing land, property, or security].607 The government need not prove that the defendant made the false statement directly to the insured financial institution, as long as the proof shows that the false statement was made to anyone for the purpose of influencing the action of the financial institution.608 The government need not prove that the financial institution faced a risk of financial loss.609 017 7/2 ____________________NOTE____________________ Materiality is not an element of § 1014. United States v. Wells, 519 U.S. 482 (1997), abrogating United States v. Bonnette, 663 F.2d 495 (4th Cir. 1981). 7/2 d0 e iew ,v Intent to deceive is irrelevant. The only specific intent that matters is the intent to influence the bank’s actions. Therefore, lack of intent to deceive is not a viable affirmative defense. United States v. Sparks, 67 F.3d 1145, 1151-52 (4th Cir. 1995). 226 6-4 Reliance is not an essential element of § 1014. Bonnette, 663 F.2d at 498. Therefore, the jury need not be instructed on justifiable reliance. o. 1 N “The essence of the offense in the making of the false statement with the intent to influence the lender is not dependent on the accomplishment of that purpose. It is a crime of a subjective intent requiring neither reliance by the bank officers nor an actual defrauding.” United States v. Kennedy, 564 F.2d 1329, 1341 (9th Cir. 1977). The government does not bear the initial burden of proving lack of authority. United States v. West, 666 F.2d 16, 19 (2d Cir. 1981). In West, the defendant argued that he had authority to sign his wife’s name on documents submitted to a credit union and a federal agency, in violation of §§ 1014 and 1001. The Second Circuit went on to write that the defendant’s “state of mind, including his reasonable belief that he had authority, was relevant to the question of whether he ‘knowingly’ submitted false documents.” Id. at 20. 18 U.S.C. § 1020 HIGHWAY FRAUD Title 18, United States Code, Section 1020 makes it a crime to make a false statement concerning a highway project approved by the Secretary of Transportation. For 607 See Elliott v. United States, 332 F.3d 753, 759 (4th Cir. 2003); United States v. Bonnette, 663 F.2d, 495 (4th Cir. 1981), abrogated by United States v. Wells, 519 U.S. 482 (1997). 608 United States v. Smith, 29 F.3d 914, 917 (4th Cir. 1994). In Smith, the defendant made false statements to Dime Real Estate, a fully owned subsidiary of Dime Savings Bank. 609 Elliott, 332 F.3d at 764. Thus, § 1014 differs from § 1344. 200 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 204 of 684 TITLE 18 you to find the defendant guilty, the government must prove each of the following beyond a reasonable doubt: ¶1 P First, that the defendant made a false statement, false representation, or false report; P Second, that the false statement, representation, or report pertained to the character, quality, quantity, or cost of the material used or to be used, or the quantity or quality of the work performed or to be performed, or the costs of the work performed or to be performed, in connection with the submission of plans, maps, specifications, contracts, or costs of construction of any highway or related project submitted for approval to the Secretary of Transportation; and P Third, that the defendant did so knowingly. ¶2 P First, that the defendant made a false statement, false representation, false report, or false claim; P Second, that the false statement, representation, report, or claim pertained to the character, quality, quantity, or cost of any work performed or to be performed, or materials furnished or to be furnished, in connection with the construction of any highway or related project approved by the Secretary of Transportation; and 017 7/2 P 7/2 Third, that the defendant did so knowingly. 0 d we e , vifalse statement or false representation; First, that the defendant made a 26 2statement or representation was in any statement, Second, that the false -4 certificate,16 or report submitted pursuant to the Federal-Aid Road Act; . Third, that the false statement or representation was material; and No P Fourth, that the defendant did so knowingly. P ¶3 P P ____________________NOTE____________________ Willfulness is not an element of § 1020. United States v. Photogrammetric Data Servs., Inc., 259 F.3d 229, 254-55 (4th Cir. 2001), abrogated on other grounds by Crawford v. Washington, 541 U.S. 36 (2004). The first two paragraphs do not distinguish between the types of contracts, that is, preliminary engineering contracts as opposed to contracts for actual construction, but rather distinguish between statements made in connection with projects submitted for approval and those already approved. Id. at 256. 18 U.S.C. § 1027 FALSE STATEMENT, ERISA Title 18, United States Code, Section 1027 makes it a crime to make a false statement in any records of an employee benefit plan. For you to find the defendant guilty, the government must prove each of the following beyond a reasonable doubt: P First, that the defendant made a false statement or representation of fact; 201 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 205 of 684 TITLE 18 P Second, in any document required by the Employee Retirement Income Security Act (ERISA) to be published or kept as part of the records of any employee welfare or pension benefit plan; and P Third, that the defendant knew the statement or representation was false. OR P First, that the defendant concealed, covered up, or failed to disclose a fact; P Second, that the disclosure of the fact was required by the Employee Retirement Income Security Act (ERISA) or the fact was necessary to verify, explain, clarify, or check for accuracy and completeness any report required by ERISA to be published or certified; and P Third, that the defendant acted knowingly.610 The court should define employee pension benefit plan or employee welfare benefit plan, as appropriate. In order to be covered by the statute, the false statement or representation of fact must be made in a document required by ERISA to be either (1) published by an employee welfare benefit plan or employee pension benefit plan, (2) kept as part of the records of such a plan, or (3) certified to the administrator of such a plan. A concealment, cover-up, or failure to disclose likewise must occur in a similar document, but it also must relate to a fact the disclosure of which is required by ERISA or is necessary to verify, explain, or check for accuracy and completeness any information required by ERISA to be published.611 017 7/2 7/2 d0 e iew welfare benefit plan are defined in Employee pension benefit plan and employee 6, v 29 U.S.C. § 1002. 2 - be2 The records that must 4 kept, which are not limited to financial records, are described in 29 U.S.C. § 1027. . 16 No Multiple false statements charged in a single count may require a special ____________________NOTE____________________ unanimity instruction. In United States v. Holley, 942 F.2d 916, 925-29 (5th Cir. 1991), the Fifth Circuit concluded that the indictment was duplicitous for charging in one count multiple false statements which could be proven only by showing distinct facts. The court reversed because the district court did not give a special unanimity instruction. In United States v. Sarihifard, 155 F.3d 301, 310 (4th Cir. 1998), the trial judge instructed the jury that “each member had to agree unanimously on one of the instances of conduct.” In United States v. Adams, 335 F. App’x 338 (4th Cir. 2006), the district court instructed the jury as follows: 610 See United States v. Parris, 88 F. Supp. 2d 555, 566 n.32 (E.D. Va. 2000). United States v. Sarault, 840 F.2d 1479, 1482 (9th Cir. 1988). In Sarault, the defendant, a lawyer, wrote a letter as general counsel for an insurance company falsely stating that the insurance company had in excess of $20 million in reserves in its trust account and was prepared to set aside an actuarial reserve for fiduciary liability insurance coverage. The Ninth Circuit affirmed the conviction, concluding that Sarault’s letter was a record required by 29 U.S.C. § 1029 in order to verify, explain, clarify, and check for accuracy and completeness information reported on Form 5500, an annual report that ERISA required be published and filed and which disclosed premiums paid for fiduciary liability insurance. “If fiduciary insurance providers and their agents are not sanctioned for providing false statements about worthless fiduciary insurance, plan participants may suffer.” Id. at 1484. 611 202 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 206 of 684 TITLE 18 The government is not required to prove that all of these statements that are alleged in Counts Five and Six as false are in fact false. Each juror must agree, however, with each of the other jurors that the same statement or representation is in fact false, fictitious, or fraudulent. The jury need not unanimously agree on each such statement alleged, but in order to convict, must unanimously agree upon at least one such statement as false, fictitious, or fraudulent when knowingly made or used by the defendant. 335 F. App’x at 347-48. See also O’Malley, Grenig & Lee, Federal Jury Practice and Instructions § 40.15 (5th ed. 2000): Each juror must agree with each of the other jurors that the same statement or representation, alleged to be false, fictitious, or fraudulent, is in fact false, fictitious, or fraudulent. The jury need not unanimously agree on each such statement alleged, but, in order to convict, must unanimously agree upon at least one such statement as false, fictitious or fraudulent when knowingly made or used by the defendant. 18 U.S.C. § 1028 FRAUD IN CONNECTION WITH IDENTIFICATION DOCUMENTS [LAST UPDATED : 7/1/14] 017 2 Title 18, United States Code, Section 1028(a)(1) makes it a7/ to produce an crime 2 the defendant guilty, identification document without lawful authority. For you to find 0a7/ the government must prove each of the following beyond reasonable doubt: d we P First, that the defendant produced an identification document, authentication ie feature, or false identificationv , document; 226 P Second, that the defendant did so knowingly and without lawful authority; 4 and 16. P Third, that the identification document, authentication feature, or false No document was or appeared to be issued by or under the identification § 1028(a)(1) authority of the United States, or the production was in or affected interstate or foreign commerce, or the identification document, or false identification document was transported in the mail in the course of the production prohibited by this law.612 § 1028(a)(2)613 Title 18, United States Code, Section 1028(a)(2) makes it a crime to transfer a false identification document knowing it was stolen or produced without lawful authority. For you to find the defendant guilty, the government must prove each of the following beyond a reasonable doubt: P First, that the defendant transferred a false identification document, authentication feature, or false identification document; 612 See United States v. Braithwaite, 242 F. App’x 900 (4th Cir. 2007) (indictment need not allege intended unlawful use of the fraudulent document). 613 See United States v. Luke, 628 F.3d 114 (4th Cir. 2010). 203 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 207 of 684 TITLE 18 P Second, that the defendant knew that the identification document, authentication feature, or false identification document was stolen or produced without lawful authority; and P Third, that the identification document, authentication feature, or false identification document was or appeared to be issued by, or under the authority of the United States, or the transfer was in or affected interstate or foreign commerce, including the transfer of a document by electronic means, or the means of identification, identification document, or false identification document was transported in the mail in the course of the transfer prohibited by this law. § 1028(a)(3) Title 18, United States Code, Section 1028(a)(3) makes it a crime to possess with intent to use unlawfully five or more false identification documents. For you to find the defendant guilty, the government must prove each of the following beyond a reasonable doubt: P First, that the defendant possessed five or more false identification documents, authentication features, or false identification documents; P Second, that the defendant knew the identification documents were false; P Third, that the identification documents, authentication features, or false identification documents were or appeared to be issued by or under the authority of the United States, or the possession was in or affected interstate or foreign commerce, including the transfer of a document by electronic means, or the means of identification, identification document, or false identification document was transported in the mail in the course of the possession prohibited by this law; and 017 7/2 7/2 d0 e iew ,v P 226 6-4 Fourth, that the defendant did so with the intent to use or transfer the identification documents unlawfully.614 [This requires an additional instruction on the elements of the crime the defendant intended to commit using the identification documents.] o. 1 N The government must establish the uses to which the defendant intended to put the false identification documents and that those intended uses would violate one or more federal, state, or local laws. The government does not have to prove that the defendant actually put the document to the unlawful use, only that the defendant’s intended use would have violated some law. [Therefore, the court must charge the jury on the elements of the particular law which the government contends the defendant intended to violate.]615 § 1028(a)(4)616 614 United States v. Mora, No. 00-4328, 2001 W L 856095 (4th Cir. July 31, 2001); United States v. Bowling, 442 F. App’x 72, 73 (4th Cir. 2011) (“[Section] 1028(a)(3) criminalizes not just the possession of false identification documents, but also possession of genuine identification documents with the intent to use or transfer unlawfully.”). 615 United States v. Rohn, 964 F.2d 310, 313-14 (4th Cir. 1992). “W e also do not hold that the government must prove that Rohn had specific knowledge that her intended use of the false identifications was contrary to law. W e require only that the government demonstrate the unlawfulness of that use.” Id. at 314 n.3. 616 See Luke, 628 F.3d 114. 204 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 208 of 684 TITLE 18 Title 18, United States Code, Section 1028(a)(4) makes it a crime to possess an identification document, authentication feature, or false identification document, with the intent that it be used to defraud the United States. For you to find the defendant guilty, the government must prove each of the following beyond a reasonable doubt: P First, that the defendant possessed a false identification document, authentication feature, or false identification document; and P Second, that the defendant did so with the intent to defraud the United States. § 1028(a)(5) Title 18, United States Code, Section 1028(a)(5) makes it a crime to possess document-making implements with the intent that they be used to make false identification documents. For you to find the defendant guilty, the government must prove each of the following beyond a reasonable doubt: P First, that the defendant produced, transferred, or possessed a documentmaking implement or authentication feature; P Second, that the defendant did so with the intent that the document-making implement or authentication feature would be used in the production of a false identification document or another document-making implement or authentication feature which would be so used; and P Third, that the document-making implement was designed or suited for making an identification document, authentication feature, or false identification document that is or appears to be issued by or under the authority of the United States, or the production, transfer, or possession was in or affected interstate or foreign commerce, or the document-making implement was transported in the mail in the course of the production, transfer, or possession prohibited by this law. 017 7/2 7/2 d0 e iew ,v o. 1 N § 1028(a)(6) 226 6-4 Title 18, United States Code, Section 1028(a)(6) makes it a crime to possess an identification document or authentication feature knowing it was stolen or produced without lawful authority. For you to find the defendant guilty, the government must prove each of the following beyond a reasonable doubt: P First, that the defendant possessed an identification document or authentication feature that was or appeared to be an identification document or authentication feature of the United States or a sponsoring entity of an event designated as a special event of national significance; P Second, that the defendant did so knowingly; P Third, that the identification document or authentication feature was stolen or produced without lawful authority; and P Fourth, that the defendant knew the identification document or authentication feature was stolen or produced without lawful authority. § 1028(a)(7) Title 18, United States Code, Section 1028(a)(7) makes it a crime to transfer, possess, or use, without lawful authority, a means of identification of another person with the intent to commit any unlawful activity. For you to find the defendant guilty, the government must prove each of the following beyond a reasonable doubt: 205 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 209 of 684 TITLE 18 P First, that the defendant transferred, possessed, or used, without lawful authority; P Second, a means of identification of another person; P Third, that the defendant did so knowingly; P Fourth, that the defendant did so with the intent to commit, or to aid or abet, or in connection with, any unlawful activity that constitutes a violation of Federal law, or that constitutes a felony under any applicable State or local law [the court must identify the elements of the predicate unlawful activity]; and P Fifth, that the transfer, possession, or use was in or affected interstate or foreign commerce (including the transfer of a document by electronic means) or the means of identification was transported in the mail in the course of its transfer, possession, or use.617 The government must prove that the defendant knew the means of identification belonged to another individual.618 § 1028(a)(8) Title 18, United States Code, Section 1028(a)(8) makes it a crime to traffic in false or actual authentication features for use in false identification documents, documentmaking implements, or means of identification. For you to find the defendant guilty, the government must prove each of the following beyond a reasonable doubt: 017 7/2 7/2 First, that the defendant trafficked in false or 0 actual authentication features for use in false identification documents, d e document-making implements, or means of identification; iew vfeature or false identification document was or Second, that the authentication 26,under the authority of the United States or a 2 appeared to be issued by or 6-4 an event designated as a special event of national sponsoring entity of significance; and o. 1 N P P P Third, that the defendant did so knowingly. “Authentication feature” means any hologram, watermark, certification, symbol, code, image, sequence of numbers or letters, or other feature that either individually or in combination with another feature is used by the issuing authority on an identification document, document-making implement, or means of identification to determine if the document is counterfeit, altered, or otherwise falsified. [§ 1028(d)(1)] “Document-making implement” means any implement, impression, template, computer file, computer disc, electronic device, or computer hardware or software, that is specifically configured or primarily used for making an identification document, a false identification document, or another document-making implement. [§ 1028(d)(2)] “Identification document” means a document made or issued by or under the authority of the United States Government, a State, political subdivision of a State, a 617 In United States v. Lessington, 372 F. App’x 379 (4th Cir. 2010), the Fourth Circuit did not include one of the circumstances in § 1028(c). However, the text specifies five elements. 618 See United States v. Berry, 369 F. App’x 500 (4th Cir. 2010) (holding United States v. Flores-Figueroa, 556 U.S. 646 (2009), which construed similar language in § 1028A, applies also to §1028(a)(7)). 206 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 210 of 684 TITLE 18 sponsoring entity of an event designated as a special event of national significance, a foreign government, political subdivision of a foreign government, an international governmental or an international quasi-governmental organization which, when completed with information concerning a particular individual, is of a type intended or commonly accepted for the purpose of identification of individuals. [§ 1028(d)(3)] “False identification document” means a document of a type intended or commonly accepted for the purposes of identification of individuals that (A) is not issued by or under the authority of a governmental entity or was issued under the authority of a governmental entity but was subsequently altered for purposes of deceit; and (B) appears to be issued by or under the authority of the United States Government, a State, a political subdivision of a State, a sponsoring entity of an event designated by the President as a special event of national significance, a foreign government, a political subdivision of a foreign government, or an international governmental or quasi-governmental organization. [§ 1028(d)(4)] “False authentication feature” means an authentication feature that (A) is genuine in origin, but, without the authorization of the issuing authority, has been tampered with or altered for purposes of deceit; 017 7/2 (B) is genuine, but has been distributed, or is intended for distribution, without the authorization of the issuing authority and not in connection with a lawfully made identification document, document-making implement, or means of identification to which such authentication feature is intended to be affixed or embedded by the respective issuing authority; or 7/2 d0 e iew ,v 226 “Issuing authority” means 4 16- entity or agency that is authorized to issue (A) any . o governmental means of identification, or authentication features; identification documents, N (C) appears to be genuine, but is not. [§ 1028(d)(5)] and (B) includes the United States Government, a State, a political subdivision of a State, a sponsoring entity of an event designated by the President as a special event of national significance, a foreign government, a political subdivision of a foreign government, or an international government or quasigovernmental organization. [§ 1028(d)(6)] “Means of identification” means any name or number that may be used, alone or in conjunction with any other information, to identify a specific individual, including any (A) name, social security number, date of birth, official State or government issued driver's license or identification number, alien registration number, government passport number, employer or taxpayer identification number; (B) unique biometric data, such as fingerprint, voice print, retina or iris image, or other unique physical representation; (C) unique electronic identification number, address, or routing code; or (D) telecommunication identifying information or access device. [§ 1028(d)(7)] 207 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 211 of 684 TITLE 18 “Access device” means any card, plate, code, account number, electronic serial number, mobile identification number, personal identification number or other telecommunications service, equipment, or instrument identifier, or other means of account access that can be used, alone or in conjunction with another access device, to obtain money, goods, services, or any other thing of value, or that can be used to initiate a transfer of funds (other than a transfer originated solely by paper instrument). [§ 1029(e)(1)] “Personal identification card” means an identification document issued by a State or local government solely for the purpose of identification. [§ 1028(d)(8)] “Produce” includes alter, authenticate, or assemble. [§ 1028(d)(9)] “Transfer” includes selecting an identification document, false identification document, or document-making implement and placing or directing the placement of such identification document, false identification document, or document-making implement on an online location where it is available to others. [§ 1028(d)(10)] “State” includes any State of the United States, the District of Columbia, the Commonwealth of Puerto Rico, and any other commonwealth, possession, or territory of the United States. [§ 1028(d)(11)] “Traffic” means - 017 7/2 (A) to transport, transfer, or otherwise dispose of, to another, as consideration for anything of value; or 7/2 d0 (B) to make or obtain control of with intent to so transport, transfer, or otherwise dispose of. [§ 1028(d)(12)] e iew ,v “An example of a document-making implement is a device specially designed or primarily used to produce a small photograph and assemble laminated identification cards. The term may also include any official seals or signatures, or text in a distinctive type face and layout ... [or] specialized paper or ink or other materials used in the production of an identification document.”619 226 6-4 o. 1 includes commerce between one State, Territory, “Interstate commerce” N Possession, or the District of Columbia and another State, Territory, Possession, or the District of Columbia. [18 U.S.C. § 10] “Foreign commerce” includes commerce with a foreign country. [18 U.S.C. § 10] ____________________NOTE____________________ An identification document not issued by or under the authority of the United States Government appears to be issued by or under the authority of the United States 619 United States v. Pearce, 65 F.3d 22, 25 (4th Cir. 1995). In Pearce, the Fourth Circuit also approved the following instruction regarding interstate commerce: If you find beyond a reasonable doubt that the document-making implements, or any one of them, or any component parts of them, were made outside the state of North Carolina and delivered here from another state or foreign country, then the element of “in interstate commerce” will have been satisfied. If you find beyond a reasonable doubt that the intended use of the document-making implements affect interstate commerce in an adverse manner, then you may find that the element of “affect upon interstate commerce” has been satisfied. Id. 208 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 212 of 684 TITLE 18 Government when a reasonable person of ordinary intelligence would believe that it was issued by or under the authority of the United States Government. See generally United States v. Jaensch, 665 F.3d 83 (4th Cir. 2011). In United States v. Mora, No. 00-4328, 2001 WL 856095 (4th Cir. July 31, 2001), the indictment did not allege the specific unlawful use to which the defendant intended to put the false identification documents. The conviction was reversed, because the district court did not instruct the jury on all of the elements of the predicate intended unlawful use. In United States v. Johnson, 261 F. App’x 611 (4th Cir. 2008), the defendant argued that because of the definition in § 1028(d)(7), Congress meant to limit aggravated identity theft to those involving natural persons, not companies. The court found that use of a person’s name as part of the company name (Gail Brinn Wilkins, Incorporated) was sufficient evidence to satisfy the means of identification element of § 1028A. Independently, the court also found that use of an individual’s name as the signatory on company checks was sufficient to identify a specific individual under the statute. 18 U.S.C. § 1028A AGGRAVATED IDENTITY THEFT [LAST UPDATED : 7/1/14] Title 18, United States Code, Section 1028A makes it a crime to transfer, possess, or use a means of identification during and in relation to certain other crimes. For you to find the defendant guilty, the government must prove each of the following beyond a reasonable doubt: 017 7/2 7/2 0 First, that the defendant transferred, possessed, or used, ed Second, without lawful authority; w e , viof another person; Third, a means of identification 226did so during and in relation to [one of the felonies Fourth, that the -4 6 defendant 1in § 1028A(c), the elements of which must be identified]; and enumerated . No Fifth, that the defendant did so knowingly. § 1028A(a)(1) P P 620 P P P 621 § 1028A(a)(2) P First, that the defendant transferred, possessed, or used, P Second, without lawful authority; P Third, a means of identification of another person; P Fourth, that the defendant did so during and in relation to [a crime of terrorism, § 2332b(g)(5), the elements of which must be identified]; and P Fifth, that the defendant did so knowingly. 620 In United States v. Abdelshafi, 592 F.3d 602 (4th Cir. 2010), the Fourth Circuit rejected the defendant’s contention that the means of identification must have been stolen or misappropriated, and affirmed his conviction. The defendant lawfully possessed Medicaid patients’ identifying information, but used it to submit fraudulent billing claims. 621 See id.; United States v. Occident, 243 F. App’x 777 (4th Cir. 2007) (citing United States v. Montejo, 442 F.3d 213 (4th Cir. 2006), abrogated by United States v. Flores-Figueroa, 556 U.S. 646 (2009)). 209 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 213 of 684 TITLE 18 The government must prove that the defendant knew the particular numbers (or identifiers) belonged to another individual.622 “Authentication feature” means any hologram, watermark, certification, symbol, code, image, sequence of numbers or letters, or other feature that either individually or in combination with another feature is used by the issuing authority on an identification document, document-making implement, or means of identification to determine if the document is counterfeit, altered, or otherwise falsified. [§ 1028(d)(1)] “Identification document” means a document made or issued by or under the authority of the United States Government, a State, political subdivision of a State, a sponsoring entity of an event designated as a special event of national significance, a foreign government, political subdivision of a foreign government, an international governmental or an international quasi-governmental organization which, when completed with information concerning a particular individual, is of a type intended or commonly accepted for the purpose of identification of individuals. [§ 1028(d)(3)] “False identification document” means a document of a type intended or commonly accepted for the purposes of identification of individuals that (A) is not issued by or under the authority of a governmental entity or was issued under the authority of a governmental entity but was subsequently altered for purposes of deceit; and 017 7/2 (B) appears to be issued by or under the authority of the United States Government, a State, a political subdivision of a State, a sponsoring entity of an event designated by the President as a special event of national significance, a foreign government, a political subdivision of a foreign government, or an international governmental or quasi-governmental organization. [§ 1028(d)(4)] 7/2 d0 e iew ,v 226 4 (A) is genuine in origin, but, without the authorization of the issuing 16- tampered with or altered for purposes of deceit; . authority, has been No “False authentication feature” means an authentication feature that - (B) is genuine, but has been distributed, or is intended for distribution, without the authorization of the issuing authority and not in connection with a lawfully made identification document, document-making implement, or means of identification to which such authentication feature is intended to be affixed or embedded by the respective issuing authority; or (C) appears to be genuine, but is not. [§ 1028(d)(5)] “Issuing authority” means (A) any governmental entity or agency that is authorized to issue identification documents, means of identification, or authentication features; and (B) includes the United States Government, a State, a political subdivision of a State, a sponsoring entity of an event designated by the President as a special event of national significance, a foreign government, a political subdivision of a foreign government, or an international government or quasigovernmental organization. [§ 1028(d)(6)] 622 210 Flores-Figueroa, 556 U.S. 646. Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 214 of 684 TITLE 18 “Means of identification” means any name or number that may be used, alone or in conjunction with any other information, to identify a specific individual, including any (A) name, social security number, date of birth, official State or government issued driver's license or identification number, alien registration number, government passport number, employer or taxpayer identification number; (B) unique biometric data, such as fingerprint, voice print, retina or iris image, or other unique physical representation; (C) unique electronic identification number, address, or routing code; or (D) telecommunication identifying information or access device. [§ 1028(d)(7)] “Access device” means any card, plate, code, account number, electronic serial number, mobile identification number, personal identification number or other telecommunications service, equipment, or instrument identifier, or other means of account access that can be used, alone or in conjunction with another access device, to obtain money, goods, services, or any other thing of value, or that can be used to initiate a transfer of funds (other than a transfer originated solely by paper instrument). [§ 1029(e)(1)] 017 “Transfer” includes selecting an identification document, false2 identification 27/the placement of document, or document-making implement and placing or directing 07/ such identification document, false identification document, or document-making d implement on an online location where it is available to others. [§ 1028(d)(10)] we “State” includes any State of the United States, the District of Columbia, the vie , other commonwealth, possession, or territory of Commonwealth of Puerto Rico, and6 any the United States. [§ 1028(d)(11)] 422 16“Interstate commerce” includes commerce between one State, Territory, . Possession, or the District of Columbia and another State, Territory, Possession, or the No “Personal identification card” means an identification document issued by a State or local government solely for the purpose of identification. [§ 1028(d)(8)] District of Columbia. [18 U.S.C. § 10] “Foreign commerce” includes commerce with a foreign country. [18 U.S.C. § 10] “Without lawful authority” means without a form of authorization recognized by law.623 ____________________NOTE____________________ In United States v. Mora, No. 00-4328, 2001 WL 856095 (4th Cir. July 31, 2001), the conviction was reversed because the district court did not instruct the jury on all of the elements of the predicate intended use. In United States v. Johnson, 261 F. App’x 611 (4th Cir. 2008), the defendant argued that because of the definition in § 1028(d)(7), Congress meant to limit aggravated identity theft to those involving natural persons, not companies. The court found sufficient evidence to satisfy the means of identification element of § 1028A. The court also found that use of an individual’s name as the signatory on company checks was sufficient. 623 United States v. Otuya, 720 F.3d 183, 189 (4th Cir. 2013) (quoting United States v. Abdelshafi, 592 F.3d 602, 609 (4th Cir. 2010)). 211 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 215 of 684 TITLE 18 18 U.S.C. § 1029 CREDIT CARD FRAUD624 Title 18, United States Code, Section 1029 makes it a crime to commit credit card fraud. For you to find the defendant guilty, the government must prove each of the following beyond a reasonable doubt: § 1029(a)(1) P First, that the defendant produced, used, or trafficked in one or more counterfeit access devices; P Second, that the conduct affected interstate or foreign commerce; and P Third, that the defendant did so knowingly and with intent to defraud. § 1029(a)(2) P First, that the defendant trafficked in or used one or more unauthorized access devices; P Second, that, by such conduct, the defendant obtained anything of value aggregating $1,000 or more during a one-year period; P Third, that the conduct affected interstate or foreign commerce; and 017 2 P First, that the defendant possessed fifteen or more access devices; 27/ P Second, that the access devices were either counterfeit or unauthorized; 07/ d P Third, that the conduct affected interstate or foreign commerce; and we e P Fourth, that the defendant did so knowingly and with intent to defraud. , vi § 1029(a)(4) 226 4 P First, that the defendant produced, trafficked in, had control or custody of, or 16. possessed; No P Second, device-making equipment; P Fourth, that the defendant did so knowingly and with intent to defraud.625 § 1029(a)(3) P Third, that the conduct affected interstate or foreign commerce; and P Fourth, that the defendant did so knowingly and with intent to defraud. § 1029(a)(5) P First, that the defendant effected transactions with one or more access devices issued to another person or persons; P Second, that the defendant did so to receive payment or any other thing of value aggregating $1,000 or more during any one-year period; P Third, that the conduct affected interstate or foreign commerce; and P Fourth, that the defendant did so knowingly and with intent to defraud.626 624 18 U.S.C. § 1029(b)(1) prohibits attempts, and § 1029(b)(2) has different penalties for conspiracy. Effect on interstate or foreign commerce is an essential element of a § 1029(b)(2) conspiracy. United States v. Akpi, No. 92-5481, 1993 W L 130207 (4th Cir. Apr. 27, 1993). 625 United States v. Blake, 81 F.3d 498, 506 (4th Cir. 1996). 626 See United States v. Davenport, 445 F.3d 366, 373 (4th Cir. 2006), overruled in part on other grounds by Irizarry v. United States, 553 U.S. 708 (2008). 212 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 216 of 684 TITLE 18 § 1029(a)(6) P First, that the defendant solicited another person for the purpose of (1) offering an access device, or (2) selling information regarding or an application to obtain an access device; P Second, that the defendant did so without the authorization of the issuer of the access device; P Third, that the conduct affected interstate or foreign commerce; and P Fourth, that the defendant did so knowingly and with intent to defraud. § 1029(a)(7) P First, that the defendant used, produced, trafficked in, had control or custody of, or possessed; P Second, a telecommunications instrument that had been modified or altered to obtain unauthorize d use of telecommunications services; P Third, that the conduct affected interstate or foreign commerce; and P Fourth, that the defendant did so knowingly and with intent to defraud. § 1029(a)(8) P 017 7/2 First, that the defendant used, produced, trafficked in, had control or custody of, or possessed; 2 7/commerce; and 0 P Third, that the conduct affected interstate or foreign ed with intent to defraud. w P Fourth, that the defendant did so knowingly and vie § 1029(a)(9) 26,produced, trafficked in, had control or custody of, 2 P First, that the defendant used, 6-4 or possessed; o. 1 or software that had been configured to insert or modify P Second, hardware N telecommunication identifying information associated with or contained in a P Second, a scanning receiver; telecommunications instrument so that the instrument could be used to obtain telecommunication service without authorization; P Third, that the defendant knew the hardware or software had been so configured; P Fourth, that the conduct affected interstate or foreign commerce; and P Fifth, that the defendant did so knowingly. § 1029(a)(10) P First, that the defendant caused or arranged for another person to present to a credit card system member or its agent, for payment, one or more evidences or records of transactions made by an access device; P Second, that the defendant did so without the authorization of the credit card system member or its agent; P Third, that the conduct affected interstate or foreign commerce; and P Fourth, that the defendant did so knowingly and with intent to defraud. “Access device” means any card, plate, code, account number, electronic serial number, mobile identification number, personal identification number or other 213 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 217 of 684 TITLE 18 telecommunications service, equipment, or instrument identifier, or other means of account access that can be used, alone or in conjunction with another access device, to obtain money, goods, services, or any other thing of value, or that can be used to initiate a transfer of funds (other than a transfer originated solely by paper instrument). [§ 1029(e)(1)] “Counterfeit access device” means any access device that is counterfeit, fictitious, altered, or forged, or an identifiable component of an access device or a counterfeit access device. [§ 1029(e)(2)] “Unauthorized access device” means any access device that is lost, stolen, expired, revoked, canceled, or obtained with intent to defraud. [§ 1029(e)(3)]627 The term “produce” includes design, alter, authenticate, duplicate, or assemble. [§ 1029(e)(4)] The term “traffic” means transfer, or otherwise dispose of, to another, or obtain control of with intent to transfer or dispose of. [§ 1029(e)(5)] The term “device-making equipment” means any equipment, mechanism, or impression designed or primarily used for making an access device or a counterfeit access device. [§ 1029(e)(6)] 017 7/2 The term “credit card system member” means a financial institution or other entity that is a member of a credit card system, including an entity, whether affiliated with or identical to the credit card issuer, that is the sole member of a credit card system. [§ 1029(e)(7)] 7/2 can be used to 0 The term “scanning receiver” means a device or apparatus that ed intercept a wire or electronic communication in violation of [federal law] or to intercept ew an electronic serial number, mobile identification number, or other identifier of any viinstrument. [§ 1029(e)(8)] telecommunications service, equipment, or 26, means the offering of telecommunications 2 The term “telecommunications service” 6-4 or to such classes of users as to be effectively available to for a fee directly to the public, o. 1 the public, regardless of the facilities used. [§ 1029(e)(9) and 47 U.S.C. § 153(46)] N The term “facilities-based carrier” means an entity that owns communications transmission facilities, is responsible for the operation and maintenance of those facilities, and holds an operating license issued by the Federal Communications Commission under the authority of ... the Communications Act of 1934. [§ 1029(e)(10)] The term “telecommunications identifying information” means electronic serial number or any other number or signal that identifies a specific telecommunications instrument or account, or a specific communication transmitted from a telecommunications instrument. [§ 1029(e)(11)] “Interstate commerce” includes commerce between one State, Territory, Possession, or the District of Columbia and another State, Territory, Possession, or the District of Columbia. [18 U.S.C. § 10] “Foreign commerce” includes commerce with a foreign country. [18 U.S.C. § 10] To act with an “intent to defraud” means to act with a specific intent to deceive or cheat, ordinarily, for the purpose of either causing some financial loss to another or 627 “None of the statutory language suggests that the cards must have been originally obtained by the rightful cardholder. *** All the statute requires is that the defendant obtain the credit card with the intent to defraud.” United States v. Akinkoye, 185 F.3d 192, 200, 201 (4th Cir. 1999). 214 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 218 of 684 TITLE 18 bringing about some financial gain to one’s self. It is not necessary, however, to prove that anyone was, in fact defrauded, as long as it is established that the defendant acted with the intent to defraud or mislead.628 ____________________NOTE____________________ See United States v. Blake, 81 F.3d 498, 506 (4th Cir. 1996) (offense does not include theft of credit cards used). The identity of the particular credit cards is not an element of the offense; therefore, it is not necessary for the jury to be unanimous on which credit cards the defendant used. United States v. Goldstein, 442 F.3d 777, 782 (2d Cir. 2006). However, the district court did instruct the jury it must agree unanimously on which $1,000 worth of goods, services or money and which twelve-month period the government proved beyond a reasonable doubt. Id. at 782-83. 18 U.S.C. § 1030 COMPUTER CRIMES [LAST UPDATED : 7/1/14] § 1030(a)(2) Title 18, United States Code, Section 1030(a)(2) makes it a crime to access a computer without authorization. For you to find the defendant guilty, the government must prove each of the following beyond a reasonable doubt: 017 7/2 P First, that the defendant accessed a computer without authorization or exceeded authorized access to a computer; P Second, that the defendant thereby obtained any of the following: 1. 2. 3. P 7/2 d0 e iew ,v information contained in a financial record of a financial institution, or of a card issuer [as defined in 15 U.S.C. § 1602(n)] or contained in a file of a consumer reporting agency on a consumer [15 U.S.C. § 1681 et seq.]; 226 information from any department or agency of the United States; or -4 16from any protected computer if the conduct involved an information . No or foreign communication; and interstate Third, that the defendant did so intentionally.629 AGGRAVATED PENALTY [§ 1030(c)(2)(B)] 1. Did the defendant commit the offense for purposes of commercial advantage or private financial gain? 2. Did the defendant commit the offense in furtherance of any criminal or tortious act in violation of the Constitution or laws of the United States or of any State? [The court should identify the elements of the criminal or tortious act.] 3. Did the value of the information obtained exceed $5,000.00? The defendant need not know that the value of the information obtained had a particular value.630 § 1030(a)(3) 628 629 630 United States v. Ellis, 326 F.3d 550, 556 (4th Cir. 2003). See United States v. Willis, 476 F.3d 1121, 1125 (10th Cir. 2007). Id. at 1126. 215 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 219 of 684 TITLE 18 Title 18, United States Code, Section 1030(a)(3) makes it a crime to access certain government computers. For you to find the defendant guilty, the government must prove each of the following beyond a reasonable doubt: P First, that the defendant did one of the following: 1. accessed a nonpublic computer of a department or agency of the United States without authorization; 2. accessed a nonpublic computer of a department or agency of the United States that is exclusively for the use of the Government of the United States; or 3. accessed a nonpublic computer of a department or agency of the United States that is used by or for the Government of the United States and such conduct affected that use by or for the Government of the United States; and P Second, that the defendant did so intentionally. § 1030(a)(4) Title 18, United States Code, Section 1030(a)(4) makes it a crime to access a protected computer without authorization. For you to find the defendant guilty, the government must prove each of the following beyond a reasonable doubt: P First, that the defendant accessed a protected computer without authorization, or exceeded authorized access to a protected computer; P Second, that, by means of such conduct, the defendant furthered the intended fraud and obtained anything of value;631 and 017 7/2 /2 7intent to defraud. 0 P Third, that the defendant did so knowingly and with ed § 1030(a)(5) w vie makes it a crime to cause damage to Title 18, United States Code, Section 1030(a)(5) 6, certain computers. For you to find 2 defendant guilty, the government must prove each the 2 of the following beyond a reasonable doubt: 6-4 § 1030(a)(5)(A) o. 1 N P First, that the defendant caused the transmission of a program, information, code, or command; P Second, that the defendant did so knowingly; P Third, that as a result of such conduct, the defendant caused damage without authorization to a protected computer; and P Fourth, that the defendant did so intentionally. AGGRAVATED PENALTY632 1. Did the offense cause loss to one or more persons during any one-year period aggregating at least $5,000 in value? [§ 1030(c)(4)(A)(i)(I)] 2. Did the offense cause the modification or impairment, or potential modification or impairment, of the medical examination, diagnosis, treatment, or care of one or more individuals? [§ 1030(c)(4)(A)(i)(II)] 631 “Unless the object of the fraud and thing obtained consists only of the use of the computer and the value of such use is not more than $5,000 in any one-year period.” 18 U.S.C. § 1030(a)(4). 632 “[O]r, in the case of an attempted offense, would the offense, if completed, have caused any of the listed circumstances ....” 18 U.S.C. § 1030(c)(4)(A)(i). 216 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 220 of 684 TITLE 18 3. Did the offense cause physical injury to any person? [§ 1030(c)(4)(A)(i)(III)] 4. Did the offense cause a threat to public health or safety? [§ 1030(c)(4)(A)(i)(IV)] 5. Did the offense cause damage affecting a computer system used by or for a government entity in furtherance of the administration of justice, national defense, or national security? [§ 1030(c)(4)(A)(i)(V)] 6. Did the offense cause damage affecting ten or more protected computers during any one-year period? [§ 1030(c)(4)(A)(i)(VI)] 7. Did the defendant attempt to cause or knowingly or recklessly cause serious bodily injury from the alleged conduct? [§ 1030(c)(4)(E)] 8. Did the defendant attempt to cause or knowingly or recklessly cause death from the alleged conduct? [§ 1030(c)(4)(F)] § 1030(a)(5)(B) P First, that the defendant accessed a protected computer without authorization; P Second, that the defendant did so intentionally;633 P Third, that as a result of such conduct, the defendant caused damage; and P Fourth, that the defendant did so recklessly.634 017 1. Did the offense cause loss to one or more persons during any/2 one-year period /27 aggregating at least $5,000 in value? [§ 1030(c)(4)(A)(i)(I)] 07or potential modification or d 2. Did the offense cause the modification or impairment, we impairment, of the medical examination, diagnosis, treatment, or care of one or more e individuals? [§ 1030(c)(4)(A)(i)(II)] v , i 3. Did the offense cause physical injury to any person? [§ 1030(c)(4)(A)(i)(III)] 226 -4 4. Did the offense16 a threat to public health or safety? [§ 1030(c)(4)(A)(i)(IV)] cause . 5. Did the offense cause damage affecting a computer system used by or for a No AGGRAVATED PENALTY635 government entity in furtherance of the administration of justice, national defense, or national security? [§ 1030(c)(4)(A)(i)(V)] 6. Did the offense cause damage affecting ten or more protected computers during any one-year period? [§ 1030(c)(4)(A)(i)(VI)] § 1030(a)(5)(C) P First, that the defendant accessed a protected computer without authorization; P Second, that the defendant did so intentionally;636 P Third, that as a result of such conduct, the defendant caused damage and loss. § 1030(a)(6) 633 See United States v. Morris, 928 F.2d 504, 509 (2d Cir. 1991) (interpreting predecessor 634 See United States v. Sablan, 92 F.3d 865, 867 (9th Cir. 1996) (interpreting predecessor statute). statute). 635 “[O]r, in the case of an attempted offense, would the offense, if completed, have caused any of the listed circumstances ....” 18 U.S.C. § 1030(c)(4)(A)(i). 636 See Morris, 928 F.2d at 509 (interpreting predecessor statute). 217 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 221 of 684 TITLE 18 Title 18, United States Code, Section 1030(a)(6) makes it a crime to traffic in any password. For you to find the defendant guilty, the government must prove each of the following beyond a reasonable doubt: P First, that the defendant trafficked in any password or similar information through which a computer may be accessed without authorization; P Second, that such trafficking affected interstate or foreign commerce, or such computer was used by or for the Government of the United States; and P Third, that the defendant did so knowingly and with intent to defraud. § 1030(a)(7) Title 18, United States Code, Section 1030(a)(7) makes it a crime to access certain government computers. For you to find the defendant guilty, the government must prove each of the following beyond a reasonable doubt: P First, that the defendant did transmit a communication containing one of the following: 1. a threat to cause damage to a protected computer; 2. a threat to obtain information from a protected computer without authorization or in excess of authorization or to impair the confidentiality of information obtained from a protected computer without authorization or by exceeding authorized access; or 017 2 3. a demand or request for money or other thing of value in relation to damage 27/ to facilitate the to a protected computer, where such damage was caused 07/ d extortion; we or foreign commerce; and P Second, that the transmission was ine vi , with interstateextort from any person any money P Third, that the defendant 26 did so intent to or other thing of value.2 4 16“Computer” means an electronic, magnetic, optical, electrochemical, or other high . speed data processing device performing logical, arithmetic, or storage functions, and No includes any data storage facility or communications facility directly related to or operating in conjunction with such device. [§ 1030(e)(1)] “Protected computer” means a computer exclusively for the use of a financial institution or the United States Government, or, in the case of a computer not exclusively for such use, used by or for a financial institution or the United States Government and the conduct constituting the offense affects that use by or for the financial institution or the Government, or a computer which is used in interstate or foreign commerce or communication, including a computer located outside the United States that is used in a manner that affects interstate or foreign commerce or communication of the United States. [§ 1030(e)(2)] “Financial institution” means an institution with deposits insured by the Federal Deposit Insurance Corporation; the Federal Reserve or a member of the Federal Reserve including any Federal Reserve Bank; a credit union with accounts insured by the National Credit Union Administration; a member of the Federal home loan bank system and any home loan bank; any institution of the Farm Credit System under the Farm Credit Act of 1971; a broker-dealer registered with the Securities and Exchange Commission pursuant to section 15 of the Securities Exchange Act of 1934; the Securities Investor Protection Corporation; a branch or agency of a foreign bank (as defined in the International Banking 218 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 222 of 684 TITLE 18 Act of 1978); and an organization operating under section 25 or section 25(a) of the Federal Reserve Act. [§ 1030(e)(4)] “Financial record” means information derived from any record held by a financial institution pertaining to a customer’s relationship with the financial institution. [§ 1030(e)(5)] “Exceeds authorized access” means to access a computer with authorization and to use such access to obtain or alter information in the computer that the accesser is not entitled to obtain or alter. [§ 1030(e)(6)]637 “Damage” means any impairment to the integrity or availability of data, a program, a system, or information. [§ 1030(e)(8)] “Government entity” includes the Government of the United States, any State or political subdivision of the United States, any foreign county, and any state, province, municipality, or other political subdivision of a foreign country. [§ 1030(e)(9)] “Loss” means any reasonable cost to any victim, including the cost of responding to an offense, conducting a damage assessment, and restoring the data, program, system or information to its condition prior to the offense, and any revenue lost, cost incurred, or other consequential damages incurred because of interruption of service. [§ 1030(e)(11)] 017 not attach 2 A “worm” is a program that travels from one computer to another but does 27/ itself to the operating system of the computer it infects. 07/ operating system of any A “virus” is a migrating program that attaches itself to the d computer it enters and can infect any other computer that uses files from the infected we e computer. , vi “Interstate commerce” includes commerce between one State, Territory, Possession, 226 State, Territory, Possession, or the District of or the District of Columbia and another 64 110] Columbia. [18 U.S.C. § . No includes commerce with a foreign country. [18 U.S.C. § 10] “Foreign commerce” “Person” means any individual, form, corporation, educational institution, financial institution, governmental entity, or legal or other entity. [§ 1030(e)(12)] 638 639 To act with an “intent to defraud” means to act with a specific intent to deceive or cheat, ordinarily, for the purpose of either causing some financial loss to another or bringing about some financial gain to one’s self. It is not necessary, however, to prove that anyone was, in fact, defrauded, as long as it is established that the defendant acted with the intent to defraud or mislead.640 ____________________NOTE____________________ Section 1030(b) criminalizes conspiring and attempts. The crimes described in §§ 1030 and 2701 “are similar, and a violation of § 1030 may be a lesser included offense of a violation of § 2701, since a person usually must obtain information through access to a computer in order to obtain access to 637 In Morris, the Second Circuit said that since “authorization” was a word of common usage, without any technical or ambiguous meaning, the district court was not obliged to instruct the jury on its meaning. 928 F.2d at 511. 638 Id. at 505. 639 Id. 640 United States v. Ellis, 326 F.3d 550, 556 (4th Cir. 2003). 219 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 223 of 684 TITLE 18 communications in electronic storage.” United States v. Cioni, 649 F.3d 276, 282 (4th Cir. 2011). In Cioni, the defendant was convicted of violating § 1030(a)(2)(C), in furtherance of a violation of 18 U.S.C. § 2701(a), which elevated the offense from a misdemeanor to a felony. The Fourth Circuit held that the offense was improperly elevated, and vacated the felony convictions, because of “merger,” where the facts or transactions alleged to support one offense are also the same used to support another. There are aggravated penalties in § 1030(c). 18 U.S.C. § 1031 MAJOR FRAUD AGAINST THE UNITED STATES Title 18, United States Code, Section 1031 makes it a crime to execute or attempt to execute a scheme to defraud the United States in any contract with the United States, if the value of the contract is $1,000,000 or more. For you to find the defendant guilty, the government must prove each of the following beyond a reasonable doubt: § 1031(a)(1) P First, that the defendant was a prime contractor with the United States for the procurement of property or services, or a subcontractor or supplier on a contract in which there was a prime contractor with the United States for the procurement of property or services; 017 of the 2 P Second, that the value of the contract, subcontract, or any constituent part 27/ contract or subcontract was $1,000,000 or more; 7/ 0 P Third, that the defendant executed or attempted to execute a scheme or artifice; ed w and vieintent to defraud the United States or to P Fourth, that the defendant did , with so 226 obtain money or property by means of false or fraudulent pretenses, 4 representations, 61 or promises [that were material]. . § 1031(a)(2)o N 641 P First, that the defendant was a prime contractor with the United States for the procurement of property or services, or a subcontractor or supplier on a contract in which there was a prime contractor with the United States for the procurement of property or services; P Second, that the value of the contract, subcontract, or any constituent part of the contract or subcontract was $1,000,000 or more; P Third, that the defendant executed or attempted to execute a scheme or artifice; and P Fourth, that the defendant did so with intent to obtain money or property by means of false or fraudulent pretenses, representations, or promises [that were material].642 641 Materiality is an element of mail, wire, and bank fraud. Neder v. United States, 527 U.S. 1, 23-25 (1999). The Fourth Circuit has not addressed this issue relating to § 1031. 642 Materiality is an element of mail, wire, and bank fraud. Id. The Fourth Circuit has not addressed this issue relating to § 1031. 220 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 224 of 684 TITLE 18 The government must prove that the prime contract, subcontract, supply agreement, or any constituent part of such a contract, is valued at $1,000,000 or more.643 However, the government is not required to prove the final cost of the contract, or even whether the contract was completed.644 The words “scheme and artifice” include any plan or course of action intended to deceive others and to obtain by either false or fraudulent pretenses, representations or promises, either money or property from persons who are so deceived. A statement or representation is false or fraudulent if known to be untrue or made with reckless indifference as to the truth or falsity and made or caused to be made with the intent to deceive or defraud.645 “To defraud” means wronging one in his property rights by dishonest methods or schemes and usually signifies the deprivation of something of value by trick, deceit, chicanery or overreaching. The concept of fraud includes the act of embezzlement, which is the fraudulent appropriation to one’s own use of the money or goods entrusted to one’s care by another.646 Fraud is an intentional or deliberate misrepresentation of the truth for the purpose of inducing another to part with a thing of value or to surrender a legal right. Fraud, then, is a deceit which, whether perpetrated by words, conduct, or silence, is designed to cause another to act upon it to his legal injury. A statement, claim or document is fraudulent if it was falsely made, or made with reckless indifference as to its truth or falsity, and made or caused to be made with an intent to deceive. The phrases “any scheme or artifice to defraud” and “any scheme or artifice for obtaining money or property” mean any deliberate plan of action or course of conduct by which someone intends to deceive or cheat another or by which someone intends to deprive another of something of value. A scheme or artifice to defraud may describe a departure from fundamental honesty, moral uprightness, or fair play and candid business dealings in the general life of the community. There must be proof of either a misrepresentation, false statement, or omission calculated to deceive a person of ordinary prudence and comprehension. A scheme to defraud may occur even absent a false statement or false representation, and may be based on fraudulent omissions. A scheme to defraud includes the knowing concealment of facts and information done with the intent to defraud. 017 7/2 7/2 d0 e iew ,v o. 1 N 226 6-4 To act with an “intent to defraud” means to act with a specific intent to deceive or cheat, ordinarily, for the purpose of either causing some financial loss to another or bringing about some financial gain to one’s self. It is not necessary, however, to prove that anyone was, in fact, defrauded, as long as it is established that the defendant acted with the intent to defraud or mislead.647 A scheme to defraud requires that the government prove that the defendant acted with the specific intent to deceive or cheat for the purpose of getting financial gain for 643 United States v. Brooks, 111 F.3d 365, 368-69 (4th Cir. 1997). But see United States v. Nadi, 996 F.2d 548, 551 (2d Cir. 1993) (in dicta finding that “value of the contract is determined by looking to the specific contract upon which the fraud is based.”). 644 Brooks, 111 F.3d at 370. 645 See United States v. Scott, 701 F.2d 1340, 1343 (11th Cir. 1983). “[R]epresentations known by a person to be false is a type of a scheme to defraud.” Id. at 1344. 646 Carpenter v. United States, 484 U.S. 19, 27 (1987). 647 United States v. Ellis, 326 F.3d 550, 556 (4th Cir. 2003). 221 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 225 of 684 TITLE 18 one’s self or causing financial loss to another. Thus, the government must prove that the defendant intended to deceive the United States through the scheme.648 Fraud includes acts taken to conceal, create a false impression, mislead, or otherwise deceive in order to prevent another person from acquiring material information.649 Thus, a scheme to defraud can be shown by deceptive acts or contrivances intended to hide information, mislead, avoid suspicion, or avert further inquiry into a material matter.650 The government can prove a scheme to defraud by evidence of active concealment of material information.651 The government must prove that the false or fraudulent pretenses, representations, or promises were material. A statement is material if it has a natural tendency to influence, or is capable of influencing, the decision-making body to which it was addressed. It is irrelevant whether the false statement actually influenced or affected the decision-making process of the agency or fact finding body. A false statement’s capacity to influence must be measured at the point in time that the statement was made.652 A statement or representation is false or fraudulent if it is known to be untrue or is made with reckless indifference as to its truth or falsity, when it constitutes a half truth, or effectively omits or conceals a material fact, provided it is made with intent to defraud. “No actual misrepresentation of fact is necessary to make the crime complete.”653 L 017 7/2 7/2 d0 For multiple defendants: In order to find the defendants responsible for participating in the fraudulent scheme as alleged in the indictment, each of you must find that the defendants participated in the same single scheme to defraud and that the scheme to defraud in which the defendants are found to have participated is substantially the same scheme as the overall fraudulent scheme alleged in the indictment. To sustain its burden of proof, however, the government is not required to prove all of the components of the scheme to defraud that are alleged in the indictment. If the government proves beyond a reasonable doubt a scheme to defraud that contains some or all of the components in the indictment, but is simply more narrow than the scheme to defraud as defined in the indictment, then the government has carried its burden of proof. You must unanimously agree, however, on the components of the scheme to defraud.654 e iew ,v o. 1 N 648 649 226 6-4 See United States v. Brandon, 298 F.3d 307, 311 (4th Cir. 2002) (§ 1344 prosecution). United States v. Colton, 231 F.3d 890, 898 (4th Cir. 2000). The court found that [concealment] is characterized by deceptive acts or contrivances intended to hide information, mislead, avoid suspicion, or prevent further inquiry into a material matter. [Nondisclosure] is characterized by mere silence. Although silence as to a material fact (nondisclosure), without an independent disclosure duty, usually does not give rise to an action for fraud, suppression of the truth with the intent to deceive (concealment) does. Id. at 899. 650 651 652 653 654 222 Id. at 901. Id. at 907. United States v. Sarihifard, 155 F.3d 301, 307 (4th Cir. 1998). Lemon v. United States, 278 F.2d 369, 373 (9th Cir. 1960). Instruction that the jury agree unanimously on the identity and extent of the scheme to (continued...) Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 226 of 684 TITLE 18 ____________________NOTE____________________ The unit of prosecution is each execution of the scheme, not each act in furtherance of the scheme. “When an act is chronologically and substantively independent from the other acts charged as the scheme, it constitutes an execution.” United States v. Colton, 231 F.3d 890, 909 (4th Cir. 2000) (a § 1344 prosecution) (quotations and citation omitted). “In contrast, acts that are planned or contemplated together may indicate that they are dependent on one another and cannot be separately charged.” Id. In United States v. Hickman, 331 F.3d 439 (5th Cir. 2003), a § 1347 prosecution, the Fifth Circuit determined that whether a transaction is “an ‘execution’ of the scheme or merely a component of the scheme will depend on several factors including (1) the ultimate goal of the scheme, (2) the nature of the scheme, (3) the benefits intended, (4) the interdependence of the acts, and (5) the number of parties involved.” 331 F.3d at 446. Hickman had billed Medicare, Medicaid, and private insurance companies in a series of fraudulent transactions. The defendant submitted each claim separately and, with each submission, owed a new and independent obligation to be truthful to the insurer. Therefore, each claim submission was a separate execution of the scheme. “[A]ny scheme can be executed a number of times, and each execution may be charged as a separate count.” Id. 017 7/2 18 U.S.C. § 1035 FALSE STATEMENT RELATINGTO HEALTH CARE MATTERS 7/2 d0 Title 18, United States Code, Section 1035 makes it a crime to cover up by trick a material fact, or make any false statements in connection with the delivery of or payment for health care benefits. For you to find the defendant guilty, the government must prove each of the following beyond a reasonable doubt: e iew ,v 226 -4 First, that the 16 defendant falsified, concealed, or covered up by any trick, scheme, or device a. material fact; No connection with the delivery of or payment for health care benefits, Second, in § 1035(a)(1) P P items, or services involving a health care benefit program; and P Third, that the defendant did so knowingly and willfully. § 1035(a)(2) P First, that the defendant made a materially false, fictitious, or fraudulent statement or representation; P Second, in connection with the delivery of or payment for health care benefits, items, or services involving a health care benefit program; and P Third, that the defendant did so knowingly and willfully. OR P First, that the defendant made or used a materially false writing or document; P Second, that the defendant knew the materially false writing or document contained a materially false, fictitious, or fraudulent statement or entry; 654 (...continued) defraud. United States v. Smith, 44 F.3d 1259, 1270 (4th Cir. 1995). 223 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 227 of 684 TITLE 18 P Third, in connection with the delivery of or payment for health care benefits, items, or services involving a health care benefit program; and P Fourth, that the defendant did so knowingly and willfully. “Health care benefit program” means any public or private plan or contract, affecting commerce, under which any medical benefit, item, or service is provided to any individual, and includes any individual or entity who is providing a medical benefit, item or service for which payment may be made under the plan or contract. [18 U.S.C. § 24(b)–note the interstate commerce nexus.]655 “Interstate commerce” includes commerce between one State, Territory, Possession, or the District of Columbia and another State, Territory, Possession, or the District of Columbia. [18 U.S.C. § 10] “Foreign commerce” includes commerce with a foreign country. [18 U.S.C. § 10] A statement is material if it has a natural tendency to influence, or is capable of influencing, the decision-making body to which it was addressed. It is irrelevant whether the false statement actually influenced or affected the decision-making process of the agency or fact finding body. A false statement’s capacity to influence must be measured at the point in time that the statement was made.656 017 7/2 A statement or representation is false or fraudulent if it is known to be untrue or is made with reckless indifference as to its truth or falsity, when it constitutes a half truth, or effectively omits or conceals a material fact, provided it is made with intent to defraud. “No actual misrepresentation of fact is necessary to make the crime complete.”657 7/2 0 ____________________NOTE____________________ ed w Because § 1035 is modeled after § 1001, see NOTE section for § 1001. vie Intentionally concealing a material fact and the act of knowingly making a false 26, of health care benefits constitute two separate statement in connection with 42 the delivery offenses where the concealment and the statement are separate acts. United States v. 16. Dose, (N.D. Iowao N 2005). See United States v. Lucien, 347 F.3d 45, 52 (2d Cir. 2003), where the Second Circuit held that 18 U.S.C. § 1347 applied to the defendants’ conduct as passengers in staged auto accidents to defraud the New York state no-fault automobile insurance program because the program qualified as a health care benefit program under § 24(b). 18 U.S.C. § 1071 HARBORING A FUGITIVE Title 18, United States Code, Section 1071 makes it a crime to harbor a fugitive. For you to find the defendant guilty, the government must prove each of the following beyond a reasonable doubt: P First, that a federal warrant or process had been issued for the arrest of the fugitive; P Second, that the defendant knew that the warrant or process had been issued; P Third, that the defendant harbored or concealed the fugitive; and 655 In United States v. Hickman, 331 F.3d 439, 443 (5th Cir. 2003), the Fifth Circuit said that the jurisdictional element of affecting commerce is probably an essential element of the offense. 656 Sarihifard, 155 F.3d at 307. 657 Lemon, 278 F.2d at 373. 224 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 228 of 684 TITLE 18 P Fourth, that the defendant intended to prevent the fugitive’s discovery or arrest.658 AGGRAVATED PENALTY 1. Did the warrant or process that had been issued charge a felony, or had the fugitive been convicted of any offense? ____________________NOTE____________________ See generally United States v. Bowens, 224 F.3d 309 (4th Cir. 2000); United States v. Silva, 745 F.2d 840, 848 (4th Cir. 1984). Lying to the police about the location of a fugitive does not constitute harboring or concealing. Providing general financial assistance does not constitute actual harboring or concealing. Actual harboring or concealing requires some affirmative, physical action by the defendant. Generally, the government must prove a physical act of providing assistance to aid the fugitive in avoiding detection and apprehension, such as arranging for hotels and vehicles, renting apartments, shopping for the fugitive, providing the fugitive with false identification, or closing the door on law enforcement officers who were attempting to apprehend the fugitive. See United States v. Mitchell, 177 F.3d 236, 239 (4th Cir. 1999). 017 7/2 Venue is where the harboring occurs, not where the warrant is issued. Bowens, 224 F.3d at 309. 18 U.S.C. § 1111 MURDER 7/2 d0 e iew ,v Title 18, United States Code, Section 1111 makes it a crime to commit murder within the special territorial jurisdiction of the United States. 226 4 For you to find the defendant guilty of first degree murder, the government must 16-beyond a reasonable doubt: prove each of the o. N following unlawfully killed another human being; P First, that the defendant First degree: P Second, that the murder took place within the special maritime and territorial jurisdiction of the United States; P Third, that the defendant did so with malice aforethought; and P Fourth, that the murder was perpetrated by poison, lying in wait, or any other kind of willful, deliberate, malicious, and premeditated killing, OR committed in the perpetration of, or attempt to perpetrate, any arson, escape, murder, kidnapping, treason, espionage, sabotage, aggravated sexual abuse or sexual abuse, child abuse, burglary, or robbery, or perpetrated as part of a pattern or practice of assault or torture against a child or children, or perpetrated from a premeditated design unlawfully and maliciously to effect the death of any human being other than the person killed.659 658 United States v. Mitchell, 177 F.3d 236, 238 (4th Cir. 1999). See Beardslee v. United States, 387 F.2d 280 (8th Cir. 1967); United States v. Browner, 889 F.2d 549 (5th Cir. 1989). Malice encompasses four distinct mental states: (1) intent to kill, (2) intent to do serious bodily injury, (3) having a “depraved heart,” a term of art that refers to a level of extreme recklessness and wanton disregard for human life, and (4) the “felony murder” rule. Browner, (continued...) 659 225 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 229 of 684 TITLE 18 “Lying in wait” generally requires a watching and waiting in a concealed position with an intent to kill or do serious bodily harm to another. It does not require being in a prone position.660 Second degree:661 For you to find the defendant guilty of second degree murder, the government must prove each of the following beyond a reasonable doubt: P First, that the defendant unlawfully killed another human being; P Second, that the murder took place within the special maritime and territorial jurisdiction of the United States; and P Third, that the defendant did so with malice aforethought. “Special maritime and territorial jurisdiction of the United States” includes lands reserved or acquired for the use of the United States, and under the exclusive or concurrent jurisdiction of the United States, or any place purchased or otherwise acquired by the United States by consent of the legislature of the State in which the land is situated, for the building of a fort, arsenal, dock, or other needed building.662 “Assault” means [§ 1111(c)(1) refers to § 113, but assault is not defined in § 113]. 017 7/2 “Assault” has three meanings. First, a battery; second an attempt to commit a battery; and third, an act that puts another in reasonable apprehension of receiving immediate bodily harm.663 7/2injury upon the person 0 An assault is committed by either a willful attempt to inflict ed of another, or by a threat to inflict injury upon the person of another which, when coupled w with an apparent present ability, causes a reasonable apprehension of immediate bodily vie , harm. 26not attained the age of 18 and is either under the “Child” means a person 42 has who care or control of the defendant, or at least 6 years younger than the defendant. 16. [§ 1111(c)(2)] No 664 “Child abuse” means intentionally or knowingly causing death or serious bodily injury to a child. [§ 1111(c)(3)] 659 (...continued) 889 F.2d at 551-52 and n.2. 660 United States v. Shaw, 701 F.2d 367, 393 n.21 (5th Cir. 1983). 661 The distinction between first and second degree murder is the presence or absence of premeditation. Premeditation and malice are not synonymous. Beardslee, 387 F.2d at 280. 662 See 18 U.S.C. § 7 (listing other definitions). In United States v. Passaro, 577 F.3d 207 (4th Cir. 2009), the Fourth Circuit construed § 7(9) as reaching only fixed locations. An inexhaustive list of factors relevant in determining whether a particular location qualifies as the premises of a United States mission include “the size of a given military mission’s premises, the length of United States control over those premises, the substantiality of its improvements, actual use of the premises, the occupation of the premises by a significant number of United States personnel, and the host nation’s consent (whether formal or informal) to the presence of the United States.” 577 F.3d at 214. In Passaro, the court found that Asadabad Firebase in Afghanistan came within the statutory definition, such that Passaro, a civilian contractor, could be prosecuted for assaulting a prisoner, in violation of 18 U.S.C. § 113. 663 United States v. Williams, 197 F.3d 1091, 1096 (11th Cir. 1999). 664 United States v. Dupree, 544 F.2d 1050, 1051 (9th Cir. 1976) (citation omitted). 226 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 230 of 684 TITLE 18 “Pattern or practice of assault or torture” means assault or torture engaged in on at least two occasions. [§ 1111(c)(4)] “Serious bodily injury” means bodily injury which involves a substantial risk of death, extreme physical pain, protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily member, organ or mental faculty. [18 U.S.C. §§ 1111(c)(5) and 1365(h)(3)] “Torture” means conduct specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control (§ 2340(1)(“severe mental pain or suffering” is defined in § 2340(2)). [§ 1111(c)(6)] Malice is a legal term which bears little if any relationship to the ordinary meaning of the word.665 To prove malice aforethought, the government does not have to show that the defendant harbored hatred or ill will against the victim or others. Nor does the government have to prove an intent to kill or injure. The government may prove malice by evidence of conduct which is reckless and wanton and a gross deviation from a reasonable standard of care, of such a nature that you, the jury, may infer that the defendant was aware of a serious risk of death or serious bodily harm. Thus, the government need only prove that the defendant acted with a “depraved heart,” that is, without regard for the life and safety of others, and that a death resulted.666 017period of Premeditation involves a prior design to commit murder, but 7/2 /2no particular time is necessary for such deliberation and premeditation. There must be some 07 appreciable time for reflection and consideration before execution of the act, although the d even period of time does not require the lapse of days ore w hours or mind minutes. Perhaps the e best that can be said of deliberation is thatvirequires a cool that is , it that the one with the coolcapable of in 6requires reflection, and of premeditation that it mind did, fact, reflect, at least for a short period of time before his act of killing. 422 16The government must prove beyond a reasonable doubt that the victim is deceased. . Death may be No solely by circumstantial evidence. proved 667 668 ____________________NOTE____________________ The common law “year and a day rule” that the victim’s death occur within a year and a day of the alleged fatal stroke, blow, or injury perpetrated by the defendant is a substantive rule of law. United States v. Chase, 18 F.3d 1166, 1173 (4th Cir. 1994). Moreover, an indictment for murder “must include an allegation that death occurred within a year and a day of the fatal blow.” Id. at 1170-71. In Chase, the Fourth Circuit reversed a murder conviction where the victim died 17 years after the fatal assault. 665 United States v. Browner, 889 F.2d 549, 551 (5th Cir. 1989). See United States v. Williams, 342 F.3d 350, 356 (4th Cir. 2003); United States v. Fleming, 739 F.2d 945, 947-48 (4th Cir. 1984) (citing United States v. Shaw, 701 F.2d 367, 392 n.20 (5th Cir. 1983)). 667 Shaw, 701 F.2d at 392-93. 668 United States v. Russell, 971 F.2d 1098, 1110 (4th Cir. 1992). 666 227 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 231 of 684 TITLE 18 For discussion of special territorial jurisdiction, see the following cases: United States v. Lavender, 602 F.2d 639 (4th Cir. 1979); United States v. Lovely, 319 F.2d 673 (4th Cir. 1963); United States v. Benson, 495 F.2d 475 (5th Cir. 1974); and State v. Zeigler, 274 S.C. 6, 260 S.E.2d 182 (S.C. 1979), overruled on other grounds by Joseph v. State, 351 S.C. 551, 571 S.E.2d 280 (S.C. 2002). Evidence demonstrating that an act was done so recklessly or wantonly as to manifest depravity of mind and disregard of human life satisfies the malice requirement for second degree murder. The key point is that malice requires that the circumstances have been such that the jury could conclude that defendant’s entering into the risk created by his conduct evidenced a depraved mind without regard for human life. United States v. Fleming, 739 F.2d 945, 949 n.5 (4th Cir. 1984). “First degree murder is defined as including any murder which is either premeditated or committed in the perpetration of any of the listed felonies ....” United States v. Sides, 944 F.2d 1554, 1557 (10th Cir. 1991). In United States v. Russell, 971 F.2d 1098 (4th Cir. 1992), the court declined to hold “that any specific type of circumstantial evidence is required to prove the corpus delicti when the victim’s body has not been located.” 971 F.2d at 1100. To establish the corpus delicti in a homicide case, the government must prove (1) that the victim is dead, and (2) that the death was caused by a criminal act, rather than by accident, suicide, or natural causes. Id. at 1110 n.22. 17 0of murder. 2 Voluntary and involuntary manslaughter are lesser included offenses 27/ United States v. Browner, 889 F.2d 549, 552 (5th Cir. 1989). / 07 Special territorial jurisdiction does not include proprietary jurisdiction. Most federal d buildings, such as courthouses and office buildings, are proprietary jurisdictions, and are we e usually covered only by regulations of thevi , General Services Administration published in the Code of Federal Regulations. 26 2 6-4 1 18 U.S.C. § 1112 o. MANSLAUGHTER N Title 18, United States Code, Section 1112 makes it a crime to kill another human 669 being unlawfully within the special territorial jurisdiction of the United States. Voluntary For you to find the defendant guilty of voluntary manslaughter, the government must prove each of the following beyond a reasonable doubt: P First, that the defendant killed another human being; P Second, that the defendant did so upon a sudden quarrel or heat of passion; and P Third, that the defendant did so within the special territorial jurisdiction of the United States. 669 The distinction between murder and manslaughter is the presence or absence of malice. Browner, 889 F.2d at 552. 228 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 232 of 684 TITLE 18 “Heat of passion” means a passion of fear or rage in which the defendant loses his normal self-control as a result of circumstances that would provoke such a passion in an ordinary person, but which did not justify the use of deadly force.670 Involuntary For you to find the defendant guilty of involuntary manslaughter, the government must prove each of the following beyond a reasonable doubt: P First, the defendant killed another person; P Second, that the defendant did so in committing an unlawful act or in committing a lawful act which might produce death in an unlawful manner or without due caution and circumspection; and P Third, that the defendant did so within the special territorial jurisdiction of the United States. The “unlawful act” has two separate parts. First, it is an act in its nature dangerous to life. Second, it is an act constituting gross negligence, to be determined on the consideration of all the facts of the particular case.671 “Gross negligence” is defined as exacting proof of a wanton or reckless disregard for human life. The government must show that the defendant had actual knowledge that his conduct was a threat to the lives of others, or that he had knowledge of such circumstances672 as could reasonably be said to have made foreseeable to him the peril to which his acts might subject others.673 017 7/2 7/2 d0 “Special maritime and territorial jurisdiction of the United States” includes lands reserved or acquired for the use of the United States, and under the exclusive or concurrent jurisdiction of the United States, or any place purchased or otherwise acquired by the United States by consent of the legislature of the State in which the land is situated, for the building of a fort, arsenal, dock, or other needed building.674 e iew ,v o. 1 N 226 6-4 670 United States v. Harris, 420 F.3d 467, 476 (5th Cir. 2005). United States v. Pardee, 368 F.2d 368, 374 (4th Cir. 1966) (“If the resultant deaths were merely accidental or the result of a misadventure or due to simple negligence, or an honest error of judgment in performing a lawful act, the existence of gross negligence should not be found.”). 672 In United States v. Escamilla, 467 F.2d 341 (4th Cir. 1972), a case in which the killing occurred on T-3, an island of glacial ice in the Arctic Ocean, “such circumstances” included that T-3 had no governing authority, no police force, no medical facilities, and the dwellings lacked locks. 673 Pardee, 368 F.2d at 374. 674 See 18 U.S.C. § 7 (listing other definitions). In United States v. Passaro, 577 F.3d 207 (4th Cir. 2009), the Fourth Circuit construed § 7(9) as reaching only fixed locations. An inexhaustive list of factors relevant in determining whether a particular location qualifies as the premises of a United States mission include “the size of a given military mission’s premises, the length of United States control over those premises, the substantiality of its improvements, actual use of the premises, the occupation of the premises by a significant number of United States personnel, and the host nation’s consent (whether formal or informal) to the presence of the United States.” 577 F.3d at 214. In Passaro, the court found that Asadabad Firebase in Afghanistan came within the statutory definition, such that Passaro, a civilian contractor, could be prosecuted for assaulting a prisoner, in violation of 18 U.S.C. § 113. 671 229 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 233 of 684 TITLE 18 The government must prove beyond a reasonable doubt that the victim is deceased. Death may be proved solely by circumstantial evidence.675 ____________________NOTE____________________ “While it is frequently said there is not Federal criminal common law — Federal crimes being exclusively dependent upon statutes of the United States — certainly the statute’s terms, when known to and often derived from the common law, are referable to it for interpretation.” United States v. Pardee, 368 F.2d 368, 374 (4th Cir. 1966). Neither intent nor malice are factors of involuntary manslaughter. Id. at 373. In United States v. Russell, 971 F.2d 1098 (4th Cir. 1992), the court declined to hold “that any specific type of circumstantial evidence is required to prove the corpus delicti when the victim’s body has not been located.” 971 F.2d at 1110. To establish the corpus delicti in a homicide case, the government must prove (1) that the victim is dead, and (2) that the death was caused by a criminal act, rather than by accident, suicide, or natural causes. Id. at 1110 n.22. For discussion of special territorial jurisdiction, see the following cases: United States v. Lavender, 602 F.2d 639 (4th Cir. 1979); United States v. Lovely, 319 F.2d 673 (4th Cir. 1963); United States v. Benson, 495 F.2d 475 (5th Cir. 1974); and State v. Zeigler, 274 S.C. 6, 260 S.E.2d 182 (S.C. 1979), overruled on other grounds by Joseph v. State, 351 S.C. 551, 571 S.E.2d 280 (S.C. 2002). 017 7/2 7/2 0 Title 18, United States Code, Section 1163 makes it a crime to steal property, or ed w possess stolen property, belonging to an Indian tribal organization. For you to find the vie defendant guilty, the government must prove each of the following beyond a reasonable doubt: 26, 2 ¶1 6-4 P First, that the defendant embezzled, stole, converted to his/her own use or the o. 1 N use of another, misapplied, or permitted another person to misapply property; 18 U.S.C. § 1163 THEFT FROM INDIAN TRIBAL ORGANIZATION P Second, that the property belonged to an Indian tribal organization or was intrusted to the custody or care of any officer, employee, or agent of an Indian tribal organization; P Third, that the property was valued in excess of $1,000.00; and P Fourth, that the defendant did so willfully. ¶2 P First, that the defendant received, concealed, or retained with intent to convert to his use or the use of another property; 675 In United States v. Russell, 971 F.2d 1098, 1110 (4th Cir. 1992), the court declined to hold “that any specific type of circumstantial evidence is required to prove the corpus delicti when the victim’s body has not been located.” To establish the corpus delicti in a homicide case, the government must prove (1) that the victim is dead, and (2) that the death was caused by a criminal act, rather than by accident, suicide, or natural causes. Id. at 1110 n.22. 230 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 234 of 684 TITLE 18 P Second, that the property belonged to an Indian tribal organization; P Third, that the property was valued in excess of $1,000.00; and P Fourth, that the defendant knew the property had been embezzled, stolen, converted, or misapplied. L If a disputed issue is whether the property stolen had a value exceeding $1,000.00, the court should consider giving a lesser included offense instruction. “Indian tribal organization” means any tribe, band, or community of Indians which is subject to the laws of the United States relating to Indian affairs or any corporation, association, or group which is organized under any of such laws. [§ 1163, ¶ 4] “Value” means the April 16, 2015face, par, or market value, or cost price, either wholesale or retail, whichever is greater. [§ 641] “Embezzle” means the deliberate taking or retaining of the property of another with the intent to deprive the owner of its use or benefit by a person who has lawfully come into the possession of the property. The lawful possession need not be acquired through a relationship of trust.676 “Steal” means to take away from a person in lawful possession without right with the intention to keep wrongfully.677 017 7/2 Conversion is the act of control or dominion over the property of another that seriously interferes with the rights of the owner. The act of control or dominion must be without authorization from the owner. The government must prove both that the defendant knew the property belonged to another and that the taking was not authorized.678 7/2 d0 Conversion, however, may be consummated without any intent to keep and without ethe converter was entirely lawful. w any wrongful taking, where the initial possession by vie Conversion may include misuse or abuse of property. It may reach use in an unauthorized 26, manner or to an unauthorized extent of property placed in one’s custody for limited use. 2 Money rightfully taken into-4 custody may be converted without any intent to keep or 6 one’s it with the custodian’s own, if he was under a duty to embezzle it merely by commingling o.in 1 keep it separate and tact. N 679 To “misapply” means to use the funds or property of the Indian tribal organization knowing that such use was unauthorized or unjustifiable or wrongful. Misapplication includes the wrongful taking or use of the money or property of the Indian tribal organization, by its agent for his or her own benefit, the use or benefit of some other person, or an unauthorized purpose, even if such use benefitted the Indian tribal organization.680 676 677 678 679 680 See United States v. Smith, 373 F.3d 561, 564-65 (4th Cir. 2004). Morissette v. United States, 342 U.S. 246, 271 (1952). See United States v. Stockton, 788 F.2d 210, 216 (4th Cir. 1986). Morissette, 342 U.S. at 271-72. See United States v. Falcon, 477 F.3d 573, 578 (8th Cir. 2007). 231 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 235 of 684 TITLE 18 The government must prove that the property belonged to, or had been intrusted to, an Indian tribal organization, and the government must prove that the defendant knew that the property belonged to an Indian tribal organization.681 Possession of recently stolen property, if not satisfactorily explained, is ordinarily a circumstance from which you may reasonably draw the inference and find, in the light of the surrounding circumstances shown by the evidence in the case, that the person in possession participated in some way in the theft of the property682 or knew the property had been stolen. The same inference may reasonably be drawn from a false explanation of such possession.683 However, you are never required to make this inference. It is the exclusive province of the jury to determine whether the facts and circumstances shown by the evidence in this case warrant any inference which the law permits the jury to draw from the possession of recently stolen property. The term “recently” is a relative term, and has no fixed meaning. Whether property may be considered as recently stolen depends upon the nature of the property, and all the facts and circumstances shown by the evidence in the case. The longer the period of time since the theft the more doubtful becomes the inference which may reasonably be drawn from unexplained possession. You may infer that the defendant knew the property was stolen from circumstances that would convince a person of ordinary intelligence that such was the fact. In deciding whether the defendant knew the property was stolen, you should consider the entire conduct of the defendant that you deem relevant and which occurred at or near the time the offenses are alleged to have been committed. Sale and purchase at a substantially discounted price permits, but does not require, an inference that the defendant knew the property was stolen.684 017 7/2 7/2 d0 e iew ,v Possession may be satisfactorily explained through other circumstances, other evidence, independent of any testimony of the defendant.685 You are reminded that the Constitution never imposes on a defendant the burden of testifying or of explaining possession, and it is the jury’s province to draw or reject any inference from possession.686 o. 1 N 226 6-4 The government does not have to prove an actual property loss.687 ____________________NOTE____________________ Embezzlement may constitute a continuing offense, for statute of limitations purposes. See United States v. Smith, 373 F.3d 561, 564 (4th Cir. 2004) (prosecution under § 641). 681 United States v. Markiewicz, 978 F.2d 786, 803-05 (2d Cir. 1992). United States v. Long, 538 F.2d 580, 581 n.1 (4th Cir. 1976). 683 Id. 684 United States v. Gallo, 543 F.2d 361, 368 n.6 (D.C. Cir. 1976). 685 See Barnes v. United States, 412 U.S. 837, 840 n.3 (1973) (instruction in prosecution under 18 USC § 1708). 686 See United States v. Chorman, 910 F.2d 102, 108 (4th Cir. 1990). 687 United States v. Bailey, 734 F.2d 296, 301, 305 (7th Cir. 1984) (“whether or not the government suffered monetary loss is immaterial”). 682 232 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 236 of 684 TITLE 18 Section 1163 does not require intent to injure or defraud. United States v. Wadena, 152 F.3d 831, 855 (8th Cir. 1998). Aggregation A series of takings over a period of time may constitute a single larceny when each taking is the result of a continuing larcenous impulse or intent on the part of the thief, or has been carried out under a single plan or scheme. 53 A.L.R. 3d 398. In determining whether a series of takings are properly aggregated, the fact finder must examine the intent of the actor at the first taking. “If the actor formulated ‘a plan or scheme or [set] up a mechanism which, when put into operation, [would] result in the taking or diversion of sums of money on a recurring basis,’ the crime may be charged in a single count.” United States v. Smith, 373 F.3d 561, 564 (4th Cir. 2004). 18 U.S.C. § 1201 KIDNAPPING Title 18, United States Code, Section 1201 makes it a crime to kidnap another person. For you to find the defendant guilty, the government must prove each of the following beyond a reasonable doubt: P First, that the defendant unlawfully seized, confined, inveigled, decoyed, kidnapped, abducted, or carried away another person; P Second, that the defendant held that person for ransom or reward or other reason; and P Third, [one of the following jurisdictional components]: 1. 017 7/2 7/2 0 that the person was willfully transported in interstate or foreign commerce ed when transported across a state w regardless of whether the person was alive vie in interstate or foreign commerce or boundary; or the defendant traveled 6, used the mail or any2 means, facility, or instrumentality of interstate or 2 foreign commerce in committing or in furtherance of the commission of the 6-4 offense; 1 . No [act against the person] was done within the special maritime and that the 688 2. territorial jurisdiction of the United States [see 18 U.S.C. §§ 7, 13, and 113 for definition]; 3. that the [act against the person] was done within the special aircraft jurisdiction of the United States [defined in 49 U.S.C. § 46501]; 4. that the person was a foreign official, internationally protected person, or official guest [defined in § 1116(b)]; or 5. that the person was a federal officer or employee [as designated in § 1114] and the act was done while the person was engaged in, or on account of, the performance of official duties.689 688 The phrase “transports in foreign commerce” requires that the victim be kidnapped in the United States and then transported to a foreign state. United States v. McRary, 665 F.2d 674, 678 (5th Cir. Unit B 1982). 689 Section 1201(a) creates a single crime with separate federal jurisdictional bases. United States v. Lewis, 662 F.2d 1087, 1089 (4th Cir. 1981). 233 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 237 of 684 TITLE 18 ADDITIONAL ELEMENT, IF APPROPRIATE: 1. Did the defendant’s actions result in the death of the person? 2. Was the victim under 18 years of age and was the defendant 18 years of age or older and not a parent, grandparent, brother, sister, aunt, uncle, or individual who had legal custody of the victim? [§ 1201(g)] “Kidnap” means to take and carry a person by force and against his will.690 “To inveigle or decoy” a person means to lure or entice or lead a person astray by false representations or promises or other deceitful means.691 “To hold” means to detain, seize, or confine a person in some manner against that person’s will. It is not necessary that the government prove that the holding occurred prior to the transportation in interstate commerce. The holding need only be for an appreciable period of time. The holding or detention must be separate and distinct from the kidnapping or seizure as well as the transportation.692 In other words, the government must prove that the defendant interfered with, and exercised control over, the victim’s actions.693 The defendant need not use overt force to accomplish his purpose. He may use deceit and trickery. Inducing an individual by misrepresentation to do something can constitute interfering with and exercising control over another.694 017 7/2 The government must prove that the defendant held his victim for any reason which would in any way benefit the defendant.695 7/2 d0 The reason does not have to benefit the defendant monetarily, and the reason need not be illegal in itself.696 e iew occurred prior to the interstate The government must prove that the v kidnapping transportation. 6, 2 Transportation begins when the victim is willfully moved from the place of -42 abduction. . 16 No 697 698 690 United States v. Young, 512 F.2d 321, 323 (4th Cir. 1975). But, the statute is broader than common-law kidnapping. The involuntariness of seizure and detention is the very essence of the crime and the true elements of the offense are an unlawful seizure and holding. Id. 691 “Inveiglement becomes an unlawful form of kidnapping under the statute when the alleged kidnapper interferes with his victim’s actions, exercising control over his victim through the willingness to use forcible action should his deception fail.” United States v. Lentz, 383 F.3d 191, 20203 (4th Cir. 2004). See also United States v. Hoog, 504 F.2d 45, 50-51 (8th Cir. 1974) (inducing victim to accept ride and remain in vehicle under false pretenses constitutes inveigling or decoying). 692 Lentz, 383 F.3d at 202-03. See also United States v. Lewis, 662 F.2d 1087, 1088-89 (4th Cir. 1981) (“[t]he holding may be brief”); United States v. Blackmon, 209 F. App’x 321 (4th Cir. 2006) (three to four hours satisfied the “appreciable period of time” requirement). “The statute has no requirement of prior restraint.” United States v. Wills, 346 F.3d 476, 493(4th Cir. 2003) (Wills II). 693 United States v. Wills, 234 F.3d 174, 178 (4th Cir. 2000) (Wills I). 694 See United States v. Hughes, 716 F.2d 234, 239 (4th Cir. 1983). 695 See Lentz, 383 F.3d at 203. 696 See United States v. Healy, 376 U.S. 75, 82 (1964). 697 Hughes, 716 F.2d at 237; United States v. Young, 248 F.3d 260, 273 (4th Cir. 2001). 698 United States v. Horton, 321 F.3d 476, 481 (4th Cir. 2003). 234 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 238 of 684 TITLE 18 The government does not have to prove that the defendant actually accompanied or physically transported or provided for the physical transportation of the victim in interstate commerce. In other words, a defendant willfully transports a victim in interstate commerce if the defendant willfully caused the victim to travel or even transport himself unaccompanied across state lines.699 ____________________NOTE____________________ See generally United States v. Lentz, 383 F.3d 191 (4th Cir. 2004). Sections 1201(c) and (d) punish conspiracy and attempt, respectively. “The act of holding a kidnapped person for a proscribed purpose necessarily implies an unlawful physical or mental restraint for an appreciable period against the person’s will and with a willful intent so to confine the victim. If the victim is of such an age or mental state as to be incapable of having a recognizable will, the confinement then must be against the will of the parents or legal guardian of the victim.” Chatwin v. United States, 326 U.S. 455, 460 (1946). The kidnapping statute was amended to make the thrust of the offense the kidnapping itself rather than the interstate transporting of the kidnapped person. United States v. Wills, 234 F.3d 174, 176 (4th Cir. 2000) (Wills I). Interstate transportation of the victim is merely a basis for federal jurisdiction rather than an integral part of the substantive crime. Id. Alternative jurisdictional components include the act being done within the special maritime, territorial, and aircraft jurisdictions of the United States, and if the person kidnapped is a designated person. 18 U.S.C. §§ 1201(a)(2)-(5). 017 7/2 7/2 d0 Consent is a defense to kidnapping. See United States v. Helem, 186 F.3d 449, 456 (4th Cir. 1999). e iewan additional element which must be If death resulted from the kidnapping, that is v found by the jury. Lentz, 383 F.3d at 6, 202-03. 22 Venue provisions of § -4 apply, because kidnapping is a continuing crime which 3237 6 begins the moment the1 . victim is seized. Wills II, 346 F. 3d at 488. No If jurisdiction is based on § 1201(a)(2) or (a)(3), there is nothing in the statute or case law to suggest that all of the acts (seizing, confining, inveigling, decoying, kidnapping, abducting, or carrying away) must occur within the special maritime, territorial, or aircraft jurisdiction of the United States. United States v. Blackmon, 209 F. App’x 321 (4th Cir. 2006) (citing United States v. Stands, 105 F.3d 1565 (8th Cir. 1997)). In United States v. Horton, 321 F.3d 476 (4th Cir. 2003), the jury was instructed concerning the statutory presumption allowing the jury to infer that the victim was transported out of the state if she was not released within 24 hours after she was abducted. 18 U.S.C. § 1201(b). The Fourth Circuit ruled any error was harmless because “there was no reasonable basis in the record for the jury to find that the interstate transportation element was not satisfied.” 321 F.3d at 481. For discussion of special territorial jurisdiction, see the following cases: United States v. Lavender, 602 F.2d 639 (4th Cir. 1979); United States v. Lovely, 319 F.2d 673 (4th Cir. 1963); United States v. Benson, 495 F.2d 475 (5th Cir. 1974); and State v. 699 United States v. Wills, 346 F.3d 476, 492 (4th Cir. 2003) (Wills II). Thus, the victim could be “inveigled” by means of false pretenses to travel in interstate commerce. 235 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 239 of 684 TITLE 18 Zeigler, 274 S.C. 6, 260 S.E.2d 182 (S.C. 1979), overruled on other grounds by Joseph v. State, 351 S.C. 551, 571 S.E.2d 280 (S.C. 2002). Special territorial jurisdiction does not include proprietary jurisdiction. Most federal buildings, such as courthouses and office buildings, are proprietary jurisdictions, and are usually covered only by regulations of the General Services Administration published in the Code of Federal Regulations. 18 U.S.C. § 1203 HOSTAGE TAKING Title 18, United States Code, Section 1203 makes it a crime to detain another person in order to compel a third person or governmental organization to do something. For you to find the defendant guilty, the government must prove each of the following beyond a reasonable doubt: P First, that the defendant seized or detained another person [or attempted or conspired to do so]; P Second, that the defendant threatened to kill, injure, or to continue to detain that person; and P Third, that the defendant did so with the purpose of compelling a third person or government organization to act in some way, either to do or abstain from doing any act as a condition for the release of the person detained.700 ADDITIONAL ELEMENT, IF APPROPRIATE: 017 7/2 7/2 d0 e iew of the United States or (B) a “National of the United States” means (A) a citizen 6, v person who, though not a citizen of the United States, owes permanent allegiance to the 2 United States. [8 U.S.C. § 1101(a)(22)] -42 . 16 To seize or detain means to hold or confine a person against the person’s will for an No appreciable period of time. 1. Did the death of any person result from the offense? 701 AFFIRMATIVE DEFENSES § 1203(b)(1) The defendant must prove: P First, that the conduct required for the offense occurred outside the United States, and P Second, (a) that the offender or person seized or detained was not a national of the United States; 700 United States v. Carrion-Caliz, 944 F.2d 220, 223 (5th Cir. 1991). But see United States v. Corporan-Cuevas, 244 F.3d 199 (1st Cir. 2001) (indictment did not allege facts showing compliance with the international aspect of the hostage taking statute, because the government contended it is an affirmative defense only). 701 Carrion-Caliz, 944 F.2d at 225. 236 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 240 of 684 TITLE 18 (b) that the offender was not found in the United States; or (c) that the governmental organization sought to be compelled was not the Government of the United States. § 1203(b)(2) The defendant must prove: P First, that the conduct required for the offense occurred inside the United States; P Second, that each alleged offender and each person seized or detained was a national of the United States; P Third, that each alleged offender was found in the United States; and P Fourth, that the governmental organization sought to be compelled was not the Government of the United States. ____________________NOTE____________________ Section 1203 criminalizes the seizure or detention of a person in order to compel a third person or government organization to act or refrain from acting as a condition for release of the person detained. United States v. Santos-Riviera, 183 F.3d 367, 369 (5th Cir. 1999). 017 7/2 Section 1201 and § 1203 are quite similar, so that it is reasonable to look to one for help in deciphering the other. United States v. Carrion-Caliz, 944 F.2d 220, 223 (5th Cir. 1991). 7/2 hostage taking which 0 The Hostage Taking Act applies only to acts of kidnapping or ed have some international aspect or involve the United States government. Id. at 224. w vie 18 U.S.C. § 1204 INTERNATIONAL PARENTAL KIDNAPPING 26, 2 Title 18, United States-4 Section 1204 makes it a crime to remove a child from 6 Code, the lawful exercise of parental rights. For you to the United States with 1 . intent to obstruct No find the defendant guilty, the government must prove each of the following beyond a reasonable doubt: P First, that the defendant removed or attempted to remove a child from the United States, or retained a child (who had been in the United States) outside the United States; and P Second, that the defendant did so with the intent to obstruct the lawful exercise of parental rights. “Child” means a person who has not attained the age of 16 years. [§ 1204(b)(1)] “Parental rights,” with respect to a child, means the right to physical custody of the child, whether joint or sole, and includes visitation rights. The right to physical custody or visitation can arise in three ways: by operation of law, by court order, or by a legally binding agreement. [§ 1204(b)(2)] AFFIRMATIVE DEFENSES 1. The defendant acted within the provisions of a valid court order. See § 1204(c)(1). 237 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 241 of 684 TITLE 18 2. The defendant was fleeing an incidence or pattern of domestic violence. See §1204(c)(2). 3. The defendant failed to return the child as a result of circumstances beyond the defendant’s control and made reasonable attempts to notify the other parent. See § 1204(c)(3). ____________________NOTE____________________ See United States v. Clenney, 434 F.3d 780 (5th Cir. 2005) (venue lies in district from which child removed, not necessarily where child or custodial parent resides). This statute looks to state family law for purposes of defining parental rights. United States v. Fazal-Ur-Raheman-Fazal, 355 F.3d 40, 45 (1st Cir. 2004). In a prosecution of the father, deciding whether the mother had parental rights under state law required the determination of three factual issues: (1) whether she was the mother of the children; (2) whether there existed a court order altering the custody rights as established by operation of law; and (3) whether there existed an agreement between her and the father altering the custody rights. Id. at 49. 18 U.S.C. § 1341 MAIL FRAUD Title 18, United States Code, Section 1341 makes it a crime to use the mails or any common carrier to execute a scheme to defraud. For you to find the defendant guilty, the government must prove each of the following beyond a reasonable doubt: P P 017 7/2 7/2 d0 First, that the defendant devised or intended to devise a scheme to defraud or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises that were material; and e iew or attempting to execute the scheme, Second, that, for the purpose of executing v the defendant did one of the6, following: 22 1. placed in any -4 office or authorized depository for mail matter, any post 16 matter.or thing whatever to be sent or delivered by the Postal Service; No 2. deposited or caused to be deposited any matter or thing whatever to be sent or delivered by any private or commercial interstate carrier; 3. took or received from any matter or thing whatever delivered by the Postal Service or any private or commercial interstate carrier; or 4. caused to be delivered by mail or private or commercial interstate carrier according to the address on the item any matter or thing whatever.702 ADDITIONAL ELEMENTS 1. Did the violation occur in relation to, or involving any benefit authorized, transported, transmitted, transferred, dispersed, or paid in connection with, a presidentially declared major disaster or emergency [as defined in 42 U.S.C. § 5122]? 702 See United States v. Harvey, 532 F.3d 326, 333 (4th Cir. 2008) (identifying four elements). But see United States v. Godwin, 272 F.3d 659, 666 (4th Cir. 2001) (identifies only two essential elements of (1) a scheme to defraud and (2) the use of the mails or wire communication in furtherance of the scheme). Intent to defraud is inherently part of proving the scheme to defraud. 238 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 242 of 684 TITLE 18 2. Did the scheme affect a financial institution? A financial institution is affected only if the institution itself was victimized by the fraud, as opposed to the scheme’s mere utilization of the financial institution in the transfer of funds.703 The words “scheme and artifice” include any plan or course of action intended to deceive others and to obtain by either false or fraudulent pretenses, representations or promises, either money or property from persons who are so deceived. A statement or representation is false or fraudulent if known to be untrue or made with reckless indifference as to the truth or falsity and made or caused to be made with the intent to deceive or defraud.704 A scheme to defraud requires that the government prove that the defendant acted with the specific intent to deceive or cheat for the purpose of getting financial gain for one’s self or causing financial loss to another. Thus, the government must prove that the defendant intended to deceive someone through the scheme.705 Fraud includes acts taken to conceal, create a false impression, mislead, or otherwise deceive in order to prevent another person from acquiring material information.706 Thus, a scheme to defraud can be shown by deceptive acts or contrivances intended to hide information, mislead, avoid suspicion, or avert further inquiry into a material matter.707 017 /2 The government must prove that the defendant acted with the7 2 specific intent to defraud. 07/ d Fraud is an intentional or deliberate misrepresentation of the truth for the purpose of we inducing another to part with a thing of valuee to surrender a legal right. Fraud, then, is a or , viconduct, or silence, is designed to cause deceit which, whether perpetrated by6 words, 22 another to act upon it to his legal injury. A statement, claim or document is fraudulent if it -4 was falsely made, or made with reckless indifference as to its truth or falsity, and made or 16intent to deceive. The phrases “any scheme or artifice to . caused to be made with an No The government can prove a scheme to defraud by evidence of active concealment of material information.708 709 703 United States v. Ubakanma, 215 F.3d 421, 426 (4th Cir. 2000). See United States v. Scott, 701 F.2d 1340, 1343 (11th Cir. 1983). “Representations known by a person to be false is a type of a scheme to defraud.” Id. at 1344. 705 See United States v. Brandon, 298 F.3d 307, 311 (4th Cir. 2002). 706 United States v. Colton, 231 F.3d 890, 898 (4th Cir. 2000). The court found that 704 [concealment] is characterized by deceptive acts or contrivances intended to hide information, mislead, avoid suspicion, or prevent further inquiry into a material matter. [Nondisclosure] is characterized by mere silence. Although silence as to a material fact (nondisclosure), without an independent disclosure duty, usually does not give rise to an action for fraud, suppression of the truth with the intent to deceive (concealment) does. Id. at 899. 707 Id. at 901. See id. at 907. 709 United States v. McNeil, 45 F. App’x 225 (4th Cir. 2002) (citing United States v. Godwin, 272 F.3d 659, 666 (4th Cir. 2001)). 708 239 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 243 of 684 TITLE 18 defraud” and “any scheme or artifice for obtaining money or property” mean any deliberate plan of action or course of conduct by which someone intends to deceive or cheat another or by which someone intends to deprive another of something of value. A scheme or artifice to defraud may describe a departure from fundamental honesty, moral uprightness, or fair play and candid business dealings in the general life of the community. There must be proof of either a misrepresentation, false statement, or omission calculated to deceive a person of ordinary prudence and comprehension. A scheme to defraud may occur even absent a false statement or false representation, and may be based on fraudulent omissions. A scheme to defraud includes the knowing concealment of facts and information done with the intent to defraud.710 To act with an “intent to defraud” means to act with a specific intent to deceive or cheat, ordinarily, for the purpose of either causing some financial loss to another or bringing about some financial gain to one’s self. It is not necessary, however, to prove that anyone was, in fact, defrauded, as long as it is established that the defendant acted with the intent to defraud or mislead.711 A “scheme to defraud” means any deliberate plan of action or course of conduct by which someone intends to deceive or cheat another or by which someone intends to deprive another of something of value.712 017 7/2 “To defraud” means wronging one in his property rights by dishonest methods or schemes and usually signifies the deprivation of something of value by trick, deceit, chicanery or overreaching. The concept of fraud includes the act of embezzlement, which is the fraudulent appropriation to one’s own use of the money or goods entrusted to one’s care by another.713 7/2 d0 e iew ,v It is not necessary that the government prove all of the details alleged in the indictment concerning the precise nature and purpose of the scheme, or that the mailed material was itself false or fraudulent, or that the alleged scheme actually succeeded in defrauding anyone, or that the use of the mail or common carrier was intended as the specific or exclusive means of accomplishing the alleged fraud. o. 1 N 226 6-4 What must be proved beyond a reasonable doubt is that the defendant knowingly devised or intended to devise a scheme to defraud that was substantially the same as the one alleged in the indictment, and that the use of the mails or a common carrier was closely related to the scheme, in that the defendant either mailed something or caused it to be mailed or delivered by common carrier in an attempt to execute or carry out the 710 Jury instruction approved in United States v. Frost, 125 F.3d 346, 371 (6th Cir. 1997). United States v. Ellis, 326 F.3d 550, 556 (4th Cir. 2003). 712 United States v. Deters, 184 F.3d 1253, 1257 (10th Cir. 1999). In United States v. Cronic, 900 F.2d 1511 (10th Cir. 1990), the Tenth Circuit found that 711 [i]f a scheme [to defraud] is devised with the intention of defrauding, and the mails are used in executing it, it makes no difference that there is not a misrepresentation of a single existing fact. A scheme to obtain money by means of false or fraudulent pretenses, representations, or promises, on the other hand, focuses on the means by which money was obtained. False or fraudulent pretenses, representations or promises are an essential element of the crime. 900 F.2d at 1513-14 (citations omitted). 713 Carpenter v. United States, 484 U.S. 19, 27 (1987). 240 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 244 of 684 TITLE 18 scheme. To cause the mails or common carrier to be used is to do an act with knowledge that the use will follow in the ordinary course of business or where such use can reasonably be foreseen even though the defendant did not intend or request the mails or common carrier to be used.714 The government must prove that the defendant knew that his conduct as a participant in the scheme was calculated to deceive and, nonetheless, he associated himself with the alleged fraudulent scheme for the purpose of causing some loss to another.715 The government does not have to prove precisely when the intent to defraud first materialized.716 Nor does the government have to prove that the fraud succeeded.717 A statement or representation is false or fraudulent if it is known to be untrue or is made with reckless indifference as to its truth or falsity, when it constitutes a half truth, or effectively omits or conceals a material fact, provided it is made with intent to defraud. “No actual misrepresentation of fact is necessary to make the crime complete.” 718 Good faith on the part of the defendant is not consistent with an intent to defraud.719 However, no amount of honest belief that an enterprise will eventually succeed can excuse willful misrepresentations.720 017 7/2 You are instructed that if the defendant participated in the scheme to defraud, then a belief by the defendant, if such belief existed, that ultimately everything would work out so that no one would lose any money does not require a finding by you that the defendant acted in good faith. 7/2 causing some financial 0 If the defendant participated in the scheme for the purpose of ed on the part of the defendant or property loss to another, then no amount of honest belief w that the scheme would not cause a loss, would excuse fraudulent actions or false vie representations by him. 26, 2 A defendant’s belief6-4 victim of the fraud will be paid in the future or will that the sustain no economic.loss is no defense to the crime charged in the indictment. o 1eventually is not relevant to the question of guilt. N The intent to repay 721 722 A statement is material if it has a natural tendency to influence, or is capable of influencing, the decision-making body to which it was addressed. It is irrelevant whether the false statement actually influenced or affected the decision-making process of the 714 715 716 717 718 719 720 721 722 See Pereira v. United States, 347 U.S. 1, 8, 9 (1954). United States v. Allen, 491 F.3d 178, 187 (4th Cir. 2007). United States v. Curry, 461 F.3d 452, 458 (4th Cir. 2006). United States v. Bryan, 58 F.3d 933, 943 (4th Cir. 1995). Lemon v. United States, 278 F.2d 369, 373 (9th Cir. 1960). United States v. Frost, 125 F.3d 346, 372 (6th Cir. 1997). United States v. Painter, 314 F.2d 939, 943 (4th Cir. 1963). Instructions from Allen, 491 F.3d 178. United States v. Curry, 461 F.3d 452, 458 (4th Cir. 2006). 241 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 245 of 684 TITLE 18 agency or fact finding body. A false statement’s capacity to influence must be measured at the point in time that the statement was made.723 It is not necessary for the defendant to be directly or personally involved in the delivery by mail or common carrier, as long as such delivery was reasonably foreseeable in the execution of the alleged scheme in which the defendant is accused of participating. This does not mean that the defendant must have specifically authorized others to make the delivery. When one does an act with knowledge that the use of the mail or common carrier will follow in the ordinary course of business or where such use can reasonably be foreseen, even though not actually intended, then he causes the mails or common carrier to be used.724 The use of the mails need not in and of itself be fraudulent to constitute an offense under this statute. The materials that were mailed may be totally innocent. The use of the mails does not need to be an essential part of the fraudulent scheme,725 but the government must prove that the mails played a significant part in the execution of the scheme.726 It is not necessary that the intended victims of the alleged scheme be the recipients of the material that was mailed.727 Property is anything in which one has a right that can be assigned, traded, bought, and otherwise disposed of. The property of which a victim is deprived need not be tangible property and the government does not have to prove that the victim suffered a financial loss. The government need only prove that the victim was deprived of some right 017 7/2 7/2 d0 e iew ,v 226 F.3d 301, 307 (4th Cir. 1998). 4 United States v. Sarihifard, 155 16-v. McNeil, 45 F. App’x 225 (4th Cir. 2002); Pereira v. United States, See United States . 347 U.S. 1, 8-9 (1954). See also United States v. Coyle, 943 F.2d 424, 426 (4th Cir. 1991); United No 723 724 States v. Blecker, 657 F.2d 629, 637 (4th Cir. 1981) (not necessary for the government to show that the defendant actually mailed or transported anything himself; it is sufficient if the defendant caused it to be done; sufficient if government proves that defendant had reasonable basis to foresee mails would be used by others in execution of scheme to defraud). The use of the mails can be proven through evidence of business practices or office custom. United States v. Scott, 730 F.2d 143, 146-47 (4th Cir. 1984). In United States v. Edwards, 188 F.3d 230 (4th Cir. 1999), the Fourth Circuit approved the following instruction: The crime of conspiracy to commit mail fraud does not require proof of an actual mailing. Instead, the crime of conspiracy to commit mail fraud requires, among other things, proof that the persons charged with the conspiracy reasonably contemplated the use of the mail or that the persons charged intended that the mails be used in furtherance of the scheme or that the nature of the scheme was such that the use of the mail was reasonably foreseeable. 188 F.3d at 233 n.1. 725 Edwards, 188 F.3d at 235; Pereira, 347 U.S. at 8-9. 726 United States v. Caldwell, 544 F.2d 691, 696 (4th Cir. 1976); United States v. Murr, 681 F.2d 246, 248 (4th Cir. 1982). 727 Coyle, 943 F.2d at 427 (the victims were cable companies, but the mail recipients were cable customers). 242 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 246 of 684 TITLE 18 over that property, such as the right to exclusive use.728 This includes the right to be paid money.729 It makes no difference whether the intended victims are gullible or not, intelligent or not.730 The government does not have to prove that anyone actually relied on the false representations. Nor does the government have to prove that a victim actually suffered any damages. The statute prohibits a scheme to defraud rather than the completed fraud.731 L For multiple defendants: In order to find the defendants responsible for participating in the fraudulent scheme as alleged in the indictment, each of you must find that the defendants participated in the same single scheme to defraud and that the scheme to defraud in which the defendants are found to have participated is substantially the same scheme as the overall fraudulent scheme alleged in the indictment. To sustain its burden of proof, however, the government is not required to prove all of the components of the scheme to defraud that are alleged in the indictment. If the government proves beyond a reasonable doubt a scheme to defraud that contains some or all of the components in the indictment, but is simply more narrow than the scheme to defraud as defined in the indictment, then the government has carried its burden of proof. You must unanimously agree, however, on the components of the scheme to defraud.732 017 2 ____________________NOTE____________________ 27/ Materiality is an element of mail fraud that must be submitted to the jury. Neder v. 07/ d United States, 527 U.S. 1 (1999). we are not separate offenses. The e The two phrases identifying the proscribed schemes ,byvi it unmistakable that the statute reaches second phrase simply modifies the26 making 2 firstas to the future as well as other frauds involving false promises and misrepresentations 4 money or property. Cleveland v. United States, 531 U.S. 12, 26 (2000). 16. Section 1341 reaches everything designed to defraud by representations as to the past No and promises as to the future. McNally v. United States, 483 or present, or suggestions U.S. 350, 357-58 (1987). Mail fraud has “as an element the specific intent to deprive one of something of value through a misrepresentation or other similar dishonest method, which indeed would cause him harm.” United States v. Wynn, 684 F.3d 473, 478 (4th Cir. 2012). 728 United States v. Adler, 186 F.3d 574, 576-77 (4th Cir. 1999). United States v. Pasquantino, 544 U.S. 349, 356 (2005) (Canada defrauded of its right to collect tax revenue on smuggled liquor). See Cleveland v. United States, 531 U.S. 12 (2000) (a State’s interest in an unissued video poker license is not property). 730 See United States v. Colton, 231 F.3d 890, 903 (4th Cir. 2000) (§ 1344 prosecution). 731 Neder v. United States, 527 U.S. 1, 25 (1999). A pecuniary loss is not required. United States v. Deters, 184 F.3d 1253, 1258 (10th Cir. 1999). 732 Instruction that the jury agree unanimously on the identity and extent of the scheme to defraud. United States v. Smith, 44 F.3d 1259, 1270 (4th Cir. 1995). 729 243 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 247 of 684 TITLE 18 Traditionally, mail fraud had two elements: a scheme to defraud, and use of the mails in furtherance of the scheme. Pereira v. United States, 347 U.S. 1 (1954). However, Neder added materiality as an element to be determined by the jury. In United States v. Ham, 998 F.2d 1247 (4th Cir. 1993), the Fourth Circuit stated that “[t]o convict on mail fraud conspiracy, the jury must find that a defendant acted with specific intent to defraud.” 998 F.2d at 1254. Arguably, this is simply another way of stating the mens rea associated with the scheme to defraud, because no other Fourth Circuit case has been found identifying “intent to defraud” as an element separate from the scheme itself. The use of the mails must be a part of the execution of the fraud, however it need not be an essential element of the scheme; it is sufficient for the mailing to be incident to an essential part of the scheme or a step in the plot. Schmuck v. United States, 489 U.S. 705, 710 (1989). “[Section] 1341 requires the object of the fraud to be ‘property’ in the victim’s hands.” Cleveland, 531 U.S. at 26. “Fraud” prohibited by this statute only reaches money or property interests, as opposed to intangible general social interests. Nevertheless, the scope of property interests protected is to be construed fairly widely. In United States v. Mancuso, 42 F.3d 836, 845 (4th Cir. 1994), the court held that a right that could be assigned, traded, bought, and otherwise disposed of, fell within the universe of property that would support a bank fraud conviction. 017States v. 2 The mail fraud statute contains no predicate violation requirement. United 27/ Bryan, 58 F.3d 933, 941 (4th Cir. 1995). 7/ 0in by more than one person, is A scheme to use the mails to defraud, which is joined d a conspiracy. Pinkerton v. United States, 328 U.S. 640, 647 (1946). we e Each separate use of the mails in furtherance of a scheme to defraud constitutes a , vi separate crime under § 1341, though there is but a single fraudulent scheme. United States 2261984). v. Blankenship, 746 F.2d 6-4 Cir. 1 233 (5th F.3d 257 (4th Cir. 1997), the Fourth Circuit held that In United States v. Loayza, 107 o. Nthe fraud victim is not an essential element of the crime.” 107 F3d. at “[t]he identity of 261. However, the amendment providing an enhanced sentence if the violation affects a financial institution would appear to make such a victim an element. “Although the crime of common law fraud requires the intended victim to have justifiably and detrimentally relied on the defendant’s misrepresentation, no such ‘reliance’ element must be proved to obtain a conviction for mail fraud.” Chisholm v. Transouth Fin. Corp., 95 F.3d 331, 336 (4th Cir. 1996) (civil RICO case alleging racketeering activity was mail fraud). The mail fraud statute “protects the naive as well as the worldly-wise, and the former are more in need of protection than the latter.” Lemon v. United States, 278 F.2d 369, 373 (9th Cir. 1960). Lulling Communications733 733 A mailing is considered to be for the purpose of executing a fraudulent scheme if it is designed to lull the victims into a false sense of security, even if it is incident to an essential part of 244 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 248 of 684 TITLE 18 Communications having a propensity to lull and forestall action on the part of the victim may form an integral part of the overall scheme to defraud. United States v. Painter, 314 F.2d 939, 943 (4th Cir. 1963) (citing United States v. Sampson, 371 U.S. 75, 80 (1962)). Even if an individual had an innocent intent at the outset, a conviction can be sustained if that individual used the mails or wire communication to disseminate falsehoods designed to calm nervous buyers. United States v. Curry, 461 F.3d 452, 458 (4th Cir. 2006). Puffing Puffing, exaggerated enthusiasm, and high-pressure salesmanship do not constitute fraud, provided they simply magnify an opinion of the advantages of a product without falsely asserting the existence of qualities the product does not possess. United States v. Amlani, 111 F.3d 705, 718 (9th Cir. 1997). In United States v. New South Farm & Home Co., 241 U.S. 64, 71 (1916), the Supreme Court stated the following: Mere puffing, indeed, might not be within [the meaning of the mail fraud statute]; that is, the mere exaggeration of the qualities which the article has; but when a proposed seller goes beyond that, assigns to the article qualities which it does not possess, does not simply magnify in opinion the advantages which it has, but invents advantages and falsely asserts their existence, he transcends the limits of ‘puffing’ and engages in false representations and pretenses. An article alone is not necessarily the inducement and compensation for its purchase. It is in the use to which it may be put, the purpose it may serve; and there is deception and fraud when the article is not of the character or kind represented and hence does not serve the purpose. And when the pretenses or representations or promises which execute the deception and fraud are false, they become the scheme or artifice which the statute denounces. 017 7/2 7/2 d0 e iew ,v o. 1 N 226 6-4 In United States v. Cronic, 900 F.2d 1511 (10th Cir. 1990), the Tenth Circuit held that a check kiting scheme constituted a scheme to defraud, but not a scheme to obtain by means of false representations, unless embellished by other acts or communications. 18 U.S.C. § 1342 USING A FALSE NAME IN A MAIL FRAUD Title 18, United States Code, Section 1342 makes it a crime to use a false name in carrying on a mail fraud scheme. For you to find the defendant guilty, the government must prove each of the following beyond a reasonable doubt: P First, that the defendant used or assumed, or requested to be addressed by, a fictitious, false, or assumed title, name, or address or name other than his own proper name; P Second, that the defendant did so for the purpose of conducting, promoting, or carrying on by means of the Postal Service, a scheme or artifice to defraud or for the scheme. “Thus, a mailing that is accurate, routine, or sent after the goods have been received can support a mail fraud conviction, so long as the mailing was designed to make apprehension of the defendant less likely.” United States v. Bradshaw, 282 F. App’x 264 (4th Cir. 2008) (quoting United States v. Lane, 474 U.S. 438, 451-52 (1986)). 245 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 249 of 684 TITLE 18 obtaining money or property by means of false or fraudulent pretenses, representations, or promises that were material; and P Third, that the defendant delivered or caused to be delivered by mail or by private or common carrier any matter or thing whatever for the purpose of executing the scheme to defraud or to obtain money or property by means of false or fraudulent pretenses, representations, or promises. OR P First, that the defendant took or received from any post office or authorized depository of mail matter, any letter, postal card, package, or other mail matter addressed to a fictitious, false, or assumed title, name, or address or name other than the defendant’s own proper name; and P Second, that the defendant did so for the purpose of conducting, promoting, or carrying on by means of the Postal Service, a scheme or artifice to defraud or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises that were material. L See § 1341 for appropriate instructions. ____________________NOTE____________________ 017 7/2 See United States v. McCollum, 802 F.2d 344, 347 (9th Cir. 1986), which appears to stand for the proposition that using a fictitious name is the only additional element needed to establish a violation of § 1342. 7/2 0 See also United States v. Ham, 998 F.2d 1247 (4th Cir. 1993). ed w vie : 7/3/14] 18 U.S.C. § 1343 WIRE FRAUD [L , U 6 Title 18, United States Code, 2 2 Section 1343 makes it a crime to use interstate wire communications to execute - scheme to defraud. For you to find the defendant guilty, the 64 1eacha of the following beyond a reasonable doubt: government must o. prove N the defendant devised or intended to devise a scheme to defraud or for P First, that AST PDATED obtaining money or property by means of false or fraudulent pretenses, representations, or promises that were material; and P Second, that, for the purpose of executing the scheme, the defendant transmitted or caused to be transmitted by means of wire, radio, or television communication in interstate or foreign commerce any writings, signs, signals, pictures, or sounds.734 ADDITIONAL ELEMENTS 734 See United States v. Harvey, 532 F.3d 326, 333 (4th Cir. 2008) (identifies four elements). But see United States v. Godwin, 272 F.3d 659, 666 (4th Cir. 2001) (identifies only the classic two essential elements of (1) a scheme to defraud and (2) the use of the mails or wire communication in furtherance of the scheme). See also United States v. Jefferson, 674 F.3d 332, 366 (4th Cir. 2012) (quoting United States v. Curry, 461 F.3d 452, 457 (4th Cir. 2006), for the proposition that wire fraud has two elements, but then noting that the district court “instructed the jury in rather more detail.”). The district court in Jefferson appeared to have followed the four elements identified in Harvey. 246 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 250 of 684 TITLE 18 1. Did the violation occur in relation to, or involving any benefit authorized, transported, transmitted, transferred, dispersed, or paid in connection with, a presidentially declared major disaster or emergency [as defined in 42 U.S.C. § 5122]? 2. Did the scheme affect a financial institution? A financial institution is affected only if the institution itself was victimized by the fraud, as opposed to the scheme’s mere utilization of the financial institution in the transfer of funds.735 “Interstate commerce” includes commerce between one State, Territory, Possession, or the District of Columbia and another State, Territory, Possession, or the District of Columbia. [18 U.S.C. § 10] “Foreign commerce” includes commerce with a foreign country. [18 U.S.C. § 10] The words “scheme and artifice” include any plan or course of action intended to deceive others and to obtain by either false or fraudulent pretenses, representations or promises, either money or property from persons who are so deceived. A statement or representation is false or fraudulent if known to be untrue or made with reckless indifference as to the truth or falsity and made or caused to be made with the intent to deceive or defraud.736 017 7/2 A scheme to defraud requires that the government prove that the defendant acted with the specific intent to deceive or cheat for the purpose of getting financial gain for one’s self or causing financial loss to another. Thus, the government must prove that the defendant intended to deceive someone through the scheme.737 7/2 d0 e iew ,v Fraud includes acts taken to conceal, create a false impression, mislead, or otherwise deceive in order to prevent another person from acquiring material information.738 Thus, a scheme to defraud can be shown by deceptive acts or contrivances intended to hide information, mislead, avoid suspicion, or avert further inquiry into a material matter.739 o. 1 N 226 6-4 The government can prove a scheme to defraud by evidence of active concealment of material information.740 The government must prove that the defendant acted with the specific intent to defraud.741 735 United States v. Ubakanma, 215 F.3d 421, 426 (4th Cir. 2000). See United States v. Scott, 701 F.2d 1340, 1343 (11th Cir. 1983). “Representations known by a person to be false is a type of a scheme to defraud.” Id. at 1344. 737 See United States v. Brandon, 298 F.3d 307, 311 (4th Cir. 2002). 738 United States v. Colton, 231 F.3d 890, 898 (4th Cir. 2000). The court found that 736 [concealment] is characterized by deceptive acts or contrivances intended to hide information, mislead, avoid suspicion, or prevent further inquiry into a material matter. [Nondisclosure] is characterized by mere silence. Although silence as to a material fact (nondisclosure), without an independent disclosure duty, usually does not give rise to an action for fraud, suppression of the truth with the intent to deceive (concealment) does. Id. at 899. 739 740 741 Id. at 901. See id. at 907. United States v. McNeil, 45 F. App’x 225 (4th Cir. 2002) (citation omitted). 247 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 251 of 684 TITLE 18 Fraud is an intentional or deliberate misrepresentation of the truth for the purpose of inducing another to part with a thing of value or to surrender a legal right. Fraud, then, is a deceit which, whether perpetrated by words, conduct, or silence, is designed to cause another to act upon it to his legal injury. A statement, claim or document is fraudulent if it was falsely made, or made with reckless indifference as to its truth or falsity, and made or caused to be made with an intent to deceive. The phrases “any scheme or artifice to defraud” and “any scheme or artifice for obtaining money or property” mean any deliberate plan of action or course of conduct by which someone intends to deceive or cheat another or by which someone intends to deprive another of something of value. A scheme or artifice to defraud may describe a departure from fundamental honesty, moral uprightness, or fair play and candid business dealings in the general life of the community. There must be proof of either a misrepresentation, false statement, or omission calculated to deceive a person of ordinary prudence and comprehension. A scheme to defraud may occur even absent a false statement or false representation, and may be based on fraudulent omissions. A scheme to defraud includes the knowing concealment of facts and information done with the intent to defraud. To act with an “intent to defraud” means to act with a specific intent to deceive or cheat, ordinarily, for the purpose of either causing some financial loss to another or bringing about some financial gain to one’s self. It is not necessary, however, to prove that anyone was, in fact, defrauded, as long as it is established that the defendant acted with the intent to defraud or mislead.742 17 0of conduct by 2 A “scheme to defraud” means any deliberate plan of action or course 27/ intends to which someone intends to deceive or cheat another or by which someone 07/ deprive another of something of value. d we “To defraud” means wronging one in his property rights by dishonest methods or e schemes and usually signifies the deprivation of something of value by trick, deceit, ,ofvi includes the act of embezzlement, which chicanery or overreaching. The 226 fraud concept is the fraudulent appropriation to one’s own use of the money or goods entrusted to one’s -4 care by another. . 16 No It is not necessary that the government prove all of the details alleged in the 743 744 indictment concerning the precise nature and purpose of the scheme, or that the material sent by wire, radio, or television was itself false or fraudulent, or that the alleged scheme actually succeeded in defrauding anyone, or that the use of the wire, radio, or television was intended as the specific or exclusive means of accomplishing the alleged fraud. What must be proved beyond a reasonable doubt is that the defendant knowingly devised or intended to devise a scheme to defraud that was substantially the same as the one alleged in the indictment, and that the use of the wire, radio, or television was closely 742 United States v. Ellis, 326 F.3d 550, 556 (4th Cir. 2003). United States v. Deters, 184 F.3d 1253, 1257 (10th Cir. 1999). In United States v. Cronic, 900 F.2d 1511 (10th Cir. 1990), the Tenth Circuit found that 743 If a scheme [to defraud] is devised with the intention of defrauding, and the mails are used in executing it, it makes no difference that there is not a misrepresentation of a single existing fact. A scheme to obtain money by means of false or fraudulent pretenses, representations, or promises, on the other hand, focuses on the means by which money was obtained. False or fraudulent pretenses, representations or promises are an essential element of the crime. 900 F.2d at 1513-14 (citations omitted). 744 Carpenter v. United States, 484 U.S. 19, 27 (1987). 248 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 252 of 684 TITLE 18 related to the scheme, in that the defendant either wired something or caused it to be wired for the purpose of executing or carrying out the scheme.745 The government must prove that the defendant knew that his conduct as a participant in the scheme was calculated to deceive and, nonetheless, he associated himself with the alleged fraudulent scheme for the purpose of causing some loss to another.746 The government does not have to prove precisely when the intent to defraud first materialized.747 Nor does the government have to prove that the fraud succeeded.748 A statement or representation is false or fraudulent if it is known to be untrue or is made with reckless indifference as to its truth or falsity, when it constitutes a half truth, or effectively omits or conceals a material fact, provided it is made with intent to defraud. “No actual misrepresentation of fact is necessary to make the crime complete.” 749 Good faith on the part of the defendant is not consistent with an intent to defraud.750 However, no amount of honest belief that an enterprise will eventually succeed can excuse willful misrepresentations.751 You are instructed that if the defendant participated in the scheme to defraud, then a belief by the defendant, if such belief existed, that ultimately everything would work out so that no one would lose any money does not require a finding by you that the defendant acted in good faith. 017 financial If the defendant participated in the scheme for the purpose of7/2 some causing or property loss to another, then no amount of honest belief 7/the part of the defendant on 2 that the scheme would not cause a loss, would excused 0 e fraudulent actions or false representations by him. w A defendant’s belief that the victim of the fraud will be paid in the future or will vie sustain no economic loss is no defense to the crime charged in the indictment. 26, 2 The intent to repay eventually is not relevant to the question of guilt. 6-4 1 A statement omaterial if it has a natural tendency to influence, or is capable of is . N influencing, the decision-making body to which it was addressed. It is irrelevant whether 752 753 the false statement actually influenced or affected the decision-making process of the agency or fact finding body. A false statement’s capacity to influence must be measured at the point in time that the statement was made.754 It is not necessary for the defendant to be directly or personally involved in the interstate transmission, as long as such transmission was reasonably foreseeable in the execution of the alleged scheme in which the defendant is accused of participating. 745 746 747 748 749 750 751 752 753 754 See Pereira v. United States, 347 U.S. 1, 8, 9 (1954). United States v. Allen, 491 F.3d 178, 187 (4th Cir. 2007). United States v. Curry, 461 F.3d 452, 458 (4th Cir. 2006). United States v. Bryan, 58 F.3d 933, 943 (4th Cir. 1995). Lemon v. United States, 278 F.2d 369, 373 (9th Cir. 1960). United States v. Frost, 125 F.3d 346, 372 (6th Cir. 1997). United States v. Painter, 314 F.2d 939, 943 (4th Cir. 1963). Instructions from Allen, 491 F.3d 178 (4th Cir. 2007). United States v. Curry, 461 F.3d 452, 458 (4th Cir. 2006). United States v. Sarihifard, 155 F.3d 301, 307 (4th Cir. 1998). 249 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 253 of 684 TITLE 18 This does not mean that the defendant must have specifically authorized others to make the transmission. When one does an act with knowledge that the use of an interstate transmission will follow in the ordinary course of business or where such use can reasonably be foreseen, even though not actually intended, then he causes the interstate transmission to be made.755 The interstate transmission need not in and of itself be fraudulent to constitute an offense under this statute. The material that was transmitted may be totally innocent. The use of the interstate transmission does not need to be an essential part of the fraudulent scheme,756 but the government must prove that the interstate transmission played a significant part in the execution of the scheme.757 It is not necessary that the intended victims of the alleged scheme be the recipients of the material that was transmitted.758 Property is anything in which one has a right that can be assigned, traded, bought, and otherwise disposed of. The property of which a victim is deprived need not be tangible property and the government does not have to prove that the victim suffered a financial loss. The government need only prove that the victim was deprived of some right over that property, such as the right to exclusive use.759 This includes the right to be paid money.760 017 7/2 It makes no difference whether the intended victims are gullible or not, intelligent or not.761 7/2 d0 e iew 45 F. App’x 225 (4th Cir. 2002), and See jury instruction in United States v. McNeil, ,v Pereira v. United States, 347 U.S. 1, 26 8-9 (1954). See also United States v. Coyle, 943 F.2d 424, 426 2 (4th Cir. 1991); United States v. Blecker, 657 F.2d 629, 637 (4th Cir. 1981) (“It is not necessary for 6-4 the government to show that the defendant actually mailed or transported anything himself; it is sufficient if the defendant caused it to be done. Thus, it is sufficient if the government proves that the o. 1 basis to foresee that the mails would be used by others in the execution N defendant had a reasonable 755 of the scheme to defraud.”). The use of the mails can be proven through evidence of business practices or office custom. United States v. Scott, 730 F.2d 143, 146-47 (4th Cir. 1984). In United States v. Edwards, 188 F.3d 230 (4th Cir. 1999), the Fourth Circuit approved the following instruction given by the district court: The crime of conspiracy to commit mail fraud does not require proof of an actual mailing. Instead, the crime of conspiracy to commit mail fraud requires, among other things, proof that the persons charged with the conspiracy reasonably contemplated the use of the mail or that the persons charged intended that the mails be used in furtherance of the scheme or that the nature of the scheme was such that the use of the mail was reasonably foreseeable. 188 F.3d 233 n.1. 756 See Edwards, 188 F.3d at 235. 757 United States v. Caldwell, 544 F.2d 691, 696 (4th Cir. 1976). See also United States v. Murr, 681 F.2d 246, 248 (4th Cir. 1982). 758 United States v. Coyle, 943 F.2d 424, 427 (4th Cir. 1991) (the victims were cable companies, but the mail recipients were cable customers). 759 United States v. Adler, 186 F.3d 574, 576-77 (4th Cir. 1999). 760 United States v. Pasquantino, 544 U.S. 349, 356 (2005) (Canada defrauded of its right to collect tax revenue on smuggled liquor). See Cleveland v. United States, 531 U.S. 12 (2000) (a State’s interest in an unissued video poker license is not property). 761 See United States v. Colton, 231 F.3d 890, 903 (4th Cir. 2000) (§ 1344 prosecution). 250 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 254 of 684 TITLE 18 The government does not have to prove that anyone actually relied on the false representations. Nor does the government have to prove that a victim actually suffered any damages. The statute prohibits a scheme to defraud rather than the completed fraud.762 L For multiple defendants: In order to find the defendants responsible for participating in the fraudulent scheme as alleged in the indictment, each of you must find that the defendants participated in the same single scheme to defraud and that the scheme to defraud in which the defendants are found to have participated is substantially the same scheme as the overall fraudulent scheme alleged in the indictment. To sustain its burden of proof, however, the government is not required to prove all of the components of the scheme to defraud that are alleged in the indictment. If the government proves beyond a reasonable doubt a scheme to defraud that contains some or all of the components in the indictment, but is simply more narrow than the scheme to defraud as defined in the indictment, then the government has carried its burden of proof. You must unanimously agree, however, on the components of the scheme to defraud.763 ____________________NOTE____________________ See United States v. ReBrook, 58 F.3d 961, 966 (4th Cir. 1995), abrogated on ground of materiality by Neder v. United States, 527 U.S. 1 (1999). 017 7/2 A scheme to use the mails to defraud, which is joined in by more than one person, is a conspiracy. Pinkerton v. United States, 328 U.S. 640, 647 (1946). The same reasoning should apply to wire fraud. 7/2 d0 e iew ,v The two phrases in § 1341 identifying the proscribed schemes are not separate offenses. The second phrase simply modifies the first by making it unmistakable that the statute reaches false promises and misrepresentations as to the future as well as other frauds involving money or property. Cleveland v. United States, 531 U.S. 12, 26 (2000). The same reasoning should apply to § 1343. o. 1 N 226 6-4 The use of the mails must be a part of the execution of the fraud, however it need not be an essential element of the scheme; it is sufficient for the mailing to be incident to an essential part of the scheme or a step in the plot. Schmuck v. United States, 489 U.S. 705, 710 (1989). The same reasoning should apply to use of an interstate wire. “[Section] 1341 [and by implication § 1343] requires the object of the fraud to be ‘property’ in the victim’s hands.” Cleveland, 531 U.S. at 26. “Fraud” prohibited by this statute only reaches money or property interests, as opposed to intangible general social interests. Nevertheless, the scope of property interests protected is to be construed fairly widely. In United States v. Mancuso, 42 F.3d 836, 845 (4th Cir. 1994), the court held that a right that could be assigned, traded, bought, and otherwise disposed of, fell within the universe of property that would support a bank fraud conviction. In United States v. Jefferson, 674 F.3d 332 (4th Cir. 2012), the court reversed a wire fraud conviction for improper venue. The fraud scheme was devised and perpetrated in the Eastern District of Virginia, but the telephone call involved originated in Accra, 762 Neder v. United States, 527 U.S. 1, 25 (1999). A pecuniary loss is not required. United States v. Deters, 184 F.3d 1253, 1258 (10th Cir. 1999). 763 Instruction that the jury agree unanimously on the identity and extent of the scheme to defraud. United States v. Smith, 44 F.3d 1259, 1270 (4th Cir. 1995). 251 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 255 of 684 TITLE 18 Ghana, and terminated in Louisville, Kentucky. The essential conduct element in a wire fraud is the use of an interstate wire communication. Because the call neither originated nor terminated in the Eastern District of Virginia, venue there was improper. See id. at 364-69. Lulling Communications764 Communications having a propensity to lull and forestall action on the part of the victim may form an integral part of the overall scheme to defraud. United States v. Painter, 314 F.2d 939, 943 (4th Cir. 1963) (citing United States v. Sampson, 371 U.S. 75, 80 (1962)). Even if an individual had an innocent intent at the outset, a conviction can be sustained if that individual used the mails or wire communication to disseminate falsehoods designed to calm nervous buyers. United States v. Curry, 461 F.3d 452, 458 (4th Cir. 2006). Puffing Puffing, exaggerated enthusiasm, and high-pressure salesmanship do not constitute fraud, provided they simply magnify an opinion of the advantages of a product without falsely asserting the existence of qualities the product does not possess. United States v. Amlani, 111 F.3d 705, 718 (9th Cir. 1997). 017 7/2 In United States v. New South Farm & Home Co., 241 U.S. 64 (1916), the Supreme Court stated the following: 7/2 d0 Mere puffing, indeed, might not be within [the meaning of the mail fraud statute]; that is, the mere exaggeration of the qualities which the article has; but when a proposed seller goes beyond that, assigns to the article qualities which it does not possess, does not simply magnify in opinion the advantages which it has, but invents advantages and falsely asserts their existence, he transcends the limits of ‘puffing’ and engages in false representations and pretenses. An article alone is not necessarily the inducement and compensation for its purchase. It is in the use to which it may be put, the purpose it may serve; and there is deception and fraud when the article is not of the character or kind represented and hence does not serve the purpose. And when the pretenses or representations or promises which execute the deception and fraud are false, they become the scheme or artifice which the statute denounces. e iew ,v o. 1 N 226 6-4 241 U.S. at 71. In United States v. Cronic, 900 F.2d 1511 (10th Cir. 1990), the Tenth Circuit held that a check kiting scheme constituted a scheme to defraud, but not a scheme to obtain by means of false representations, unless embellished by other acts or communications. Wire fraud is a continuing offense, as defined in § 3237(a), properly tried in any district where a payment-related wire communication was transmitted in furtherance of the fraud scheme. United States v. Ebersole, 411 F.3d 517, 527 (4th Cir. 2005). 764 A mailing is considered to be for the purpose of executing a fraudulent scheme if it is designed to lull the victims into a false sense of security, even if it is incident to an essential part of the scheme. “Thus, a mailing that is accurate, routine, or sent after the goods have been received can support a mail fraud conviction, so long as the mailing was designed to make apprehension of the defendant less likely.” United States v. Bradshaw, 282 F. App’x 264 (4th Cir. 2008) (quoting United States v. Lane, 474 U.S. 438, 451-52 (1986)). 252 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 256 of 684 TITLE 18 18 U.S.C. § 1344 BANK FRAUD [LAST UPDATED : 12/16/14] Title 18, United States Code, Section 1344, makes it a crime to execute or attempt to execute a scheme to defraud or to obtain money from a federally-insured financial institution by means of false or fraudulent pretenses, representations, or promises. For you to find the defendant guilty, the government must prove each of the following beyond a reasonable doubt: § 1344(1)765 P First, that the defendant knowingly executed [or attempted to execute] a scheme or artifice to defraud a financial institution; P Second, that the financial institution was then federally insured [or otherwise fit one of the definitions in 18 U.S.C. § 20]; and P Third, that the defendant did so with intent to defraud.766 § 1344(2) P First, that the defendant knowingly executed [or attempted to execute] a scheme or artifice to obtain any of the moneys, funds, credits, assets, securities, or other property owned by, or under the custody of, a financial institution by false or fraudulent pretenses, representations, or promises; P Second, that the defendant did so with intent to defraud; and P Third, that the financial institution was then federally insured [or otherwise fit one of the definitions in 18 U.S.C. § 20].767 017 7/2 7/2 d0 e iew ,v Applicable to §§ 1344(1) and (2): The words “scheme or artifice” include any plan or course of action intended to deceive or cheat others. 226 6-4 “To defraud” means wronging one in his property rights by dishonest methods or schemes and usually signifies the deprivation of something of value by trick, deceit, chicanery, or overreaching. o. 1 N A “financial institution” means that the financial institution was then federally insured [or otherwise fit one of the definitions in 18 U.S.C. § 20] The government need not prove that the financial institution was the immediate victim, or that the institution suffered an actual loss, because it is sufficient if the government shows that the financial institution was exposed to an actual or potential risk of loss.768 765 Subsections (1) and (2) are disjunctive. Section 1344(1) requires an intent to defraud a financial institution; Section 1344(2) does not require an intent to defraud a financial institution directly, but does require that the defendant execute or attempt to execute the scheme by false or fraudulent pretenses. See generally Loughrin v. United States, 573 U.S. __, 134 S. Ct. 2384 (2014). See also United States v. Brandon, 298 F.3d 307, 311 (4th Cir. 2002); United States v. Colton, 231 F.3d 890, 897 (4th Cir. 2000). 766 Loughrin, 573 U.S. at __, 134 S. Ct. at 2389-90. See also United States v. Adepoju, 756 F.3d 250, 255 (4th Cir. 2014) (listing elements). 767 Loughrin, 573 U. S. at __, 134 S. Ct. at 2389. See Adepoju, 756 F.3d at 255 (“The major difference between the subsections is that § 1344(1) focuses on how the defendant’s conduct affects a bank, while § 1344(2) focuses solely on the conduct.”). 768 Brandon, 298 F.3d at 312 (citing Colton, 231 F.3d 890 for proposition that because (continued...) 253 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 257 of 684 TITLE 18 Applicable to § 1344(1): To prove a scheme to defraud, the government must prove that the defendant acted with the specific intent to deceive or cheat for the purpose of obtaining financial gain for one’s self or causing financial loss to another. Thus, the government must prove that the defendant intended to deceive the financial institution through the scheme.769 The government can prove a scheme to defraud by evidence of active concealment of material information from the financial institution.770 Therefore, “[n]o actual misrepresentation of fact is necessary to make the crime complete.”771 A scheme to defraud can be shown by deceptive acts or contrivances intended to hide information, mislead, avoid suspicion, or avert further inquiry into a material matter.772 Fraud includes acts taken to conceal, create a false impression, mislead, or otherwise deceive in order to prevent another person from acquiring material information.773 The concept of fraud includes the act of embezzlement, which is the fraudulent appropriation to one’s own use of the money or goods entrusted to one’s care by another.774 It is not necessary, however, to prove that anyone was, in fact, defrauded, as long as it is established that the defendant acted with the intent to defraud or mislead.775 017any plan 2 As relates to this section, a “scheme or artifice to obtain” means to pursue 27/ or course of action intended to indirectly obtain assets of a financial institution by false or 7/ 0words, a financial institution fraudulent pretenses, representations, or promises. In d eother does not have to be the primary victim of the defendant’s scheme. For example, the ew defendant may present a fraudulent check via third party to obtain goods or services, who to , then submits that check to a financial6 2 institution for payment. 2 6-4 o. 1 N Applicable to § 1344(2): 768 (...continued) § 1344 focuses on banks, not sufficient that person other than a bank was defrauded in a way that happened to involve banking without evidence that the bank was the intended victim). 769 Id. at 311. 770 231 F.3d 890, 907 (4th Cir. 2000). 771 Lemon v. United States, 278 F.2d 369, 373 (9th Cir. 1960). 772 Colton, 231 F.3d at 901. 773 Id. at 898. The court found that [concealment] is characterized by deceptive acts or contrivances intended to hide information, mislead, avoid suspicion, or prevent further inquiry into a material matter. [Nondisclosure] is characterized by mere silence. Although silence as to a material fact (nondisclosure), without an independent disclosure duty, usually does not give rise to an action for fraud, suppression of the truth with the intent to deceive (concealment) does. Id. at 899. 774 775 254 Carpenter v. United States, 484 U.S. 19, 27 (1987). United States v. Ellis, 326 F.3d 550, 556 (4th Cir. 2003). Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 258 of 684 TITLE 18 A statement or representation is false or fraudulent if known to be untrue or made with reckless indifference as to the truth or falsity and made or caused to be made with the intent to deceive or defraud.776 A statement or representation is also false or fraudulent when it constitutes a half truth, or effectively omits or conceals a material fact, provided it is made with intent to defraud. The government must prove that the false or fraudulent pretenses, representations, or promises were material.777 A statement is material if it has a natural tendency to influence, or is capable of influencing, the decision-making body to which it was addressed. It is irrelevant whether the false statement actually influenced or affected the decision-making process of the fact finding body. A false statement’s capacity to influence must be measured at the point in time that the statement was made.778 In other words, it concerns what a reasonable financial institution would want to know in negotiating a particular transaction.779 A scheme is executed by the movement of money, funds or other assets from the institution, and this movement of the money from the financial institution completes the execution of the scheme.780 [But see discussion of “execution” under NOTE.] L For multiple defendants: 017 7/2 In order to find the defendants responsible for participating in the fraudulent scheme as alleged in the indictment, each of you must find that the defendants participated in the same single scheme to defraud and that the scheme to defraud in which the defendants are found to have participated is substantially the same scheme as the overall fraudulent scheme alleged in the indictment. To sustain its burden of proof, however, the government is not required to prove all of the components of the scheme to defraud that are alleged in the indictment. If the government proves beyond a reasonable doubt a scheme to defraud that contains some or all of the components in the indictment, but is simply more narrow than the scheme to defraud as defined in the indictment, then the government has carried its burden of proof. You must unanimously agree, however, on the components of the scheme to defraud.781 7/2 d0 e iew ,v o. 1 N 226 6-4 ____________________NOTE____________________ In 2014, the Supreme Court noted that § 1344(1) requires an intent to defraud a financial institution; “indeed, that is § 1344(1)’s whole sum and substance.” Loughrin v. United States, 573 U.S. __, __, 134 S. Ct. 2384, 2390 (2014). However, § 1344(2) only requires that the government prove the defendant was involved “in a knowing scheme to obtain property owned by, or in the custody of, a bank ‘by means of false or fraudulent 776 See United States v. Scott, 701 F.2d 1340, 1343 (11th Cir. 1983). “Representations known by a person to be false is a type of a scheme to defraud.” Id. at 1344. 777 See Neder v. United States, 527 U.S. 1 (1999). 778 United States v. Sarihifard, 155 F.3d 301, 307 (4th Cir. 1998). 779 United States v. Colton, 231 F.3d 890, 903 n.5 (4th Cir. 2000). 780 United States v. Atkinson, 158 F.3d 1147, 1159 (11th Cir. 1998) (citing United States v. Mancuso, 42 F.3d 836, 847 (4th Cir. 1994)). But see United States v. Brandon, 298 F.3d 307, 312 (4th Cir. 2002) (“the government does not have to prove the bank suffered any monetary loss, only that the bank was put at potential risk by the scheme to defraud.”). 781 Instruction that the jury agree unanimously on the identity and extent of the scheme to defraud. United States v. Smith, 44 F.3d 1259, 1270 (4th Cir. 1995). 255 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 259 of 684 TITLE 18 pretenses, representations, or promises.’” Id. at at 2387. See also United States v. Adepoju, 756 F.3d 250, 255 (4th Cir. 2014) (noting elements of both sections). “Fraud” prohibited by this statute only reaches money or property interests, as opposed to intangible general social interests. Nevertheless, the scope of property interests protected is to be construed fairly widely. In United States v. Mancuso, 42 F.3d 836, 845 (4th Cir. 1994), the court held that a right that could be assigned, traded, bought, and otherwise disposed of, fell within the universe of property that would support a bank fraud conviction. Materiality is an element of bank fraud that must be submitted to the jury. Neder v. United States, 527 U.S. 1 (1999). See United States v. Bales, 813 F.2d 1289, 1293 (4th Cir. 1987), where the Fourth Circuit said that the trier of fact must find that the defendant “knowingly made false representations to the bank with the purpose of influencing its actions.” Reliance and damages are not elements of this offense. United States v. Colton, 231 F.3d 890, 903 (4th Cir. 2000). See also United States v. Brandon, 298 F.3d 307, 312 (4th Cir. 2002) (“the government does not have to prove the bank suffered any monetary loss, only that the bank was put at potential risk by the scheme to defraud”); Colton, 231 F.3d at 908 (“the ‘scheme to defraud’ clause of the bank fraud statute requires only that a financial institution be exposed to an actual or potential risk of loss”). 017 2 The unit of prosecution is each execution of the scheme, not each act in furtherance 27/from the other acts / of the scheme. An act chronologically and substantively independent 07planned or contemplated charged as the scheme constitutes an execution. Acts d are ethat together may indicate that they are dependentew another and cannot be separately on one charged. United States v. Colton, 231 F.3d 890, 909 (4th Cir. 2000). , vi 226 “[C]ircuit law ... has almost uniformly adopted the ... approach ... which allows a separate charge for each separate diversion of funds from the financial institution in 6-4 1v. Mancuso, 42 F.3d 836, 847 (4th Cir. 1994). In Mancuso, the question.” Unitedo. N States the district court that the diversion of a separately identifiable Fourth Circuit agreed with Unit of Prosecution and discrete amount of money can be properly viewed as a separate execution of the scheme to defraud. Id. at 848. In United States v. Atkinson, 158 F.3d 1147, 1159 (11th Cir. 1998), the Eleventh Circuit said that a scheme is executed by the movement of money, funds or other assets from the bank, and this movement of the money from the bank completes the execution of the scheme. The Fifth Circuit has addressed the issue several times, finally concluding with a five-part test. See, e.g., United States v. Hord, 6 F.3d 276 (5th Cir. 1993) (finding that opening account not an execution; five counts of conviction deposits of bogus checks, three counts attempted withdrawals; court held that the attempted withdrawals were multiplicitous; reversed); See id. at 281 (“[T]he deposits, without more, satisfy § 1344’s prohibition ....”); See id. (“the scheme was executed with the deposit of each bogus check, because that was the event that triggered possible instant credit.”); United States v. Heath, 970 F.2d 1397 (5th Cir. 1992) (scheme involved two separate loans; court held only one execution of the scheme because loans were integrally related); United States v. Lemons, 941 F.2d 309 (5th Cir. 1991) (fraudulent scheme to procure money from bank; received in a series of transactions occurring over the course of several months; court held incremental movement of the benefit to the defendant was only part of but one execution of the scheme). 256 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 260 of 684 TITLE 18 In United States v. Hickman, 331 F.3d 439 (5th Cir. 2003), a § 1347 prosecution, which is analogous, the Fifth Circuit said whether a transaction is “an ‘execution’ of the scheme or merely a component of the scheme will depend on several factors including (1) the ultimate goal of the scheme, (2) the nature of the scheme, (3) the benefits intended, (4) the interdependence of the acts, and (5) the number of parties involved.” 331 F.3d at 446. Officers, directors, or other employees of a financial institution cannot validate a fraud on the institution. Therefore, the knowledge of bank fraud by officers, directors, or other employees of the institution is not a defense to the charge of bank fraud. United States v. Aubin, 87 F.3d 141, 148 (5th Cir. 1996). In United States v. Orr, 932 F.2d 330 (4th Cir. 1991), a defendant opened a checking account using a false name and false identification. The initial deposit was withdrawn, and insufficient fund checks were written on the account. Losses were suffered by the merchants who took the checks, not by the bank. In vacating the convictions, the court stated that “Congress did not intend the bank fraud statute to cover ordinary state law offenses, where, as here, the fraud victim was not a federally insured bank.” Id. at 332. In Brandon, 298 F.3d at 313, the Fourth Circuit interpreted Orr “as establishing merely that a routine bad check case does not come within the scope of § 1344 where the defendant passes to a merchant a check from an account for which the defendant is an authorized signatory [even though the account was opened in a false name] and the drawee bank refuses to honor the check for lack of sufficient funds.” 017 2 18 U.S.C. § 1346 HONEST SERVICES [L U : 8/15/2016] 27/ 07/ To convict an individual of “honest services” fraud under [insert section of fraud d indicted], the government must prove: we e [Insert Elements of the Type of Fraud] , vi P That there was a fraudulent scheme to deprive another of that person’s 226 from the defendant through bribes or right to receive4 6- honest third party 1supplied by aservices who has not been deceived; and kickbacks o. Nthe individual is a private employee:] Second, that the defendant P [If AST PDATED 782 intended to breach a fiduciary duty to the defendant’s employer, and that the defendant foresaw or reasonably should have foreseen that the employer might suffer an economic harm as a result of the breach.783 If proceeding under theory of BRIBERY against a PUBLIC OFFICIAL: 782 Skilling v. United States, 561 U.S. 358, 409 (2010) (“[W ]e now hold that § 1346 criminalizes only the bribe-and-kickback core of the pre- McNally [v. United States, 483 U.S. 350 (1987)] case law.”) (emphasis in original). See also id. at 404 (“ In the main, the pre- McNally cases involved fraudulent schemes to deprive another of honest services through bribes or kickbacks supplied by a third party who had not been deceived.”) 783 United States v. Vinyard, 266 F.3d 320, 327-28 (4th Cir. 2001) (adopting “reasonably foreseeable economic harm” test). See also Skilling, 561 U.S. at 408 n.41 ( existence of fiduciary relationship in honest services cases “usually beyond dispute ....”). Additionally, the Ninth Circuit held in United States v. Milovanovic, 678 F.3d 713, 721 (9th Cir. 2012) (en banc), that “breach of fiduciary duty for honest services fraud ... does not require a formal fiduciary duty ...[;] a trust relationship ... is sufficient.” 257 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 261 of 684 TITLE 18 P that the payor provided a bribe to a public official intending that the official would thereby take favorable official acts or omissions that the official would not otherwise take; and P that the official accepted the bribe intending, in exchange, to take official acts or omissions to benefit the payor.784 For Public Officials: The “intangible right of honest services” refers to the public’s right to a government official’s honest, faithful, and disinterested service.785 Services must be owed under state [or local or federal] law and the government must prove that the services were in fact not delivered. The official must act or fail to act contrary to the requirements of the official’s job under the appropriate law.786 The Government must show that the public official undertook an official act. To prove an “official act” the Government must prove two things.787 First, the Government must identify a question, matter, cause, suit, proceeding, or controversy that may at any time be pending or may by law be brought before a public official.788 This requires a showing of a formal exercise of governmental power that is similar in nature to a lawsuit before a court, a determination before an agency, or a hearing before a committee.789 It must also be something specific and focused that is pending or may by law be brought before a public official.790 017 2 Second, the Government must prove that the public official made a decision or 27/or controversy, or took an action on that question, matter, cause, suit, proceeding, 07/ that he agreed to do so. That decision or actiond include using his official e may position to exert pressure on another officialw perform an official act, or to advise ie to another official, knowing or intending that such advice will form the basis for an 6, v 2 official act by another official. Setting up a meeting, talking to another official, or -42 to do so—without more—does not count as a organizing an event or agreeing . 16 matter. decision or action on that No 791 792 For Private Employees: The “intangible right of honest services” refers to an employer’s right to an 784 See United States v. Andrews, 681 F.3d 509, 527 (3d Cir. 2012). United States v. Harvey, 532 F.3d 326, 333 (4th Cir. 2008) (citing United States v. Mandel, 591 F.2d 1347, 1362 (4th Cir. 1979), aff’d in relevant part, 602 F.2d 653 (4th Cir. 1979) (en banc)). 786 United States v. Brumley, 116 F.3d 728, 734 (5th Cir. 1997). 787 McDonnell v. United States, 136 S. Ct. 2355, 2368 (2016). 788 Id. 789 Id. at 2369, 2372. 785 790 Id. at 2372. at 2368. Id. at 2372, 2375. 791 Id. 792 258 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 262 of 684 TITLE 18 employee’s honest, faithful, and disinterested service.793 As to a private individual, the government must also prove that the defendant “intended to breach a fiduciary duty, and the [defendant] foresaw or reasonably should have foreseen that his victim might suffer an economic harm as a result of the breach.”794 A “fiduciary” obligation exists whenever one [person] [entity] places special trust and confidence in another person – the fiduciary – in reliance that the fiduciary will exercise his [her] [its] discretion and expertise with the utmost honest and forthrightness in the interests of the [person] [entity], such that the [person] [entity] relaxes the care and vigilance which he [she] [it] would ordinarily exercise, and the fiduciary knowingly accepts that special trust and confidence and thereafter undertakes to act on behalf of the other [person] [entity] based on such reliance. It is only when one places, and another accepts, a special trust and confidence – usually involving the exercise of professional judgment and discretion – that a fiduciary relationship arises.795 Proof that the employer suffered only the loss of loyalty and fidelity of the employee is insufficient to convict.796 Bribe A bribe is a payment made or promised corruptly, that is, with the intent to receive a specific benefit in return for the payment.797 For a public official, the term “bribe” means to give or receive something of value with the intent to be influenced in the performance or nonperformance of the official’s public duties.798 017 2 In a bribery case, the government is required to prove a quid pro quo; however, the 27/ to engage in a / government is not required to prove “an expressed intention7 agreement) 0 (or linked to a specific act. quid pro quo” arrangement. Additionally, a bribeed not be w need Rather, a bribe may come in the form of an ongoing course of conduct or a stream of ie benefits. However, “gift or payment , v with the generalized hope of some given 6 unspecified future benefit is not2bribe.” a2 4 16. Harvey, 532 F.3d at 333 (citing Mandel, 591 F.2d at 1362)). No 799 800 801 802 793 794 United States v. Vinyard, 266 F.3d 320, 327 (4th Cir. 2001) (quoting United States v. Frost, 125 F.3d 346 (6th Cir. 1997)). But see United States v. Milovanovic, 678 F.3d 713, 727 (9th Cir. 2012) (en banc) (adopting materiality test; noting Circuit disagreement in private sector cases on whether government must prove “reasonably foreseeable economic harm” relating to a defendant’s alleged fraud). 795 Milovanovic, 678 F.3d at 723 n.9 (citing Eleventh Cir. Pattern Civil Jury Instructions – State Claims 3.3). 796 United States v. Frost, 125 F.3d 346, 368 (6th Cir. 1997). 797 United States v. Jennings, 160 F.3d 1006, 1013 (4th Cir. 1998). 798 United States v. Ganim, 510 F.3d 134, 149 (2d Cir. 2007); See also Jennings, 160 F.3d at 1014; United States v. Sun-Diamond Growers of Cal., 526 U.S. 398, 404-05 (1999). Refer also to instruction for 18 U.S.C. § 201 (Bribery of Officials and Illegal Gratuities). 799 Literally, “something for something.” Black’s Law Dictionary 1261 (7th ed. 1999). 800 United States v. Quinn, 359 F.3d 666, 673 (4th Cir. 2004) (quoting United States v. Jennings, 160 F.3d at 1014). For instruction on bribery, refer to 18 U.S.C. § 201(b). 801 United States v. Jefferson, 674 F.3d 332, 359 (4th Cir. 2012) (citing Ganim, 510 F.3d at 149). See also United States v. Wright, 665 F.3d 560, 568 (3d Cir. 2012) (“stream of benefits”). 802 In McDonnell, the Fourth Circuit stated that “there is little reason to doubt that if the (continued...) 259 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 263 of 684 TITLE 18 For public officials, a quid pro quo occurs when the public official “intends the payor to believe that absent payment the official is likely to abuse his office and his trust to the detriment and injury of the prospective payor or to give the prospective payor less favorable treatment if the quid pro quo is not satisfied.”803 Public officials may lawfully accept a campaign contribution, and the official may lawfully accept a personal benefit if the official’s intent in taking those items is solely to cultivate a relationship with the person or persons who provided them.804 Kickback The term “kickback” means any money, fee, commission, credit, gift, gratuity, thing of value, or compensation of any kind which is provided, directly or indirectly, to a person for the purpose of improperly obtaining or rewarding favorable treatment in connection with some particular item or service.805 Undisclosed self-dealing is insufficient to convict.806 ____________________NOTE____________________ Title 18 U.S.C. § 1346 provides that “[f]or the purposes of [Chapter 63 offenses], the term ‘scheme or artifice to defraud’ includes a scheme or artifice to deprive another of the intangible right of honest services.” Therefore, while prosecutions appear generally in conjunction with mail and wire fraud, honest services fraud is prosecutable under any of the fraud offenses listed in Chapter 63, including mail, wire, bank, health care, and securities fraud. 017 7/2 7/2 Court held that In Skilling v. United States, 561 U.S. 351 (2010), the Supreme d0 eand kickbacks. 561 U.S. at 409. “§1346 criminalizes only” schemes involving bribes w Indeed, the Fourth Circuit has found it was error after Skilling to instruct a jury that an vie honest services fraud conviction could be based on conflict of interest. See United States 26,2012). See also United States v. Pitt, 482 F. v. Hornsby, 666 F.3d 296, 304 (4th Cir. 42 6-2012) (Skilling’s holding “requires proof of a bribery or App’x 787, 790 n.2 (4th Cir. .1 kickback scheme omake out a case for honest services fraud ....”). to N In United States v. Vinyard, 266 F.3d 320 (4th Cir. 2001), the Fourth Circuit acknowledged that the honest services theory of fraud (in the case of Vinyard, mail fraud), is directed primarily at the deterrence and punishment of corruption among public officials, but it also encompasses dishonest acts perpetrated in private commercial settings by corporate officers or other private employees who “bear a duty of loyalty to the 802 (...continued) defense had submitted a written instruction relating to goodwill gifts, the court would have accepted it.” 792 F.3d at 514, rev’d on other grounds in 136 S. Ct. 2355 (2016). The court went on to state that the court’s quid pro quo instruction adequately covered this point. Id. 803 Evans v. United States, 504 U.S. 255, 274 (1992) (Kennedy, J., concurring in part and concurring in judgment). 804 Ganim, 510 F.3d 134, 149 (2d Cir. 2007) (approvingly citing district court jury instructions). 805 See 41 U.S.C. § 8701(2). 806 Skilling v. United States, 561 U.S. 351, 411 (2010). See also United States v. Hornsby, 666 F.3d 296, 304 (4th Cir. 2012). 260 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 264 of 684 TITLE 18 employer, just as a public official owes the citizenry a duty to govern honestly and impartially.” 266 F.3d at 326. Also in Vinyard, the Fourth Circuit adopted the so-called “reasonably foreseeable harm” test explained by the Sixth Circuit in United States v. Frost, 125 F.3d 346 (6th Cir. 1997). That is, in private sector cases, the government “must prove that the employee intended to breach a fiduciary duty, and that the employee foresaw or reasonably should have foreseen that his employer might suffer an economic harm as a result of the breach.” Vinyard, 266 F.3d at 327 (quoting Frost, 125 F.3d at 386). There is some disagreement between Circuits in “private sector” cases regarding the application of “reasonably foreseeable economic harm test” versus a broader “materiality test.” Compare Vinyard, 266 F.3d at 327; United States v. Martin, 228 F.3d 1 (1st Cir. 2000); United States v. deVegter, 198 F.3d 1324 (11th Cir. 1999); United States v. SunDiamond Growers of Cal., 138 F.3d 961 (D.C. Cir. 1998), cert. granted in part and aff’d, 526 U.S. 398 (1999); United States v. Frost, 125 F.3d 346 (6th Cir. 1997), with United States v. Rybicki, 354 F.3d 354 F.3d 124 (2d Cir. 2003); United States v. Cochran, 109 F.3d 660 (10th Cir. 1997); United States v. Gray, 96 F.3d 769 (5th Cir. 1997); United States v. Jain, 93 F.3d 436 (8th Cir. 1996). 18 U.S.C. § 1347 HEALTH CARE FRAUD 017 7/2 Title 18, United States Code, Section 1347 makes it a crime to execute or attempt to execute a scheme to defraud a health care benefit program. For you to find the defendant guilty, the government must prove each of the following beyond a reasonable doubt: 7/2 0 First, that the defendant executed or attempted to execute; ed w Second, a scheme or artifice; vie , Third, to defraud a health26 benefit program which affects commerce; care 2 Fourth, in connection with the delivery of or payment for health care benefits, 6-4 items, or services; and . othe1 N defendant did so knowingly and willfully. Fifth, that § 1347(1)807 P P P P P 808 § 1347(2) P First, that the defendant executed or attempted to execute; P Second, a scheme or artifice; P Third, to obtain any money or property owned by or under the custody and control of a health care benefit program which affects commerce, by means of false or fraudulent pretenses, representations, or promises which were 807 Section 1347 is analogous to § 1344. Regarding § 1344, the Fourth Circuit has stated that subsections (1) and (2) are disjunctive and slightly different, so one may commit a bank fraud under (1) by defrauding a financial institution without making the false or fraudulent promises required by (2). United States v. Colton, 231 F.3d 890, 897 (4th Cir. 2000); United States v. Brandon, 298 F.3d 307, 311 (4th Cir. 2002). The same reasoning should apply to § 1347. 808 See United States v. Kirkham, 129 F. App’x 61 (5th Cir. 2005). 261 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 265 of 684 TITLE 18 material;809 P Fourth, in connection with the delivery of or payment for health care benefits; and P Fifth, that the defendant did so knowingly and willfully. “Health care benefit program” means any public or private plan or contract, affecting commerce, under which any medical benefit, item, or service is provided to any individual, and includes any individual or entity who is providing a medical benefit, item or service for which payment may be made under the plan or contract. [18 U.S.C. § 24(b)–note the interstate commerce nexus.]810 The words “scheme and artifice” include any plan or course of action intended to deceive others and to obtain by either false or fraudulent pretenses, representations or promises, either money or property from persons who are so deceived. A statement or representation is false or fraudulent if known to be untrue or made with reckless indifference as to the truth or falsity and made or caused to be made with the intent to deceive or defraud.811 A scheme to defraud requires that the government prove that the defendant acted with the specific intent to deceive or cheat for the purpose of getting financial gain for one’s self or causing financial loss to another. Thus, the government must prove that the defendant intended to deceive the health care benefit program through the scheme.812 017 7/2 “To defraud” means wronging one in his property rights by dishonest methods or schemes and usually signifies the deprivation of something of value by trick, deceit, chicanery, or overreaching. The concept of fraud includes the act of embezzlement, which is the fraudulent appropriation to one’s own use of the money or goods entrusted to one’s care by another.813 7/2 d0 e iew v Fraud is an intentional or deliberate misrepresentation of the truth for the purpose of 6,value or to surrender a legal right. Fraud, then, is a 2 inducing another to part with a thing of -42 deceit which, whether perpetrated by words, conduct, or silence, is designed to cause another to act upon it to his legal injury. A statement, claim or document is fraudulent if it . 16 No was falsely made, or made with reckless indifference as to its truth or falsity, and made or caused to be made with an intent to deceive. The phrases “any scheme or artifice to defraud” and “any scheme or artifice for obtaining money or property” mean any deliberate plan of action or course of conduct by which someone intends to deceive or cheat another or by which someone intends to deprive another of something of value. A scheme or artifice to defraud may describe a departure from fundamental honesty, moral uprightness, or fair play and candid business dealings in the general life of the community. There must be proof of either a misrepresentation, false statement, or 809 The author has found no authority, one way or the other, that the representations must be material, but § 1344 is clearly analogous. Materiality is an element of bank fraud that must be submitted to the jury. Neder v. United States, 527 U.S. 1 (1999). 810 In United States v. Hickman, 331 F.3d 439, 443 (5th Cir. 2003), the Fifth Circuit said that the jurisdictional element of affecting commerce is probably an essential element of the offense. 811 See United States v. Scott, 701 F.2d 1340, 1343 (11th Cir. 1983). “Representations known by a person to be false is a type of a scheme to defraud.” Id. at 1344. 812 See United States v. Brandon, 298 F.3d 307, 311 (4th Cir. 2002) (§ 1344 prosecution). 813 Carpenter v. United States, 484 U.S. 19, 27 (1987). 262 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 266 of 684 TITLE 18 omission calculated to deceive a person of ordinary prudence and comprehension. A scheme to defraud may occur even absent a false statement or false representation, and may be based on fraudulent omissions. A scheme to defraud includes the knowing concealment of facts and information done with the intent to defraud. To act with an “intent to defraud” means to act with a specific intent to deceive or cheat, ordinarily, for the purpose of either causing some financial loss to another or bringing about some financial gain to one’s self. It is not necessary, however, to prove that anyone was, in fact, defrauded, as long as it is established that the defendant acted with the intent to defraud or mislead.814 A statement is material if it has a natural tendency to influence, or is capable of influencing, the decision-making body to which it was addressed. It is irrelevant whether the false statement actually influenced or affected the decision-making process of the agency or fact finding body. A false statement’s capacity to influence must be measured at the point in time that the statement was made.815 A statement or representation is false or fraudulent if it is known to be untrue or is made with reckless indifference as to its truth or falsity, when it constitutes a half truth, or effectively omits or conceals a material fact, provided it is made with intent to defraud. “No actual misrepresentation of fact is necessary to make the crime complete.”816 L 017 7/2 For multiple defendants: In order to find the defendants responsible for participating in the fraudulent scheme as alleged in the indictment, each of you must find that the defendants participated in the same single scheme to defraud and that the scheme to defraud in which the defendants are found to have participated is substantially the same scheme as the overall fraudulent scheme alleged in the indictment. To sustain its burden of proof, however, the government is not required to prove all of the components of the scheme to defraud that are alleged in the indictment. If the government proves beyond a reasonable doubt a scheme to defraud that contains some or all of the components in the indictment, but is simply more narrow than the scheme to defraud as defined in the indictment, then the government has carried its burden of proof. You must unanimously agree, however, on the components of the scheme to defraud.817 7/2 d0 e iew ,v o. 1 N 226 6-4 ____________________NOTE____________________ Health care fraud is a continuing offense. United States v. Hickman, 331 F.3d 439, 447 n.8 (5th Cir. 2003). Unit of Prosecution The unit of prosecution is each execution of the scheme, not each act in furtherance of the scheme. An act chronologically and substantively independent from the other acts charged as the scheme constitutes an execution. Acts that are planned or contemplated together may indicate that they are dependent on one another and cannot be separately 814 United States v. Ellis, 326 F.3d 550, 556 (4th Cir. 2003). United States v. Sarihifard, 155 F.3d 301, 307 (4th Cir. 1998). 816 Lemon v. United States, 278 F.2d 369, 373 (9th Cir. 1960). 817 Instruction that the jury agree unanimously on the identity and extent of the scheme to defraud. United States v. Smith, 44 F.3d 1259, 1270 (4th Cir. 1995). 815 263 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 267 of 684 TITLE 18 charged. United States v. Colton, 231 F.3d 890, 909 (4th Cir. 2000). “[A]ny scheme can be executed a number of times, and each execution may be charged as a separate count.” Hickman, 331 F.3d at 446. In Hickman, the Fifth Circuit said whether a particular transaction is “an ‘execution’ of the scheme or merely a component of the scheme will depend on several factors including (1) the ultimate goal of the scheme, (2) the nature of the scheme, (3) the benefits intended, (4) the interdependence of the acts, and (5) the number of parties involved.” 331 F.3d at 446. Hickman had billed Medicare, Medicaid, and private insurance companies in a series of fraudulent transactions. The defendant submitted each claim separately and, with each submission, owed a new and independent obligation to be truthful to the insurer. Therefore, each claim submission was a separate execution of the scheme See NOTE Section for § 1344. 18 U.S.C. § 1348 SECURITIES AND COMMODITIES FRAUD818 Title 18, United States Code, Section 1348 makes it a crime to execute a scheme to defraud in connection with a security. For you to find the defendant guilty, the government must prove each of the following beyond a reasonable doubt: 7 01or artifice to P First, that the defendant executed or attempted to execute a /2 scheme 27 defraud any person; 07/with any commodity for P Second, that the scheme to defraud was in connection d future delivery, or any option on a commodity or future delivery, or any security we of an issuer with a class of securities registered under the Securities Exchange vie ,required to file reports under the Securities Act [15 U.S.C. § 78l] or that is 226 and Exchange Act [15 -4 § 780(d)]; U.S.C. 16 did so knowingly and with intent to defraud. P Third, that . defendant o the N § 1348(2) § 1348(1)819 P First, that the defendant executed or attempted to execute a scheme or artifice to obtain any money or property by means of false or fraudulent pretenses, representations, or promises which were material; P Second, that the scheme was in connection with the purchase or sale of any commodity for future delivery, or any option on a commodity for future delivery, or any security of an issuer with a class of securities registered under the Securities Exchange Act [15 U.S.C. § 78l] or that is required to file reports under the Securities Exchange Act [15 U.S.C. § 780(d)]; and P Third, that the defendant did so knowingly and with intent to defraud. The words “scheme and artifice” include any plan or course of action intended to 818 Section 1348 is analogous to § 1344. Subsections (1) and (2) are disjunctive, so one may violate subsection (1) without making the false or fraudulent promises required by (2). See United States v. Colton, 231 F.3d 890, 897 (4th Cir. 2000) (a § 1344 bank fraud prosecution). 819 264 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 268 of 684 TITLE 18 deceive others and to obtain by either false or fraudulent pretenses, representations or promises, either money or property from persons who are so deceived. A statement or representation is false or fraudulent if known to be untrue or made with reckless indifference as to the truth or falsity and made or caused to be made with the intent to deceive or defraud.820 The government must prove that the defendant acted with the specific intent to defraud.821 Fraud is an intentional or deliberate misrepresentation of the truth for the purpose of inducing another to part with a thing of value or to surrender a legal right. Fraud, then, is a deceit which, whether perpetrated by words, conduct, or silence, is designed to cause another to act upon it to his legal injury. A statement, claim or document is fraudulent if it was falsely made, or made with reckless indifference as to its truth or falsity, and made or caused to be made with an intent to deceive. The phrases “any scheme or artifice to defraud” and “any scheme or artifice for obtaining money or property” mean any deliberate plan of action or course of conduct by which someone intends to deceive or cheat another or by which someone intends to deprive another of something of value. A scheme or artifice to defraud may describe a departure from fundamental honesty, moral uprightness, or fair play and candid business dealings in the general life of the community. There must be proof of either a misrepresentation, false statement, or omission calculated to deceive a person of ordinary prudence and comprehension. A scheme to defraud may occur even absent a false statement or false representation, and may be based on fraudulent omissions. A scheme to defraud includes the knowing concealment of facts and information done with the intent to defraud. 017 7/2 7/2 0 Fraud includes acts taken to conceal, create a false impression, mislead, or otherwise ed material information. Thus, a deceive in order to prevent another person fromw vie acquiring scheme to defraud can be shown by deceptive acts or contrivances intended to hide 26, information, mislead, avoid suspicion, or avert further inquiry into a material matter. 42 The government can6- a scheme to defraud by evidence of active concealment of prove material information. o. 1 N “To defraud” means wronging one in his property rights by dishonest methods or 822 823 824 schemes and usually signifies the deprivation of something of value by trick, deceit, 820 See United States v. Scott, 701 F.2d 1340, 1343 (11th Cir. 1983). “Representations known by a person to be false is a type of a scheme to defraud.” Id. at 1344. 821 United States v. McNeil, 45 F. App’x 225 (4th Cir. 2002) (citing United States v. Godwin, 272 F.3d 659, 666 (4th Cir. 2001)). 822 United States v. Colton, 231 F.3d 890, 898 (4th Cir. 2000). The court found that [concealment] is characterized by deceptive acts or contrivances intended to hide information, mislead, avoid suspicion, or prevent further inquiry into a material matter. [Nondisclosure] is characterized by mere silence. Although silence as to a material fact (nondisclosure), without an independent disclosure duty, usually does not give rise to an action for fraud, suppression of the truth with the intent to deceive (concealment) does. Id. at 899. 823 824 Id. at 901. Id. at 907. 265 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 269 of 684 TITLE 18 chicanery or overreaching. The concept of fraud includes the act of embezzlement, which is the fraudulent appropriation to one’s own use of the money or goods entrusted to one’s care by another.825 A “scheme to defraud” means any deliberate plan of action or course of conduct by which someone intends to deceive or cheat another or by which someone intends to deprive another of something of value.826 To act with an “intent to defraud” means to act with a specific intent to deceive or cheat, ordinarily, for the purpose of either causing some financial loss to another or bringing about some financial gain to one’s self. It is not necessary, however, to prove that anyone was, in fact, defrauded, as long as it is established that the defendant acted with the intent to defraud or mislead.827 The government must prove that the defendant knew that his conduct as a participant in the scheme was calculated to deceive and, nonetheless, he associated himself with the alleged fraudulent scheme for the purpose of causing some loss to another.828 The government does not have to prove precisely when the intent to defraud first materialized.829 Property is anything in which one has a right that can be assigned, traded, bought, and otherwise disposed of. The property of which a victim is deprived need not be tangible property and the government does not have to prove that the victim suffered a financial loss. The government need only prove that the victim was deprived of some right over that property, such as the right to exclusive use.830 This includes the right to be paid money.831 017 7/2 7/2 0 A statement or representation is false or fraudulent if it is known to be untrue or is ed when it constitutes a half truth, or made with reckless indifference as to its truthew i or falsity, effectively omits or conceals a material, v provided it is made with intent to defraud. fact, 6 “No actual misrepresentation of22is necessary to make the crime complete.” fact 4 A statement is material-if it has a natural tendency to influence, or is capable of 16 . No 832 825 Carpenter v. United States, 484 U.S. 19, 27 (1987). United States v. Deters, 184 F.3d 1253, 1257 (10th Cir. 1999). In United States v. Cronic, 900 F.2d 1511 (10th Cir. 1990), the Tenth Circuit found that 826 If a scheme [to defraud] is devised with the intention of defrauding, and the mails are used in executing it, it makes no difference that there is not a misrepresentation of a single existing fact. A scheme to obtain money by means of false or fraudulent pretenses, representations, or promises, on the other hand, focuses on the means by which money was obtained. False or fraudulent pretenses, representations or promises are an essential element of the crime. 900 F.2d at 1513-14 (citations omitted). 827 United States v. Ellis, 326 F.3d 550, 556 (4th Cir. 2003). 828 United States v. Allen, 491 F.3d 178, 187 (4th Cir. 2007). 829 United States v. Curry, 461 F.3d 452, 458 (4th Cir. 2006). 830 United States v. Adler, 186 F.3d 574, 576-77 (4th Cir. 1999). 831 United States v. Pasquantino, 544 U.S. 349, 356 (2005) (Canada defrauded of its right to collect tax revenue on smuggled liquor). See Cleveland v. United States, 531 U.S. 12 (2000) (a State’s interest in an unissued video poker license is not property). 832 Lemon v. United States, 278 F.2d 369, 373 (9th Cir. 1960). 266 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 270 of 684 TITLE 18 influencing, the decision-making body to which it was addressed. It is irrelevant whether the false statement actually influenced or affected the decision-making process of the fact finding body. A false statement’s capacity to influence must be measured at the point in time that the statement was made.833 Nor does the government have to prove that the fraud succeeded.834 Good faith on the part of the defendant is not consistent with an intent to defraud.835 However, no amount of honest belief that an enterprise will eventually succeed can excuse willful misrepresentations.836 You are instructed that if the defendant participated in the scheme to defraud, then a belief by the defendant, if such belief existed, that ultimately everything would work out so that no one would lose any money does not require a finding by you that the defendant acted in good faith. If the defendant participated in the scheme for the purpose of causing some financial or property loss to another, then no amount of honest belief on the part of the defendant that the scheme would not cause a loss, would excuse fraudulent actions or false representations by him.837 The intent to repay eventually is not relevant to the question of guilt.838 017 not, 2 It makes no difference whether the intended victim(s) was/were/gullible or 27 intelligent or not. 07/ relied on the false d The government does not have to prove that anyone actually we representations. Nor does the government have to prove that a victim actually suffered e any damages. The statute prohibits a scheme to defraud rather than the completed fraud. , vi 226 It is not necessary that the government prove all of the details alleged in the 4 indictment concerning 16the precise nature and purpose of the scheme, or that the alleged . scheme actually succeeded in defrauding anyone. Noproved beyond a reasonable doubt is that the defendant knowingly What must be A defendant’s belief that the victim of the fraud will be paid in the future or will sustain no economic loss is no defense to the crime charged in the indictment.839 840 841 devised or intended to devise a scheme to defraud that was substantially the same as the 833 United States v. Sarihifard, 155 F.3d 301, 307 (4th Cir. 1998). United States v. Bryan, 58 F.3d 933, 943 (4th Cir. 1995). 835 United States v. Frost, 125 F.3d 346, 372 (6th Cir. 1997). 836 United States v. Painter, 314 F.2d 939, 943 (4th Cir. 1963). 837 Instructions from United States v. Allen, 491 F.3d 178, 187 (4th Cir. 2007). “The intent to repay eventually is irrelevant to the question of guilt for fraud.” United States v. Curry, 461 F.3d 452, 458 (4th Cir. 2006) (citation omitted). 838 Curry, 461 F.3d at 458. 839 Allen, 491 F.3d at 187. 840 See United States v. Colton, 231 F.3d 890, 903 (4th Cir. 2000) (§ 1344 prosecution) 841 Neder v. United States, 527 U.S. 1, 25 (1999). A pecuniary loss is not required. United States v. Deters, 184 F.3d 1253, 1258 (10th Cir. 1999). 834 267 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 271 of 684 TITLE 18 one alleged in the indictment.842 L For multiple defendants: In order to find the defendants responsible for participating in the fraudulent scheme as alleged in the indictment, each of you must find that the defendants participated in the same single scheme to defraud and that the scheme to defraud in which the defendants are found to have participated is substantially the same scheme as the overall fraudulent scheme alleged in the indictment. To sustain its burden of proof, however, the government is not required to prove all of the components of the scheme to defraud that are alleged in the indictment. If the government proves beyond a reasonable doubt a scheme to defraud that contains some or all of the components in the indictment, but is simply more narrow than the scheme to defraud as defined in the indictment, then the government has carried its burden of proof. You must unanimously agree, however, on the components of the scheme to defraud.843 ____________________NOTE____________________ Section 1348 is analogous to § 1344. Therefore, see NOTE for § 1344. 017 2 Title 18, United States Code, Section 1350 makes it a crime to certify false financial 27/ each of the reports. For you to find the defendant guilty, the government must prove 07/ d following beyond a reasonable doubt: we § 1350(c)(1) vie , chief executive officer, chief financial officer, P First, that the defendant was the 226of securities regulated by the Securities Exchange or the equivalent, of4 issuer an Act; 16. P Second, that the issuer filed a periodic report containing financial statements No 18 U.S.C. § 1350 CERTIFYING FALSE FINANCIAL REPORTS (SARBANESOXLEY ACT) with the Securities Exchange Commission; P Third, that the defendant certified in a written statement which accompanied the periodic report that (1) the periodic report containing the financial statements fully complied with the requirements of the Securities Exchange Act [the court may have to instruct on these requirements, found in 15 U.S.C. § 78m(a) and/or 78o(d)] and (2) information contained in the periodic report fairly presented, in all material respects, the financial condition and results of operations of the issuer; and P Fourth, that the defendant knew that the periodic report did not comply with the requirements of the Securities Exchange Act and did not fairly present, in all material respects, the financial condition and results of operations of the issuer. § 1350(c)(2) 842 See Pereira v. United States, 347 U.S. 1, 8, 9 (1954). Instruction that the jury agree unanimously on the identity and extent of the scheme to defraud. United States v. Smith, 44 F.3d 1259, 1270 (4th Cir. 1995). 843 268 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 272 of 684 TITLE 18 P First, that the defendant was the chief executive officer, chief financial officer, or the equivalent, of an issuer of securities regulated by the Securities Exchange Act; P Second, that the issuer filed a periodic report containing financial statements with the Securities Exchange Commission; P Third, that the defendant certified in a written statement which accompanied the periodic report that (1) the periodic report containing the financial statements fully complied with the requirements of the Securities Exchange Act [the court may have to instruct on these requirements, found in 15 U.S.C. § 78m(a) and/or 78o(d)] and (2) information contained in the periodic report fairly presented, in all material respects, the financial condition and results of operations of the issuer; P Fourth, that the defendant knew that the periodic report did not comply with the requirements of the Securities Exchange Act and did not fairly present, in all material respects, the financial condition and results of operations of the issuer; and P Fifth, that the defendant acted willfully. 18 U.S.C. § 1361 DESTRUCTION OF GOVERNMENT PROPERTY 017 7/2 Title 18, United States Code, Section 1361 makes it a crime to injure or destroy any property belonging to the United States. For you to find the defendant guilty, the government must prove each of the following beyond a reasonable doubt: P P P P 7/2 to injure or damage, 0 First, that the defendant injured or damaged, or attempted ed property; w Second, that the property belongedito the United States, or any department or ve agency of the United States,6 was property that had been or was being 2 or, the United States, or any department or agency 2 manufactured or constructed for 6-4 of the United 1 States; o. damage exceeded the sum of $1,000.00; and Third, that the N Fourth, that the defendant did so willfully. The government must prove that the property belonged to the United States but the government does not have to prove that the defendant knew that the property belonged to the United States.844 To act willfully, the defendant must have acted intentionally, with knowledge that he was violating the law.845 ____________________NOTE____________________ Consent is not a defense, and lack of consent is not an element the government must prove. United States v. LaPorta, 46 F.3d 152, 159 (2d Cir. 1994). 844 See United States v. LaPorta, 46 F.3d 152, 158 (2d Cir. 1994) (holding § 1361 does not require defendant know that property he is damaging or destroying belongs to government). Government ownership is a jurisdictional fact. 845 See United States v. Moylan, 417 F.2d 1002, 1004 (4th Cir. 1969) (“To read the term ‘willfully’ to require a bad purpose would be to confuse the concept of intent with that of motive.”). 269 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 273 of 684 TITLE 18 In LaPorta, the Second Circuit concluded that “where a defendant is charged with destruction of government property by fire, the government must proceed under § 844(f), rather than under a combination of § 844(h)(1) and the underlying felony of § 1361.” Id. at 157. If a disputed issue is whether the damage exceeded the sum of $1,000, the court should consider giving a lesser included offense instruction. 18 U.S.C. § 1363 DESTRUCTION OF PROPERTY WITHIN THE SPECIAL TERRITORIAL JURISDICTION OF THE UNITED STATES Title 18, United States Code, Section 1363 makes it a crime to injure or destroy any property within the special territorial jurisdiction of the United States. For you to find the defendant guilty, the government must prove each of the following beyond a reasonable doubt: P First, that the defendant injured or destroyed, or attempted to injure or destroy, or conspired to injure or destroy, any structure, conveyance, or other real or personal property; P Second, that the property was within the special maritime and territorial jurisdiction of the United States; and P Third, that the defendant did so willfully and maliciously. 017 7/2 7/2placed in jeopardy? 0 1. Was the building a dwelling, or was the life of any person ed w vieacted intentionally, with knowledge that he To act willfully, the defendant must have 26, was violating the law. 2 6-4 jurisdiction of the United States” includes lands “Special maritime and territorial o. 1 reserved or acquired for the use of the United States, and under the exclusive or N concurrent jurisdiction of the United States, or any place purchased or otherwise acquired ADDITIONAL ELEMENT, IF APPROPRIATE: 846 847 by the United States by consent of the legislature of the State in which the land is situated, for the building of a fort, arsenal, dock, or other needed building.848 846 See United States v. Davis, 202 F.3d 212, 217 (4th Cir. 2000). See Moylan, 417 F.2d at 1004 (“To read the term ‘willfully’ to require a bad purpose would be to confuse the concept of intent with that of motive.”). 848 See 18 U.S.C. § 7 (listing other definitions). In United States v. Passaro, 577 F.3d 207 (4th Cir. 2009), the Fourth Circuit construed § 7(9) as reaching only fixed locations. An inexhaustive list of factors relevant in determining whether a particular location qualifies as the premises of a United States mission include “the size of a given military mission’s premises, the length of United States control over those premises, the substantiality of its improvements, actual use of the premises, the occupation of the premises by a significant number of United States personnel, and the host nation’s consent (whether formal or informal) to the presence of the United States.” 577 F.3d at 214. In Passaro, the court found that Asadabad Firebase in Afghanistan came within the statutory definition, such that Passaro, a civilian contractor, could be prosecuted for assaulting a prisoner, in violation of 18 U.S.C. § 113. 847 270 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 274 of 684 TITLE 18 ____________________NOTE____________________ For cases discussing special jurisdiction, see the following: United States v. Lavender, 602 F.2d 639 (4th Cir. 1979); United States v. Lovely, 319 F.2d 673 (4th Cir. 1963); United States v. Benson, 495 F.2d 475 (5th Cir. 1974); and State v. Zeigler, 274 S.C. 6, 260 S.E.2d 182 (S.C. 1979), overruled on other grounds by Joseph v. State, 351 S.C. 551, 571 S.E.2d 280 (S.C. 2002). Special territorial jurisdiction does not include proprietary jurisdiction. Most federal buildings, such as courthouses and office buildings, are proprietary jurisdictions, and are usually covered only by regulations of the General Services Administration published in the Code of Federal Regulations. 18 U.S.C. § 1425 PROCURING CITIZENSHIP OR NATURALIZATION UNLAWFULLY Title 18, United States Code, Section 1425 makes it a crime to procure citizenship or naturalization unlawfully. For you to find the defendant guilty, the government must prove each of the following beyond a reasonable doubt: § 1425(a) 017 2 P Second, that it was contrary to law for the defendant to7/ 2 procure citizenship or naturalization; and 07/ defendant knew it was P Third, that the defendant did so knowingly, that is, the ed wprocure] citizenship or naturalization. contrary to law to procure [or attempt to e , vi § 1425(b) 2 2for6 or for another person, issued, procured, P First, that the defendant, himself -4or otherwise attempted to procure or obtain naturalization, 16for, obtained, applied . citizenship, a declaration of intention to become a citizen, a certificate of arrival No or evidence of nationalization or citizenship, documentary or or any certificate P First, that the defendant procured or attempted to procure citizenship or naturalization; 849 850 otherwise, or duplicates or copies of any of the above; P Second, that the defendant or other person was not entitled to citizenship or 849 The statute does not define the phrase “contrary to law.” “Presumably the ‘law’ referred to is the law governing naturalization, 8 U.S.C. [§§ 1101 et seq.]” United States v. Puerta, 982 F.2d 1297, 1300-01 (9th Cir. 1992). 850 The Fourth Circuit approved the district court’s instruction in United States v. Sadig, 271 F. App’x 290 (4th Cir. 2007). However, in United States v. Aladekoba, 61 F. App’x 27 (4th Cir. 2003), the court identified the following elements: (1) that the defendant made false statements on the application for naturalization; (2) that the defendant made the statements knowingly; (3) that the statements were contrary to law; and (4) that the defendant procured or attempted to procure naturalization. 61 F. App’x at 28. The court cited Puerta for the proposition that the statements must be material in order to be contrary to law. 271 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 275 of 684 TITLE 18 naturalization; and P Third, that the defendant did so knowingly, that is, the defendant knew that he, or the other person, was not entitled to citizenship or naturalization. AGGRAVATED PENALTIES: 1. Was the offense committed to facilitate an act of international terrorism (as defined in 18 U.S.C. § 2331(1))? 2. Was the offense committed to facilitate a drug trafficking crime (as defined in 18 U.S.C. § 929(a)(2))? L The court should explain why the naturalization was “contrary to law.” Presumably, the defendant was not eligible. The court should explain the basis for the ineligibility. ____________________NOTE____________________ The Fourth Circuit appears to have adopted the Ninth Circuit’s requirement of materiality, when the prosecution is based on false statements in the application. See United States v. Aladekoba, 61 F. App’x 27 (4th Cir. 2003) (citing United States v. Puerta, 982 F.2d 1297, 1301 (9th Cir. 1992)). 017 7/2 There is no legal requirement that an applicant volunteer information during an interview, but the law does require an applicant to remain eligible for naturalization up until the date he is administered the oath of allegiance, and the burden is on the applicant to prove such eligibility. See 8 C.F.R. §§ 316.2 and 316.10. See also United States v. Sadig, 271 F. App’x 290 (4th Cir. 2007). 7/2 d0 e iew ,v 226 1461 makes it a crime to mail obscene Title 18, United States-4 Section 6 Code, material. For you to . 1the defendant guilty, the government must prove each of the find following beyondoreasonable doubt: Na 18 U.S.C. § 1461 MAILING OBSCENE MATTER P First, that the defendant 1. 2. L caused obscene material to be delivered by mail according to the direction on the envelope, or 3. P used the mails to deliver obscene material, took obscene material from the mails for the purpose of circulating or disposing of it, or aiding in the circulation or disposition of it; and Second, that the defendant did so knowingly. Other items, involving abortion and matters tending to incite arson, murder, or assassination, are also classified by Congress as nonmailable matter in the statute. The test for obscenity is: (1) whether the average person applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest; (2) whether [the average person applying contemporary community standards would 272 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 276 of 684 TITLE 18 find that] the work depicts or describes in a patently offensive way, sexual conduct specifically defined by the applicable [federal] law [the court should identify the applicable federal law and its elements]; and (3) whether [a reasonable person would find that]851 the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.852 To appeal to the prurient interest, the material must appeal to a shameful or morbid interest in nudity, sex, or excretion and also be patently offensive. Material that provokes only normal, healthy sexual desires is not obscene.853 The average person, applying contemporary community standards, determines whether or not the work appeals to the prurient interest. The average person does not have to determine that the material appeals to the prurient interest of the average person.854 The jury can consider whether some portions of the material appeal to a prurient interest of a specifically defined deviant group as well as whether they appeal to the prurient interest of the average person.855 In determining whether the material in question is obscene, the jury may consider whether the materials were pandered, by looking to the manner of distribution, circumstances of production, sale, advertising, and editorial intent.856 017 2 The government must prove that the defendant knew the [envelopes or packages] 27/ and that he had containing the material in question were mailed or placed in the mail, 07/ knowledge of the character of the materials. The defendant’s belief as to the obscenity or d non-obscenity of the material is irrelevant. we e , vi ____________________NOTE____________________ 226 A local statute may provide relevant evidence of the mores of the community whose 64 1the-law, and is therefore admissible, but it is not conclusive as to . legislative body enacted No community standards for appeal to the prurient interest and the issues of contemporary “Pandering” is the business of purveying textual or graphic matter openly advertised to appeal to the erotic interest of customers.857 858 851 Pope v. Illinois, 481 U.S. 497, 501 (1987). Section 1461 incorporates the test from Miller v. California, 413 U.S. 15, 24 (1973), for defining obscenity. Hamling v. United States, 418 U.S. 87, 105 (1974). See also United States v. Gravenhorst, 377 F.3d 49, 51 (1st Cir. 2004). 853 United States v. Guglielmi, 819 F.2d 451, 455 (4th Cir. 1987). 854 Id. at 454. 855 This instruction was held proper in Hamling, 418 U.S. at 128-29, but the court emphasized that the jury should measure the prurient appeal of the materials as to all groups and that the material must be judged by its impact on an average person, rather than a particularly susceptible or sensitive person, or indeed a totally insensitive one. 856 Id. at 130. Pandering is not an element of § 1461. Id. at 131. 857 Ginzburg v. United States, 383 U.S. 463, 467 (1966). 858 This instruction was held proper in Hamling v. United States, 418 U.S. 87, 119-20 (1974). The prosecution must show that a defendant had knowledge of the contents of the materials he distributed and that he knew the character and nature of the materials; it does not have to prove the defendant’s knowledge of the legal status of the materials he distributed. Id. at 123, 121. 852 273 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 277 of 684 TITLE 18 patent offensiveness. Smith v. United States, 431 U.S. 291, 307-08 (1977). “The kinds of conduct that a jury would be permitted to label as ‘patently offensive’ in a § 1461 prosecution are the ‘hard core’ types of conduct suggested by the examples given in Miller [v. California, 413 U.S. 15, 24 (1973)].” Smith, 431 U.S. at 301. The examples given were “patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated, and patently offensive representations or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals.” Miller v. California, 413 U.S 15, 25 (1973). What constitutes the “community?” In Hamling v. United States, 418 U.S. 87, 106 (1974), the Supreme Court presumed that jurors from throughout the particular judicial district where the case was tried were available to serve on the panel. Thus, the judicial district constituted the “community” and it would be the standards of that “community” upon which the jurors would draw. In United States v. Pryba, 900 F.2d 748 (4th Cir. 1990), the Fourth Circuit found no error in the following instruction, for failing to charge on community toleration: Contemporary community standards are set by what is, in fact, accepted in the adult community as a whole, and not by what the community merely tolerates and not by what some groups or persons may believe the community ought to accept or refuse to accept. Obscenity is not a matter of individual taste, and the question is not how the material impresses an individual juror; rather, the test is whether the average adult person of the community would view the material as an appeal to the prurient interest in nudity, sex, or excretion. 017 7/2 7/2 d0 e iew 18 U.S.C. § 1462 IMPORTING OR TRANSPORTING OBSCENE MATTERS 6, v makes it a crime to import or transport Title 18, United States Code, 2 42 Section 1462 obscene matters. For you 6- the defendant guilty, the government must prove each of to find the following beyond a reasonable doubt: o. 1 N ¶1 900 F.2d at 758-59. P First, that the defendant brought into the United States, or any place subject to the jurisdiction of the United States, or used any express company or other common carrier or interactive computer service, for carriage in interstate or foreign commerce; P Second, any of the following: (a) any obscene book, pamphlet, picture, motion-picture film, paper, letter, writing, print, or other matter; (b) any obscene phonograph recording, electrical transcription, or other article or thing capable of producing sound; and P Third, that the defendant did so knowingly, that is, that the defendant knew of the contents of the matter at the time.859 ¶2 859 274 See Alexander v. United States, 271 F.2d 140, 145 (8th Cir. 1959). Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 278 of 684 TITLE 18 P First, that the defendant took or received from any express company or other common carrier or interactive computer service in interstate or foreign commerce; P Second, any of the following: (a) any obscene book, pamphlet, picture, motion-picture film, paper, letter, writing, print, or other matter; (b) any obscene phonograph recording, electrical transcription, or other article or thing capable of producing sound; and P Third, that the defendant did so knowingly, that is, that the defendant knew of the contents of the matter at the time of receipt.860 “Interactive computer service” means any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions. [47 U.S.C. § 230(f)(2)] The test for obscenity is: (1) whether the average person applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest; 017 7/2 (2) whether [the average person applying contemporary community standards would find that] the work depicts or describes in a patently offensive way, sexual conduct specifically defined by the applicable [federal] law [the court should identify the applicable federal law and its elements]; and 7/2 d0 e iew ,v (3) whether [a reasonable person would find that]861 the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.862 226 6-4 To appeal to the prurient interest, the material must appeal to a shameful or morbid interest in nudity, sex, or excretion and also be patently offensive. Material that provokes only normal, healthy sexual desires is not obscene.863 o. 1 N The average person, applying contemporary community standards, determines whether or not the work appeals to the prurient interest. The average person does not have to determine that the material appeals to the prurient interest of the average person.864 The jury can consider whether some portions of the material appeal to a prurient interest of a specifically defined deviant group as well as whether they appeal to the prurient interest of the average person.865 860 See id. at 145. Pope v. Illinois, 481 U.S. 497, 501 (1987). 862 Because § 1461 incorporates the test from Miller v. California, 413 U.S. 15, 24 (1973), for defining obscenity, Hamling v. United States, 418 U.S. 87, 105 (1974), presumably so does § 1462. 863 United States v. Guglielmi, 819 F.2d 451, 455 (4th Cir. 1987). 864 Id. at 454. 865 This instruction was held proper in Hamling v. United States, 418 U.S. 87, 128-29 (1974), but the court emphasized that the jury should measure the prurient appeal of the material as to all groups and that the material must be judged by its impact on an average person, rather than a 861 275 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 279 of 684 TITLE 18 The government must prove that the defendant had knowledge of the character of the matter being transferred. The defendant’s belief as to the obscenity or non-obscenity of the material is irrelevant.866 ____________________NOTE____________________ See United States v. Whorley, 550 F.3d 326 (4th Cir. 2008). A local statute may provide relevant evidence of the mores of the community whose legislative body enacted the law, and is therefore admissible, but it is not conclusive as to the issues of contemporary community standards for appeal to the prurient interest and patent offensiveness. Smith v. United States, 431 U.S. 291, 307-08 (1977). In Hamling v. United States, 418 U.S. 87, 106 (1974), the Supreme Court presumed that jurors from throughout the particular judicial district where the case was tried were available to serve on the panel. Thus, the judicial district constituted the “community” and it would be the standards of that “community” upon which the jurors would draw. In United States v. Pryba, 900 F.2d 748, 758-59 (4th Cir. 1990), the Fourth Circuit found no error in the following instruction, for failing to charge on community toleration: Contemporary community standards are set by what is, in fact, accepted in the adult community as a whole, and not by what the community merely tolerates and not by what some groups or persons may believe the community ought to accept or refuse to accept. Obscenity is not a matter of individual taste, and the question is not how the material impresses an individual juror; rather, the test is whether the average adult person of the community would view the material as an appeal to the prurient interest in nudity, sex, or excretion. 017 7/2 7/2 d0 e iew ,v “The kinds of conduct that a jury would be permitted to label as ‘patently offensive’ in a § 1461 prosecution are the ‘hard core’ types of conduct suggested by the examples given in Miller [v. California, 413 U.S. 15, 24 (1973)].” Smith, 431 U.S. at 301. The examples given were “patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated, and patently offensive representations or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals.” Miller v. California, 413 U.S. 15, 25 (1973). o. 1 N 18 U.S.C. § 1464 226 6-4 BROADCASTING OBSCENE LANGUAGE Title 18, United States Code, Section 1464 makes it a crime to broadcast obscene language. For you to find the defendant guilty, the government must prove each of the following beyond a reasonable doubt: P First, that the defendant uttered any obscene language; P Second, that the defendant did so by means of radio communication, and particularly susceptible or sensitive person , or indeed a totally insensitive one. 866 See id. at 119-20 (Supreme Court required prosecution to show defendant had knowledge of contents of materials he distributed and that knew character and nature of materials). However, the Court did not require the government to prove the defendant’s knowledge of the legal status of the materials he distributed. Id. at 123, 121. 276 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 280 of 684 TITLE 18 P Third, that the defendant did so intentionally.867 The test for obscenity is: (1) whether the average person applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest; (2) whether [the average person applying contemporary community standards would find that] the work depicts or describes in a patently offensive way, sexual conduct specifically defined by the applicable [federal] law [the court should identify the applicable federal law and its elements]; and (3) whether [a reasonable person would find that]868 the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.869 To appeal to the prurient interest, the material must appeal to a shameful or morbid interest in nudity, sex, or excretion and also be patently offensive. Material that provokes only normal, healthy sexual desires is not obscene.870 The average person, applying contemporary community standards, determines whether or not the work appeals to the prurient interest. The average person does not have to determine that the material appeals to the prurient interest of the average person.871 The jury can consider whether some portions of the material appeal to a prurient interest of a specifically defined deviant group as well as whether they appeal to the prurient interest of the average person.872 017 2 ____________________NOTE____________________ 27/ community whose / A local statute may provide relevant evidence of the07 of the mores d legislative body enacted the law, and is therefore admissible, but it is not conclusive as to we the issues of contemporary community standards for appeal to the prurient interest and e patent offensiveness. Smith v. United States, 431 U.S. 291, 307-08 (1977). , vi 226 In Hamling v. United States, 418 U.S. 87, 106 (1974), the Supreme Court presumed 4 that jurors from throughout - particular judicial district where the case was tried were 6 the 1panel. Thus, the judicial district constituted the “community” and available to serve o.the N on of that “community” upon which the jurors would draw. it would be the standards In United States v. Pryba, 900 F.2d 748 (4th Cir. 1990), the Fourth Circuit found no 867 United States v. Smith, 467 F.2d 1126, 1129 (7th Cir. 1972). “Thus the common law mental element required for conviction under 18 U.S.C. § 1464, here more appropriately termed intent than scienter, would be satisfied if the defendant knew or reasonably should have known that uttering the words he did over the air was a public wrong.” Tallman v. United States, 465 F.2d 282, 288 (7th Cir. 1972). 868 Pope v. Illinois, 481 U.S. 497, 501 (1987). 869 Because § 1461 incorporates the test from Miller v. California, 413 U.S. 15, 24 (1973), for defining obscenity, Hamling v. United States, 418 U.S. 87, 105 (1974), presumably so does § 1464. 870 United States v. Guglielmi, 819 F.2d 451, 455 (4th Cir. 1987). 871 Id. at 454. 872 This instruction was held proper in Hamling v. United States, 418 U.S. 87, 128-29 (1974), but the court emphasized that the jury should measure the prurient appeal of the material as to all groups and that the material must be judged by its impact on an average person, rather than a particularly susceptible or sensitive person, or indeed a totally insensitive one. 277 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 281 of 684 TITLE 18 error in the following instruction, for failing to charge on community toleration: Contemporary community standards are set by what is, in fact, accepted in the adult community as a whole, and not by what the community merely tolerates and not by what some groups or persons may believe the community ought to accept or refuse to accept. Obscenity is not a matter of individual taste, and the question is not how the material impresses an individual juror; rather, the test is whether the average adult person of the community would view the material as an appeal to the prurient interest in nudity, sex, or excretion. 900 F.2d at 758-59. “The kinds of conduct that a jury would be permitted to label as ‘patently offensive’ in a § 1461 prosecution are the ‘hard core’ types of conduct suggested by the examples given in Miller [v. California, 413 U.S. 15, 24 (1973)].” Smith, 431 U.S. at 301. The examples given were “patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated, and patently offensive representations or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals.” Miller v. California, 413 U.S. 15, 25 (1973). 18 U.S.C. § 1465 TRANSPORTATION OF OBSCENE MATTERS FOR SALE 017 7/2 Title 18, United States Code, Section 1465 makes it a crime to transport any obscene matter in interstate commerce for sale or distribution. For you to find the defendant guilty, the government must prove each of the following beyond a reasonable doubt: 7/2 d0 P First, that the defendant transported or traveled in, or used a facility or means of interstate or foreign commerce or an interactive computer service in or affecting interstate or foreign commerce; P Second, that the defendant did so for the purpose of sale or distribution; P P e iew ,v 226 Third, of any obscene book, pamphlet, picture, film, paper, letter, writing, print, 4 silhouette, drawing, figure, image, cast, phonograph recording, electrical 16. transcription or other article capable of producing sound; and No Fourth, that the defendant did so knowingly. The test for obscenity is: (1) whether the average person applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest; (2) whether [the average person applying contemporary community standards would find that] the work depicts or describes in a patently offensive way, sexual conduct specifically defined by the applicable [federal] law [the court should identify the applicable federal law and its elements]; and (3) whether [a reasonable person would find that]873 the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.874 873 Pope v. Illinois, 481 U.S. 497, 501 (1987). Because § 1461 incorporates the test from Miller v. California, 413 U.S. 15, 24 (1973), for defining obscenity. Hamling v. United States, 418 U.S. 87, 105 (1974), presumably so does § 1465. See also United States v. Gravenhorst, 377 F.3d 49, 51 (1st Cir. 2004). 874 278 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 282 of 684 TITLE 18 To appeal to the prurient interest, the material must appeal to a shameful or morbid interest in nudity, sex, or excretion and also be patently offensive. Material that provokes only normal, healthy sexual desires is not obscene.875 The average person, applying contemporary community standards, determines whether or not the work appeals to the prurient interest. The average person does not have to determine that the material appeals to the prurient interest of the average person.876 The jury can consider whether some portions of the material appeal to a prurient interest of a specifically defined deviant group as well as whether they appeal to the prurient interest of the average person.877 In determining whether the material in question is obscene, the jury may consider whether the materials were pandered, by looking to the manner of distribution, circumstances of production, sale, advertising, and editorial intent.878 “Pandering” is the business of purveying textual or graphic matter openly advertised to appeal to the erotic interest of customers.879 The government must prove that the defendant had knowledge of the character of the matter being transferred. The defendant’s belief as to the obscenity or non-obscenity of the material is irrelevant.880 017 7/2 The transportation of two or more copies of any publication or two or more of any article of the character described, or a combined total of five such publications and articles, is ordinarily a circumstance from which the jury may reasonably draw the inference that such publications or articles were intended for sale or distribution. [§ 1465] 7/2 0 ____________________NOTE____________________ ed In United States v. Pryba, 900 F.2d 748,ew (4th Cir. 1990), the Fourth Circuit 758-59 , vi found no error in the following instruction, for failing to charge on community toleration: 226 are set by what is, in fact, accepted in the Contemporary community standards -4 not by the community merely adult community as 6 1 a whole, andpersons what believe the community tolerates . and not by what some groups or may ought No to accept. Obscenity is not a matter of individual taste, and to accept or refuse the question is not how the material impresses an individual juror; rather, the test is whether the average adult person of the community would view the material as an appeal to the prurient interest in nudity, sex, or excretion. 875 United States v. Guglielmi, 819 F.2d 451, 455 (4th Cir. 1987). Id. at 454. 877 This instruction was held proper in Hamling v. United States, 418 U.S. 87, 128-29 (1974), but the court emphasized that the jury should measure the prurient appeal of the material as to all groups and that the material must be judged by its impact on an average person, rather than a particularly susceptible or sensitive person, or indeed a totally insensitive one. 878 Id. at 130. Pandering is not an element of § 1465. See id. at 131. 879 Ginzburg v. United States, 383 U.S. 463, 467 (1966). 880 See Hamling, 418 U.S. at 119-20 (Supreme Court required prosecution to show defendant had knowledge of contents of materials he distributed and that knew character and nature of materials). However, the Court did not require the government to prove the defendant’s knowledge of the legal status of the materials he distributed. Id. at 123, 121. 876 279 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 283 of 684 TITLE 18 18 U.S.C. § 1466 ENGAGING IN THE BUSINESS OF SELLING OR TRANSFERRING OBSCENE MATTER [LAST UPDATED : 7/10/14] Title 18, United States Code, Section 1466 makes it a crime to engage in the business of selling or transferring obscene matter. For you to find the defendant guilty, the government must prove each of the following beyond a reasonable doubt: P First, that the defendant was engaged in the business of producing with intent to distribute or sell, or selling or transferring obscene matter; P Second, that the defendant received or possessed with intent to distribute; P Third, any obscene book, magazine, picture, paper, film, videotape, or phonograph or other audio recording; P Fourth, that the book, magazine, picture, paper, film, videotape, or phonograph or other audio recording had been shipped or transported in interstate or foreign commerce, and P Fifth, that the defendant did so knowingly.881 “Engaged in the business” means that the person who produces, sells or transfers or offers to sell or transfer obscene matter devotes time, attention, or labor to such activities, as a regular course of trade or business, with the objective of earning a profit, although it is not necessary that the person make a profit or that the production, selling or transferring or offering to sell or transfer such material be the person’s sole or principal business or source of income. [§ 1466(b)] 017 7/2 7/2 d0 e iew ,v In considering whether a defendant is engaged in the business of selling or transferring obscene matter, if you find that the person sold or transferred at one time two or more obscene items or two or more copies of an obscene item, you may find that person is engaged in the business of selling obscene matter. Whether you choose to draw such an inference is strictly up to you.882 226 6-4 o. 1 is: The test for obscenity N (1) whether the average person applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest; (2) whether [the average person applying contemporary community standards would find that] the work depicts or describes in a patently offensive way, sexual conduct specifically defined by the applicable [federal] law [the court should identify the applicable federal law and its elements]; and (3) whether [a reasonable person would find that]883 the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.884 To appeal to the prurient interest, the material must appeal to a shameful or morbid 881 See United States v. Skinner, 25 F.3d 1314, 1319 (6th Cir. 1994). Although § 1466(b) uses the term “rebuttable presumption,” at least one district court has instructed the jury as if it were a permissive inference. Id. at 1316 n.2. 883 Pope v. Illinois, 481 U.S. 497, 501 (1987). 884 Section 1466 adopts the definition of obscenity from Miller v. California, 413 U.S. 15, 24 (1973). Skinner, 25 F.3d at 1319. 882 280 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 284 of 684 TITLE 18 interest in nudity, sex, or excretion and also be patently offensive. Material that provokes only normal, healthy sexual desires is not obscene.885 The average person, applying contemporary community standards, determines whether or not the work appeals to the prurient interest. The average person does not have to determine that the material appeals to the prurient interest of the average person.886 The jury can consider whether some portions of those materials appeal to a prurient interest of a specifically defined deviant group as well as whether they appeal to the prurient interest of the average person.887 The government must prove that the defendant had knowledge of the character of the matter being transferred. The defendant’s belief as to the obscenity or non-obscenity of the material is irrelevant.888 ____________________NOTE____________________ A local statute may provide relevant evidence of the mores of the community whose legislative body enacted the law, and is therefore admissible, but it is not conclusive as to the issues of contemporary community standards for appeal to the prurient interest and patent offensiveness. Smith v. United States, 431 U.S. 291, 307-08 (1977). In Hamling v. United States, 418 U.S. 87, 106 (1974), the Supreme Court presumed that jurors from throughout the particular judicial district where the case was tried were available to serve on the panel. Thus, the judicial district constituted the “community” and it would be the standards of that “community” upon which the jurors would draw. 017 7/2 7/2 d0 In United States v. Pryba, 900 F.2d 748 (4th Cir. 1990), the Fourth Circuit found no error in the following instruction, for failing to charge on community toleration: e iew ,v Contemporary community standards are set by what is, in fact, accepted in the adult community as a whole, and not by what the community merely tolerates and not by what some groups or persons may believe the community ought to accept or refuse to accept. Obscenity is not a matter of individual taste, and the question is not how the material impresses an individual juror; rather, the test is whether the average adult person of the community would view the material as an appeal to the prurient interest in nudity, sex, or excretion. o. 1 N 226 6-4 900 F.2d at 758-59. “The kinds of conduct that a jury would be permitted to label as ‘patently offensive’ in a § 1461 prosecution are the ‘hard core’ types of conduct suggested by the examples given in Miller [v. California, 413 U.S. 15, 24 (1973)].” Smith, 431 U.S. at 301. The examples given were “patently offensive representations or descriptions of ultimate 885 United States v. Guglielmi, 819 F.2d 451, 455 (4th Cir. 1987). Id. at 454. 887 This instruction was held proper in Hamling v. United States, 418 U.S. 87, 128-29 (1974), but the court emphasized that the jury should measure the prurient appeal of the material as to all groups and that the material must be judged by its impact on an average person, rather than a particularly susceptible or sensitive person, or indeed a totally insensitive one. 888 See id. at 119-20 (Supreme Court required prosecution to show defendant had knowledge of contents of materials he distributed and that knew character and nature of materials). However, the Court did not require the government to prove the defendant’s knowledge of the legal status of the materials he distributed. Id. at 123, 121. 886 281 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 285 of 684 TITLE 18 sexual acts, normal or perverted, actual or simulated, and patently offensive representations or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals.” Miller v. California, 413 U.S. 15, 25 (1973). In United States v. Wellman, 663 F.3d 224 (4th Cir. 2011), the court found that the government was not required to prove beyond a reasonable doubt that a defendant knew that the images of minors engaged in sexually explicit conduct were obscene. “The term ‘obscene’ as used in statutes of this type, refers to an objective, legal standard, not an issue of fact.” 663 F.3d at 230. The Fourth Circuit cited United States v. X-Citement Video, Inc., 513 U.S. 64 (1994), for the proposition that “a defendant’s knowledge of the law is not a relevant consideration in a prosecution involving the distribution of allegedly obscene materials.” Wellman, 663 F.3d at 231. 18 U.S.C. § 1466A OBSCENE VISUAL REPRESENTATIONS OF SEXUAL ABUSE OF CHILDREN [LAST UPDATED : 7/10/14] Title 18, United States Code, Section 1466A makes it a crime to knowingly produce, distribute, receive, possess, or possess with intent to distribute obscene visual representations of the sexual abuse of children which have traveled in interstate or foreign commerce. 017 2 For you to find the defendant guilty of this offense, the government must prove each 27/ of the following beyond a reasonable doubt: 07/ received, or possessed d P First, that the defendant knowingly [produced, distributed, we any kind, including a drawing, with intent to distribute] a visual depiction of e cartoon, sculpture, or painting; v , i 26 P Second, that the visual2 depiction represents a minor engaged in sexually explicit 4 conduct; 16. P Third, that the visual depiction is obscene; and No §1466A(a)(1) [Depicting Minor] P Fourth, that the defendant knew of the sexually explicit and obscene nature of the visual depiction; P Fifth, that the visual depiction was shipped or transported in interstate or foreign commerce by any means in one of the following circumstances: (a) any communication involved in or made in furtherance of the offense is communicated or transported by the mail, or in interstate or foreign commerce by any means, including by computer, or any means or instrumentality of interstate or foreign commerce is otherwise used in committing or in furtherance of the commission of the offense; (b) any communication involved in or made in furtherance of the offense contemplates the transmission or transportation of a visual depiction by the mail, or in interstate or foreign commerce by any means, including by computer; (c) any person travels or is transported in interstate or foreign commerce in the course of the commission or in furtherance of the commission of the offense; (d) any visual depiction involved in the offense has been mailed, or has been shipped or transported in interstate or foreign commerce by any means, including 282 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 286 of 684 TITLE 18 by computer, or was produced using materials that have been mailed, or that have been shipped or transported in interstate or foreign commerce by any means, including by computer; or (e) the offense is committed in the special maritime and territorial jurisdiction of the United States or in any territory or possession of the United States.889 ADDITIONAL ELEMENT for conviction under § 1466A(a)(1): 1. For you to find defendant guilty under § 1466A(a)(1), the government must prove beyond a reasonable doubt that the material in question is obscene. To determine whether the material is obscene, you should consider the following: (1) whether the average person applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest; (2) whether the average person applying contemporary community standards would find that the work depicts or describes in a patently offensive way, sexual conduct specifically defined by [the applicable federal law; the court should identify the applicable federal law and its elements]; and (3) whether a reasonable person would find that the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.890 017 7/2 To appeal to the prurient interest, the material must appeal to a shameful or morbid interest in nudity, sex, or excretion and also be patently offensive. Material that provokes only normal, healthy sexual desires is not obscene.891 7/2 0 The average person, applying contemporary community standards, determines ed The average person does not have whether or not the work appeals to the prurient interest. ew viprurient interest of the average person. to determine that the material appeals to the , 26portions of those materials appeal to a prurient You may consider whether2 some interest of a specifically defined deviant group as well as whether they appeal to the 6-4 prurient interest of the average person. o. 1 N 892 893 In determining whether the material in question is obscene, you may consider whether the materials were pandered, by looking to the manner of distribution, circumstances of production, sale, advertising, and editorial intent.894 “Pandering” is the business of purveying textual or graphic matter openly advertised to appeal to the erotic interests of customers.895 889 United States v. Koegel, 777 F. Supp. 2d 1014, 1023 (E.D. Va. 2011). Miller v. California, 413 U.S. 15, 24 (1973). 891 United States v. Guglielmi, 819 F.2d 451, 455 (4th Cir. 1987). 892 Id. at 454. 893 In Hamling v. United States, 418 U.S. 87, 128-29 (1974), the Supreme Court cautioned that the jury should measure the prurient appeal of the materials to all groups and that the material must be judged by its impact on the average person, rather than a particularly susceptible or sensitive person, or indeed a totally insensitive one. 894 Id. at 130. However, pandering itself is not an element of § 1466A. See id. at 131. 895 Ginzburg v. United States, 383 U.S. 463, 467 (1966). 890 283 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 287 of 684 TITLE 18 §1466A(a)(2) [Depicting Image Appearing to Be Minor] For you to find the defendant guilty of this offense, the government must prove each of the following beyond a reasonable doubt: P First, that the defendant knowingly [produced, distributed, received, or possessed with intent to distribute] a visual depiction of any kind, including a drawing, cartoon, sculpture, or painting; P Second, that the depiction is an image that is, or appears to be, of a minor engaging in graphic bestiality, sadistic or masochistic abuse, or sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex; P Third, that the visual depiction lacks serious literary, artistic, political, or scientific value; and P Fourth, that defendant did so in one of the following circumstances: (a) any communication involved in or made in furtherance of the offense is communicated or transported by the mail, or in interstate or foreign commerce by any means, including by computer, or any means or instrumentality of interstate or foreign commerce is otherwise used in committing or in furtherance of the commission of the offense; 017 7/2 (b) any communication involved in or made in furtherance of the offense contemplates the transmission or transportation of a visual depiction by the mail, or in interstate or foreign commerce by any means, including by computer; 2 7/foreign commerce in the (c) any person travels or is transported in interstate or d0 eof the commission of the offense; course of the commission or in furtherance w vie offense has been mailed, or has been (d) any visual depiction involved in the 6, shipped or transported 22 in interstate or foreign commerce by any means, including by computer, or 6-4 1 was produced using materials that have been mailed, or that have been shipped or transported in interstate or foreign commerce by any . means, including by computer; or No (e) the offense is committed in the special maritime and territorial jurisdiction of the United States or in any territory or possession of the United States. § 1466A(b)(1) [Possession of Image Depicting Minor] For you to find the defendant guilty of this offense, the government must prove each of the following beyond a reasonable doubt: P P Second, that the visual depiction represents a minor engaged in sexually explicit conduct; P Third, that the visual depiction is obscene; P Fourth, that the defendant knew of the sexually explicit and obscene nature of the visual depiction; P 284 First, that the defendant knowingly possessed a visual depiction of any kind, including a drawing, cartoon, sculpture, or painting; Fifth, that the visual depiction was shipped or transported in interstate or foreign Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 288 of 684 TITLE 18 commerce by any means;896 and P Sixth, that the defendant did so in one of the following circumstances: 1. any communication involved in or made in furtherance of the offense is communicated or transported by the mail, or in interstate or foreign commerce by any means, including by computer, or any means or instrumentality of interstate or foreign commerce is otherwise used in committing or in furtherance of the commission of the offense; 2. any communication involved in or made in furtherance of the offense contemplates the transmission or transportation of a visual depiction by the mail, or in interstate or foreign commerce by any means, including by computer; 3. any person travels or is transported in interstate or foreign commerce in the course of the commission or in furtherance of the commission of the offense; 4. any visual depiction involved in the offense has been mailed, or has been shipped or transported in interstate or foreign commerce by any means, including by computer, or was produced using materials that have been mailed, or that have been shipped or transported in interstate or foreign commerce by any means, including by computer; or 017 ADDITIONAL ELEMENT for conviction under § 1466A(b)(1): /2 27 1. For you to find defendant guilty under § 1466A(b)(1), the government must prove 7/obscene. To determine 0 beyond a reasonable doubt that the material in question is ed the following: whether the material is obscene, you should consider w vie (1) whether the average person applying contemporary community standards would 26, find that the work, taken as a whole, appeals to the prurient interest; 2 (2) whether the average person applying contemporary community standards would 6-4 1 find thato. work depicts or describes in a patently offensive way, sexual the N conduct specifically defined by [the applicable federal law; the court should 5. the offense is committed in the special maritime and territorial jurisdiction of the United States or in any territory or possession of the United States. identify the applicable federal law and its elements]; and (3) whether a reasonable person would find that the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.897 To appeal to the prurient interest, the material must appeal to a shameful or morbid interest in nudity, sex, or excretion and also be patently offensive. Material that provokes only normal, healthy sexual desires is not obscene.898 The average person, applying contemporary community standards, determines whether or not the work appeals to the prurient interest. The average person does not have to determine that the material appeals to the prurient interest of the average person.899 You can consider whether some portions of those materials appeal to a prurient 896 897 898 899 Koegel, 777 F. Supp. 2d at 1023. Miller v. California, 413 U.S. at 24. Guglielmi, 819 F.2d at 455. Id. at 454. 285 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 289 of 684 TITLE 18 interest of a specifically defined deviant group as well as whether they appeal to the prurient interest of the average person.900 In determining whether the material in question is obscene, you may consider whether the materials were pandered, by looking to the manner of distribution, circumstances of production, sale, advertising, and editorial intent.901 “Pandering” is the business of purveying textual or graphic matter openly advertised to appeal to the erotic interests of customers.902 § 1466A(b)(2) [Possession of Image Appearing to be Minor] For you to find the defendant guilty of this offense, the government must prove each of the following beyond a reasonable doubt: P First, that the defendant knowingly possessed a visual depiction of any kind, including a drawing, cartoon, sculpture, or painting; P Second, that the depiction is an image that is, or appears to be, of a minor engaging in graphic bestiality, sadistic or masochistic abuse, or sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex; P Third, that the visual depiction lacks serious literary, artistic, political, or scientific value; and P Fourth, that defendant did so in one of the following circumstances: 017 2 (a) any communication involved in or made in furtherance of the offense is 27/foreign commerce / communicated or transported by the mail, or in interstate or 07or instrumentality of d by any means, including by computer, or any means we interstate or foreign commerce is otherwise used in committing or in furtherance e of the commission of the offense; , vi 226 (b) any communication involved in or made in furtherance of the offense 4 contemplates 16the transmission or transportation of a visual depiction by the mail, . or in interstate or foreign commerce by any means, including by computer; No (c) any person travels or is transported in interstate or foreign commerce in the course of the commission or in furtherance of the commission of the offense; (d) any visual depiction involved in the offense has been mailed, or has been shipped or transported in interstate or foreign commerce by any means, including by computer, or was produced using materials that have been mailed, or that have been shipped or transported in interstate or foreign commerce by any means, including by computer; or (e) the offense is committed in the special maritime and territorial jurisdiction of the United States or in any territory or possession of the United States. 900 In Hamling, 418 U.S. 87 at 128-29, the Supreme Court cautioned that the jury should measure the prurient appeal of the materials to all groups and that the material must be judged by its impact on the average person, rather than a particularly susceptible or sensitive person, or indeed a totally insensitive one. 901 Id. at 130. However, pandering itself is not an element of § 1466A. See id. at 131. 902 Ginzburg v. United States, 383 U.S. 463, 463 (1966). 286 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 290 of 684 TITLE 18 The term “minor” is not specifically defined in §1466A. It should be given its plain, ordinary meaning. That is, a person under the age of legal competence. In mosts states, a person is no longer a minor when she or he reaches the age of 18. “Visual depiction” includes “undeveloped film and videotape, and data stored on a computer disk or by electronic means which is capable of conversion into a visual image, and also includes any photograph, film, video, picture, digital image or picture, computer image or picture, or computer generated image or picture, whether made or produced by electronic, mechanical, or other means.” [18 U.S.C. §1466A(f)(1)] “Sexually explicit conduct,” as that term is used in (a)(1) and (b)(1), means actual or simulated (i) sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex; (ii) bestiality; (iii) masturbation; (iv) sadistic or masochistic abuse; or (v) lascivious exhibition of the genitals or pubic area of any person; or (i) graphic sexual intercourse, including genital-genital, oral- genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex, or lascivious simulated sexual intercourse where the genitals, breast, or pubic area of any person is exhibited; (ii) graphic or lascivious simulated: (a) bestiality; (b) masturbation; or (c) sadistic or masochistic abuse; or (iii) graphic or simulated lascivious exhibition of the genitals or pubic area of any person. [18 U.S.C. § 2256(2)(A), (2)(B)] 017 7/2 The term “graphic,” when used with respect to a depiction of sexually explicit conduct, means that a viewer can observe any part of the genitals or pubic area of any depicted person or animal during any part of the time that the sexually explicit conduct is being depicted. 7/2 d0 e iew ,v “Interstate commerce” includes commerce between one state, territory, possession, or the District of Columbia and another state, territory, possession, or the District of Columbia. [18 U.S.C. § 10] 226 with a foreign country. [18 U.S.C. § 10] “Foreign commerce” includes commerce 4 16o. N____________________NOTE____________________ Section 1466A covers attempts and conspiracies to violate § 1466A. Title 18 U.S.C. § 1466A was enacted in response to the Supreme Court’s decision in Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002). In Free Speech Coalition, the Supreme Court struck down provisions of the Child Pornography Prevention Act of 1996 as unconstitutionally overbroad. The general obscenity statute in § 1466 was thereafter amended to prohibit the transfer of certain obscene visual representations of the sexual abuse of children. A variety of constitutional challenges to § 1466A have been brought. Courts have routinely rejected constitutional challenges to both (a)(1) and (b)(1). See, e.g., United States v. Wellman, 663 F.3d 224 (4th Cir. 2011) (scienter requirement extends to knowledge of contents of materials and character and nature of materials and not to knowledge of legal status of materials); United States v. Whorley, 550 F.3d 326 (4th Cir. 2008) (holding that § 1466A not unconstitutionally overbroad or vague); United States v. Schales, 546 F.3d 965 (9th Cir. 2008) (same). In a facial challenge to a conviction under (a)(2), the Eleventh Circuit found that (a)(2) is not facially overbroad. United States v. Dean, 635 F.3d 1200 (11th Cir. 2011), cert. denied, __ U.S. __, 132 S. Ct. 755 (2011). But see United States v. Handley, 564 F. 287 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 291 of 684 TITLE 18 Supp. 2d 996, 1007 (S.D. Iowa 2008) (finding (a)(2) and (b)(2) unconstitutional because they are “not subject to a limiting construction that would avoid the constitutional problem of prohibiting images that neither involve the use of actual minors or constitute obscenity.”). “[A] defendant’s knowledge of the law is not a relevant consideration in a prosecution involving the distribution of allegedly obscene materials.” Wellman, 663 F.3d at 231. It is constitutionally sufficient that the prosecution show that a defendant had knowledge of the contents of the materials he distributed and that he knew the character and nature of the materials.” Id. at 230. See also Hamling v. United States, 418 U.S. 87, 119-20, 121, 123 (1974) (scienter requirement in obscenity prosecutions). A local statute may provide relevant evidence of the mores of the community whose legislative body enacted the law, and is therefore admissible, but is not conclusive as to the issues of contemporary community standards for appeal to the prurient interest and patent offensiveness. Smith v. United States, 431 U.S. 291, 307-08 (1977). In Hamling v. United States, 418 U.S. 87, 106 (1974), the Supreme Court presumed that jurors from throughout the particular judicial district where the case was tried were available to serve on the panel. Thus, the judicial district constituted the “community” and it would be the standards of that “community” upon which the jurors would draw. 017 the 2 Contemporary community standards are set by what is, in fact, accepted in 27/ tolerates adult community as a whole, and not by what the community merely 07/ and not by what some groups or persons may believe the community ought to d accept or refuse to accept. Obscenity is notwmatter of individual taste, and the a e question is not how the material impresses an individual juror; rather, the test is ve , theicommunity would view the material as whether the average adult person of 226 nudity, sex, or excretion. an appeal to the prurient4 interest in 16900 F.2d at 758-59. . No “The kinds of conduct that a jury would be permitted to label as ‘patently offensive’ In United States v. Pryba, 900 F.2d 748 (4th Cir. 1990), the Fourth Circuit found no error in the following instruction: in a [prosecution for mailing obscene material] are the ‘hard core’ types of conduct suggested by the examples given in Miller [v. California, 413 U.S. 15, 24 (1973)].” Smith, 431 U.S. at 301. The examples given were “patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated, and patently offensive representations or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals.” Miller v. California, 413 U.S. 15, 25 (1973). 18 U.S.C. § 1470 TRANSFERRING OBSCENE MATERIAL TO MINORS Title 18, United States Code, Section 1470 makes it a crime to transfer obscene material to minors. For you to find the defendant guilty, the government must prove each of the following beyond a reasonable doubt: P P Second, that the defendant knew the individual had not attained the age of 16; P 288 First, that the defendant transferred, or attempted to transfer, obscene matter to another individual who had not attained the age of 16 years; Third, that the defendant used the mail or any facility or means of interstate or Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 292 of 684 TITLE 18 foreign commerce; and P Fourth, that the defendant did so knowingly. The test for obscenity is: (1) whether the average person applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest; (2) whether [the average person applying contemporary community standards would find that] the work depicts or describes in a patently offensive way, sexual conduct specifically defined by the applicable [federal] law [the court should identify the applicable federal law and its elements]; and (3) whether [a reasonable person would find that]903 the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.904 To appeal to the prurient interest, the material must appeal to a shameful or morbid interest in nudity, sex, or excretion and also be patently offensive. Material that provokes only normal, healthy sexual desires is not obscene.905 The average person, applying contemporary community standards, determines whether or not the work appeals to the prurient interest. The average person does not have to determine that the material appeals to the prurient interest of the average person.906 017 7/2 The jury can consider whether some portions of the material appeal to a prurient interest of a specifically defined deviant group as well as whether they appeal to the prurient interest of the average person.907 7/2 d0 In determining whether the material in question is obscene, the jury may consider whether the materials were pandered, by looking to the manner of distribution, circumstances of production, sale, advertising, and editorial intent.908 e iew ,v 226 6-4 “Pandering” is the business of purveying textual or graphic matter openly advertised to appeal to the erotic interest of customers.909 o. 1 N The government must prove that the defendant had knowledge of the character of the matter being transferred. The defendant’s belief as to the obscenity or non-obscenity of the material is irrelevant.910 903 Pope v. Illinois, 481 U.S. 497, 501 (1987). Because § 1461 incorporates the test from Miller v. California, 413 U.S. 15, 24 (1973), for defining obscenity, presumably so does § 1470. Hamling v. United States, 418 U.S. 87, 105 (1974). See also United States v. Gravenhorst, 377 F.3d 49, 51 (1st Cir. 2004). 905 United States v. Guglielmi, 819 F.2d 451, 455 (4th Cir. 1987). 906 Id. at 454. 907 This instruction was held proper in Hamling v. United States, 418 U.S. 87, 128-29 (1974), but the court did emphasize that the jury should measure the prurient appeal of the material as to all groups and that the material must be judged by its impact on an average person, rather than a particularly susceptible or sensitive person, or indeed a totally insensitive one. 908 Id. at 130. Pandering is not an element of § 1470. See id. at 131. 909 Ginzburg v. United States, 383 U.S. 463, 467 (1966). 910 See Hamling, 418 U.S. at 119-20 (Supreme Court required prosecution to show defendant had knowledge of contents of materials he distributed and that knew character and nature of materials). However, the Court did not require the government to prove the defendant’s knowledge of the legal (continued...) 904 289 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 293 of 684 TITLE 18 ____________________NOTE____________________ A local statute may provide relevant evidence of the mores of the community whose legislative body enacted the law, and is therefore admissible, but it is not conclusive as to the issues of contemporary community standards for appeal to the prurient interest and patent offensiveness. Smith v. United States, 431 U.S. 291, 307-08 (1977). In Hamling v. United States, 418 U.S. 87, 106 (1974), the Supreme Court presumed that jurors from throughout the particular judicial district where the case was tried were available to serve on the panel. Thus, the judicial district constituted the “community” and it would be the standards of that “community” upon which the jurors would draw. In United States v. Pryba, 900 F.2d 748 (4th Cir. 1990), the Fourth Circuit found no error in the following instruction, for failing to charge on community toleration: Contemporary community standards are set by what is, in fact, accepted in the adult community as a whole, and not by what the community merely tolerates and not by what some groups or persons may believe the community ought to accept or refuse to accept. Obscenity is not a matter of individual taste, and the question is not how the material impresses an individual juror; rather, the test is whether the average adult person of the community would view the material as an appeal to the prurient interest in nudity, sex, or excretion. 017offensive’ 2 “The kinds of conduct that a jury would be permitted to label7/‘patently 2 as by the examples in a § 1461 prosecution are the ‘hard core’ types of conduct 7/ suggested 0431 U.S. at 301. The given in Miller [v. California, 413 U.S. 15 (1973)].” Smith, d examples given were “patently offensive representations or descriptions of ultimate weand patently offensive sexual acts, normal or perverted, actual orvie simulated, 6, representations or descriptions of masturbation, excretory functions, and lewd exhibition 2 of the genitals.” Miller v. California, 413 U.S. 15, 25 (1973). -42 . 16 No OBSTRUCTION OF JUSTICE [L U 18 U.S.C. § 1503 : 7/11/14] 900 F.2d 758-59. AST PDATED Title 18, United States Code, Section 1503 makes it a crime to influence or injure jurors, or obstruct justice. For you to find the defendant guilty, the government must prove each of the following beyond a reasonable doubt: First clause P First, that the defendant endeavored to influence, intimidate, or impede; P Second, any grand juror or trial juror, or officer in or of any court of the United States, or officer who may be serving at any examination or other proceeding before any United States magistrate judge, in the discharge of his duty; and P Third, that the defendant did so corruptly, or by threat of force, or by any threatening letter or communication. Second clause 910 (...continued) status of the materials he distributed. Id. at 123, 121. 290 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 294 of 684 TITLE 18 P First, that the defendant injured the person or property of; P Second, any grand juror or trial juror, or officer in or of any court of the United States, or officer who may be serving at any examination or other proceeding before any United States magistrate judge, or United States magistrate judge; P Third, on account of having been a juror, on account of any verdict assented to by him as a trial juror, or any indictment assented to by him as a grand juror, or [in the case of an officer or magistrate of the court] on account of the performance of his official duties; and P Fourth, that the defendant did so corruptly, or by threat of force, or by any threatening letter or communication. Omnibus clause P First, that there was a proceeding pending in any court of the United States; P Second, that the defendant had knowledge or notice of the pending proceeding; P Third, that the defendant influenced, obstructed, or impeded, or endeavored to influence, obstruct, or impede, the due administration of justice; and P Fourth, that the defendant did so corruptly, that is with the intent to influence, obstruct, or impede that proceeding in its due administration of justice, or by threats or force, or by threatening letter or communication.911 017 7/2 7/2 d0 AGGRAVATED PENALTY 1. Did the offense occur in connection with the trial of a criminal case and did the act involve physical force or the threat of physical force? e iew ,v 2. Did the endeavor to obstruct justice occur in the case of a killing? or 226 6-4 3. Did the endeavor to obstruct justice occur in the case of an attempted killing, or in a case in which the offense was committed against a trial juror in a case involving a crime where the maximum imprisonment exceeded 12 years? [Class A & B felonies, 18 U.S.C. § 3581.] o. 1 N The government must prove that the defendant knew or had notice of the pending court proceeding.912 The defendant’s “act must have a relationship in time, causation, or logic with the 911 See United States v. Grubb,11 F.3d 426, 437 (4th Cir. 1993); United States v. Brooks, 111 F.3d 365, 372 (4th Cir. 1997). In United States v. Blair, 661 F.3d 755 (4th Cir. 2011), the defendant was charged with obstructing justice by making a false statement to the district court about his professional background and standing with the W est Virginia Bar. Thus, the government had to “establish a nexus between the false statement and the obstruction of the administration of justice ....” Id. at 767. That is, the government had to proved that the defendant’s false statements “had the natural and probable effect of impeding justice.” Id. (quotation omitted). Although Blair had been granted pro hac vice status in the district court, he had never appeared in court. Therefore, the Fourth Circuit reversed his conviction. 912 Pettibone v. United States, 148 U.S. 197, 206 (1893). 291 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 295 of 684 TITLE 18 judicial proceedings.”913 The government does not need to prove that the endeavor to corrupt was successful,914 but “the endeavor must have the natural and probable effect of interfering with the due administration of justice.”915 “Corruptly” means to act knowingly and dishonestly, with the specific intent to subvert or undermine the integrity of a proceeding.916 ____________________NOTE____________________ Sections §§ 1503 and 1505 of Title 18 and 26 U.S.C. § 7212 are obstruction statutes with similarly worded omnibus provisions that are intended to serve comparable goals. The identity of purpose among these provisions makes case law interpreting any one of these provisions strongly persuasive authority in interpreting the others. United States v. Mitchell, 877 F.2d 294, 299 n.4 (4th Cir. 1989). “We do not believe that uttering false statements to an investigating agentSand that seems to be all that was proved hereSwho might or might not testify before a grand jury is sufficient to make out a violation of the catchall provision of § 1503.” United States v. Aguilar, 515 U.S. 593, 600 (1995). “[A]n obstruction of justice prosecution cannot rest solely on the allegation or proof of perjury; rather, what also must additionally be proven is that the false statements given, in some way, either obstructed or were intended to obstruct.” United States v. Grubb, 11 F.3d 426, 437 (4th Cir. 1993). In Grubb, the defendant “gave false information in an endeavor to get the FBI agent to give false information to the grand jury.” Id. at 438. Thus, “perjury can constitute the actus reus of a § 1503 violation [provided the false statements] either obstructed or were intended to obstruct the due administration of justice.” United States v. Littleton, 76 F.3d 614, 619 (4th Cir. 1996). 017 7/2 7/2 d0 e iew ,v 226 6-4 In United States v. Neiswender, 590 F.2d 1269 (4th Cir. 1979), the appellant was convicted of obstruction for contacting the attorney for former Maryland Governor Marvin Mandel and telling him that an acquittal was guaranteed if the proper financial arrangements were made. Neiswender claimed that he represented a man who had been contacted by a juror on the Mandel case. However, the government never proved that Neiswender ever dealt with a juror or anyone who had contact with a juror. The Fourth Circuit affirmed, holding “that a defendant who intentionally undertakes an act or attempts to effectuate an arrangement, the reasonably foreseeable consequence of which is to obstruct justice, violates § 1503 even if his hope is that the judicial machinery will not be seriously impaired.” Id. at 1274. o. 1 N One who bribes, threatens, or coerces a witness to claim the privilege against selfincrimination or advises with corrupt motive a witness to take it is guilty under § 1503. United States v. Baker, 611 F.2d 964, 968 (4th Cir. 1979). “[A] criminal action remains pending in the district court until disposition is made of 913 United States v. Aguilar, 515 U.S. 593, 599 (1995). Grubb, 11 F.3d at 437 n.19 (“The operative wording of the statute is ‘corruptly endeavor.’ Such an endeavor need not be successful.”). 915 Aguilar, 515 U.S. at 599 (quotations and citations omitted). 916 See Arthur Andersen LLP v. United States, 544 U.S. 696, 706 (2005). 914 292 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 296 of 684 TITLE 18 any direct appeal taken by the defendant assigning error that could result in a new trial.” United States v. Johnson, 605 F.2d 729, 731 (4th Cir. 1979). 18 U.S.C. § 1505 OBSTRUCTION OF PROCEEDINGS BEFORE DEPARTMENTS, AGENCIES, OR CONGRESS Title 18, United States Code, Section 1505 makes it a crime to obstruct proceedings before Congress or a federal agency. For you to find the defendant guilty, the government must prove each of the following beyond a reasonable doubt: ¶1 P First, that there was a civil investigative demand duly and properly made under the Antitrust Civil Process Act; P Second, that the defendant withheld, misrepresented, removed from any place, concealed, covered up, destroyed, mutilated, altered, or by other means falsified [or attempted to do so, or solicited another person to do so]; P Third, any documentary material, answers to written interrogatories, or oral testimony which was the subject of the demand; and P Fourth, that the defendant did so with intent to avoid, evade, prevent, or obstruct compliance, in whole or in part, with the demand. ¶2 P P P P 017 2 First, that there was a proceeding being conducted by any department or agency 27/ House or any joint of the United States, either House, or any committee of either 07/ d committee of the Congress; we proceeding; e Second, that the defendant knew vithe pending , of to influence, obstruct or impede the Third, that the defendant 26 endeavored proceeding; and -42 Fourth, that the defendant did so corruptly, or by threats or force, or by any . 16 threatening letter or communication. No “Corruptly” means to act knowingly and dishonestly, with the specific intent to subvert or undermine the integrity of a proceeding.917 “Corruptly” means nothing more than an intent to obstruct the proceeding. A corrupt intent may be defined as the intent to obtain an improper advantage for oneself or someone else, inconsistent with official duty and the rights of others.918 A proceeding before a governmental department or agency simply means proceeding in the manner and form prescribed for conducting business before the department or agency, including all steps and stages in such an action from its inception to its 917 Id. at 706. United States v. North, 910 F.2d 843, 881-82, 884, modified, 920 F.2d 940 (D.C. Cir. 1990) (“‘corruptly’ and the other words in the statute are to be understood according to their common meanings, necessitating no specific definitional instructions from the court”). 918 293 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 297 of 684 TITLE 18 conclusion.919 The government does not have to prove that the defendant knew his conduct was illegal, only that he specifically intended to do something the law prohibited, whether he knew of the law or not.920 ____________________NOTE____________________ This statute covers any activity which would influence or intimidate a witness who might be called to testify; it is not limited to a witness who has been called to testify under oath and to a case in which the defendant knew that particular fact. Rice v. United States, 356 F.2d 709, 715 (8th Cir. 1966). See United States v. Johnson, 71 F.3d 139, 144 (4th Cir. 1995) (citing United States v. North, 910 F.2d 843, modified, 920 F.2d 940 (D.C. Cir. 1990)). Sections 1503 and 1505 of Title 18 and 26 U.S.C. § 7212 are obstruction statutes with similarly worded omnibus provisions that are intended to serve comparable goals. The identity of purpose among these provisions makes case law interpreting any one of these provisions strongly persuasive authority in interpreting the others. United States v. Mitchell, 877 F.2d 294, 299 n.4 (4th Cir. 1989). 017 7/2 In United States v. Grubb, 11 F.3d 426 (4th Cir. 1993), the defendant was charged with violating § 1503. “The operative wording of the statute is ‘corruptly endeavor.’ Such an endeavor need not be successful.” 11 F.3d at 437 n.19. The section is not directed at success but at the endeavor. In Grubb, the defendant “gave false information in an endeavor to get the FBI agent to give false information to the grand jury.” Id. at 438. 7/2 d0 e iew ,v In United States v. Aragon, 983 F.2d 1306 (4th Cir. 1993), a case involving an attempt to rescue a federal prisoner, in violation of 18 U.S.C. § 752(a), the defendant was also charged with violating § 1503. He argued that the district court erred by instructing the jury that the government was not required to prove he was aware of the federal status of the intended target. The Fourth Circuit stated that neither section explicitly required that the defendant be aware of the target’s status. “Because knowledge is not explicitly mentioned, it is not an essential element of either offense and, therefore, is unnecessary for the government to prove.” 983 F.2d at 1310. o. 1 N 226 6-4 “The proper inquiry is whether a defendant had the requisite corrupt intent to improperly influence the investigation, not on the means the defendant employed in bringing to bear this influence.” United States v. Mitchell, 877 F.2d 294, 299 (4th Cir. 1989) (defendants convicted of using close relationship with their uncle, a Congressman, to influence a Congressional investigation). Section 1505 prohibits “any endeavor to influence, intimidate or impede any witness in any proceeding before any department or agency of the United States.” Rice v. United States, 356 F.2d 709, 715 (8th Cir. 1966) (quoting United States v. Batten, 226 F. Supp. 492, 494 (D.D.C. 1964)). This section is broad enough to include activity “which would influence or intimidate a witness who might be called to testify; it is not limited to a witness who has been called to testify under oath and to a case in which the defendant 919 United States v. M itchell, 877 F.2d 294, 300 (4th Cir. 1989) (quoting Rice v. United States, 356 F.2d 709, 712 (8th Cir. 1966)). 920 North, 912 F.2d at 884. 294 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 298 of 684 TITLE 18 knew that particular fact.” Id. In United States v. Adams, 335 F. App’x 338 (4th Cir. 2006), the government conceded that a criminal investigation by the Drug Enforcement Administration or the Federal Bureau of Investigation was not a “pending proceeding” within the scope of § 1505. 18 U.S.C. § 1510 OBSTRUCTION OF CRIMINAL INVESTIGATIONS Title 18, United States Code, Section 1510 makes it a crime to obstruct federal criminal investigations. For you to find the defendant guilty, the government must prove each of the following beyond a reasonable doubt: § 1510(a) P First, that the defendant endeavored to obstruct, delay, or prevent the communication of information relating to a violation of any criminal law of the United States by any person to a criminal investigator; P Second, that the defendant did so by means of bribery; and P Third, that the defendant did so willfully. “Criminal investigator” means any individual duly authorized by a department, agency, or armed force of the United States to conduct or engage in investigations of or prosecutions for violations of the criminal laws of the United States. [§ 1510(c)] 017 7/2 /2 7institution; 0 P First, that the defendant was an officer of a financial ed notified any other person about the P Second, that the defendant directly or indirectly ew existence or contents of a subpoena i records of that financial institution, or v for , information that had been26 furnished to a grand jury in response to a subpoena; and 2 P Third, that the defendant did so with the intent to obstruct a judicial proceeding. 6-4 1 § 1510(b)(2)o. N P First, that the defendant was an officer of a financial institution; and § 1510(b)(1) P Second, that the defendant directly or indirectly notified a customer of the financial institution whose records were sought by a grand jury subpoena, or any other person named in the subpoena, about the existence or contents of a subpoena for records of that financial institution, or information that had been furnished to a grand jury in response to a subpoena. “Officer of a financial institution” means an officer, director, partner, employee, agent, or attorney of or for a financial institution. [§ 1510(b)(3)(A)] “Subpoena for records” means a Federal grand jury subpoena or a Department of Justice subpoena for customer records that has been served relating to a violation of, or a conspiracy to violate the following sections: 18 U.S.C. §§ 215, 656, 657, 1005, 1006, 1007, 1014, 1344, 1956, 1957, 1341 affecting a financial institution, 1343 affecting a financial institution, or 31 U.S.C. chapter 53. [§ 1510(b)(3)(B)] § 1510(d) P First, that the defendant 295 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 299 of 684 TITLE 18 1. was or acted as an officer, director, agent, or employee of a person engaged in the business of insurance whose activities affect interstate commerce; or 2. was engaged in the business of insurance whose activities affect interstate commerce or was involved in a transaction relating to the conduct of affairs of such a business; P Second, that the defendant directly or indirectly notified any other person about the existence or contents of a subpoena for records of that person engaged in the business of insurance whose activities affect interstate commerce, or information that had been furnished to a Federal grand jury in response to a subpoena; and P Third, that the defendant did so with the intent to obstruct a judicial proceeding. ____________________NOTE____________________ See United States v. Daly, 842 F.2d 1380 (2d Cir. 1988) (unnecessary to decide whether § 1510 requires an ongoing criminal investigation because sufficient evidence of ongoing investigation and defendants sought to prevent disclosure of information to federal investigators). “[Section] 1510 is violated whenever an individual induces or attempts to induce another person to make a material misrepresentation to a criminal investigator.” United States v. St. Clair, 552 F.2d 57, 58 (2d Cir. 1977). 017 7/2 “Nothing in the statutory language requires that the misrepresentation be made by the defendant; it is enough that he may be endeavoring to obstruct justice by means of misrepresentation by a potential witness.” Id. at 59. 7/2 d0 e iew ,v “[I]t is only necessary for a defendant to have believed that a witness might give information to federal officials, and to have prevented this communication, to violate 18 U.S.C. § 1510.” United States v. Leisure, 844 F.2d 1347, 1364 (8th Cir. 1988). 2 F.2d 24606 1394 (5th Cir. 1972), overruled on other In United States v. Cameron, -4 438 F.2d 229 (5th Cir. 1973), the Fifth Circuit said grounds by United States v. Howard, 16 .activities of three separate individuals or classes of individuals: (1) a § 1510 deals with o N the person who has information about a federal criminal violation, (2) a criminal investigator, and (3) the person who is endeavoring to prevent (1) from communicating the information to (2). 460 F.2d at 1401. United States v. Coiro, 922 F.2d 1008 (2d Cir. 1991), declined to follow Cameron “to the extent that Cameron purports to require that the misrepresentations be made to the one who communicates with the investigator, instead of solely to the investigator.” 922 F.2d at 1014. In Coiro, the defendant coached two individuals, at a single meeting, to give false information to federal investigators. The Second Circuit held that the single incident was a single violation, not two violations because there were two individuals coached. Id. at 1014-15. 18 U.S.C. § 1511 OBSTRUCTION OF STATE OR LOCAL LAW ENFORCEMENT Title 18, United States Code, Section 1511 makes it a crime to conspire to obstruct the enforcement of state or local criminal laws with intent to facilitate an illegal gambling 296 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 300 of 684 TITLE 18 business. For you to find the defendant guilty, the government must prove each of the following beyond a reasonable doubt: P First, that two or more persons agreed to obstruct the enforcement of state or local criminal laws; P Second, that it was done with the intent to facilitate an illegal gambling business; P Third, that the defendant knew of the agreement and willfully participated in the agreement; P Fourth, that one or more of the members of the conspiracy did any act to effect the object of the conspiracy; P Fifth, that one or more of the conspirators was an official or employee, elected, appointed, or otherwise, of the state or local government; and P Sixth, that one or more of the conspirators conducted, financed, managed, supervised, directed, or owned all or part of an illegal gambling business. “Illegal gambling business” means a gambling business which (1) is a violation of the law of a state or political subdivision in which it is conducted; 017 7/2 (2) involves five or more persons who conduct, finance, manage, supervise, direct, or own all or part of such business; and 7/2 d0 (3) has been or remains in substantially continuous operation for a period in excess of thirty days or has a gross revenue of $2,000 in any single day. [§ 1511(b)(1)] e ew ito pool-selling, bookmaking, maintaining slot “Gambling” includes but is not limited ,v machines, roulette wheels, or dice 26 and conducting lotteries, policy, bolita or tables, 2 numbers games, or selling chances therein. [§ 1511(b)(2)] 6-4 o. 1 ____________________NOTE____________________ N See 18 U.S.C. § 1955, which makes it a crime to conduct an illegal gambling business. 18 U.S.C. § 1512 TAMPERING WITH A WITNESS, VICTIM, OR INFORMANT [LAST UPDATED 7/1/14] Title 18, United States Code, Section 1512 makes it a crime to tamper with a witness, victim, or informant. Section 1512(a) covers a killing or attempt to kill another person, or use of physical force or threat or attempt to do so against a person. Section 1512(b) covers non-physical intimidation, threats or persuasion. Section 1512(c) covers altering, destroying, mutilating, or concealing a record or document or object or otherwise obstructing, influencing, or impeding any official proceeding. Section 1512(d) covers harassment offenses. For you to find the defendant guilty, the government must prove each of the following beyond a reasonable doubt: § 1512(a)(1) P First, that the defendant killed or attempted to kill another person; and 297 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 301 of 684 TITLE 18 P Second, that the defendant did so with intent to do one of the following: (A) prevent the attendance or testimony of any person in an official proceeding; (B) prevent the production of a record, document, or other object, in an official proceeding; or (C) prevent the communication by any person to a law enforcement officer or judge of the United States of information relating to the commission or possible commission of a Federal offense or a violation of conditions of probation, parole, or release pending judicial proceedings. Under (a)(1)(C) above the Government need not show beyond a reasonable doubt or that it was more likely than not that the communication would have been to a federal officer. However, the Government must prove that “a communication [by the victim] with a federal law enforcement officer was more than a possibility but less than a probability, so long as the chance of the communication was not remote, outlandish, or simply hypothetical.”921 § 1512(a)(2) P First, that the defendant used, or attempted to use, physical force or the threat of physical force against any person;922 and P Second, that the defendant did so with intent to 017 7/2 (A) influence, delay, or prevent the testimony of any person in an official proceeding; 7/2 d0 (B) cause or induce any person to do one of the following: e iew ,v (i) withhold testimony, or withhold a record, document, or other object, from an official proceeding; 226 6-4 (ii) alter, destroy, mutilate, or conceal an object with intent to impair the integrity or availability of the object for use in an official proceeding; 1 legal process summoning that to appear as a witness, o. evadeproduce a record, document, or personobject, in an official other N or to (iii) proceeding; or (iv) be absent from an official proceeding to which that person had been summoned by legal process; or (C) hinder, delay, or prevent the communication to a federal law enforcement officer or judge of the United States of information relating to the commission or possible commission of a Federal offense or a violation of conditions of probation, parole, or release pending judicial proceedings.923 § 1512(b)(1) P First, that the defendant used intimidation, threatened, or corruptly persuaded, or 921 Fowler v. United States, 563 U.S. __, __, 131 S. Ct. 2045, 2049 (2011). There is a lesser included offense if the defendant only threatened physical force. 18 U.S.C. § 1512(a)(3). 923 See United States v. West, 303 F. App’x 156 (4th Cir. 2008) (citing United States v. England, 507 F.3d 581, 588 (7th Cir. 2007)). 922 298 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 302 of 684 TITLE 18 attempted to use intimidation, threaten, or corruptly persuade, or engaged in misleading conduct toward, another person; P Second, that the defendant did so with intent to influence, delay, or prevent the testimony of any person in an official proceeding; and P Third, that the defendant did so knowingly, that is, that the defendant knew or had notice of the official proceeding, and that he intended or knew that his actions were likely to affect the official proceeding. § 1512(b)(2) P First, that the defendant used intimidation, threatened, or corruptly persuaded, or attempted to use intimidation, threaten, or corruptly persuade, or engaged in misleading conduct toward, another person; P Second, that the defendant did so with intent to cause or induce any person to (A) withhold testimony, or withhold a record, document, or other object, from an official proceeding; (B) alter, destroy, mutilate, or conceal an object with intent to impair the object’s integrity or availability for use in an official proceeding; (C) evade legal process summoning that person to appear as a witness, or to produce a record, document, or other object, in an official proceeding; or 017 7/2 (D) be absent from an official proceeding to which such person had been summoned by legal process; and 7/2 defendant knew or P Third, that the defendant did so knowingly, that 0 that the d is, had notice of the official proceeding, and e he intended or knew that his that w actions were likely to affect the official proceeding. vie § 1512(b)(3) 26, 2 P First, that the defendant used intimidation, threatened, or corruptly persuaded, or 6-4 1 attempted to use intimidation, threaten, or corruptly persuade, or engaged in o.conduct toward, another person; misleading N P Second, that the defendant did so with the intent to hinder, delay, or prevent the communication to a federal law enforcement officer of information relating to the commission or possible commission of a federal offense; and P Third, that the defendant did so knowingly, that is, that the defendant knew or had notice of the official proceeding, and that he intended or knew that his actions were likely to affect the official proceeding.924 § 1512(c)(1) P First, that the defendant altered, destroyed, mutilated, or concealed, or attempted to alter, destroy, mutilate, or conceal, a record, document, or other object; P Second, that the defendant did so with the intent to impair the object’s integrity or availability for use in an official proceeding; and P Third, that the defendant did so corruptly. 924 See United States v. Perry, 335 F.3d 316, 320 (4th Cir. 2003). 299 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 303 of 684 TITLE 18 § 1512(c)(2) P First, that there was a pending official proceeding; P Second, that the defendant had knowledge of the pending proceeding; P Third, that the defendant obstructed, influenced, or impeded, or attempted to obstruct, influence or impede the official proceeding; and P Fourth, the defendant did so corruptly.925 § 1512(d) P First, that the defendant harassed, or attempted to harass, another person; P Second, that the harassment hindered, delayed, prevented, or dissuaded any person from doing one of the following: (1) attending or testifying in an official proceeding; (2) reporting to a law enforcement officer or judge of the United States the commission or possible commission of a federal offense or a violation of conditions of probation, supervised release, parole, or release pending judicial proceedings; (3) arresting or seeking the arrest of another person in connection with a federal offense; or 017 7/2 (4) causing a criminal prosecution, or a parole or probation revocation proceeding, to be sought or instituted, or assisting in such prosecution or proceeding; and 7/2 0 P Third, that the defendant did so intentionally. ed w “Official proceeding” means a proceeding before a judge or court of the United vie judge, a judge of the United States States, a United States magistrate judge, a bankruptcy 26, Court, a judge of the United States Court of 2 Tax Court, a special trial judge of the Tax 6-4 Federal Claims, or a Federal grand jury; a proceeding before the Congress; a proceeding before a Federal Government agency which is authorized by law; or a proceeding o. 1 insurance whose activities affect interstate commerce before any N involving the business of insurance regulatory official or agency or any agent or examiner appointed by such official or agency to examine the affairs of any person engaged in the business of insurance whose activities affect interstate commerce. [§ 1515(a)(1)]926 An official proceeding need not be pending or about to be instituted at the time of the defendant’s alleged conduct, and the testimony, or the record, document, or other object need not be admissible in evidence or free of a claim of privilege. [§ 1512(f)] “Physical force” means physical action against another, and includes confinement. [§ 1515(a)(2)] “Misleading conduct” means knowingly making a false statement; intentionally omitting information from a statement and thereby causing a portion of such statement to 925 See United States v. Garcia, 413 F. App’x 585 (4th Cir. 2011) (quoting United States v. Grubb, 11 F.3d 426, 437 (4th Cir. 1993)). 926 “Official proceeding” includes a hearing pursuant to Article 32 of the Uniform Code of Military Justice. United States v. Clift, 834 F.2d 414 (4th Cir. 1987). 300 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 304 of 684 TITLE 18 be misleading, or intentionally concealing a material fact, and thereby creating a false impression by such statement; knowingly submitting or inviting reliance on a sample, specimen, map, photograph, boundary mark, or other object that is misleading in a material respect, with intent to mislead; or knowingly using a trick, scheme, or device with intent to mislead. [§ 1515(a)(3)] “Law enforcement officer” means an officer or employee of the Federal Government, or a person authorized to act for or on behalf of the Federal Government or serving the Federal Government as an adviser or consultant authorized under law to engage in or supervise the prevention, detection, investigation, or prosecution of an offense; or serving as a [federal] probation or pretrial services officer. [§ 1515(a)(4)]927 No state of mind need be proved with respect to the circumstance-(1) that the official proceeding before a judge, court, magistrate judge, grand jury, or government agency is before a judge or court of the United States, a United States magistrate judge, a bankruptcy judge, a Federal grand jury, or a Federal Government agency; or (2) that the judge is a judge of the United States or that the law enforcement officer is an officer or employee of the Federal Government or a person authorized to act for or on behalf of the Federal Government or serving the Federal Government as an adviser or consultant. [§ 1512(g)] 017 7/2 “Bodily injury” means a cut, abrasion, bruise, burn, or disfigurement; physical pain; illness; impairment of the function of a bodily member, organ, or mental faculty; or any other injury to the body, no matter how temporary. [§ 1515(a)(5)] 7/2 0 “Corruptly persuades” does not include conduct d e which would be misleading conduct but for a lack of a state of mind. [§ 1515(a)(6)] w e , vi dishonestly, with the specific intent to “Corruptly” means to act knowingly and 2 of6 subvert or undermine the integrity 2 a proceeding. -4 “Prevent” applies16 a defendant, by anticipatory action, intended to render where . impractical or No impossible an action or event which was likely to have otherwise occurred. Thus, the government must how, at least, a reasonable likelihood that, had the victim 928 communicated with law enforcement officers, at least one relevant communication would have been made to a federal law enforcement officer. The government must show that the likelihood of communication to a federal officer was more than remote, outlandish, or simply hypothetical.929 “Intimidation” means a type of true threat where a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death.930 The government must prove that the defendant knew or had notice of the official 927 In United States v. Ashley, 606 F.3d 135 (4th Cir. 2010), the Fourth Circuit assumed for purposes of argument “that Section 1513 requires that a defendant know that the officer with whom an informant is communicating is a federal one.” 606 F.3d at 139 n.1. 928 See Arthur Andersen LLP v. United States, 544 U.S. 696, 706 (2005). 929 Fowler v. United States, 563 U.S. __, __, 131 S. Ct. 2045, 2051-52 (2011). 930 See United States v. White, 670 F.3d 498, 514 (4th Cir. 2012). 301 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 305 of 684 TITLE 18 proceeding, and that he intended or knew that his actions were likely to affect the official proceeding.931 Although the government has to prove that the official proceeding involved was a federal proceeding, the government does not have to prove that the defendant knew it was a federal proceeding.932 It is not necessary for the government to prove that the defendant knew he was breaking any particular criminal law, nor need the government prove that the defendant knew that the law enforcement officer was a federal law enforcement officer. What the government must prove is that “a communication [by the victim] with a federal law enforcement officer was more than a possibility but less than a probability, so long as the chance of the communication was not remote, outlandish, or simply hypothetical.”933 To determine whether the Government has satisfied this requirement, you may consider evidence such as the federal nature of the crime the victim reported or would have reported, together with other evidence such as the level of cooperation and the focus of activity between local, state, and federal authorities on the relevant crime.934 AFFIRMATIVE DEFENSE [§ 1512(e)] The defendant has the burden of proving, by a preponderance of the evidence, that his conduct consisted solely of lawful conduct and that his sole intention was to encourage, induce, or cause the other person to testify truthfully. 017 2 ____________________NOTE____________________ 27/the Supreme Court 7/ In Fowler v. United States, 563 U.S. __, 131 S. Ct. 2045 (2011), 0with intent to prevent held that § 1512(a)(1)(C) applies to “a defendant whod kills we communication with law enforcement officers generally, but only if the government ie makes a showing about “the likelihood , vhypothetical communication with a federal of a law enforcement officer.” 563 U.S. at ___, 131 S. Ct. at 2050. To demonstrate the 226victim’s communication and federal law 4 appropriate federal nexus between the 16- the government has shown “a reasonable likelihood that enforcement officers is whether . had, e.g., the victim communicated with law enforcement officers, at least one relevant No have been made to a federal law enforcement officer.” Id., 563 communication would 931 W ithout knowledge of an official proceeding, the defendant would lack the requisite intent to obstruct the official proceeding. Arthur Andersen LLP, 544 U.S. at 708. In United States v. Harris, 498 F.3d 278 (4th Cir. 2007), overruled on other grounds by Fowler v. United States, 563 U.S. __, 131 S. Ct. 2045 (2011), the Fourth Circuit said that Arthur Andersen did not apply because the statutory language at issue here [§ 1512(a)(1)(C)] is completely different than that which the Arthur Andersen Court interpreted. Most elementally, § 1512(g)(2), which specifically excuses the government from proving any state of mind of the defendant with regard to whether the communication interference will be with federal officers, has no application to § 1512(b)(2)(A) and (B). 498 F.3d at 288. 932 Section 1512(g). See also Perry, 335 F.3d at 322, 323 n.11. 933 United States v. Smith, 723 F.3d 510, 518 (4th Cir. 2013). This standard is derived from the Supreme Court’s decision in Fowler v. United States, 563 U.S. __, 131 S. Ct. 2045 (2011). 934 See United States v. Ramos-Cruz, 667 F.3d 487, 497 (4th Cir. 2012) (adopting Third Circuit evidentiary standard from United States v. Bell, 113 F.3d 1345, 1349 (3d Cir. 1997)). 302 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 306 of 684 TITLE 18 U.S. at __, 131 S. Ct. at 2052. The government is not required to make this showing beyond a reasonable doubt; however, the government must show that “the likelihood of communication to a federal officer was more than remote, outlandish, or simply hypothetical.” Id. In Arthur Andersen LLP v. United States, 544 U.S. 696 (2005), the Supreme Court reversed the § 1512(b) obstruction conviction of Enron’s accounting firm because of erroneous jury instructions. In doing so, the Court held that the mens rea element of “knowingly” applied to the actus reus element of “corruptly persuades” in § 1512(b). The Court pointed out that the Fifth Circuit Pattern Jury Instruction for § 1503 defined “corruptly” as “knowingly and dishonestly, with the specific intent to subvert or undermine the integrity” of a proceeding, and criticized the district court for leaving out “dishonestly.” The instructions were also infirm for leading the jury to believe that it did not have to find any nexus between the “persuasion” and any particular proceeding. The Court said it is one thing to say that a proceeding need not be pending or about to be instituted at the time of the offense and quite another to say a proceeding need not even be foreseen. The Court cited its own opinion in United States v. Aguilar, 515 U.S. 593 (1995), for the proposition that the defendant must know that his actions are likely to affect a proceeding. In this regard, it should be noted that the First Circuit Court of Appeals reversed a conviction and remanded with instructions to dismiss the indictment which did not identify any proceeding in which the defendant was attempting to influence testimony, United States v. Murphy, 762 F.2d 1151, 1154 (1st Cir. 1985), and the Fifth Circuit Court of Appeals requires “at least a circumstantial showing of intent to affect testimony at some particular federal proceeding that is ongoing or is scheduled to be commenced in the future ....” United States v. Shively, 927 F.2d 804, 812-13 (5th Cir. 1991). 017 7/2 7/2 d0 e iew United States v. Floresca, 38 F.3d Sections 1512(b)(1) and (3) are separate crimes. 6, v 706, 710 n.9 (4th Cir. 1994) (en22 banc). -4 796 F.2d 55, 57 (4th Cir. 1986), the defendant harassed a In United States v. Wilson, . 16 witness who had already been excused by the court. The Court ruled that § 1512(b)’s o protection of aN person who has been called to testify at a trial continues throughout the duration of that trial. Regarding official proceedings, the defendant must know that there is an official proceeding, but need not know that it is federal. “[T]he statute required the government only to ‘establish that the defendants had the intent to influence an investigation that happened to be federal.’” Harris, 498 F.3d at 285 (quoting United States v. Perry, 335 F.3d 316, 321 (4th Cir. 2003)), overruled on other grounds by Fowler v. United States, 563 U.S. __, 131 S. Ct. 2045 (2011). Section 1512(b)(3) does not require that communication with federal officers be imminent or that federal officials actually received the misleading information. Perry, 335 F.3d at 322 n.9. In other words, the government need not prove anything more than the federal nature of the offense to which the information in question pertains. Id. at 322 n.10. In United States v. Ashley, 606 F.3d 135, 140 (4th Cir. 2010), the Fourth Circuit quoted the Second Circuit’s opinion in United States v. Brown, 937 F.2d 32, 36 (2d Cir. 1991), for the proposition that in a case of witness retaliation in violation of § 1513, the government need not adduce direct evidence of the defendant’s knowledge of a witness’s informant status in order for the jury to infer his intent to retaliate. 303 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 307 of 684 TITLE 18 The government need not prove the actual commission of a federal offense. United States v. Cobb, 905 F.2d 784, 790 (4th Cir. 1990). A statement may qualify as a threat even if it is never communicated to the victim. Whether a threat was communicated to the victim may affect whether the threat could reasonably be perceived as an expression of genuine intent. United States v. Spring, 305 F.3d 276, 280, 281 (4th Cir. 2002). See NOTES for §§ 871-76 regarding threats. 18 U.S.C. § 1513 RETALIATING AGAINST A WITNESS, VICTIM, OR INFORMANT § 1513(a) Title 18, United States Code, Section 1513(a) makes it a crime to kill or attempt to kill another person with intent to retaliate against any person for being a witness or providing information to a law enforcement officer. For you to find the defendant guilty, the government must prove each of the following beyond a reasonable doubt: P First, that the defendant killed or attempted to kill another person; and P Second, that the defendant did so with the intent to retaliate against any person for 017 7/2 (1) the attendance of a witness or party at an official proceeding, or any testimony given or any record, document, or other object produced by a witness in an official proceeding; or 7/2 d0 e iew ,v (2) providing to a law enforcement officer any information relating to the commission or possible commission of a Federal offense or a violation of conditions of probation, supervised release, parole, or release pending judicial proceedings. 226 6-4 1 o. States Code, Section 1513(b) makes it a crime to retaliate against a Title 18, United N § 1513(b) witness, victim, or informant. For you to find the defendant guilty, the government must prove each of the following beyond a reasonable doubt: P First, that the defendant engaged or attempted to engage in conduct and thereby caused bodily injury to another person or damage to the tangible property of another person, or threatened to do so; P Second, that the defendant did so with the intent to retaliate against any person for (1) the attendance of a witness or party at an official proceeding, or any testimony given or any record, document, or other object produced by a witness in an official proceeding; or (2) any information relating to the commission or possible commission of a federal offense ... given by a person to a law enforcement officer; and P Third, that the defendant did so knowingly. AGGRAVATED PENALTY 1. Did the retaliation occur because of attendance at or testimony in a criminal case? 304 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 308 of 684 TITLE 18 [§ 1513(c)] “Official proceeding” means a proceeding before a judge or court of the United States, a United States magistrate judge, a bankruptcy judge, a judge of the United States Tax Court, a special trial judge of the Tax Court, a judge of the United States Court of Federal Claims, or a Federal grand jury; a proceeding before the Congress; a proceeding before a Federal Government agency which is authorized by law; or a proceeding involving the business of insurance whose activities affect interstate commerce before any insurance regulatory official or agency or any agent or examiner appointed by such official or agency to examine the affairs of any person engaged in the business of insurance whose activities affect interstate commerce. [§ 1515(a)(1)]935 “Physical force” means physical action against another, and includes confinement. [§ 1515(a)(2)] “Misleading conduct” means knowingly making a false statement; intentionally omitting information from a statement and thereby causing a portion of such statement to be misleading, or intentionally concealing a material fact, and thereby creating a false impression by such statement; knowingly submitting or inviting reliance on a sample, specimen, map, photograph, boundary mark, or other object that is misleading in a material respect, with intent to mislead; or knowingly using a trick, scheme, or device with intent to mislead. [§ 1515(a)(3)] 017 7/2 “Law enforcement officer” means an officer or employee of the Federal Government, or a person authorized to act for or on behalf of the Federal Government or serving the Federal Government as an adviser or consultant authorized under law to engage in or supervise the prevention, detection, investigation, or prosecution of an offense; or serving as a [federal] probation or pretrial services officer. [§ 1515(a)(4)]936 7/2 d0 e iew burn, or disfigurement; physical pain; “Bodily injury” means a cut, abrasion, bruise, ,v illness; impairment of the function26 bodily member, organ, or mental faculty; or any of a other injury to the body, no -42 how temporary. [§ 1515(a)(5)] matter 16 o. N____________________NOTE____________________ that venue is United States v. Cofield, 11 F.3d 413, 419 (4th Cir. 1993),which held proper in the district where the official proceeding occurred and may also be proper where the retaliatory acts occurred, has been called into doubt by United States v. Bowens, 224 F.3d 302, 313 (4th Cir. 2000), which held that venue is predicated solely on essential conduct elements. Thus, under Bowens, venue would only be proper where the retaliatory conduct occurred. In United States v. Ashley, 606 F.3d 135, 140 (4th Cir. 2010), the Fourth Circuit quoted the Second Circuit’s opinion in United States v. Brown, 937 F.2d 32, 36 (2d Cir. 1991), in support of the proposition that in a case of witness retaliation, the government need not adduce direct evidence of the defendant’s knowledge of a witness’s informant status in order for the jury to infer his intent to retaliate. 935 “Official proceeding” includes a hearing pursuant to Article 32 of the Uniform Code of Military Justice. United States v. Clift, 834 F.2d 414 (4th Cir. 1987). 936 In United States v. Ashley, 606 F.3d 135 (4th Cir. 2010), the Fourth Circuit assumed for purposes of argument that the appellant was correct “that Section 1513 requires that a defendant know that the officer with whom an informant is communicating is a federal one.” 606 F.3d at 139 n.1. 305 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 309 of 684 TITLE 18 18 U.S.C. § 1516 OBSTRUCTION OF FEDERAL AUDIT Title 18, United States Code, Section 1516 makes it a crime to obstruct a federal auditor in the performance of his duties. For you to find the defendant guilty, the government must prove each of the following beyond a reasonable doubt: P First, that the defendant endeavored to influence, obstruct or impede a federal auditor in the performance of official duties; P Second, that the auditor’s duties related to a person, entity, or program receiving in excess of $100,000, directly or indirectly, from the United States in any one year period under a contract or subcontract, grant, or cooperative agreement, or relating to any property that is security for a mortgage note that is insured, guaranteed, acquired, or held by the Secretary of Housing and Urban Development; and P Third, that the defendant did so with intent to deceive or defraud the United States. ____________________NOTE____________________ See Woldiger v. Ashcroft, 77 F. App’x 586 (3d Cir. 2003) (§ 1516 expressly incorporates fraud or deceit as an element). 18 U.S.C. § 1519 017 7/2 DESTRUCTION OF RECORDS [LAST UPDATED : 5/1/14] 7/2 d0 Title 18, United States Code, Section 1519 makes it a crime to alter, destroy, mutilate, conceal, cover up, falsify, or make a false entry in any record with intent to impede a Federal investigation or bankruptcy. For you to find the defendant guilty, the government must prove each of the following beyond a reasonable doubt: e iew ,v 226 6-4 P First, that the defendant altered, destroyed, mutilated, concealed, covered up, falsified, or made a false entry in any record, document, or tangible object; P Second, that the defendant did so with intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States, or any case filed under [federal bankruptcy laws], or in relation to or contemplation of any [bankruptcy] case; and P Third, that the defendant did so knowingly.937 o. 1 N 18 U.S.C. § 1542 FALSE STATEMENT IN PASSPORT APPLICATION Title 18, United States Code, Section 1542 makes it a crime to make a false statement in an application for a passport, or use a passport obtained with a false statement. For you to find the defendant guilty, the government must prove each of the following beyond a reasonable doubt: ¶1 937 United States v. Powell, 680 F.3d 350, 356 (4th Cir. 2012). See also United States v. Hunt, 526 F.3d 739, 743 (11th Cir. 2008). In Powell, the Fourth Circuit held “that the government need not prove the materiality of the falsification for an offense under 18 U.S.C. § 1519.” Powell, 680 F.3d at 356. 306 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 310 of 684 TITLE 18 P First, that the defendant made a false statement in an application for a passport for his own use or the use of another; P Second, that the defendant did so with intent to induce or secure the issuance of a passport under the authority of the United States and contrary to the laws regulating the issuance of passports or the rules prescribed pursuant to such laws; and P Third, that the defendant did so knowingly and willfully.938 ¶2 P First, that the defendant used or attempted to use, or furnished to another for use; P Second, a passport which was secured by reason of any false statement; and P Third, that the defendant did so knowingly and willfully.939 ADDITIONAL ELEMENTS, IF APPROPRIATE 1. Was the offense committed to facilitate an act of international terrorism [as defined in 18 U.S.C. § 2331]? 2. Was the offense committed to facilitate a drug trafficking crime [as defined in 18 U.S.C. § 929(a)]? 017mens rea 2 In United States v. George, 386 F.3d 383 (2d Cir. 2004), the issue was the requirement of “willfully and knowingly” in the statute. The Second Circuit held the 27/ / “mens rea provision requires that the defendant provide in a7 0 passport application information he or she knows to be false.” 386 F.3d ed The government does not have at 386. to prove that the defendant acted “with a specific purpose to make false statements or to iew violate the law, either generally or § 1542 specifically.” Id. at 389. 6, v 2 The crime is complete -42one makes a statement one knows is untrue to procure a when passport. Good or bad 16 are irrelevant. United States v. O’Bryant, 775 F.2d 1528, motives o. 1535 (11th Cir. 1985). N ____________________NOTE____________________ In United States v. Jean-Baptiste, 166 F.3d 102, 111 (2d Cir. 1999), the Second Circuit found that [this] section contains no language stating that the person making the false statement ‘with intent to induce or secure the issuance of a passport’ ... must simultaneously have the intent to use the passport. We read the words ‘for his own use or the use of another,’ ... as reflecting Congress’s intent simply to encompass false statements in any passport application, regardless of the name in which the passport is to be issued and regardless of the identity of the passport’s prospective user. 938 United States v. George, 386 F.3d 383, 397 (2d Cir. 2004). In Browder v. United States, 312 U.S. 335 (1941), the Supreme Court, in construing the predecessor statute, said that fraudulent use is not an element of the crime. “The crime of ‘use’ is complete when the passport so obtained is used willfully and knowingly.... Once the basic wrong under this passport statute is completed, that is the securing of a passport by a false statement, any intentional use of that passport in travel is punishable.” 312 U.S. at 341. 939 307 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 311 of 684 TITLE 18 166 F.3d at 111. This statute penalizes both procuring the passport by a false statement and its use when so procured. Id. Intent to violate the law is not an element of § 1542. George, 386 F.3d at 398. Intent to defraud is not an element of § 1542. Id. See also Liss v. United States, 915 F.2d 287, 293 (7th Cir. 1990). Entrapment by estoppel can be used as a defense to a charge under § 1542. George, 386 F.3d at 400. Paragraph 1 is a point-time-offense, which can be prosecuted at the place of the false statement but not at some different place where the passport application is processed. United States v. Salinas, 373 F.3d 161, 169 (1st Cir. 2004). For paragraph 2, venue would lie where the passport is used. The Salinas court did not have the “use” proscriptions before it. Id. at 165 n.2. 18 U.S.C. § 1546 FRAUD AND MISUSE OF VISA Title 18, United States Code, Section 1546 makes it a crime to counterfeit visas or make a false statement in an application for a visa. For you to find the defendant guilty, the government must prove each of the following beyond a reasonable doubt: 017 7/2 § 1546(a) 7/2 d0 ¶1 e iew ,v First clause P First, that the defendant forged, counterfeited, altered, or falsely made; P Second, any immigrant or nonimmigrant visa, permit, border crossing card, alien registration receipt card, or other document prescribed by statute or regulation for entry into or as evidence of authorized stay or employment in the United States; and P o. 1 N 226 6-4 Third, that the defendant did so knowingly. Second clause P First that the defendant uttered, used, attempted to use, possessed, obtained, accepted, or received; P Second, an immigrant or nonimmigrant visa, permit, border crossing card, alien registration receipt card, or other document prescribed by statute or regulation for entry into or as evidence of authorized stay or employment in the United States which had been forged, counterfeited, altered, or falsely made; and P Third, that the defendant knew the immigrant or nonimmigrant visa, permit, border crossing card, alien registration receipt card, or other document prescribed by statute or regulation for entry into or as evidence of authorized stay or employment in the United States had been forged, counterfeited, altered, or falsely made.940 940 308 See United States v. Ryan-Webster, 353 F.3d 353, 359 (4th Cir. 2003). Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 312 of 684 TITLE 18 ¶2 P First, that the defendant possessed a blank permit, or engraved, sold, brought into the United States, or had in his control or possession any plate in the likeness of a plate designed for the printing of permits, or made any print, photograph, or impression in the likeness of any immigrant or nonimmigrant visa, permit, or other document required for entry into the United States, or had in his possession a distinctive paper which had been adopted by the Attorney General or the Bureau of Immigration and Customs Enforcement for the printing of such visas, permits, or documents; and P Second, that the defendant did so knowingly. ¶3 First clause P First, that the defendant applied for an immigrant or nonimmigrant visa, permit, or other document required for entry into the United States, or for admission to the United States; and P Second, that in doing so, the defendant impersonated another, or falsely appeared in the name of a deceased individual, or evaded or attempted to evade the immigration laws by appearing under an assumed or fictitious name without disclosing his true identity. 017 7/2 7/2 d0 Second clause P First, that the defendant sold or otherwise disposed of, or offered to sell or otherwise dispose of, or uttered to any person not authorized by law to receive; P Second, an immigrant or nonimmigrant visa, permit, or other document required for entry into the United States, or for admission to the United States which had been obtained by impersonating another, or falsely appearing in the name of a deceased individual, or evading or attempting to evade the immigration laws by appearing under an assumed or fictitious name without disclosing one’s true identity; and e iew ,v o. 1 N P 226 6-4 Third, that the defendant did so knowingly. ¶4 First clause P First, that the defendant made a false statement in an immigration document; P Second, that the false statement was made in an application required by the immigration laws or regulations of the United States; P Third, that the false statement was made under oath; P Fourth, that the false statement was material to the activities or decisions of the Bureau of Immigration and Customs Enforcement; and P Fifth, that the defendant did so knowingly.941 There are no particular formalities required for there to be a valid oath. It is 941 See United States v. O’Connor, 158 F. Supp. 2d 697, 720 (E.D. Va. 2001) (citing United States v. Chu, 5 F.3d 1244, 1247 (9th Cir. 1993)). 309 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 313 of 684 TITLE 18 sufficient for the government to prove that, in the presence of a person authorized to administer an oath, the person taking the oath consciously took on himself the obligation of an oath by an unequivocal act, and the person undertaking the oath understood that what was done is proper for the administration of the oath and all that is necessary to complete the act of swearing.942 Second clause P First, that the defendant presented an application, affidavit, or other document required by the immigration laws or regulations of the United States; P Second, that the application, affidavit, or other document contained a false statement which was material, or which failed to contain any reasonable basis in law or fact; and P Third, that the defendant did so knowingly. § 1546(b) P First, that the defendant used one of the following: (1) an identification document, knowing or having reason to know, that the document was not issued lawfully for the use of the possessor, (2) an identification document, knowing or having reason to know, that the document was false, or 017 7/2 (3) a false attestation; and P 7/2 d0 Second, that the defendant did so for the purpose of satisfying a requirement of section 274A(b) of the Immigration and Nationality Act. e iew ,v A statement is material if it has a natural tendency to influence, or is capable of influencing, the decision-making body to which it was addressed. It is irrelevant whether the false statement actually influenced or affected the decision-making process of the agency or fact finding body. A false statement’s capacity to influence must be measured at the point in time that the statement was made.943 o. 1 N 226 6-4 To establish that a statement was false, the government must negate any reasonable interpretation that would make the defendant’s statement factually correct.944 18 U.S.C. § 1591 SEX TRAFFICKING OF CHILDREN Title 18, United States Code, Section 1591 makes it a crime to recruit, entice, or transport a minor in interstate commerce or to benefit financially from participation in a venture which recruits, entices, or transports minors to engage in commercial sex acts. For you to find the defendant guilty, the government must prove each of the following beyond a reasonable doubt: § 1591(a)(1) 942 Chu, 5 F.3d 1244 at 1248 (quoting United States v. Yoshida, 727 F.2d 822, 823 (9th Cir. 1983)). 943 United States v. Sarihifard, 155 F.3d 301, 307 (4th Cir. 1998). United States v. Anderson, 579 F.2d 455, 460 (8th Cir. 1978). See also United States v. Race, 632 F.2d 1114 (4th Cir. 1980). 944 310 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 314 of 684 TITLE 18 P First, that the defendant recruited, enticed, harbored, transported, provided, obtained, or maintained by any means a person [or attempted to do so, § 1594] P Second, that the defendant did so in or affecting interstate or foreign commerce, or within the special maritime and territorial jurisdiction of the United States; and P Third, that the defendant knew, or recklessly disregarded the fact, that means of force, threats of force, fraud, coercion, or any combination of these, would be used to cause the person to engage in a commercial sex act; OR P Third, that the defendant knew, or recklessly disregarded the fact, that the person had not attained the age of 18 years and would be caused to engage in a commercial sex act.945 § 1591(a)(2) P First, that the defendant knowingly benefitted, financially or by receiving anything of value, from participating in a venture [or attempted to do so, § 1594]; P Second, that the venture recruited, enticed, harbored, transported, provided, or obtained by any means a person; P Third, that this conduct of the venture was in or affecting interstate or foreign commerce, or within the special maritime and territorial jurisdiction of the United States; and 017 7/2 7/2 0 P Fourth, that the defendant knew, or recklessly disregarded the fact, that means of edcombination of these, would be force, threats of force, fraud, coercion,w any e commercial sex act; viin a or used to cause the person to engage , 226 OR 4 P Fourth, that the defendant knew, or recklessly disregarded the fact, that the 16. person had not attained the age of 18 years and would be caused to engage in a No sex act. commercial 946 “Coercion” means (A) threats of serious harm to or physical restraint against any person; (B) any scheme, plan, or pattern intended to cause a person to believe that failure to perform an act would result in serious harm to or physical restraint against any person; or (C) the abuse or threatened abuse of law or the legal process. [§ 1591(e)(2)] “Abuse or threatened abuse of law or legal process” means the use or threatened use of a law or legal process, whether administrative, civil, or criminal, in any manner or for any purpose for which the law was not designed, in order to exert pressure on another person to cause that person to take some action or refrain from taking some action. [§ 1591(e)(1)] “Commercial sex act” means any sex act, on account of which anything of value is 945 946 See United States v. Wild, 143 F. App’x 938 (10th Cir. 2005). See id. 311 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 315 of 684 TITLE 18 given to or received by any person. [§ 1591(e)(3)] “Serious harm” means any harm, whether physical or nonphysical, including psychological, financial, or reputational harm, that is sufficiently serious, under all the surrounding circumstances, to compel a reasonable person of the same background and in the same circumstances to perform or to continue performing commercial sexual activity in order to avoid incurring that harm. [§ 1591(e)(4)] “Venture” means any group of two or more individuals associated in fact, whether or not a legal entity. [§ 1591(e)(5)] ADDITIONAL ELEMENTS [§ 1591(b)] 1. Was the offense effected by means of force, threats of force, fraud, or coercion, or by any combination of such means? [§ 1591(b)(1)] 2. Second, was the person recruited, enticed, harbored, transported, provided, or obtained younger than the age of 14 years at the time of the offense? [§ 1591(b)(2)] 18 U.S.C. § 1621 PERJURY Title 18, United States Code, Section 1621 makes it a crime to commit perjury. For you to find the defendant guilty, the government must prove each of the following beyond a reasonable doubt: P P P P P 017 First, that the defendant testified, or subscribed any written /2 testimony, declaration, deposition, or certificate; 27 07/ or under penalty of Second, that the defendant did so, having taken an oath d perjury; we e Third, that the testimony, declaration, deposition, or certificate was false; , vi Fourth, that the false testimony, declaration, deposition, or certificate was 226 4 material; and 61 . Fifth, that the defendant knew that the testimony, declaration, deposition, or Nowas false, that is, it did not result from confusion or mistake but was certificate intended to deceive.947 A statement is material if it has a natural tendency to influence, or is capable of influencing, the decision-making body to which it was addressed. It is irrelevant whether the false statement actually influenced or affected the decision-making process of the agency or fact finding body. A false statement’s capacity to influence must be measured at the point in time that the statement was made.948 To establish that a statement was false, the government must negate any reasonable interpretation that would make the defendant’s statement factually correct.949 There are no particular formalities required for there to be a valid oath. It is sufficient for the government to prove that, in the presence of a person authorized to 947 See United States v. Dunnigan, 507 U.S. 87 (1993); United States v. Stotts, 113 F.3d 493 (4th Cir. 1997); United States v. Smith, 62 F.3d 641 (4th Cir. 1995). 948 United States v. Sarihifard, 155 F.3d 301, 307 (4th Cir. 1998). 949 Anderson, 579 F.2d at 460. See also Race, 632 F.2d 1114. 312 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 316 of 684 TITLE 18 administer an oath, the person taking the oath consciously took on himself the obligation of an oath by an unequivocal act, and the person undertaking the oath understood that what was done is proper for the administration of the oath and all that is necessary to complete the act of swearing.950 Perjury must be proved by the direct testimony of two witnesses or one witness corroborated by independent evidence.951 ____________________NOTE____________________ See generally United States v. Wilkinson, 137 F.3d 214, 226 (4th Cir. 1998) (en banc); United States v. Friedhaber, 856 F.2d 640, 642 (4th Cir. 1988) (en banc). An answer, literally true but not responsive to the question asked and arguably misleading by negative implication, does not constitute perjury. Bronston v. United States, 409 U.S. 352 (1973). Answers under oath are not to be measured by the same standards applicable to criminally fraudulent statements, which may clearly include so-called halftruths. This statute “is not to be loosely construed, nor ... invoked simply because a wily witness succeeds in derailing the question — so long as the witness speaks the literal truth. The burden is on the questioner to pin the witness down to the specific object of the questioner’s inquiry.” Id. at 360. Precise questioning is imperative as a predicate for the offense of perjury. See also United States v. Earp, 812 F.2d 917, 918 (4th Cir. 1987) (a § 1623 prosecution). 017 found In United States v. Carson, 464 F.2d 424 (2d Cir. 1972), the Second Circuit 2 that 27/ 07/ assumption on the [t]he “natural effect or tendency” obviously flows from an d part of the speaker that the tribunal will believe what he says. On this basis wewords said only by the accused ie materiality refers to the connection between the , vother testimony which the grand jury has and the objective of the investigation; 226 heard, except as it may tend to delimit the objective of the inquiry, is therefore 4 irrelevant to a determination of materiality. And we think it equally obvious that 16had appellant’s.false statements been believed, the natural effect would have No been to impede the grand jury’s investigation. 464 F.2d at 436. Multiple false statements charged in a single count may require a special unanimity instruction. In United States v. Holley, 942 F.2d 916, 925-29 (5th Cir. 1991), the Fifth Circuit concluded that the indictment was duplicitous for charging in one count multiple false statements which could be proven only by showing distinct facts. The court reversed the conviction because the district court did not give a special unanimity instruction. In United States v. Sarihifard, 155 F.3d 301, 310 (4th Cir. 1998), the trial judge instructed the jury that “each member had to agree unanimously on one of the instances of conduct.” In United States v. Adams, 335 F. App’x 338 (4th Cir. 2009), the district court instructed the jury as follows: The government is not required to prove that all of these statements that are 950 United States v. Yoshida, 727 F.2d 822, 823 (9th Cir. 1983). The so-called “two witness” rule. See United States v. Beach, 296 F.2d 153, 155 (4th Cir. 1961); Hammer v. United States, 271 U.S. 620, 626 (1926). 951 313 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 317 of 684 TITLE 18 alleged in Counts Five and Six as false are in fact false. Each juror must agree, however, with each of the other jurors that the same statement or representation is in fact false, fictitious, or fraudulent. The jury need not unanimously agree on each such statement alleged, but in order to convict, must unanimously agree upon at least one such statement as false, fictitious, or fraudulent when knowingly made or used by the defendant. 335 F.App’x at 347-48. See also O’Malley, Grenig & Lee, Federal Jury Practice and Instructions § 40.15 (5th ed. 2000): Each juror must agree with each of the other jurors that the same statement or representation, alleged to be false, fictitious, or fraudulent, is in fact false, fictitious, or fraudulent. The jury need not unanimously agree on each such statement alleged, but, in order to convict, must unanimously agree upon at least one such statement as false, fictitious or fraudulent when knowingly made or used by the defendant. 18 U.S.C. § 1622 SUBORNATION OF PERJURY 017 7/2 Title 18, United States Code, Section 1622 makes it a crime to procure another person to commit perjury. For you to find the defendant guilty, the government must prove each of the following beyond a reasonable doubt: 7/2 d0 P First, that a person testified, or subscribed any written testimony, declaration, deposition, or certificate; P Second, that this person did so, having taken an oath or under penalty of perjury; P P P we iedeposition, or certificate was false; v Third, that the testimony, declaration, 6, declaration, deposition, or certificate was 2 Fourth, that the false testimony, -42 material; . 16 knew that the testimony, declaration, deposition, or Fifth,Nothe person that certificate was false, that is, it did not result from confusion or mistake but was intended to deceive;952 and P Sixth, that the defendant procured this person to commit perjury. A statement is material if it has a natural tendency to influence, or is capable of influencing, the decision-making body to which it was addressed. It is irrelevant whether the false statement actually influenced or affected the decision-making process of the agency or fact finding body. A false statement’s capacity to influence must be measured at the point in time that the statement was made.953 To establish that a statement was false, the government must negate any reasonable interpretation that would make the defendant’s statement factually correct.954 952 See United States v. Dunnigan, 507 U.S. 87 (1993); United States v. Stotts, 113 F.3d 493 (4th Cir. 1997); United States v. Smith, 62 F.3d 641 (4th Cir. 1995). 953 United States v. Sarihifard, 155 F.3d 301, 307 (4th Cir. 1998). 954 United States v. Anderson, 579 F.2d 455, 460 (8th Cir. 1978). See also United States v. Race, 632 F.2d 1114 (4th Cir. 1980). 314 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 318 of 684 TITLE 18 There are no particular formalities required for there to be a valid oath. It is sufficient for the government to prove that, in the presence of a person authorized to administer an oath, the person taking the oath consciously took on himself the obligation of an oath by an unequivocal act, and the person undertaking the oath understood that what was done is proper for the administration of the oath and all that is necessary to complete the act of swearing.955 The government must prove actual perjury.956 ____________________NOTE____________________ Regarding perjury, see United States v. Wilkinson, 137 F.3d 214, 226 (4th Cir. 1998) (en banc), and United States v. Friedhaber, 856 F.2d 640, 642 (4th Cir. 1988) (en banc). Subornation of perjury does not require corroboration. United States v. Giddins, 273 F.2d 843, 844 (2d Cir. 1960). 18 U.S.C. § 1623 FALSE DECLARATIONS BEFORE GRAND JURY OR COURT Title 18, United States Code, Section 1623 makes it a crime to testify falsely before a grand jury or court. For you to find the defendant guilty, the government must prove each of the following beyond a reasonable doubt: 017 7/2 P First, that the defendant testified under oath before a federal grand jury or in a proceeding before or ancillary to any court of the United States; P Second, that the testimony was false; P Third, that the defendant acted knowingly, that is to say, the defendant knew the testimony was false — it did not result from confusion or mistake but was intended to deceive the fact finder;957 and 7/2 d0 e iew ,v 226 was material. 4 P Fourth, that the false testimony 16-if it has a natural tendency to influence, or is capable of . A statement omaterial Nis of the body to which it was addressed. It is irrelevant whether influencing, the decision 958 the false statement actually influenced or affected the decision-making process. The capacity to influence must be measured at the point in time that the statement was made.959 To establish that a statement was false, the government must negate any reasonable interpretation that would make the defendant’s statement factually correct.960 There are no particular formalities required for there to be a valid oath. It is 955 United States v. Yoshida, 727 F.2d 822, 823 (9th Cir. 1983). United States v. Hairston, 46 F.3d 361, 376 (4th Cir. 1995). 957 United States v. Stotts, 113 F.3d 493 (4th Cir. 1997); United States v. Dunnigan, 507 U.S. 87 (1993); United States v. Smith, 62 F.3d 641 (4th Cir. 1995). 958 United States v. Wilkinson, 137 F.3d 214, 224 (4th Cir. 1998) (en banc); United States v. Friedhaber, 856 F.2d 640, 642 (4th Cir. 1988) (en banc). 959 United States v. Sarihifard, 155 F.3d 301, 306 (4th Cir. 1998). 960 United States v. Anderson, 579 F.2d 455, 460 (8th Cir. 1978). See also United States v. Race, 632 F.2d 1114 (4th Cir. 1980). 956 315 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 319 of 684 TITLE 18 sufficient for the government to prove that, in the presence of a person authorized to administer an oath, the person taking the oath consciously took on himself the obligation of an oath by an unequivocal act, and the person undertaking the oath understood that what was done is proper for the administration of the oath and all that is necessary to complete the act of swearing.961 “Ancillary to any court or grand jury of the United States” requires a degree of formality, such as a court order authorizing the proceeding, formal notice of the proceeding, and certifying any resulting document as accurate.962 ____________________NOTE____________________ United States v. Wilkinson, 137 F.3d 214, 224-25 (4th Cir. 1998) (en banc); United States v. Friedhaber, 856 F.2d 640, 642 (4th Cir. 1988) (en banc). An answer, literally true but not responsive to the question asked and arguably misleading by negative implication, does not constitute perjury. See Bronston v. United States, 409 U.S. 352 (1973). Answers under oath are not to be measured by the same standards applicable to criminally fraudulent statements, which may clearly include socalled half-truths. “[T]he perjury statute is not to be loosely construed, nor the statute invoked simply because a wily witness succeeds in derailing the question-so long as the witness speaks the literal truth. The burden is on the questioner to pin the witness down to the specific object to the questioner’s inquiry.” Id. at 360. Precise questioning is imperative as a predicate for the offense of perjury. See also United States v. Earp, 812 F.2d 917, 918 (4th Cir. 1987). 017 7/2 7/2 d0 e iew ,v Perjury entrapment occurs when a government agent coaxes a defendant to testify under oath for the sole purpose of eliciting perjury. United States v. Sarihifard, 155 F.3d 301, 308 (4th Cir. 1998). See also United States v. Shuck, 895 F.2d 962, 966 (4th Cir. 1990). 226 6-4 See separate instruction on Entrapment under Defenses. o. 1 N Multiple false statements charged in a single count may require a special unanimity instruction. In United States v. Holley, 942 F.2d 916, 925-29 (5th Cir. 1991), the Fifth Circuit concluded that the indictment was duplicitous for charging in one count multiple false statements which could be proven only by showing distinct facts. The court reversed because the district court did not give a special unanimity instruction. In United States v. Sarihifard, 155 F.3d 301, 310 (4th Cir. 1998), the trial judge did instruct the jury that “each member had to agree unanimously on one of the instances of conduct.” In United States v. Adams, 335 F. App’x 338 (4th Cir. 2009), the district court instructed the jury as follows: The government is not required to prove that all of these statements that are alleged in Counts Five and Six as false are in fact false. Each juror must agree, however, with each of the other jurors that the same statement or representation is in fact false, fictitious, or fraudulent. The jury need not unanimously agree on each such statement alleged, but in order to convict, must unanimously agree 961 United States v. Yoshida, 727 F.2d 822, 823 (9th Cir. 1983). In Dunn v. United States, 442 U.S. 100 (1979), an inconsistently false statement was given under oath in a lawyer’s office. The Supreme Court held that § 1623 should not encompass “statements made in contexts less formal than a deposition.” 442 U.S. at 113. 962 316 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 320 of 684 TITLE 18 upon at least one such statement as false, fictitious, or fraudulent when knowingly made or used by the defendant. 335 F.App’x at 347-48. See also O’Malley, Grenig & Lee, Federal Jury Practice and Instructions § 40.15 (5th ed. 2000): Each juror must agree with each of the other jurors that the same statement or representation, alleged to be false, fictitious, or fraudulent, is in fact false, fictitious, or fraudulent. The jury need not unanimously agree on each such statement alleged, but, in order to convict, must unanimously agree upon at least one such statement as false, fictitious or fraudulent when knowingly made or used by the defendant. In United States v. Razo-Leora, 961 F.2d 1140 (5th Cir. 1992), the defendant was charged in a single count with making two distinct false statements to the grand jury, one concerning a vehicle and the other concerning a weapon. The Fifth Circuit found the count was multiplicitous, but the defendant had waived the error. See § 1623(c) concerning “two or more declarations, which are inconsistent to the degree that one of them is necessarily false.” 017Fourth In United States v. Wilkinson, 137 F.3d 214 (4th Cir. 1998) (en /2 the 7banc), Circuit observed that the normal articulation of the materiality/2 7 standard did not by the 0 necessarily fit a civil deposition. The court cited and discussed standards adopted ed because the statement in Second Circuit and the Sixth and Ninth Circuits. However, ew question was made at a deposition the court i v determined that “it is not necessary in this case that we decide which among these standards we would adopt for our circuit.” 137 26, 2 F.3d at 224. 6-4 1 o.PIRACY [L U 18 U.S.C. § 1651 : 7/9/14] N See § 1623(d) concerning recantation defense. Section 1623(e) removed the “two witness” rule of § 1621. AST PDATED Title 18, United States Code, Section 1651, makes it a crime to commit piracy on the high seas. For you to find the defendant guilty, the government must prove each of the following beyond a reasonable doubt: P First, that the defendant committed an act of piracy as defined by the law of nations; P Second, that the defendant did so on the high seas; and P Third, that afterwards the defendant was brought into or found in the United States.963 Piracy includes any of the following three actions: (1) any illegal acts of violence or detention or any act of depredation committed for private ends on the high seas or a place outside the jurisdiction of any state by the crew or the passengers of a private ship and directed against another ship or against 963 United States v. Dire, 680 F.3d 446, 451 (4th Cir. 2012). 317 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 321 of 684 TITLE 18 persons or property on board such ship; or (2) any act of voluntary participation in the operation of a ship with knowledge of facts making it a pirate ship; or (3) any act of inciting or of intentionally facilitating an act described in either (1) or (2) above.964 The term “high seas” means “all parts of the sea that are not included in the exclusive economic zone, in the territorial sea or in the internal waters of a State, or in the archipelagic waters of an archipelagic State.”965 ____________________NOTE____________________ In United States v. Dire, 680 F.3d 446, 469 (4th Cir. 2012), the Fourth Circuit stated that “Congress intended in § 1651 to define piracy as a universal jurisdiction crime.” Thus, § 1651 “incorporates a definition of piracy that changes [or evolves] with advancements in the law of nations.” Id. Venue is proper for piracy offenses “in the district in which the offender, or any one of two or more joint offenders, is arrested or is first brought.” 18 U.S.C. § 3238. A defendant charged with aiding and abetting the crime of piracy does not have to commit acts on the high seas. Rather, the conduct “must incite or intentionally facilitate acts committed against ships, persons, and property on the high seas.” United States v. Shibin, 722 F.3d 233, 241 (4th Cir. 2013). 017 7/2 7/2 0 18 U.S.C. § 1702 OBSTRUCTION OF CORRESPONDENCE edit a crime to obstruct Title 18, United States Code, Section 1702w makes ieguilty, the government must prove each of correspondence. For you to find the defendant ,v the following beyond a reasonable26 doubt: 2 P First, that the defendant took a letter, postal card, or package out of any post 6-4 office or authorized depository for mail matter, from any letter or mail carrier, or .1 obeen in any post office or authorized depository, or in the custody of which had N any letter or mail carrier; P Second, that the letter, postal card, or package was taken before it had been delivered to the person to whom it was directed; and P Third, that the defendant did so with design to obstruct the correspondence, or to pry into the business or secrets of another.966 OR P Third, that the defendant opened, secreted, embezzled, or destroyed the letter, postal card, or package. 964 Id. at 465 (quoting district court’s jury instructions). United States v. Shibin, 722 F.3d 233, 241 (4th Cir. 2013) (quoting the United Nations Convention on the Law of the Sea art. 86, opened for signature Dec. 10, 1982, 1833 U.N.T.S. 397, 432 (entered into force Nov. 16, 1994)). 966 United States v. Ashford, 530 F.2d 792, 798 (8th Cir. 1976). 965 318 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 322 of 684 TITLE 18 ____________________NOTE____________________ Protection of mailed material from obstruction and delay does not end when the material passes legitimately out of the control of the United States Postal Service, but extends until the mailed material is physically delivered to the person to whom it is directed or to his authorized agent. United States v. Johnson, 620 F.2d 413, 415 (4th Cir. 1980). Thus, § 1702 is broader than § 1708, which is limited to mail in the possession of the Postal Service. United States v. Ashford, 530 F.2d 792, 795-96 (8th Cir. 1976). In United States v. Brusseau, 569 F.2d 208, 209 (4th Cir. 1977), the defendant had introduced no evidence that any specific addressees had authorized him to receive their mail. The Fourth Circuit found that in the absence of an express or implied direction, the defendant was not an authorized agent within the terms of § 1702. 18 U.S.C. § 1708 THEFT OF MAIL/POSSESSION OF STOLEN MAIL Title 18, United States Code, Section 1708 makes it a crime to steal mail, or possess stolen mail. For you to find the defendant guilty, the government must prove each of the following beyond a reasonable doubt: ¶1 P 017 P Second, any letter, postal card, package, bag, or mail; and /2 27 P Third, from or out of any mail, post office, or station,/letter box, mail receptacle, 7mail matter, or from a letter or any mail route or other authorized depository 0 ed for or mail carrier. w vie OR 26, or removed any article or thing from any 2 P First, that the defendant abstracted letter, package, bag, or mail; 6-4 1 o. the letter, package, bag, or mail had been stolen from or out of any P Second, that N mail, post office, or station, letter box, mail receptacle, or any mail route or other First, that the defendant stole, took, abstracted, or obtained by fraud or deception, or attempted to obtain by fraud or deception; authorized depository for mail matter, or from a letter or mail carrier; and P Third, that the defendant did so knowingly. OR P First, that the defendant secreted, embezzled, or destroyed any letter, package, bag, or mail, or any article or thing from any letter, package, bag, or mail; P Second, that the letter, package, bag, or mail had been stolen from or out of any mail, post office, or station, letter box, mail receptacle, or any mail route or other authorized depository for mail matter, or from a letter or mail carrier; and P Third, that the defendant did so knowingly. ¶2 P First, that the defendant stole, took, abstracted, or obtained by fraud or deception; P Second, any letter, postal card, package, bag, or mail, or any article contained in any letter, package, bag, or mail; and 319 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 323 of 684 TITLE 18 P Third, that the letter, postal card, package, bag, or mail had been left for collection upon or adjacent to a collection box or other authorized depository of mail matter. ¶3 P First, that the defendant bought, received, concealed, or possessed; P Second, an item that had been stolen from the mail or a mail receptacle; and P Third, that the defendant knew that the item was stolen.967 “Embezzle” means the deliberate taking or retaining of the property of another with the intent to deprive the owner of its use or benefit by a person who has lawfully come into the possession of the property. The lawful possession need not be acquired through a relationship of trust.968 Steal means the wrongful and dishonest taking of property with the intent to deprive the owner, temporarily or permanently, of the rights and benefits of ownership.969 To possess an item or property means to exercise control or authority over the item or property, voluntarily and intentionally. Possession may be either sole, by the defendant alone, or joint, that is, it may be shared with other persons, as long as the defendant exercised control or authority over the item or property. Possession may be either actual or constructive. 017 7/2 7/2 d0 Actual possession is knowingly having direct physical control or authority over the item or property. e iew ,v Constructive possession is when a person does not have direct physical control or authority, but has the power and the intention to exercise control or authority over the item or property, sometimes through another person.970 226 6-4 967 o. 1v. Gilmore, No. 88-5088, 1989 W L 37425 (4th Cir. Apr. 4, 1989) (citing N United States United States v. Douglas, 668 F.2d 459, 461 (10th Cir. 1982)). In Douglas, the mail was delivered to an old address. The new occupant “clothes-pinned” the mail, unopened, to a metal rod attached to the mailbox. The Tenth Circuit held “the theft of an envelope clipped to a rod which is permanently attached to a mailbox falls within the purview of the statute.” But see United States v. Mendez, 117 F.3d 480, 487 (11th Cir. 1997) (defendant must have specific intent to possess stolen mail unlawfully); United States v. Osunegbu, 822 F.2d 472, 475 (5th Cir. 1987) (same). 968 United States v. Smith, 373 F.3d 561, 565 (4th Cir. 2004). Lawful possession need not be acquired through a relationship of trust. M oore v. United States, 160 U.S. 268, 269-70 (1895). “Embezzlement is the fraudulent appropriation of property by a person to whom such property has been intrusted, or into whose hands it has lawfully come.” Id. at 269. “[W ]here Congress has thought a particular capacity or relationship to be a necessary element of embezzlement in a given circumstance, it has specified as such.” Smith, at 566. 969 In United States v. Turley, 353 U.S. 407, 411 (1957), the Supreme Court held that “the meaning of the federal statute should not be dependent on state law” and defined “stolen” to include “all felonious takings of [property] with intent to deprive the owner of the rights and benefits of ownership, regardless of whether or not the theft constitutes common-law larceny.” Id. at 417. See also Morissette v. United States, 342 U.S. 246, 271 (1952). 970 “W hen the government seeks to establish constructive possession under § 922(g)(1), it must prove that the defendant intentionally exercised dominion and control over the firearm, or had 320 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 324 of 684 TITLE 18 Constructive possession can be established by evidence, either direct or circumstantial, showing control or authority over the item or property itself, or the premises, vehicle, or container where the item or property is, such that a person exercises or has the power and intention to exercise control or authority over that item or property.971 Proof of constructive possession requires proof the defendant had knowledge of the presence of the item or property.972 A defendant’s mere presence at, or joint tenancy of, a location where an item is found, or his mere association with another person who possesses that item, is not sufficient to establish constructive possession. However, proximity to the item coupled with actual or inferred knowledge of its presence may be sufficient proof to establish constructive possession. Constructive possession does not require proof that the defendant actually owned the property on which the item was found.973 Possession of recently stolen property, if not satisfactorily explained, is ordinarily a circumstance from which you may reasonably draw the inference and find, in the light of the surrounding circumstances shown by the evidence in the case, that the person in possession [participated in some way in the theft of the property974 or] knew the property had been stolen. [The same inference may reasonably be drawn from a false explanation of such possession.]975 However, you are never required to make this inference. It is the exclusive province of the jury to determine whether the facts and circumstances shown by the evidence in this case warrant any inference which the law permits the jury to draw from the possession of recently stolen property. The term “recently” is a relative term, and has no fixed meaning. Whether property may be considered as recently stolen depends upon the nature of the property, and all the facts and circumstances shown by the evidence in the case. The longer the period of time since the theft the more doubtful becomes the inference which may reasonably be drawn from unexplained possession. In considering whether possession of recently stolen property has been satisfactorily explained, you are reminded that in the exercise of constitutional rights the defendant need not take the witness stand and testify. Possession may be satisfactorily explained 017 7/2 7/2 d0 e iew ,v o. 1 N 226 6-4 the power and the intention to exercise dominion and control over the firearm. Constructive possession of the firearm must also be voluntary. Our juries should be instructed accordingly.” United States v. Scott, 424 F.3d 431, 435-36 (4th Cir. 2005). “[I]t would have been better for the district court to have repeated the intent requirement close to its definition of constructive possession.” Id. at 436. See also United States v. Herder, 594 F.3d 352 (4th Cir. 2010). 971 Scott, 424 F.3d at 435-36; United States v. Shorter, 328 F.3d 167, 172 (4th Cir. 2003) (quoting United States v. Jackson, 124 F.3d 607, 610 (4th Cir. 1997)); United States v. Gallimore, 247 F.3d 134, 137 (4th Cir. 2001). See also United States v. Pearce, 65 F.3d 22, 26 (4th Cir. 1995) (citations omitted). 972 Herder, 594 F.3d at 358. 973 See Shorter, 328 F.3d 167 (contraband found in defendant’s residence permitted inference of constructive possession; inference bolstered by evidence that contraband was in plain view or material associated with contraband found in closet of bedroom where defendant’s personal papers located). See also United States v. Rusher, 966 F.2d 868, 878 (4th Cir. 1992) (mere presence on the premises or association with the possessor is insufficient to establish possession). See Herder, 594 F.3d at 358, for discussion of “mere proximity” instruction. 974 United States v. Long, 538 F.2d 580, 581 n.1 (4th Cir. 1976). 975 Id. 321 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 325 of 684 TITLE 18 through other circumstances, other evidence, independent of any testimony of the defendant.976 You may infer that the defendant knew the property was stolen from circumstances that would convince a person of ordinary intelligence that such was the fact. In deciding whether the defendant knew the property was stolen, you should consider the entire conduct of the defendant that you deem relevant and which occurred at or near the time the offenses are alleged to have been committed. Sale and purchase at a substantially discounted price permits, but does not require, an inference that the defendant knew the property was stolen.977 The law never imposes on a defendant the burden of testifying or of explaining possession, and it is the jury’s province to draw or reject any inference from possession.978 If you find that the letter or its contents was stolen from the mail before delivery to the addressee, and that while recently stolen the letter or its contents was in the possession of the defendant, you may infer that such possession was with knowledge that it had been stolen, unless other facts and circumstances lead you to a contrary conclusion.979 The government must prove that the defendant knew the item he possessed was stolen, but the government does not have to prove that the defendant knew it was stolen from the mail.980 017 7/2 ____________________NOTE____________________ Only one possession of stolen mail offense occurs when two packages are stolen at the same time. United States v. Osunegbu, 822 F.2d 472, 481 (5th Cir. 1987). 7/2 0 18 U.S.C. § 1709 THEFT OF MAIL BY POSTAL EMPLOYEE ed w Title 18, United States Code, Sectionvie makes it a crime for a postal employee to 1709 steal mail. For you to find the defendant guilty, the government must prove each of the 26, 2 following beyond a reasonable doubt: 6-4 First clause . 1 o P First,N the defendant was an employee of the Postal Service; that P Second, that a letter, postal card, package, bag, or mail, or thing contained in such mail came into his possession intended to be conveyed by mail, or carried or delivered by mail; and P Third, that the defendant embezzled the letter, postal card, package, bag, or mail.981 Second clause 976 Barnes v. United States, 412 U.S. 837, 840 n.3 (1973) (instruction in prosecution under 18 USC § 1708). 977 United States v. Gallo, 543 F.2d 361, 368 n. 6 (D.C. Cir. 1976). 978 See United States v. Chorman, 910 F.2d 102, 108 (4th Cir. 1990). 979 This charge was upheld in United States v. Smith, 446 F.2d 200, 204 (4th Cir. 1971). 980 Barnes, 412 U.S. at 847. 981 United States v. Hill, 40 F.3d 164, 167 (7th Cir. 1994); United States v. Rodriguez, 613 F.2d 28, 29 (2d Cir. 1980). 322 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 326 of 684 TITLE 18 P First, that the defendant was an employee of the Postal Service; P Second, that the defendant stole, abstracted, or removed any article or thing contained in a letter, package, bag, or mail; and P Third, that the letter, package, bag, or mail came into his possession intended to be conveyed by mail, or carried or delivered by mail. Steal means the wrongful and dishonest taking of property with the intent to deprive the owner, temporarily or permanently, of the rights and benefits of ownership.982 “Embezzle” means the deliberate taking or retaining of the property of another with the intent to deprive the owner of its use or benefit by a person who has lawfully come into the possession of the property.983 ____________________NOTE____________________ In United States v. Dollard, 780 F.2d 1118 (4th Cir. 1985), the Fourth Circuit rejected the defendant’s contention that he had to have prior lawful possession of the mail he took. “[Section] 1709 demonstrates that it is intended to cover a postal employee who embezzles or steals any mail.” 780 F.2d at 1122. But see United States v. Selwyn, 998 F.2d 556 (8th Cir. 1993) (finding § 1709 created two distinct offenses of postal theft; Dollard inapplicable because Fourth Circuit ignored different requirements of embezzlement and stealing clauses of statute). 017 7/2 Only one possession of stolen mail offense occurs when two packages are stolen at the same time. United States v. Osunegbu, 822 F.2d 472, 481 (5th Cir. 1987). 7/2 Second Circuit In United States v. Rodriguez, 613 F.2d 28 (2d Cir. 1980), the 0 affirmed the conviction of a postal employee who embezzled a test package, despite the ed Postal Inspector’s testimony that it was neverew vi intended that the test package be conveyed in the mails. See also Scott v. United 6, States, 172 U.S. 343, 350 (1899) (finding that makes 2 no difference that the letter was2decoy, and addressed to a fictitious person.”). -4 a 16 .EMBEZZLEMENT OF POSTAL FUNDS 18 U.S.C. § 1711 o N Title 18, United States Code, Section 1711 makes it a crime for a postal employee to embezzle postal funds. For you to find the defendant guilty, the government must prove each of the following beyond a reasonable doubt: P First, that the defendant was a postal employee; 982 In United States v. Turley, 353 U.S. 407 (1957), the Supreme Court held that “the meaning of the federal statute should not be dependent on state law,” id. at 411, and defined “stolen” to include “all felonious takings of [property] with intent to deprive the owner of the rights and benefits of ownership, regardless of whether or not the theft constitutes common-law larceny.” Id. at 417. See also Morissette v. United States, 342 U.S. 246, 271 (1952). 983 See United States v. Smith, 373 F.3d 561, 565 (4th Cir. 2004). Lawful possession need not be acquired through a relationship of trust. Moore v. United States, 160 U.S. 268, 269-70 (1895). “Embezzlement is the fraudulent appropriation of property by a person to whom such property has been intrusted, or into whose hands it has lawfully come.” Id. at 269. But see United States v. Selwyn, 998 F.2d 556 (8th Cir. 1993) (discussion of “embezzle” where the majority distinguished between “entrusted to him” and “which comes into his possession intended to be conveyed by mail.”). 323 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 327 of 684 TITLE 18 P Second, that postal funds came into the defendant’s possession in his capacity as a postal employee; P Third, that the defendant converted those postal funds to his own use;984 and P Fourth, that the amount of funds converted exceeded $1,000. L If a disputed issue is whether the funds had a value exceeding $1,000, the court should consider giving a lesser included offense instruction. ____________________NOTE____________________ A series of takings over a period of time may constitute a single larceny when each taking is the result of a continuing larcenous impulse or intent on the part of the thief, or has been carried out under a single plan or scheme. 53 A.L.R. 3d 398. In determining whether a series of takings are properly aggregated, the court must examine the intent of the actor at the first taking. If the actor formulated “a plan or scheme or [set] up a mechanism which, when put into operation, [would] result in the taking or diversion of sums of money on a recurring basis,’ the crime may be charged in a single count.” United States v. Smith, 373 F.3d 561, 564 (4th Cir. 2004). The Smith majority also believed that the specific conduct at issue in that case (appropriating the Social Security checks of the defendant’s deceased mother and prosecuted as a violation of 18 U.S.C. § 641) “is more properly characterized as a continuing offense rather than a series of separate acts” for statute of limitations purposes. Id. at 568. The court noted that not all conduct constituting embezzlement may necessarily be treated as a continuing offense as opposed to merely a series of acts that occur over a period of time. 017 7/2 7/2 0 See United States v. Powell, 413 F.2d 1037, 1038 (4th Cir. 1969) (intent and actual ed the defendant alone has access w taking may be proved by circumstantial evidence; “where vie to the property, a substantial shortage is disclosed, and no explanation for the shortage is tendered by the accused, the trier of fact may reasonably infer from the circumstances that 26, 2 the custodian of the property 4 embezzled the missing funds.”). In Powell, the defendant 6- hascharged with violating 18 U.S.C. § 641. was a postal employee 1 was o. who N 18 U.S.C. § 1791 CONTRABAND IN PRISON Title 18, United States Code, Section 1791 makes it a crime to provide contraband to an inmate, or for an inmate to make or possess contraband. For you to find the defendant guilty, the government must prove each of the following beyond a reasonable doubt: § 1791(a)(1) P First, that the defendant provided, or attempted to provide, to an inmate of a federal correctional, detention, or penal facility; P Second, a prohibited object;985 P Third, without the knowledge and consent of the warden or superintendent of the facility; and 984 United States v. Hodges, No. 93-5376, 1994 W L 399169 (4th Cir. Aug. 3, 1994). The nature of the prohibited object determines the maximum possible sentence, § 1791(b). Failing to define “prohibited object” is error. United States v. Robinson, 337 F. App’x 368 (4th Cir. 2009). 985 324 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 328 of 684 TITLE 18 P Fourth, that the defendant did so knowingly986 [and intentionally987 ]. § 1791(a)(2) P First, that the defendant was an inmate of a federal correctional, detention, or penal facility; P Second, that the defendant made, possessed, or obtained, or attempted to make or obtain, a prohibited object; P Third, without the knowledge and consent of the warden or superintendent of the facility; and P Fourth, that the defendant did so knowingly [and intentionally]. “Prohibited object” means the following: (1) a firearm [as defined in 18 U.S.C. § 921] or destructive device [as defined in 18 U.S.C. § 921] or a controlled substance [as defined in 21 U.S.C. § 802, schedule I or II, but not including marijuana or a controlled substance referred to in (3), infra]; [§ 1791(d)(1)(A)] (2) marijuana or a controlled substance [as defined in 21 U.S.C. § 802, Schedule III, other than a controlled substance referred to in (3), infra], ammunition [as defined in 19 U.S.C. § 921], a weapon (other than a firearm or destructive device), or an object that is designed or intended to be used988 as a weapon or to facilitate escape from a prison; [§ 1791(d)(1)(B)] 017 2 (3) a narcotic drug [as defined in 21 U.S.C. § 802], methamphetamine, its salts, 27/ or phencyclidine; / isomers, and salts of its isomers, lysergic acid07 diethylamide, d [§ 1791(d)(1)(C)] we above) or an alcoholic beverage; e (4) a controlled substance (other than those specified , vi [§ 1791(d)(1(D)] 226currency; [§ 1791(d)(1)(E)] and (5) any United States-4 or foreign 16 (6) any object.that threatens the order, discipline, or security of a prison, or the life, health, or safety of an individual. [§ 1791(d)(1)(F)] No “Prison” means a Federal correctional, detention, or penal facility or any prison, institution, or facility in which persons are held in custody by direction of or pursuant to a contract or agreement with the Attorney General. [§ 1791(d)(4)] The government must prove that the federal government managed and operated the 986 United States v. Perceval, 803 F.2d 601, 603 (10th Cir. 1986). W hen the government charges “an object ... intended to be used” then intent is an element. United States v. Allen, 190 F.3d 1208, 1211 (11th Cir. 1999). See also United States v. Rodriguez, 45 F.3d 302, 306 (9th Cir. 1995); United States v. Fox, 845 F.2d 152, 156 n.3 (7th Cir. 1988). 988 See United States v. Morningstar, 456 F.2d 278, 281 (4th Cir. 1972), where, in discussing any combination of parts designed for use in converting any device into a destructive device and any combination of parts intended for use in connecting any device into a destructive device, the court said that, concerning the first group, the possessor’s intent was not relevant, whereas concerning the second group, the government must prove that the defendant intended to convert the parts into an illegal firearm. 987 325 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 329 of 684 TITLE 18 prison facility.989 A weapon is an instrument of offensive or defensive combat, something to fight with, a means of contending against another.990 ____________________NOTE____________________ 28 C.F.R. § 6.1 states the following: “The introduction or attempt to introduce into or upon the grounds of any Federal penal or correctional institution or the taking or attempt to take or send therefrom anything whatsoever without the knowledge and consent of the warden or superintendent of such Federal penal or correctional institution is prohibited.” “[A]bsence of knowledge and consent of the warden” is one of the elements of a violation of § 1791. United States v. Berrigan, 482 F.2d 171, 185 (3d Cir. 1973). See also United States v. Adams, 768 F.2d 1276, 1277 (11th Cir. 1985) (“That the warden may have suspected, or even known that a person would attempt to illegally bring contraband into the institution, where that person does not himself rely on the warden’s consent or knowledge, would not defeat a conviction [for aiding and abetting] under the statute.”(emphasis added)). If the contraband is an object that is designed or intended to be used as a weapon or to facilitate escape from a prison, then the mens rea is increased to specific intent. See United States v. Allen, 190 F.3d 1208, 1211 (11th Cir. 1999); United States v. Rodriguez, 45 F.3d 302, 306 (9th Cir. 1995); United States v. Fox, 845 F.2d 152, 156 n.3 (7th Cir. 1988). 017 7/2 7/2if more than one class 0 The court should consider submitting a special verdict form, ed at 305. of prohibited object is involved. See Rodriguez,w F.3d ie 45 6, v 18 U.S.C. § 1792 PRISON RIOT 422 -Code, Section 1792 makes it a crime to instigate or assist in a Title 18, United States . 16 riot at a federal correctional facility. For you to find the defendant guilty, the government No must prove each of the following beyond a reasonable doubt: P First, that the defendant instigated, connived, attempted to cause, assisted, or conspired to cause a mutiny or riot; P Second, at any federal penal, detention, or correctional facility; and P Third, that the defendant did so knowingly and willfully.991 Mutiny means resisting the warden or his subordinate officers in the free and lawful exercise of their legal authority.992 989 990 United States v. Gibson, 880 F.2d 795, 797 (4th Cir. 1989). Definition given by district court in United States v. Rodriguez, 45 F.3d 302, 305 (9th Cir. 1995). 991 See United States v. Hill, 526 F.2d 1019, 1027 (10th Cir. 1976) (“W e believe that the words of [the statute] fairly import the elements of knowledge and willfulness.”). Specific intent is not an element of the crime. Id. 992 United States v. Bryson, 423 F.2d 724 (4th Cir. 1970). 326 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 330 of 684 TITLE 18 ____________________NOTE____________________ In United States v. Rodgers, 419 F.2d 1315 (10th Cir. 1969), the Tenth Circuit held that § 1792 did not include participation in a riot. However, in United States v. Farries, 459 F.2d 1057 (3d Cir. 1972), the Third Circuit held that willful participation constituted assisting and was therefore covered by the statute. See also United States v. Green, 202 F.3d 869, 872 (6th Cir. 2000); United States v. Bryant, 563 F.2d 1227, 1229 (5th Cir. 1977). The Fourth Circuit has not spoken on whether participating in a prison riot violates § 1792. 18 U.S.C. § 1920 FALSE STATEMENTS OR FRAUD TO OBTAIN FEDERAL EMPLOYEES’ COMPENSATION [LAST UPDATED : 12/8/14] Title 18, United States Code, Section 1920, makes it a crime to make a false statement to obtain federal employees’ compensation. For you to find the defendant guilty, the government must prove each of the following beyond a reasonable doubt: P First, that the defendant knowingly and willfully [falsified, concealed, or covered up a fact] [made a false, fictitious, or fraudulent statement or representation] [made or used a false statement or report knowing the false statement or report contained a false, fictitious, or fraudulent statement or entry]; 017 2 P Second, that the [fact] [statement] [representation] [report] [entry] was material; 27/ 07/ P Third, that the defendant did so in connection with the application for or d receipt of compensation or other benefit or payment under Title 5, United States we Code, Section 8101 et. seq.; and vie P Fourth, that the amount of the compensation, benefit, or payment exceeded 26, $1,000.00. 42 6is-whether the compensation, benefit, or payment had a 1 L If a disputed issue o.$1,000, the court should consider giving a lesser included offense value exceeding N 993 994 instruction. To establish that a statement was false, the government must negate any reasonable interpretation that would make the defendant’s statement factually correct.995 A statement is material if it has a natural tendency to influence, or is capable of influencing, the decision-making body to which it was addressed. It is irrelevant whether the false statement actually influenced or affected the decision-making process of the agency or fact finding body. A false statement’s capacity to influence must be measured at 993 See United States v. Deskins, 503 F. App’x 197 (4th Cir. 2013) (citing United States v. Harms, 442 F.3d 367, 372 (5th Cir. 2006)). 994 United States v. Catone, 769 F.3d 866 (4th Cir. 2014). “Section 1920 establishes two levels of sentencing depending on the amount of benefits that a defendant ‘falsely obtained.’” Id. at 874. Therefore, “the amount of benefits falsely obtained is a substantive element for a felony conviction under § 1920 ....” Id. 995 United States v. Anderson, 579 F.2d 455, 460 (8th Cir. 1978). See also United States v. Race, 632 F.2d 1114 (4th Cir. 1980). 327 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 331 of 684 TITLE 18 the point in time that the statement was made.996 The government must prove a causal link between the defendant’s false statement and the application for or receipt of more than $1,000.00 in benefits [to establish a felony].997 ____________________NOTE____________________ In United States v. Mattox, 689 F.2d 531 (5th Cir. 1982), the Fifth Circuit held that “either the insertion of N/A or the knowing failure to supply the information requested is sufficient to permit” the jury to find guilt. “Silence may be falsity when it misleads, particularly if there is a duty to speak.” Id. at 532, 533. In determining whether a series of takings are properly aggregated, the court must examine the intent of the actor at the first taking. If the actor formulated “a plan or scheme or [set] up a mechanism which, when put into operation, [would] result in the taking or diversion of sums of money on a recurring basis,’ the crime may be charged in a single count.” United States v. Smith, 373 F.3d 561, 564 (4th Cir. 2004). 18 U.S.C. § 1951 INTERFERENCE WITH COMMERCE BY THREATS OR VIOLENCE (HOBBS ACT)[LAST UPDATED : 8/15/2016] 7 01commerce by 2 Title 18, United States Code, Section 1951 makes it a crime to obstruct 27/ must prove robbery or extortion. For you to find the defendant guilty, the government 07/ each of the following beyond a reasonable doubt: ed P First, that the defendant committed, ew or attempted or conspired to commit, robbery or extortion; and , vi 226 P Second, that the robbery or extortion obstructed, delayed, or affected commerce 4 or the movement of any article or commodity in commerce. 16. OR No 944 945 996 United States v. Sarihifard, 155 F.3d 301, 306 (4th Cir. 1998). See Catone, 769 F.3d at 875 (citing United States v. Hurn, 368 F.3d 1359, 1362 (11th Cir. 2004) (benefits received case)). 944 To prove a conspiracy, the government must establish the following beyond a reasonable doubt: (1) an agreement between two or more persons to do something the law prohibits; (2) that the defendant knew of the agreement or conspiracy; and (3) that the defendant knowingly and intentionally joined the agreement or conspiracy. See United States v. Yearwood, 518 F.3d 220, 225-26 (4th Cir. 2008). Only 18 U.S.C. § 371 requires an overt act as an additional element. 945 “A Hobbs Act violation requires proof of two elements: (1) the underlying robbery or extortion crime, and (2) an effect on interstate commerce.” United States v. Williams, 342 F.3d 350, 353 (4th Cir. 2003) (citing Stirone v. United States, 361 U.S. 212, 218 (1960)). Put another way, 997 the government must prove (1) that the defendant coerced the victim to part with property; (2) that the coercion occurred through the wrongful use of actual or threatened force, violence or fear or under color of official right, and (3) that the coercion occurred in such a way as to affect adversely interstate commerce. United States v. Buffey, 899 F.2d 1402, 1403 (4th Cir. 1990). 328 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 332 of 684 TITLE 18 P First, that the defendant committed or threatened physical violence to any person or property; and P Second, that the physical violence was in furtherance of a plan or purpose to obstruct commerce by robbery or extortion.946 “Commerce” means commerce within the District of Columbia, or any territory or possession of the United States; all commerce between any point in a state, territory, possession, or the District of Columbia and any point outside thereof; all commerce between points within the same state through any place outside such State; and all other commerce over which the United States has jurisdiction. [§ 1951(b)(3)] The government must prove an effect on commerce, but the effect need to only minimal. The government need not prove that the defendant intended to affect commerce or that the effect on commerce was certain. It is enough that such an effect was the natural, probable consequence of the defendant’s actions.947 The effect on commerce need not be adverse. 948 The effect on commerce may be shown by proof of probabilities without evidence that any particular commercial movements were affected.949 It is sufficient if the government proves that interstate commerce was affected by a result of the robbery or extortion.950 017 7/2 “Robbery” is defined as the unlawful taking or obtaining of personal property from the person or in the presence of another, against his will, by means of actual or threatened force, or violence, or fear of injury, immediate or future, to his person or property, or property in his custody or possession, or the person or property of a relative or member of his family or of anyone in his company at the time of the taking or obtaining. [§ 1951(b)(1)] 7/2 d0 e iew ,v 226 6-4 “Extortion” is defined as the obtaining of property from another person, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right. [§ 1951(b)(2)] o. 1require a direct benefit to the defendant. The essence of the ExtortionN not does 946 “A person may violate the Hobbs Act by committing or threatening a violent act against person or property, but only if it is in furtherance of a plan to interfere with commerce by extortion or robbery.” United States v. Yankowski, 184 F.3d 1071, 1073 (9th Cir. 1999). In Yankowski, the court rejected the government’s argument that the defendant violated the Hobbs Act by “commission or threat of a violent act to person or property, with or without any connection to robbery or extortion.” Id. 947 Williams, 342 F.3d at 354 (citing United States v. Spagnola, 546 F.2d 1117, 1118-19 (4th Cir. 1976) (the government must prove “a reasonably probable effect on commerce”)). 948 United States v. Bailey, 990 F.2d 119, 126 (4th Cir. 1993). 949 United States v. Brantley, 777 F.2d 159, 162 (4th Cir. 1985). 950 See United States v. Taylor, 966 F.2d 830, 836 (4th Cir. 1992); United States v. Bengali, 11 F.3d 1207, 1212 (4th Cir. 1993) (money used to pay extortioners came from a bank account used by a business engaged in interstate commerce). In Taylor v. United States, the United States Supreme Court held that stealing from a marijuana dealer satisfies the commerce requirement because the market for illegal drugs is part of commerce. 136 S. Ct. 2074, 2081 (2016). 329 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 333 of 684 TITLE 18 offense is loss to the victim.951 There are two types of extortion. The first requires proof that the defendant induced payment by use of threats or fear. To prove extortion by fear of economic harm, the government must establish that the threat of such harm generated a reasonable fear in the victim.952 The government may establish the victim’s state of mind by showing not only what a defendant said but also what a victim believed about the situation. The threat need not be express. A defendant who threatens a victim in esoteric, veiled, or elliptical language need not offer a simultaneous translation or define his terms, as long as he thinks or should think the victim understands what has been said.953 “The absence or presence of fear of economic loss must be considered from the perspective of the victim, not the extortionist; the proof need establish that the victim reasonably believed: first, that the defendant had the power to harm the victim, and second, that the defendant would exploit that power to the victim’s detriment.”954 The defendant need not create the fear, so long as the defendant uses the fear to extort property. The fear must be of a loss. “Fear of losing a potential benefit does not suffice.”955 017 2 The second type of extortion involves obtaining property from another under color of 27/prove beyond a / official right. To prove this type of extortion, “the Government must 07(2) ‘obtained a thing of reasonable doubt that the defendant (1) was a public official; ed value not due him or his [office]’; (3) ‘did so ew knowing that the thing of value was given in return for official action’; and (4) ‘did or attempted in any way or degree to delay, , vi obstruct, or affect interstate commerce, or an item moving in interstate commerce.’” 226 4 The government need not show that the defendant demanded or induced the 16- must prove a quid pro quo. Stated another way, the . payment, but the government No that the public official obtained a payment to which he was not government must prove “The use of actual or threatened fear is ‘wrongful’ if its purpose is to cause the victim to give property to someone who has no legitimate claim to the property.”956 957 958 entitled, knowing that the payment was made in return for official acts. The official and the payor need not state the quid pro quo in express terms, and the official need not 951 United States v. Hairston, 46 F.3d 361, 365 (4th Cir. 1995). United States v. Iozzi, 420 F.2d 512, 515 (4th Cir. 1970). See also United States v. Billups, 692 F.2d 320, 330 (4th Cir. 1982). 953 Hairston, 46 F.3d at 365. 954 United States v. Capo, 817 F.2d 947, 951 (2d Cir. 1987). 955 United States v. Tomblin, 46 F.3d 1369, 1384 (5th Cir. 1995). 956 Id. at 1384 n.35. 957 United States v. McDonnell, 792 F.3d 478, 505 (4th Cir. 2015) (citing district court’s instruction), rev’d on other grounds in 136 S. Ct. 2355 (2016). 958 The under color of official right element does not require an affirmative act of inducement by the official, and the offense is completed at the time when the public official receives a payment in return for his agreement to perform specific official acts. Evans v. United States, 504 U.S. 255, 26568 (1992). Bribery and extortion are not mutually exclusive. Id. at 268. 952 330 Appeal: 16-4226 Doc: 48-1 Filed: 07/27/2017 Pg: 334 of 684 TITLE 18 actually fulfill the quid pro quo.959 The Government must show that the public official undertook an official act. To prove an “official act” the Government must prove two things.960 First, the Government must identify a question, matter, cause, suit, proceeding, or controversy that may at any time be pending or may by law be brought before a public official.961 This requires a showing of a formal exercise of governmental power that is similar in nature to a lawsuit before a court, a determination before an agency, or a hearing before a committee.962 It must also be something specific and focused that is pending or may by law be brought before a public official.963 Second, the Government must prove that the public official made a decision or took an action on that question, matter, cause, suit, proceeding, or controversy, or that he agreed to do so.964 That decision or action may include using his official position to exert pressure on another official to perform an official act, or to advise another official, knowing or intending that such advice will form the basis for an official act by another official. Setting up a meeting, talking to another official, or organizing an event or agreeing to do so—without more—does not count as a decision or action on that matter.965 017 2 “From another” refers to a person or entity other than the public/official. Thus, a 27 public official cannot extort himself. 07/ d To be a coconspirator in an extortion scheme requires more than mere acquiescence we in the extortion scheme. vie , who is a public official receives a legitimate gift Extortion does not occur where 6 22 one or a voluntary political contribution, even though the donor has business pending before 4 16. No The issue is not whether the defendant had the power to perform the official act, but whether it was reasonable for the victim to believe that the defendant had such power.966 967 968 969 959 960 United States v. Hairston, 46 F.3d 361, 365 (4th Cir. 1995). McDonnell v. United States, 136 S. Ct. 2355, 2368 (2016). 961 Id. Id. 963 Id. 964 Id. 965 Id. 962 at at at at 2369, 2372. 2372. 2368. 2372, 2375. 966 See United States v. Price, 507 F.2d 1349, 1350 (4th Cir. 1974). 967 United States v. Ocasio, 750 F.3d 399, 411 (4th Cir. 2014). However, as Ocasio makes clear, “a person ... who actively participates (rather than merely acquiesces) in a conspiratorial extortion scheme, can be named and prosecuted as a coconspirator even though he is also a purported victim of the conspiratorial agreement.” Id. at 410. Thus, “[n]othing in the Hobbs Act forecloses the possibility that the ‘another’ can also be a coconspirator of the public official.” Id. at 411. The United States Supreme Court affirmed the ruling that “another” can be a coconspirator of the public official in Ocasio v. United States, 136 S. Ct. 1423 (2016). 968 Id. at 411. 969 The district court charge, which the Supreme Court