US v. David Diaz

Filing

OPINION ATTACHMENTS. [16-4226]

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Pattern Jury Instructions
for
Federal Criminal Cases
District of South Carolina
Eric Wm. Ruschky

2016 Online Edition

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Emily Deck Harrill, Editor

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Includes
16- updates through August 15, 2016
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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: [e-mail].

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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.

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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.

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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
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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.

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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).

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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).

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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.

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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

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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).

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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

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“[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

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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.

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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)).

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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.

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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

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Notes are not official transcripts and may
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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)).

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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.

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Voir Dire [LAST UPDATED : 7/18/14]

I.

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“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).

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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).

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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

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Simply put, aiding and abetting means to assist the perpetrator of the crime.3

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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.

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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).

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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
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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).

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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).

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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

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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

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ACCESSORY AFTER THE FACT

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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).

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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____________________

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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.

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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.

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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.

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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.

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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).

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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

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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

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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).

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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

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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

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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

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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.

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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

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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.

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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

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____________________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.

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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...)

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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

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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

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(...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).

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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

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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.

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§ 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.

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iew
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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).

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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).

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iew
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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).

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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
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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;

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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
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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

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N

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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...)

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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).

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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
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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

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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)].”).

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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.

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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
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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

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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
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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.

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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

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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).

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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
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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

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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).

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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.

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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).

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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]

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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
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§ 201(b)(1) [defendant gave the bribe]
P

P

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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)).

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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.”).

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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
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/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...)

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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

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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
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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

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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
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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

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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).

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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;

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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

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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.

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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).

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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

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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

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§ 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).

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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.

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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

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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...)

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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).

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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.

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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).

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____________________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 ....”).

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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).

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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
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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).

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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
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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

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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.

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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

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“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...)

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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

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“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).

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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.

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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

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____________________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).

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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.

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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).

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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).

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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).

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“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

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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).

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“[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).

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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).

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.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).

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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.

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“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.

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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).

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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____________________

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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]

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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).

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“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)]

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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).

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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).

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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.

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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

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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).

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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.

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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).

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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).

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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.

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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).

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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

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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

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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).
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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).

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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.

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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).

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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

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“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).

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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.

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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).

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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

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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...)

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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...)

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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.

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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.

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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

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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...)

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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.

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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).

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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).

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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
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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).

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“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).

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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

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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

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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

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iew
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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.

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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
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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

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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).

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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

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iew
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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).

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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.

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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

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“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.

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iew
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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

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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

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d0

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iew
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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

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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
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iew
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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).

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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.

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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)).

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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).

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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
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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

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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;

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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.

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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.

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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.

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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.

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“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.

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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

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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.

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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

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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).

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“[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

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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).

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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.

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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.

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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.

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“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)]

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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).

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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.

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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).

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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

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“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
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(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)]

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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).

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“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.

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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)]

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“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)]

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“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.

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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
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“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

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“[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
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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

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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

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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

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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

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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
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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:

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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).

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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.

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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).

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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:

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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)

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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.

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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.

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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).

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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:

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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...)

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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...)

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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).

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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).

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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.

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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).

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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
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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).

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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).

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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).

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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).

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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)).

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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)

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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

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“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).

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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...)

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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.

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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)).

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“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.

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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.

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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.

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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

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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).

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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

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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).

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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

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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).

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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

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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

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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

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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).

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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).

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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).

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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.

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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.

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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)).

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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).

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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).

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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

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iew
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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).

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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
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iew
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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.

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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).

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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).

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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).

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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.

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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
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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

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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.

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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)).

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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
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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

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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

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AFFIRMATIVE DEFENSE [§ 931(b)]579
It is an affirmative defense if:

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(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

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(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.

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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
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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;

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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).

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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.

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iew
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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).

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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.

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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).

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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
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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).

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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
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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.)

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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

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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
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P
¶3
P
P

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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).

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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
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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.

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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).

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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
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The defendant must personally benefit, either directly or indirectly, through the
loan, transaction, or other act of the institution.603

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“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

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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).

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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:

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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

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P

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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

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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

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____________________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).

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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.

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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

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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;

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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

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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

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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).

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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
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iew
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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.

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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.

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§ 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:

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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)).

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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

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iew
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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)]

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“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

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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)).

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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.

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“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)).

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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).

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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

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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

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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

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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).

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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).

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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

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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).

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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.

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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).

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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...)

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____________________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).

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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.

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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

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“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).

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“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

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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.

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“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

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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.

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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).

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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

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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).

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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).

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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

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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.

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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
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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.

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(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).

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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.

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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

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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).

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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).

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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).

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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

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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

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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

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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)).

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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.

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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).

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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).

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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).

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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).

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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).

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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)).

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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...)

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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).

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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).

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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).

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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.”

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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

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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...)

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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).

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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).

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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).

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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

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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

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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.

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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).

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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

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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

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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.”).

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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

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____________________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.

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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

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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

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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).

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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

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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.

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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.

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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

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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

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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

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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

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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

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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

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§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

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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.

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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).

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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.

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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

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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

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____________________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.

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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?

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2. Did the endeavor to obstruct justice occur in the case of a killing? or

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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).

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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).

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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

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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

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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).

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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

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iew
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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

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“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.

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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

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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.

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iew
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“[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

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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

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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

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(A) influence, delay, or prevent the testimony of any person in an official
proceeding;

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(B) cause or induce any person to do one of the following:

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(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

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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).

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§ 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
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(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).

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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)]

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“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).

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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)).

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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

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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.

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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
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(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?

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[§ 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.

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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
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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.

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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

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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)

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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).

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¶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

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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
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o. 1
N

P

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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)).

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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
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(3) a false attestation; and
P

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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
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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

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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

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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.

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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.

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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

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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).

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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

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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

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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).

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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

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____________________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

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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

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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.

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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).

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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.”).

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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

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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

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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).

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____________________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).

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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).

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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).

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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

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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 said was “not a model of clarity” is
quoted at length in McCormick v. United States, 500 U.S. 257, 261 n.4 (1991). The Fourth Circuit had
affirmed the conviction, but the Supreme Court reversed, holding that a quid pro quo is necessary for

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the official.970 Moreover, “attempting to compel a person to recommend that his employer
approve an investment” does not constitute “the obtaining of property from another”
under § 1951(b)(2).971
Property includes both tangible and intangible property.972
____________________NOTE____________________
The Hobbs Act does not reach “the use of violence to achieve legitimate union
objectives, such as higher wages in return for genuine services, which the employer
seeks.” United States v. Emmons, 410 U.S. 396, 400 (1973).
The question of whether a defendant’s conduct satisfies the jurisdictional
predicate of the Hobbs Act is one of law. United States v. Bengali, 11 F.3d 1207, 1211
(4th Cir. 1993).
“Upon a charge of a conspiracy or an attempt to violate the Hobbs Act, it is simply
irrelevant that, because of facts unknown to the conspirators or to the actor, an actual
effect upon commerce was impossible.” United States v. Brantley, 777 F.2d 159, 164 (4th
Cir. 1985).
“Commerce is sufficiently affected under the Hobbs Act where a robbery depletes
the assets of a business that is engaged in interstate commerce.” United States v. Williams,
342 F.3d 350, 354-55 (4th Cir. 2003).

017
7/2

Under the “depletion of assets theory,” the government may satisfy “the
jurisdictional predicate indirectly if it can show a reasonable probability that the
defendant’s actions would have the effect of depleting the assets of an entity engaged in
interstate commerce.” United States v. Buffey, 899 F.2d 1402, 1404 (4th Cir. 1990).
“[T]he jurisdictional predicate may be satisfied though the impact upon commerce is
small, and it may be shown by proof of probabilities without evidence that any particular
commercial movements were affected.” Id. (quotation and citation omitted). Thus, this
element is satisfied even where the effect on commerce is indirect, minimal, and less than
certain. Nevertheless, the government must show that an effect on interstate commerce
was reasonably probable. Id. In Buffey, the court reversed, because extorting money to be
devoted to personal use from an individual does not affect interstate commerce.

7/2
d0

e
iew
,v

o. 1
N

226
6-4

Drug dealing is an inherently economic enterprise that affects interstate commerce.
Taylor, 136 S. Ct. at 2080-81; Williams, 342 F.3d at 355.
Concerning “color of official right” extortion and campaign contributions, see Evans
v. United States, 504 U.S. 255 (1992); McCormick v. United States, 500 U.S. 257, 273
(1991); United States v. Hairston, 46 F.3d 361 (4th Cir. 1995); United States v. Taylor,
993 F.2d 382 (4th Cir. 1993); and United States v. Torcasio, 959 F.2d 503 (4th Cir. 1991).
An elected official may commit extortion in the course of financing an election
campaign. Political contributions induced by the use of force, violence, or fear would
qualify, or if taken under color of official right, “but only if the payments are made in
return for an explicit promise or undertaking by the official to perform or not to perform

conviction under the Hobbs Act when an official receives a campaign contribution. Id. at 274.
970
Evans v. United States, 504 U.S. 255, 258 (1992).
971
United States v. Sekhar, 570 U.S. __, __, 133 S. Ct. 2720, 2725 (2013).
972
United States v. Santoni, 585 F.2d 667, 673 (4th Cir. 1978).

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an official act.” McCormick v. United States, 500 U.S. 257, 273 (1991). Thus, a quid pro
quo is necessary for conviction under the Hobbs Act when an official receives a campaign
contribution. The transaction need not be initiated by the public official. Evans, 504 U.S.
at 266. “We also reject petitioner’s contention that an affirmative step is an element of the
offense of extortion ‘under color of official right’ and need be included in the
instruction.” Id. at 268. Services for which the fee is paid (1) must be official, and (2) the
official must not be entitled to the fee that he collected. Id. at 270.
Regarding venue, in United States v. Billups, 692 F.2d 320, 333 (4th Cir. 1982), the
court cited the Seventh Circuit’s holding in United States v. Floyd, 228 F.2d 913, 919 (7th
Cir. 1956), for the proposition that venue lies either where the coercion is perpetrated or
where the commerce is affected. That holding may be in doubt if robbery or extortion is
deemed the essential conduct element. See United States v. Bowens, 224 F.3d 302, 309
(4th Cir. 2000). However, “[w]hen Congress defines the essential conduct elements in
terms of their particular effects [such as affecting interstate commerce], venue will be
proper where those proscribed effects are felt.” Id. at 313.
See United States v. Spitler, 800 F.2d 1267, 1275-78 (4th Cir. 1986) (victim can be
an aider and abettor or co-conspirator if the victim’s conduct exhibits “more than mere
acquiescence.”).

017
7/2

The unit of prosecution in an extortion case is the wrongful demand, rather than the
payment. Hairston, 46 F.3d at 367, 372. In Hairston, the Fourth Circuit vacated
convictions on counts which represented multiple payments, and on the count charging
the payment when the demand was charged in a separate count.

7/2
d0

e
iew it a crime to travel in interstate
Title 18, United States Code, Sectionv
1952 makes
6, certain unlawful activities. For you to find
commerce with intent to commit or promote
2
the defendant guilty, the government must prove each of the following beyond a
-42
reasonable doubt:
. 16 traveled in interstate or foreign commerce, or used the
P First,No defendant
that the
18 U.S.C. § 1952

INTERSTATE TRAVEL IN AID OF RACKETEERING

mail or any facility in interstate or foreign commerce;

P

Second, that the defendant did so with intent to
1.
2.

commit any crime of violence to further any unlawful activity, or

3.
P

distribute the proceeds of an unlawful activity [as defined in § 1952(b)(i)],
or
promote, manage, establish, carry on, or facilitate the promotion,
management, establishment, or carrying on, of an unlawful activity; and

Third, after such travel or use of a facility in interstate commerce, the defendant
1.

distributed, or attempted to distribute, the proceeds of an unlawful activity;

2.

promoted, managed, established, carried on, or attempted to promote,
manage, establish, or carry on, an unlawful activity; or

3.

committed, or attempted to commit, a crime of violence to further the

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unlawful activity.973
“Unlawful activity” means [here, the jury should be charged on the elements of the
appropriate unlawful activity].974
“Interstate commerce” includes commerce between one state, territory, possession,
of the District of Columbia and another state, territory, possession, of the District of
Columbia. [18 U.S.C. § 10]
“Crime of violence” means an offense that has as an element the use, attempted use,
or threatened use of physical force against the person or property of another, or any other
offense that is a felony and 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. [18 U.S.C. § 16]
The interstate travel or use of an interstate facility can be minimal or merely
incidental, as long as the government proves beyond a reasonable doubt that the interstate
travel or use of an interstate facility was connected to the unlawful activity, and that it
facilitated the promotion, management, establishment, or carrying on of the unlawful
activity, but the government does not have to prove that the interstate travel or use of an
interstate facility was essential to the unlawful activity.975
The government does not have to prove that the defendant knew or intended that an
interstate facility would be used.976

017
7/2

The government does not have to prove that the unlawful objective was
accomplished or that another law [concerning the crime of violence or unlawful activity]
was actually violated.977

7/2
d0

e
ew
i1194 (4th Cir. 1986); United States v. Hayes,
United States v. Gallo, 782 F.2d 1191,
6, v
775 F.2d 1279 (4th Cir. 1985); United States v. Schocket, 753 F.2d 336, 340-41 (4th Cir.
2
-42
. 16
No
United States v. Monu, 782 F.2d 1209, 1211 (4th Cir. 1986).
____________________NOTE____________________

973

974

Section 1952(b)(i)(1) includes in “unlawful activity” any business enterprise involving
gambling, liquor, drugs, or prostitution. “Business enterprise” means a continuous course of conduct
rather than a sporadic, casual, individual or isolated violation. United States v. Gallo, 782 F.2d 1191,
1194-95 (4th Cir. 1986). “If the existence of a business enterprise is proven, it may be that only one
instance of interstate travel is necessary to convict a particular defendant.” United States v. Corbin,
662 F.2d 1066, 1073 n.16 (4th Cir. 1981) (defendant’s § 1952 conviction reversed, because the
evidence was insufficient to establish the existence of a business enterprise — the defendant was
arrested at an airport with 4,700 quaalude tablets).
975
United States v. Lozano, 839 F.2d 1020, 1022 (4th Cir. 1988); United States v. LeFaivre,
507 F.2d 1288, 1290 n.2 (4th Cir. 1974). “[W ]e will not read into the Act any requirement that travel
in interstate commerce or use of facilities in interstate commerce be a ‘substantial’ or an ‘integral’ part
of the activity.” Id. at 1296-97.
976
In LeFaivre, 507 F.2d 1288, the jury was instructed that a guilty verdict required neither
a finding that the defendants intended to use facilities in interstate commerce, nor a finding that they
knew they were using such facilities. The Fourth Circuit said “[t]here is sufficient mens rea if there
is ‘intent to ... promote [etc.].’ The statute speaks only to the purpose for which one uses interstate
facilities, not the knowledge with which one does so.” Id. at 1297 (quoting statute). The use of
interstate facilities is nothing more than the jurisdictional peg.
977
See United States v. Pomponio, 511 F.2d 953, 957 (4th Cir. 1975).

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1985).
In Rewis v. United States, 401 U.S. 808 (1971), the Supreme Court held that
“Congress did not intend that the Travel Act should apply to criminal activity solely
because the activity is at times patronized by persons from another State.” 401 U.S. at
812. The Act is not violated when the operator of an illegal establishment can reasonably
foresee that customers would cross state lines for the purpose of patronizing the illegal
operation. In Rewis, the defendants were not prosecuted on the theory that they actively
encouraged interstate patronage.
Nevertheless, the Fourth Circuit, in United States v. LeFaivre, 507 F.2d 1288 (4th
Cir. 1974), affirmed the convictions of the operators of a large gambling operation mostly
within the city of Baltimore, based on 14 out-of-state checks and other negotiable
instruments offered in settlement of bets. In affirming, the court stated that the use of an
interstate facility need not be more than minimal or merely incidental, and that knowledge
or intent regarding the use of an interstate facility is not required. Id. at 1290 n.2.
One definition of “unlawful activity” is extortion in violation of the laws of the state
in which it was committed. In United States v. Nardello, 393 U.S. 286, 295 (1969), the
Supreme Court held that “the inquiry is not the manner in which States classify their
criminal prohibitions but whether the particular state involved prohibits the extortionate
activity charged.” At common law, a public official who under color of office obtained
the property of another not due either to the office or the official was guilty of extortion,
but the Supreme Court declined to give the term extortion an unnaturally narrow reading,
and therefore included what Pennsylvania classified as blackmail rather than extortion.

017
7/2

7/2 under this section, but
0
It is not the violation of state law which constitutes an offense
ed
rather the use of interstate means for that purpose. United States v. Hines, 696 F.2d 722,
w
725 (10th Cir. 1982).
vie
In United States v. Teplin, 775 F.2d 1261 (4th Cir. 1985), the Fourth Circuit found
26,
that
-42
6requires a determination that the underlying state law has
While the Travel 1
o. Act
been or could have been violated, accomplishment of the state substantive
N
offense is not a prerequisite to a § 1952 conviction. The unlawful activity
specified in the Travel Act may be an offense under state or federal law and
reference to such law is necessary only to identify the type of unlawful activity
in which the defendants intended to engage. Proof that the unlawful objective
was accomplished or that the referenced law has actually been violated is not a
necessary element of the offense defined in § 1952.

775 F.2d at 1265 n.4.
“The Travel Act is aimed primarily at organized crime and particularly at persons
who reside in one state while operating or managing illegal activities located in another
state.” United States v. Loucas, 629 F.2d 989, 991 (4th Cir. 1980). “The use of interstate
commerce to violate or attempt to violate a state statute constitutes a federal crime, and
the underlying state law merely serves a definitional purpose in characterizing the
proscribed conduct.” Id. Generally, the violation of a state law offense is an element of
violation of the Travel Act and the [factfinder] must make a determination whether the
underlying state law has been or could have been violated. “Thus, accomplishment of the
State substantive offense is not a prerequisite to a § 1952 conviction.” Id. (quotation and
citation omitted).

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A defendant may be convicted of causing interstate travel by another for the purpose
of carrying on an unlawful activity. But “mere operation of an illegal activity which
attracts out-of-state customers is insufficient to support a conviction for causing a
violation of the Travel Act.” United States v. West, 877 F.2d 281, 289 n.3 (4th Cir. 1989).
In United States v. Salsbury, 430 F.2d 1045 (4th Cir. 1979), the court approved an
instruction that the defendant could be convicted if “he knew, or could reasonably have
been expected to know, that some of those checks or instruments were drawn on banks or
institutions not located in the State of Maryland.” 430 F.2d at 1048. The defendant was
not a peripheral figure but at the center of a far-flung illegal gambling operation.
Venue lies in any district in which the travel occurred, including the district in which
it originated, even if intermediate destinations were involved. United States v. Burns, 990
F.2d 1426, 1437 (4th Cir. 1993).
18 U.S.C. § 1955

ILLEGAL GAMBLING BUSINESS [LAST UPDATED 5/5/14]

Title 18, United States Code, Section 1955 makes it a crime to conduct an illegal
gambling business. For you to find the defendant guilty, the government must prove each
of the following beyond a reasonable doubt:
P

First, that there was an illegal gambling business, as described in the indictment;

P

Second, that the defendant conducted, financed, managed, supervised, directed,
or owned all or part of the illegal gambling business; and

P

Third, that the defendant did so knowingly and intentionally.

017
7/2

7/2
d0

e
ew
istate or political subdivision in which it is
is a violation of the law of the
6, v
2
conducted;
-42 persons who conduct, finance, manage, supervise,
involves five or more
16
direct,.or own all or part of such business; and
No or remains in substantially continuous operation for a period in
has been

“Illegal gambling business” means a gambling business which
(1)
(2)
(3)

excess of thirty days or has a gross revenue of $2,000 in any single day.
[§ 1955(b)(1)]
“Gambling” includes but is not limited to pool-selling, bookmaking, maintaining slot
machines, roulette wheels, or dice tables, and conducting lotteries, policy, bolita or
numbers games, or selling chances therein. [§ 1055(b)(2)]
The government must prove that the gambling operation involved at least five
persons who conducted, financed, managed, supervised, directed, or owned the gambling
operation at all times during some thirty day period,978 or that the gambling operation

978

United States v. Gresko, 632 F.2d 1128, 1132-33 (4th Cir. 1980). In other words, the fiveperson requirement must be satisfied in conjunction with the 30-day or gross revenue requirement. In
Gresko, the Fourth Circuit reversed a conviction where the district court instructed that the gambling
business involved five people at one time or another and operated for more than thirty days.
“Although these instructions would seem perfectly consistent with the plain text of the section, which
includes no evident conjunctive requirement, we are bound by the earlier panel’s conclusion to the
contrary.” United States v. Nicolaou, 180 F.3d 565, 569 (4th Cir. 1999). However, the jury need not

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involved at least five persons on any single day on which it had gross revenues of
$2,000.979
The government does not have to prove that the same five people were involved for
the entire thirty day period.980
The government is not required to prove that the defendant knew that his or her
conduct constituted illegal gambling under state law.981
A minimum of five persons must be involved in the gambling business, but the
government does not have to prove that there was any agreement among the five. These
persons may conduct their activities at great distances from each other and still be part of
an overall organization, that organization being a business directed toward some business
or end. You, the jury, should consider whether the defendant had a common purpose in
his dealings with the other persons.982
To conduct means any participation in the operation of a gambling business,
regardless of how minor the role. Customers and individual bettors are excluded.983
____________________NOTE____________________
In United States v. George, 568 F.2d 1064 (4th Cir. 1978), the court found that:
A bookmaker is one who accepts wagers, most commonly on sporting
events.

017
A bettor, in addition to the total bet, pays the bookmaker ten 2
/ percent, which
is the bookmaker’s commission, the “vigorish” or “vig” or 27
sometimes, “juice.”
/
Ideally, a bookmaker has an equal amount wagered on 7 sides of each event
0 both
with the result that he has a ten percent profit,ed expenses, and ideally, loses
less
nothing. In truth, betting is rarely equalion w sides and bookmakers may lose
e both
money, even to the point of their businesses being destroyed.
6, v
2
To protect against losses, a bookmaker normally engages in lay off betting
-42 bookmaker the amount of bets by which his
whereby he passes on to another
. 16 thus, to the extent he loses to his own customers, he
own book is o
N unbalanced;
wins back from the other bookmaker, or vice versa. The lay off bet is therefore,
in effect, bookmaker’s insurance or reinsurance. Bookmakers, however, can
place personal wagers with one another which are not lay off bets.
The line constitutes the odds or handicaps or point spreads on the wagered
contests. This is a list of the teams and events with a certain number of points
attributed to the nonfavored team. To win a bet on the favored team, therefore,

be unanimous as to which five persons were involved at a particular time. Id. at 571.
979
Nicolaou, 180 F.3d at 568.
980
Gresko, 632 F.2d 1128.
981
United States v. Lawson, 677 F.3d 629, 652-53 (4th Cir. 2012). “Section 1955 is a general
intent crime.” Id. at 653. Thus, a good faith instruction is not available.
982
In other words, the government does not have to prove a conspiracy. Instruction approved
in United States v. Bobo, 477 F.2d 974, 987 (4th Cir. 1973).
983
United States v. George, 568 F.2d 1064, 1069 n.6, 1071 (4th Cir. 1978); United States
v. Box, 530 F.2d 1258, 1267 (5th Cir. 1976) (quoting United States v. Jones, 491 F.2d 1382, 1384 (9th
Cir. 1974)).

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that team must win by a score exceeding the point spread given to the
nonfavored team. The line is subject to change as a given event approaches and
a bookmaker may alter the line on a particular event in order to try to even out
the money wagered on each side.
Bookmakers may cooperate with one another by keeping their lines
consistent in order to avoid middling, whereby a bettor, because there are two
different point spreads on a single event, may bet and win on both competing
teams.
568 F.2d at 1067.
In United States v. Jenkins, 649 F.2d 273 (4th Cir. 1981), the Fourth Circuit
reiterated that
a lay-off man may be included as one of the five people required by § 1955.... In
our view a lay-off man is not a bettor, but a bet receiver who takes the place of
the bookmaker insofar as that particular bet is concerned. For all practical
purposes, he becomes a bookmaker during the life of that bet. Furthermore, by
accepting overbets, the lay-off man becomes not only a bookmaker but the
bookie’s insurer. As an insurer, he is infinitely more important to a gambling
operation than runners, watchmen, waitresses, or any of the other minor
gambling functionaries ensnared by § 1955.

017
7/2

649 F.2d at 276. There is no requirement that the activity between the bookmaker and the
lay-off man be regular.

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d0

“[W]hen a bookmaker lays off his own bets with another bookmaker, he comes
within the scope of § 1955.” George, 568 F.2d at 1071.

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iew
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In United States v. Box, 530 F.2d 1258, 1266 (5th Cir. 1976), the Fifth Circuit found
that

226
6-4

one who accepts lay off bets can be convicted if any of the following factors is
also present: evidence that the individual provided a regular market for a high
volume of such bets, or held himself out to be available for such bets whenever
bookmakers needed to make them; evidence that the individual performed any
other substantial service for the bookmaker’s operation, as, for example, in the
supply of line information; or evidence that the individual was conducting his
own illegal gambling operation and was regularly exchanging lay off bets with
the other bookmakers.

o. 1
N

530 F.2d at 1266.
Occasional acquisition of line information by one bookmaker from another, standing
alone, does not constitute a violation of § 1955. George, 568 F.2d at 1072.
18 U.S.C. § 1956

LAUNDERING OF MONETARY INSTRUMENTS [LAST
UPDATED : 7/1/14]

§ 1956(a)(1)(A)(i) Promotion
Title 18, United States Code, Section 1956(a)(1)(A)(i), makes it a crime to conduct
financial transactions with the intent to promote the carrying on of an unlawful activity.
For you to find the defendant guilty, the government must prove each of the following
beyond a reasonable doubt:

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P

First, that the defendant conducted or attempted to conduct a financial
transaction having at least a minimal effect on interstate commerce or involving
the use of a financial institution which is engaged in, or the activities of which
have at least a minimal effect on, interstate or foreign commerce;984

P

Second, that the property that was the subject of the transaction involved the
proceeds of specified unlawful activity;

P

Third, that the defendant knew that the property involved represented the
proceeds of some form of unlawful activity; and

P

Fourth, that the defendant engaged in the financial transaction with the intent to
promote the carrying on of specified unlawful activity [or with intent to engage
in conduct constituting certain tax offenses, violations of 26 U.S.C. §§ 7201 or
7206, and the court should instruct on the elements of the alleged tax offenses,
[§ 1956(a)(1)(A)(ii)].985

L

Re: § 1956(a)(1)(A)(i)

The government must prove that the illegal proceeds were spent in furtherance of
the specified unlawful activity. However, the government is not required to trace
the proceeds to a particular illegal transaction. 986

§ 1956(a)(1)(B)(i) Concealment

017
7/2

Title 18, United States Code, Section 1956(a)(1)(B)(i), makes it a crime to conduct
financial transactions with the intent to conceal the proceeds of an unlawful activity. For
you to find the defendant guilty, the government must prove each of the following beyond
a reasonable doubt:
P

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First, that the defendant conducted or attempted to conduct a financial
transaction having at least a minimal effect on interstate commerce or involving
the use of a financial institution which is engaged in, or the activities of which
have at least a minimal effect on, interstate or foreign commerce;987

o. 1
N

226
6-4

P

Second, that the property that was the subject of the transaction involved the
proceeds of specified unlawful activity;

P

Third, that the defendant knew that the property involved represented the
proceeds of some form of unlawful activity; and

P

Fourth, that the defendant knew that the transaction was designed in whole or in
part, to conceal or disguise the nature, the location, the source, the ownership, or
the control of the proceeds of the unlawful activity or to avoid a transaction
reporting requirement [the court should instruct on the elements of the reporting

984

United States v. Peay, 972 F.2d 71, 75 (4th Cir. 1992) (“[B]ecause transactions involving
financial institutions insured by the FDIC affect interstate commerce, we find no error in the district
court’s instructions to the jury that it could infer an effect on interstate commerce by the banks’ status
as FDIC-insured institutions.”).
985
United States v. Wilkinson, 137 F.3d 214, 220 (4th Cir. 1998) (en banc).
986
United States v. Stewart, 256 F.3d 231, 249 (4th Cir. 2001).
987
See Peay, 972 F.2d at 75 (“[B]ecause transactions involving financial institutions insured
by the FDIC affect interstate commerce, we find no error in the district court’s instructions to the jury
that it could infer an effect on interstate commerce by the banks’ status as FDIC-insured institutions.”).

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requirement [§ 1956(a)(1)(B)(ii)].988
The Government does not have to prove that the defendant had the purpose of
concealing or disguising the proceeds.989

L

Re: concealment:

The government must prove a specific intent to structure a transaction so as to
conceal the true nature of the proceeds.990

§ 1956(a)(2)(A) International Money Laundering, Promotion
Title 18, United States Code, Section 1956(a)(2)(A), makes it a crime to transmit
funds outside the United States to promote a specified unlawful activity. 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, transmitted, or transferred, or attempted to
transport, transmit, or transfer, a monetary instrument or funds;

P

Second, from a place in the United States to or through a place outside the
United States or to a place in the United States from or through a place outside
the United States; and

P

Third, that the defendant did so with the intent to promote the carrying on of
specified unlawful activity.991

P

Second, that the monetary instrument or funds involved represented the proceeds
of some form of specified unlawful activity;

P

Third, that the defendant knew that the monetary instrument or funds involved
represented the proceeds of some form of specified unlawful activity;

P

Fourth, that the defendant’s transportation of the monetary instrument or funds

017
§ 1956(a)(2)(B) International Money Laundering, Concealment
2
27/a crime to transmit
Title 18, United States Code, Section 1956(a)(2)(B)(i), makes it
07/
funds outside the United States to conceal the proceeds of an unlawful activity or to avoid
d
a reporting requirement. For you to find the defendant guilty, the government must prove
we
each of the following beyond a reasonablevie
doubt:
6, transmitted, or transferred, or attempted to
P First, that the defendant transported,
422
transport, transmit,-or transfer, a monetary instrument or funds from a place in
the United States to or through a place outside the United States or to a place in
. 16from or through a place outside the United States;
the United States
No

988

Wilkinson, 137 F.3d 214 at 221.
United States v. Campbell, 977 F.2d 854, 857 (4th Cir. 1992). The court explained that
the distinction is critical in a case in which the defendant is a person other than the individual who is
the source of the tainted money. The relevant question is not the defendant’s purpose, but rather the
defendant’s knowledge of the actor’s purpose.
990
United States v. Gilliam, 975 F.2d 1050, 1056 (4th Cir. 1992). See also United States v.
Villarini, 238 F.3d 530, 533 (4th Cir. 2001) (“To establish the fourth element, the Government must
prove a specific intent to conceal.”); United States v. Hairston, 46 F.3d 361, 374 (4th Cir. 1995).
991
See United States v. Caplinger, 339 F.3d 226, 232 (4th Cir. 2003). See also United States
v. O’Connor, 158 F. Supp. 2d 697, 725-26 (E.D. Va. 2001).
989

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was designed in whole or in part, to conceal or disguise the nature, the location,
the source, the ownership, or the control of the proceeds or to avoid a transaction
reporting requirement [the court should instruct on the elements of the reporting
requirement [§ 1956(a)(1) (B)(ii)]; and
P

Fifth, that the defendant knew that the transportation, transmission, or transfer
was designed to conceal or disguise the nature, location, source, ownership, or
control of the proceeds.992

§ 1956(a)(3)
P

First, the defendant conducted or attempted to conduct a financial transaction
involving property represented to be the proceeds of specified unlawful activity,
or property used to conduct or facilitate specified unlawful activity; and

P

Second, the defendant did so with intent to:
(1) promote the carrying on of specified unlawful activity;
(2) conceal or disguise the nature, the location, the source, the ownership, or
the control of property believed to be the proceeds of the unlawful activity;
or
(3) avoid a transaction reporting requirement. [The court should instruct on the
elements of the reporting requirement].

017
/2
Title 18, United States Code, Section 1956(h), makes it a /27 to conspire to
crime
7
commit [the offenses described above, so if not charged as separate substantive offenses,
0above offenses]. For you to
d
the court should instruct on the elements of the appropriate
we
find the defendant guilty, the government must prove each of the following beyond a
e
reasonable doubt:
, vi
226
P First, that a conspiracy, agreement, or understanding to commit money
4
laundering was formed or entered into by two or more persons at or about the
16.
time alleged;
No
§ 1956(h) Conspiracy 993

P

P

L

Second, that at some time during the existence or life of the conspiracy,
agreement, or understanding, the defendant knew that the property involved
represented the proceeds of some form of specified unlawful activity, and
Third, that the defendant knowingly and voluntarily joined the conspiracy,
agreement, or understanding.994

In addition, the court should charge on the elements of the appropriate section(s) of

992

See United States v. Cuellar, 553 U.S.550 (2008). In Cuellar, the defendant concealed
$81,000 he was attempting to transport to Mexico, but the government failed to prove why he was
transporting it, i.e., that it was being transported to conceal or disguise the nature, location, source,
ownership, or control of the $81,000.
993
Refer to 18 U.S.C. § 371 for additional instructions, except regarding overt act.
994
See United States v. Alerre, 430 F.3d 681, 693-94 (4th Cir. 2005). See also United States
v. Singh, 518 F.3d 236, 248 (4th Cir. 2008). In United States v. Pace, 313 F. App’x 603, 607 n.3 (4th
Cir. 2009), the government argued that § 1956(h) does not require specific intent but only knowledge
of the conspiracy. The Fourth Circuit did not reach this issue.

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1956.

L

§ 1956(h) does not require an overt act. 995

“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]
“Knowing that the property involved in a financial transaction represents the
proceeds of some form of unlawful activity” means that the person knew the property
involved in the transaction represented proceeds from some form, though not necessarily
which form, of activity that constituted a felony under State, Federal, or foreign law.
[§ 1956(c)(1)]
Thus, the government need not prove that the property involved in the financial
transaction represented the proceeds of [here, specify the criminal activity], it need only
prove that the defendant knew it represented the proceeds of some form, though not
necessarily which form, of felony under state or federal law.996
“Conducts” includes initiating, concluding, or participating in initiating or
concluding a transaction. [§ 1956(c)(2)]

017
7/2

“Transaction” includes a purchase, sale, loan, pledge, gift, transfer, delivery, or other
disposition, and with respect to a financial institution includes a deposit, withdrawal,
transfer between accounts, exchange of currency, loan, extension of credit, purchase or
sale of any stock, bond, certificate of deposit, or other monetary instrument, use of a safe
deposit box, or any other payment, transfer, or delivery by, through, or to a financial
institution, by whatever means effected. [§ 1956(c)(3)]

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6-4

“Financial transaction” means a transaction which in any way or degree affects
interstate or foreign commerce involving the movement of funds by wire or other means
or involving one or more monetary instruments or involving the transfer of title to any real
property, vehicle, vessel, or aircraft, or a transaction involving the use of a financial
institution which is engaged in, or the activities of which affect, interstate or foreign
commerce in any way or degree. [§ 1956(c)(4)]

o. 1
N

“Monetary instruments” means (1) coin or currency of the United States or of any
other country, travelers’ checks, personal checks, bank checks, and money orders, or (2)
investment securities or negotiable instruments, in bearer form or otherwise in such form
that title thereto passes upon delivery. [§ 1956(c)(5)]
“Financial institution” includes any financial institution [as defined in 31 U.S.C.
§ 5312(a)(2)] and any foreign bank [as defined in 12 U.S.C. § 3101]. [§ 1956(c)(6)]
“Specified unlawful activity” [is defined in § 1956(c)(7), and the elements of the
specified unlawful activity should be identified for the jury].
“Proceeds” means any property derived from or obtained or retained, directly or
indirectly, through some form of unlawful activity, including the gross receipts of such
995

Whitfield v. United States, 543 U.S. 209 (2005); United States v. Bolden, 325 F.3d 471,
489 (4th Cir. 2003); Alerre, 430 F.3d 681.
996
United States v. Evans, 272 F.3d 1069, 1086 (8th Cir. 2001).

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activity. [§ 1956(c)(9)].997
The property involved in the transaction must represent the proceeds of an already
completed offense, or a completed phase of an ongoing offense.998 That is, the government
must prove that the specified unlawful activity generated proceeds prior to the alleged
money laundering, and whether the alleged money laundering actually involved those
criminally-derived proceeds.999
The government need not prove that all of the money involved in the transaction
constituted the proceeds of the criminal activity; it is sufficient if the government proves
that at least part of the money represented such proceeds.1000
The government must prove that the defendant had actual subjective knowledge that
the money used in a money laundering transaction was derived from an unlawful source.
The defendant may not be convicted on just what he should have known. However, both
direct and circumstantial evidence can be used to establish knowledge and are given the
same weight.1001
____________________NOTE____________________
Section 1956 contains no appearance of legitimate wealth requirement. United States
v. Cuellar, 553 U.S. 550 (2008).
Section 1956(a)(1)(A) and (B) set forth a single offense with two different types of
mens rea. Thus, a financial transaction conducted “to promote” and “to conceal” is only
one offense, not two, and charging the financial transaction in two counts is
multiplicitous. United States v. Stewart, 256 F.3d 231, 246 (4th Cir. 2001).

017
7/2

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d0

The promotion element was satisfied when a defendant paid his subordinate
employee for being involved in an unlawful scheme, because such payments compensated
the employee for his illegal activities and encouraged his continued participation). United

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226 the statute, adding this definition of “proceeds.” In
On May 20, 2009,-4
6 Congress amended
United States v. Santos, 1 U.S. 507 (2008), the Supreme Court held in a plurality opinion that the
553
.
term “proceeds” referred to “profits,” not “gross receipts.” 553 U.S. at 514. Prior to Santos, the Fourth
No referred to gross receipts of a criminal enterprise. United States v. Singh,
Circuit held that “proceeds”
997

518 F.3d 236, 247 (4th Cir. 2008); United States v. Caplinger, 339 F.3d 226, 233 (4th Cir. 2003);
United States v. Stewart, 256 F.3d 231, 250 (4th Cir. 2001). In United States v. Johnson, 405 F. App’x
746 (4th Cir. 2010), the court noted:
As the plurality opinion in Santos does not appear to extend beyond illegal
gambling operations, we are bound by this Court’s precedent holding that
“proceeds” means gross receipts. *** [H]ere, the financial transactions that
supported the money laundering convictions involved criminally derived proceeds
of a completed offense, or at a minimum, a completed stage of an offense....
405 F. App’x at 750, 751.
998
Singh, 518 F.3d at 247.
999
Bolden, 325 F.3d at 488.
1000
United States v. Wilkinson, 137 F.3d 214, 222 (4th Cir. 1998) (en banc) (“[W ]hen the
funds used in a particular transaction originated from a single source of commingled, legally-and
illegally-acquired funds, it may be presumed that the transacted funds, at least up to the full amount
originally derived from crime, were the proceeds of the criminal activity.”).
1001
United States v. Heaps, 39 F.3d 479, 484 (4th Cir. 1994) (citing United States v.
Campbell, 977 F.2d 854, 857 (4th Cir. 1993)), abrogated by United States v. Cabrales, 524 U.S. 1
(1998).

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States v. Bolden, 325 F.3d 471, 489 (4th Cir. 2003). In Bolden, the defendant was charged
with both promotion and concealment money laundering. “When an indictment alleges
both promotion and concealment money laundering, a conviction can be premised on
proof of either.” Id. at 487 n.20.
The laundering of funds cannot occur in the same transaction through which those
funds first become tainted by crime. United States v. Butler, 211 F.3d 826, 830 (4th Cir.
2000).
“By its terms, the promotion money laundering provision ... requires the prosecution
to (1) trace the money at issue to an underlying unlawful activity, and (2) prove that the
money was transferred in order to promote a specified unlawful activity.” United States v.
Alerre, 430 F.3d 681, 693 (4th Cir. 2005).
The expenditure of proceeds from the criminal conduct on items used solely to
maintain personal lifestyle does not promote the specified criminal activity. These same
expenditures may constitute violations of (B)(i), if done with intent to conceal. United
States v. Jackson, 935 F.2d 832, 841-42 (7th Cir. 1991).
The receipt of the proceeds of the criminal activity cannot also serve as the predicate
of a charge for promotion. Money laundering is a separate crime distinct from the
underlying offense that generated the money to be laundered. Thus, § 1956 should not be
interpreted to make any drug transaction a money laundering crime. United States v.
Heaps, 39 F.3d 479, 486 (4th Cir. 1994), abrogated on other grounds by United States v.
Cabrales, 524 U.S. 1 (1998).

017
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Typically, a scheme to deposit a large amount of cash in relatively small increments
would be prosecuted pursuant to § 1956(a)(1)(B)(ii) as designed to avoid a transaction
reporting requirement. In United States v. Villarini, 238 F.3d 530, 533 (4th Cir. 2001), the
government’s theory was that the defendant had embezzled $83,000. Subsequently, she
purchased a cashiers check for $2,950, and made deposits of $2,200, $1,000, and $2,000
over a two-month period. This conduct gave rise to a reasonable inference that the
transactions were designed to avoid suspicion or to give the appearance that she had a
legitimate cash income stream.

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226
6-4

Venue for money laundering is the district where the money was laundered, not the
district where the funds were unlawfully generated. United States v. Cabrales, 524 U.S. 1
(1998). However, money laundering might be a continuing offense, triable in the district
where the offense began, continued, or was completed, if the launderer acquired the funds
in one district and transported them into another. Id. at 8. In United States v. Stewart, 256
F.3d 231 (4th Cir. 2001), the court vacated money laundering convictions for improper
venue. The court relied on the definition of “transaction” as a deposit or withdrawal, so
that a deposit and withdrawal are two separate transactions for purposes of this statute.
Also, a Western Union transfer, which necessitates two or more separate transactions, is
not a single financial transaction for purposes of determining venue.
Because of the knowledge burden imposed by Heaps, a willful blindness charge
might be appropriate. See United States v. Campbell, 977 F.2d 854, 857 (4th Cir. 1992).
Details about the nature of the unlawful activity underlying the character of the
proceeds need not be alleged. United States v. Smith, 44 F.3d 1259, 1265 (4th Cir. 1995).
“[T]he mere receipt of funds can constitute a transaction under this statute.” United
States v. Blair, 661 F.3d 755, 764 (4th Cir. 2011) (citing United States v. Gotti, 459 F.3d

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296, 335-36 (2d Cir. 2006)).
Withdrawal of funds from an account qualifies as a “transaction.” “The deposit of
money in a bank and the subsequent use of that money ... are two transactions within the
scope of the statute.” Id. at 756 (quoting United States v. Blackman, 904 F.2d 1250, 1257
(8th Cir. 1990)).
In United States v. Santos, 553 U.S. 507 (2008), the Supreme Court held in a
plurality decision that the money laundering term “proceeds” (which was not then defined
in the federal money laundering statute) means “net profits” when the proceeds are
derived from an illegal gambling operation.
Circuit Courts have been divided on the application of Santos. The Fourth Circuit
has taken the position that “when the illegal activity includes money transactions to pay
for the costs of the illegal activity, a merger problem can occur if the government uses
those transactions also to prosecute the defendant for money laundering.” United States v.
Halstead, 634 F.3d 270, 279 (4th Cir. 2011).
In United States v. Cloud, 680 F.3d 270, 279 (4th Cir. 2011), the Fourth Circuit
reversed the defendant’s money laundering convictions because they were based on
paying the “essential expenses” of the underlying fraud, resulting in a merger problem.
In 2009, Congress amended the statute to specifically define “proceeds” as “any
property derived from or obtained or retained, directly or indirectly, through some form of
unlawful activity, including the gross receipts of such activity.” 18 U.S.C. § 1956(c)(9).
So defined, the Fourth Circuit has noted that this merger issue “is not likely to arise in
many more cases.” Cloud, 680 F.3d at 409 n.6.

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18 U.S.C. § 1957 ENGAGING IN MONETARY TRANSACTIONS [LAST UPDATED :
7/1/14]

226 1957 makes it a crime to engage in money
Title 18, United States-4 Section
Code,
laundering. For you to 16the defendant guilty, the government must prove each of the
find
.
following beyondoreasonable doubt:
Na
P

First, that the defendant engaged in a monetary transaction which had some
effect on interstate or foreign commerce;

P

Second, that the monetary transaction involved criminally derived property with
a value greater than $10,000 [here, the jury should be charged on the elements of
the crime or specified unlawful activity from which the property was
derived];1002 and

P

Third, that the defendant did so knowingly.

“Knowing that the property involved in a financial transaction represents the
proceeds of some form of unlawful activity” means that the person knew that the property
involved in the transaction represented proceeds from some form, though not necessarily
which form, of activity that constitutes a felony under State, Federal or foreign law,
regardless of whether or not such activity is specified in [the definition of “specified
unlawful activity”]. [§ 1956(c)(1)]

1002

See United States v. Cherry, 330 F.3d 658, 668 (4th Cir. 2003).

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“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 show some effect on interstate or foreign commerce.1003
“Specified unlawful activity” [is defined in § 1956(c)(7), and the elements of the
specified unlawful activity should be identified for the jury].1004
“Monetary transaction” means the deposit, withdrawal, transfer, or exchange, in or
affecting interstate or foreign commerce, of funds or a monetary instrument by, through,
or to a financial institution, including any transaction that would be a financial transaction
which in any way or degree affects interstate or foreign commerce involving the
movement of funds by wire or other means or involving one or more monetary
instruments, or involving the transfer of title to any real property, vehicle, vessel, or
aircraft, or a transaction involving the use of a financial institution which is engaged in, or
the activities affect, interstate or foreign commerce in any way or degree. [§ 1957(f)(1)
and § 1956(c)(4)]1005
“Financial institution” includes any financial institution [as defined in 31 U.S.C.
§ 5312(a)(2)], any foreign bank [as defined in 12 U.S.C. § 3101]. [§ 1956(c)(6)]

017
7/2

“Monetary instruments” means (1) coin or currency of the United States or of any
other country, travelers’ checks, personal checks, bank checks, and money orders, or (2)
investment securities or negotiable instruments, in bearer form or otherwise in such form
that title thereto passes upon delivery. [§ 1956(c)(5)]

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“Criminally derived property” means any property constituting, or derived from,
proceeds obtained from a criminal offense. [§ 1957(f)(2)]

226
6-4

“Proceeds” means any property derived from or obtained or retained, directly or
indirectly, through some form of unlawful activity, including the gross receipts of such
activity. [§ 1956(c)(9)].1006

o. 1
N

1003

United States v. Aramony, 88 F.3d 1369, 1386 (4th Cir. 1996) (“a de minimis effect on
interstate commerce is an essential element of a § 1957 violation”).
1004
Cherry, 330 F.3d at 668.
1005
“Monetary transaction”does not include payments to the defendant’s criminal attorney.
18 U.S.C. § 1957(f)(1).
1006
On May 20, 2009, Congress amended the statute, adding this definition of “proceeds.”
In United States v. Santos, 553 U.S. 507 (2008), the Supreme Court held in a plurality opinion, that
the term “proceeds” referred to “profits,” not “gross receipts.” 553 U.S. at 514. Prior to Santos, the
Fourth Circuit held that the word “proceeds” referred to gross receipts of a criminal enterprise. See
United States v. Singh, 518 F.3d 236, 247 (4th Cir. 2008); United States v. Caplinger, 339 F.3d 226,
233 (4th Cir. 2003); United States v. Stewart, 256 F.3d 231, 250 (4th Cir. 2001). In United States v.
Johnson, 405 F. App’x 746 (4th Cir. 2010), the Court stated the following:
As the plurality opinion in Santos does not appear to extend beyond illegal
gambling operations, we are bound by this Court’s precedent holding that
“proceeds” means gross receipts. *** [H]ere, the financial transactions that
supported the money laundering convictions involved criminally derived proceeds
of a completed offense, or at a minimum, a completed stage of an offense....
(continued...)

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There is no requirement that the defendant must have committed the criminal offense
from which the property was derived.1007
The government need not prove that all of the money involved in the transaction
constituted the proceeds of the criminal activity; it is sufficient if the government proves
that at least part of the money represented such proceeds. Nor does the government have
to trace the origin of the funds from the sale of assets that were purchased with
commingled illegally-acquired and legally-acquired funds.1008
____________________NOTE____________________
United States v. Najjar, 300 F.3d 466, 481 (4th Cir. 2002); United States v.
Aramony, 88 F.3d 1369, 1385-87 (4th Cir. 1996); United States v. Smith, 44 F.3d 1259,
1270 (4th Cir. 1995).
Section 1957(f)(1) contains a safe harbor provision which exempts a transaction
necessary to preserve a person’s right to representation as guaranteed by the Sixth
Amendment to the Constitution. In United States v. Blair, 661 F.3d 755 (4th Cir. 2011),
the defendant, an attorney, was prosecuted for using drug proceeds to retain attorneys for
two accused drug dealers. The Fourth Circuit held that the provision did not apply on the
facts of the case, as “anyone seeking to benefit from § 1957(f) must tie his conduct to the
Sixth Amendment right to counsel.” Id. at 771. However, there is no Sixth Amendment
right to use another person’s money to hire an attorney. The drug proceeds were not
rightfully Blair’s, and therefore he did not meet a basic requirement under § 1957(f). In
addition, Sixth Amendment rights are personal to the accused.

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18 U.S.C. § 1958

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USE OF INTERSTATE FACILITIES
IN MURDER-FOR-HIRE [LAST UPDATED : 8/15/2016]

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Title 18, United States Code, Section 1958 makes it a crime [to travel or use certain
interstate facilities] in the commission of a murder-for-hire. For you to find the defendant
guilty, the government must prove each of the following beyond a reasonable doubt:
P

.
othe 1
First,N
that
defendant traveled or caused another person to travel in interstate
or foreign commerce, or used or caused another person to use the mail or any
facility of interstate or foreign commerce;1009

P

Second, that the defendant did so with the intent that a murder be committed (in
violation of the laws of any state or the United States)[the law should be
specified, and the elements identified for the jury]; and

1006

(...continued)
405 F. App’x at 750, 751.
1007
United States v. Cherry, 330 F.3d 658, 667 (4th Cir. 2003).
1008
See United States v. Wilkinson, 137 F.3d 214, 222 (4th Cir. 1998) (en banc) (“[W ]hen
the funds used in a particular transaction originated from a single source of commingled, legally- and
illegally-acquired funds, it may be presumed that the transacted funds, at least up to the full amount
originally derived from crime, were the proceeds of the criminal activity.”).
1009
The “travel” prong and the “use of facilities” prong are “distinct and alternative
jurisdictional elements,” and a jury should only be instructed on the jurisdictional element charged in
the indictment. United States v. Moore, 810 F.3d 932, 936-38 (4th Cir. 2016).

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P

Third, as consideration for the receipt of or promise or agreement to pay
anything of pecuniary value.1010

OR
P

First, that two or more persons conspired and agreed to achieve the unlawful
purpose of murder-for-hire [here, the court should explain the elements of the
substantive crime, if it is not charged in the indictment];

P

Second, that the defendant knew of the agreement; and

P

Third, that the defendant intentionally joined the conspiracy.1011

The government must prove that the defendant had the specific intent to join the
conspiracy.1012
ADDITIONAL ELEMENTS, IF APPROPRIATE:
1. Did personal injury result?
2. Did death result?
“Anything of pecuniary value” means anything of value in the form of money,
negotiable instrument, a commercial interest, or anything else the primary significance of
which is economic advantage. [§ 1958(b)(1)]

017
2
“Facility of interstate commerce” includes means of transportation and
communication. [§ 1958(b)(2)]
27/
07/ or foreign commerce.
The defendant’s use of the facility need not be in interstate
ed
“Interstate commerce” includes commerce w
between one state, territory, possession,
ie
of the District of Columbia and another, v territory, possession or the District of
state,
Columbia. [18 U.S.C. § 10]
226
4
“Foreign commerce” includes commerce with a foreign country. [18 U.S.C. § 10]
16.
The government must prove a quid pro quo between the person who solicits the
No

1013

murder and the person who would commit the murder. However, “as consideration for”
simply means “in return for.” The “in return for” may be a “promise or agreement to pay
anything of pecuniary value.”1014

1010

United States v. Morin, 80 F.3d 124, 127 n.2 (4th Cir. 1996).
United States v. Hyles, 521 F.3d 946, 954 (8th Cir. 2008). But cf. United States v.
Hernandez, 141 F.3d 1042, 1053 (11th Cir. 1998) (requiring overt act).
1012
Hernandez, 141 F.3d at 1053.
1013
See United States v. Thomas, 282 F. App’x 244 (4th Cir. 2008) (following other circuits
holding use of interstate commerce facility satisfies jurisdictional element, regardless of whether
particular transaction in question interstate or wholly intrastate).
1014
United States v. Hernandez, 141 F.3d 1042, 1057 (11th Cir. 1998). In United States v.
Wicklund, 114 F.3d 151 (10th Cir. 1997), the Tenth Circuit held that
1011

“in consideration for,” as used in both prongs of § 1958(a) means consideration in
the traditional sense of bargained for exchange. The two uses of “as consideration
for” in the statute cover the two murder-for-hire situations: payment now or a
(continued...)

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____________________NOTE____________________
Section 1958 contains its own conspiracy provision.
“The intent to pay someone to commit murder is therefore a critical element of
‘murder-for-hire.’” United States v. Ritter, 989 F.2d 318, 321 (9th Cir. 1993).
Both the actual murderer and the one who solicits the murder are criminally liable
under the statute. United States v. Hernandez, 141 F.3d 1042, 1056 (11th Cir. 1998).
In the context of this statute, it is the motive of the murderers that is relevant to
whether the murder occurred in return for a promise to pay. The solicitor will usually
have a different motive for the killing than the murderer does. The solicitor pays to have
someone killed, while the murderer kills to have someone pay him. Hernandez, 141 F.3d
at 1058-59.
United States v. Thomas, 282 F. App’x 244 (4th Cir. 2008) (citing United States v.
Marek, 238 F.3d 310, 318-19 (5th Cir. 2001) (en banc)).
For elements of murder in South Carolina, 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).
18 U.S.C. § 1959

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7/2

VIOLENT CRIMES IN AID OF RACKETEERING

Title 18, United States Code, Section 1959 makes it a crime to commit certain
violent crimes in connection with an enterprise engaged in racketeering activity. For you
to find the defendant guilty, the government must prove each of the following beyond a
reasonable doubt:

7/2
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Status crime:
P
P

P

e
iew
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6
22engaged in racketeering activity [here the court
Second, that the enterprise
4
should identify the elements of the appropriate defined racketeering activity from
16.
§ 1961];o
N
First, that there was an enterprise;

Third, that the defendant [had a position in the enterprise] [sought to gain
entrance into the enterprise];

P

Fourth, that the defendant did [or attempted or conspired to] [murder, kidnap,
maim, assault with a dangerous weapon, assault resulting in serious bodily
injury, threaten to commit a crime of violence against any individual] [the
elements of attempt, conspiracy, and the crime of violence should be identified
for the jury];1015 and

P

Fifth, that the defendant’s general purpose in committing the alleged crime of

1014

(...continued)
promise or agreement to pay in the future. They describe separate situations and
impose criminal liability regardless of whether the payment has occurred or is to
occur later.

114 F.3d at 154.
1015
If a state crime of violence, refer to Anderson, supra note 17, and Shealy & Lawton,
supra note 17.

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violence was to gain entrance to or maintain or increase his position in the
enterprise.1016
The defendant’s purpose can be shown by proof that the defendant, who held a
position in the enterprise, committed an underlying crime of violence with a motive of
retaining or enhancing that position. This need not be the defendant’s only or primary
concern, and the jury may infer that the defendant committed the violent crime because he
knew it was expected of him by reason of his membership in the enterprise or that he
committed it in furtherance of that membership.1017
Quid pro quo crime
P

First, that there was an enterprise;

P

Second, that the enterprise engaged in racketeering activity [here the court
should identify the elements of the appropriate racketeering activity from
§ 1961];

P

Third, that the defendant was paid or promised payment for committing,
[attempting to commit, or conspiring to commit] [murder, kidnap, maim, assault
with a dangerous weapon, assault resulting in serious bodily injury, threaten to
commit a crime of violence against any individual] [the elements of attempt,
conspiracy, and the crime of violence should be identified for the jury];1018 and

P

Fourth, that the payment or promise of payment was received from an enterprise
engaged in racketeering activity. In other words, the payment must have been
made by an agent of the enterprise, not by a person acting in his personal
capacity.1019

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“Enterprise” includes any partnership, corporation, association, or other legal entity,
and any union or group of individuals associated in fact although not a legal entity, and
the government must prove beyond a reasonable doubt that the enterprise was engaged in,
or the activities of the enterprise affected, interstate or foreign commerce. [§ 1959(b)(2)].

o. 1
N

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An enterprise is an entity, and would include a group of persons associated together
for a common purpose of engaging in a course of conduct. An enterprise is proved by
evidence of an ongoing organization, formal or informal, and by evidence that the various
associates function as a continuing unit. An enterprise is characterized by continuity,
unity, shared purpose and identifiable structure.1020
“Indeed, an enterprise need not have a name. Thus, an enterprise need not be a
formal business entity such as a corporation, but may be merely an informal association of
individuals. A group or association of people can be an ‘enterprise’ if, among other
requirements, these individuals associate together for a purpose of engaging in a course of
conduct. Common sense suggests that the existence of an association-in-fact is oftentimes
more readily proven by what it does, rather than by abstract analysis of its structure.

1016

United States v. Fiel, 35 F.3d 997, 1003 (4th Cir. 1994).
United States v. Tipton, 90 F.3d 861, 891 (4th Cir. 1996).
1018
If a state crime of violence, refer to Anderson, supra note 17, and Shealy & Lawton,
supra note 17.
1019
See United States v. Fernandez, 388 F.3d 1199, 1233 (9th Cir. 2004); United States v.
Gray, 137 F.3d 765, 772 (4th Cir. 1998).
1020
Fiel, 35 F.3d at 1003.
1017

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Moreover, you may find an enterprise where an association of individuals, without
structural hierarchy, forms solely for the purpose of carrying out a pattern of racketeering
acts. Such an association of persons may be established by evidence showing an ongoing
organization, formal or informal, and ... by evidence that the people making up the
association functioned as a continuing unit. Therefore, in order to establish the existence
of such an enterprise, the government must prove that: (1) there is an ongoing
organization with some sort of framework, formal or informal, for carrying out its
objectives; and (2) the various members and associates of the association function as a
continuing unit to achieve a common purpose.
Regarding ‘organization,’ it is not necessary that the enterprise have any particular or
formal structure, but it must have sufficient organization that its members functioned and
operated in a coordinated manner in order to carry out the alleged common purpose or
purposes of the enterprise.”1021
The hallmark of an enterprise is structure; there must be some structure that is
amenable to consensual or hierarchical decision-making, though there need not be much.
A group may continue to be an enterprise even if it changes membership by gaining or
losing members over time. The government must prove that the group described in the
indictment was the enterprise charged, but need not prove each and every allegation in the
indictment about the enterprise or the manner in which the enterprise operated. 1022

017
7/2

The government does not have to prove that the enterprise was motivated by an
economic purpose.1023

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d0

However, the government must prove that the enterprise, or the activities of the
enterprise, had some effect upon interstate commerce. This effect on interstate commerce
can occur in any way and it need only be minimal.1024

e
iew one state, territory, possession,
“Interstate commerce” includes commerce between
6, v
of the District of Columbia and another state, territory, possession or the District of
2
Columbia. [18 U.S.C. § 10] -42
“Foreign commerce” includes commerce with a foreign country. [18 U.S.C. § 10]
. 16
No
“Racketeering activity” means [see definition in 18 U.S.C. § 1961(1) and the
elements of the racketeering activity should be identified for the jury].
The government does not need to show a connection between interstate or foreign
commerce and the specific crime of violence.1025

The government does not need to prove overt acts or specific acts of racketeering
that the defendant agreed personally to commit.1026

1021

Boyle v. United States, 556 U.S. 938, 942 n.1 (2009) (quoting district court jury

instruction).
1022
1023
1024

Instruction approved in United States v. Phillips, 239 F.3d 829, 843-44 (7th Cir. 2001).
NOW v. Scheidler, 510 U.S. 249, 252 (1994).
Gist of instruction approved in United States v. Fernandez, 388 F.3d 1199, 1249 (9th Cir.

2004).
1025

Fernandez, 388 F.3d at 1250; United States v. Feliciano, 223 F.3d 102, 117 (2d Cir.

2000).
1026

United States v. Le, 310 F. Supp. 2d 763, 780 n.24 (E.D. Va. 2004).

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Nor does the government have to prove a connection between the act of violence and
the racketeering activity.1027
However, the government must prove that the enterprise was separate and apart from
the association of the defendant with the enterprise to commit the act of violence.1028
____________________NOTE____________________
Unlike § 1962, § 1959 contains no required pattern of racketeering activity. United
States v. Fiel, 35 F.3d 997, 1005 (4th Cir. 1994).
According to the Ninth Circuit, the statute clearly contemplates two alternative
theories of motive for the commission of § 1959 offenses: either the defendant received
something of pecuniary value from the racketeering enterprise to commit the crime (quid
pro quo crime) or the crime was committed to achieve, maintain or increase the
defendant’s status in the enterprise (status crime). United States v. Fernandez, 388 F.3d
1199, 1232 (9th Cir. 2004).
The government need not prove that the status-crime was committed on behalf of the
organization itself, rather than to benefit the individual conspirators. That requirement is
relevant only to allegations of quid pro quo crimes. Id. at 1233.
Cases decided under § 1961(4) may also be used to determine what constitutes an
enterprise under § 1959. United States v. Phillips, 239 F.3d 829, 843 (7th Cir. 2001).

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7/2

The existence of an internal dispute does not signal the end of an enterprise,
particularly if the objective of, and reason for, the dispute is control of the enterprise
Fernandez, 388 F.3d at 1222 (citing United States v. Orena, 32 F.3d. 704, 710 (2d Cir.
1994)).

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iew
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In Boyle v. United States, 556 U.S. 938 (2009), the Supreme Court held that

226
6-4

an association-in-fact enterprise is simply a continuing unit that functions with
a common purpose. Such a group need not have a hierarchical structure or a
‘chain of command’; decisions may be made on an ad hoc basis and by any
number of methods—by majority vote, consensus, a show of strength, etc.
Members of the group need not have fixed roles; different members may
perform different roles at different times. The group need not have a name,
regular meetings, dues, established rules and regulations, disciplinary
procedures, or induction or initiation ceremonies. While the group must
function as a continuing unit and remain in existence long enough to pursue a
course of conduct, nothing in RICO exempts an enterprise whose associates
engage in spurts of activity punctuated by periods of quiescence. Nor is the
statute limited to groups whose crimes are sophisticated, diverse, complex, or
unique; for example, a group that does nothing but engage in extortion through
old-fashioned, unsophisticated, and brutal means may fall squarely within the
statute’s reach.

o. 1
N

556 U.S. at 948.

1027

United States v. Fiel, 35 F.3d 997, 1005 (4th Cir. 1994).
See United States v. Gray, 137 F.3d 765, 772 (4th Cir. 1998). See also United States v.
Griffin, 660 F.2d 996, 999 (4th Cir. 1981).
1028

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In United States v. Tipton, 90 F.3d 861, 891 (4th Cir. 1996), the Fourth Circuit,
concerning “status crime” or “self-promotion,” found that maintaining or increasing his
position in the enterprise need not be the defendant’s only or primary concern. If there is
evidence, the jury could properly infer that the defendant committed his violent crime
because he knew it was expected of him by reason of his membership in the enterprise or
that he committed it in furtherance of that membership.
“An ‘enterprise’ is an entity distinct from the ‘racketeering activity’ in which it
engages.” Id. at 888.
The elements of the predicate racketeering offenses are not essential elements of a
§ 1959 charge. United States v. Le, 310 F. Supp. 2d 763, 779 (E.D. Va. 2004).
Nevertheless, the jury must be instructed that it cannot find a defendant guilty of violating
§ 1959 unless it finds that members of the enterprise committed predicate racketeering
acts. Id. at 779 n.22.
Section 1959 incorporates state law with respect to conspiracies and attempts. Id. at
783.
18 U.S.C. § 1960

UNLICENSED MONEY TRANSMITTING BUSINESS

017
7/2

Title 18, United States Code, Section 1960 makes it a crime to conduct an unlicensed
money transmitting business. For you to find the defendant guilty, the government must
prove each of the following beyond a reasonable doubt:
P

7/2
d0

First, that the defendant conducted, controlled, managed, supervised, directed, or
owned;

e
iew
P Third, that the defendant did so knowingly.
6, v means a money transmitting business
2
“Unlicensed money transmitting business”
-42 commerce in any manner or degree and
which affects interstate or foreign
16
.without an appropriate license in a state where such operation is
1. is operated
No as a misdemeanor or felony under state law, whether or not the
punishable
P

Second, all or part of an “unlicensed money transmitting business”; and

defendant knew a license was required or was punishable by state law; or
2. fails to comply with the requirements of [31 U.S.C. § 5330]; or
3. involves the transportation or transmission of funds that are known to the
defendant to have been derived from a criminal offense or are intended to be
used to promote or support unlawful activity. [§ 1960(b)(1)]
“Money transmitting” includes transferring funds on behalf of the public by any and
all means including but not limited to transfers within this country or to locations abroad
by wire, check, draft, facsimile, or courier. [§ 1960(b)(2)]
____________________NOTE____________________
Sections 1960(b)(1)(A) and (B) set forth constitutionally valid general intent crimes.
United States v. Talebnejad, 460 F.3d 563 (4th Cir. 2006).
“For purposes of this appeal, we accept the Government’s contention that § 1960 sets
forth one offense — conducting an unlicensed money transmitting business — that may
be committed in multiple ways. For ease of reference, however, we will refer to the

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definitions of ‘unlicensed’ in § 1960(b)(1)(A) and (B) as independent violations of
§ 1960.” Id. at n.2.
In Talebnejad, the Fourth Circuit identified the elements of § 1960(b)(1)(A) as
follows: 1. operate a money transmitting business; 2. that affects interstate commerce, and
3. that is unlicensed under state law, when 4. state law requires a license, and 5. state law
punishes lack of a license as a felony or misdemeanor.” Id. at 568. The parties agreed that
the government had to prove the defendant’s knowledge with respect to the first three
elements and that Congress explicitly excluded any mens rea requirement from the last
two elements.
“Mistake of law” defense does not apply to the licensing requirement of
§ 1960(b)(1)(A). Id. at 570.
“[T]he statute does not reach mere employees. We therefore reject the conclusion of
the district court that the Government is required to allege and prove a state-law duty to
acquire a license in order to obtain a conviction under § 1960(b)(1)(A).” Id. at 572.
A person cannot be prosecuted for a single, isolated transmission of money because
the statute requires that the entity be a business. United States v. Velastegui, 199 F.3d
590, 595 n.4 (2d Cir. 1999).
In 2001, the Patriot Act amended § 1960 to clarify that it is a general intent crime.
See United States v. Rahman, 417 F. Supp. 2d 725, 728 (E.D.N.C. 2006).

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7/2

As of 2010, South Carolina does not regulate money transmitting businesses,
according to State Attorney General’s Office and State Board of Financial Institutions,
Banking Division.

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iew AND
18 U.S.C. § 1962
RACKETEER INFLUENCED
,v
CORRUPT 26
ORGANIZATIONS [L
U
: 1/20/2016]
42
§ 1962(a)
16-Code, Section 1962(a) makes it a crime for a person who has
Title 18, United States
o.
Nfrom a pattern of racketeering to invest that income in any enterprise
received income
AST

PDATED

which affects 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 received income from a pattern of racketeering activity
or through the collection of an unlawful debt;

P

Second, that the defendant used or invested, directly or indirectly, any of that
income, or the proceeds of that income, in acquiring any interest in, or
establishing or operating an enterprise; and

P

Third, that the enterprise was engaged in, or the activities of the enterprise
affected, interstate or foreign commerce.1029

The government does not need to prove that the income from the pattern of
racketeering activity [or through the collection of an unlawful debt] must be specifically

1029

See United States v. Cornell, 780 F.3d 616, 622 (4th Cir. 2015) (finding that “the district
court did not err by applying the minimal effects standard in this case”); United States v. Vogt, 910
F.2d 1184, 1194 (4th Cir. 1990).

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and directly traced from its original receipt to its ultimate use or investment by the
defendant.1030
§ 1962(b)
Title 18, United States Code, Section 1962(b) makes it a crime for any person to
control any enterprise engaged in interstate commerce through a pattern of racketeering
activity. 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 in a pattern of racketeering activity or the
collection of an unlawful debt [the court should identify the elements of the
racketeering acts];

P

Second, that through that conduct the defendant acquired or maintained, directly
or indirectly, any interest in or control of an enterprise; and

P

Third, that the enterprise was engaged in, or the activities of the enterprise
affected, interstate or foreign commerce.

§ 1962(c) (substantive RICO offense)
Title 18, United States Code, Section 1962(c) makes it a crime for any person
employed by or associated with any enterprise engaged in interstate commerce to conduct
the affairs of the enterprise through a pattern of racketeering activity. 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
P Second, that the defendant was associateded the enterprise;
with
w
P Third, that the defendant conducted,e participated, either directly or indirectly,
or
vithe enterprise; and
in the operation or management of
26,through a pattern of racketeering activity or the
2
P Fifth, that the defendant did so
6-4 debt.
collection of an unlawful
.1
oshould identify the elements of the racketeering acts.
L The court
N
P

First, that an enterprise affecting interstate or foreign commerce existed;

1031

§ 1962(d) (Conspiracy)
Title 18, United States Code, Section 1962(d) makes it a crime for any person to
conspire to conduct such enterprises’s affairs through a pattern of racketeering activity.
For you to find the defendant guilty, the government must prove each of the following
beyond a reasonable doubt:
P

First, that an enterprise affecting interstate or foreign commerce existed;

P

Second, that the defendant knowingly and intentionally agreed with another
person to conduct or participate in the affairs of the enterprise; and

P

Third, that the defendant knowingly and willfully agreed that he or some

1030

Id.
Reves v. Ernst & Young, 507 U.S. 170 (1993); United States v. Hooker, 841 F.2d 1225,
1227 (4th Cir. 1988). “The elements predominant in a subsection (c) violation are: (1) the conduct (2)
of an enterprise (3) through a pattern of racketeering activity.” Salinas v. United States, 522 U.S. 52,
62 (1997).
1031

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member of the conspiracy would commit at least two racketeering acts.1032
L The court should identify the elements of the racketeering acts.1033
As to § 1962(c) only, “conduct or participate” means some involvement in the
operation or management of the enterprise,1034 involving repeated carrying on of
affairs.1035 As to § 1962(d), “liability does not require that a defendant have a role in
directing an enterprise.”1036
“Through” means by means of, in consequence of, by reason of.1037
“Enterprise” includes any individual, partnership, corporation, association, or other
legal entity, and any union or group of individuals associated in fact although not a legal
entity. [§ 1961(4)]
“Indeed, an enterprise need not have a name. Thus, an enterprise need not be a
form[al] business entity such as a corporation, but may be merely an informal association
of individuals. A group or association of people can be an ‘enterprise’ if, among other
requirements, these individuals ‘associate’ together for a purpose of engaging in a course
of conduct. Common sense suggests that the existence of an association-in-fact is
oftentimes more readily proven by what it does, rather than by abstract analysis of its
structure.

017
7/2

Moreover, you may find an enterprise where an association of individuals, without
structural hierarchy, forms solely for the purpose of carrying out a pattern of racketeering
acts. Such an association of persons may be established by evidence showing an ongoing
organization, formal or informal, and ... by evidence that the people making up the
association functioned as a continuing unit. Therefore, in order to establish the existence
of such an enterprise, the government must prove that: (1) There is an ongoing
organization with some sort of framework, formal or informal, for carrying out its
objectives; and (2) the various members and associates of the association function as a
continuing unit to achieve a common purpose.

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iew
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226
4
Regarding ‘organization,’ it is not necessary that the enterprise have any particular or
16-have sufficient organization that its members functioned and
formal structure, but.it must
No
operated in a coordinated manner in order to carry out the alleged common purpose or
purposes of the enterprise.”1038
“‘[S]tructure’ means ‘[th]e way in which parts are arranged or put together to form a

1032

United States v. Cornell, 780 F.3d 616, 621 (4th Cir. 2015); United States v. Mouzone,
687 F.3d 207, 218 (4th Cir. 2012).
1033
The government does not have to prove that each conspirator agreed that he would be
the one to commit two predicate acts, and there is no requirement of an overt act in furtherance of the
conspiracy. Salinas, 522 U.S. at 63-64. See also United States v. Le, 310 F. Supp. 2d 763, 774 (E.D.
Va. 2004).
1034
Reves, 507 U.S. 170 (1993).
1035
United States v. Webster, 669 F.2d 185, 187 (4th Cir. 1982) (“It may be doubted that an
isolated incident amounts to ‘conduct.’”).
1036
Mouzone, 687 F.3d at 218.
1037
United States v. Mandel, 591 F.2d 1347, 1375 (4th Cir. 1979).
1038
Boyle v. United States, 556 U.S. 938, 942 n.1 (2009) (quoting district court jury
instruction) (emphasis omitted).

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whole and [t]he interrelation or arrangement of parts in a complex entity.”1039
An “association-in-fact” enterprise must have at least three structural features: a
purpose, relationships among those associated with the enterprise, and longevity sufficient
to permit those associates to pursue the enterprise’s purpose.1040
The enterprise may be a public entity [such as the office of a State Senator, a state
prosecutor’s office, or a sheriff’s department].1041
“Racketeering activity” means [see definition in § 1961(1)].
“Person” includes any individual or entity capable of holding a legal or beneficial
interest in property. [§ 1961(3)]
“Pattern of racketeering activity” requires at least two acts of racketeering activity
within ten years of each other. [§ 1961(5)]. However, proof of two acts of racketeering
activity, without more, does not establish a pattern. A pattern is an arrangement or order
of things or activity. Thus, it is not the number of acts of racketeering but the relationship
that they bear to each other or to some external organizing principle that makes them
ordered or arranged. A pattern is not formed by sporadic activity. Continuity plus
relationship combine to produce a pattern. Thus, the government must show that the acts
of racketeering were related and that they amounted to or posed a threat of continued
criminal activity.

017
7/2

Relationship can be shown if the acts of racketeering had the same or similar
purposes, results, participants, victims, or methods of commission, or were otherwise
interrelated by distinguishing characteristics and were not isolated events. The acts must
be related to the affairs of the enterprise, even if they are not directly related to each other.

7/2
d0

e
iew
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Continuity refers either to a closed period of repeated conduct, or to past conduct
that by its nature projects into the future with a threat of repetition. Acts of racketeering
extending over a few weeks or months and threatening no future criminal conduct do not
satisfy this requirement. Continuity can be shown if the related acts of racketeering
themselves involve a distinct threat of long-term racketeering activity, either implicit or
explicit. Continuity may also be established by showing that the acts of racketeering were
part of an ongoing entity’s regular way of doing business or that they were a regular way
of conducting the defendant’s ongoing legitimate business (in the sense that it is not a
business that exists for criminal purposes), or of conducting or participating in an ongoing
RICO enterprise.1042

o. 1
N

226
6-4

The government must prove that the association existed separate and apart from the
pattern of racketeering activity in which it engaged.1043

1039

Id. at 945-46 (quoting American Heritage Dictionary 1718 (4th ed. 2000)). “Although
an association-in-fact enterprise must have these structural features, it does not follow that a district
court must use the term “structure” in its jury instructions.” Id. at 946.
1040
Id. at 946.
1041
United States v. Long, 651 F.2d 239, 241 (4th Cir. 1981).
1042
H.J., Inc. v. Nw. Bell Tel., 492 U.S. 229, 238-43 (1989). See also United States v. Grubb,
11 F.3d 426, 440 (4th Cir. 1993); United States v. Abed, No. 98-4637, 2000 W L 14190 (4th Cir. Jan.
10, 2000).
1043
United States v. Tillett, 763 F.2d 628, 631 (4th Cir. 1985). In Busby v. Crown Supply,
Inc., 896 F.2d 833 (4th Cir. 1990), the Fourth Circuit found that [u]nlike subsection (c), which

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There must be a connection between the enterprise and the racketeering activity, but
there is no requirement that the racketeering activity benefit the enterprise.1044
“Unlawful debt” means a debt (A) incurred or contracted in gambling activity which
was in violation of the law of the United States, a State or political subdivision thereof, or
which is unenforceable under State or Federal law in whole or in part as to principal or
interest because of the laws relating to usury, and (B) which was incurred in connection
with the business of gambling in violation of the law of the United States, a State or
political subdivision thereof, or the business of lending money or a thing of value at a rate
usurious under State or Federal law, where the usurious rate is a least twice the
enforceable rate. [§ 1961(6)]
“Documentary material” includes any book, paper, document, record, recording, or
other material. [§ 1961(9)]
The government must show that the enterprise affects interstate commerce. The
government need not demonstrate that the acts of racketeering themselves directly
involved interstate commerce. [Examples: interstate telephone calls, supplies and
materials purchased and used came from out of state, persons who were not citizens or
residents of the state were serviced by the public entity.]1045 The effect upon interstate
commerce can occur in any way and it need only be minimal. The government does not
need to show a connection to interstate commerce for each predicate act. It is the activity
of the enterprise, not each predicate act, that must affect interstate commerce.1046

17
0commit or aid
2
The government must prove that each defendant agreed to personally
27/
and abet two or more acts of racketeering or that each defendant agreed that another co0 /
conspirator would commit two or more acts of racketeering.7
d
L for § 1962(d)
we
e
The government must show that the defendant, by either words or action, objectively
, vi
manifested an agreement to participate directly or indirectly in the affairs of the enterprise
226acts of racketeering activity. The government
through the commission of at4 two
16- least
does not need to establish that each conspirator had knowledge of all of the details of the
.
No
1047

requires a relationship between the ‘person’ and the ‘enterprise’ (i.e., employer-employee), subsection
(a) requires only the use of an ‘enterprise’ by a ‘person.’ Thus, we are now persuaded that for a
violation of § 1962(a), the offender and the enterprise need not be separate. They may be identical.
W e therefore overrule this aspect of [United States v.] Computer Sciences [Corp., 689 F.2d 1181,
1190 (4th Cir. 1982)] and its progeny.
896 F.2d at 841.
“An ‘enterprise’ is an entity distinct from the ‘racketeering activity’ in which it engages.”
United States v. Tipton, 90 F.3d 861, 888 (4th Cir. 1996).
1044
United States v. Grubb, 11 F.3d 426, 439 (4th Cir. 1993) (“Such a requirement would
be problematic in cases where the enterprise is governmental in nature, and almost universally not
organized for profit.”).
1045
Long, 651 F.2d at 241-42.
1046
United States v. Fernandez, 388 F.3d 1199, 1223, 1248 n.35, 1250 (9th Cir. 2004).
1047
Instruction approved in United States v. Pryba, 900 F.2d 748, 760 (4th Cir. 1990). See
also Salinas v. United States, 522 U.S. 52 (1997); Cornell, 780 F.3d at 623-25 (stating that the court
is not required to charge the jury that it had to unanimously agree on specific racketeering acts
conspirators engaged in; unanimity as to types of racketeering acts members of conspiracy agreed to
commit was sufficient).

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conspiracy but, rather, only that the defendant participated in the conspiracy with
knowledge of the essential nature of the plan.1048
The government must prove that the defendant knowingly adopted the goal of
furthering or facilitating the criminal endeavor. In other words, the defendant knew about
the pattern of racketeering activity and agreed to facilitate the racketeering scheme.
However, the government is not required to prove that the defendant himself committed
or agreed to commit two or more acts of racketeering.1049
____________________NOTE____________________
The term “enterprise” encompasses both legitimate and illegitimate enterprises. See
United States v. Turkette, 452 U.S. 576 (1981); United States v. Whitehead, 618 F.2d 523,
525 n.1 (4th Cir. 1980).
Salinas v. United States, 522 U.S. 52, 63 (1997) (there is no requirement of some
overt act or specific act in § 1962(d) unlike § 371).
The existence of an internal dispute does not signal the end of an enterprise,
particularly if the objective of, and reason for, the dispute is control of the enterprise.
United States v. Fernandez, 388 F.3d 1199, 1222 (9th Cir. 2004).

017
7/2

In Boyle v. United States, 556 U.S. 938 (2009), the Supreme Court held that
an association-in-fact enterprise is simply a continuing unit that functions with
a common purpose. Such a group need not have a hierarchical structure or a
‘chain of command’; decisions may be made on an ad hoc basis and by any
number of methods—by majority vote, consensus, a show of strength, etc.
Members of the group need not have fixed roles; different members may
perform different roles at different times. The group need not have a name,
regular meetings, dues, established rules and regulations, disciplinary
procedures, or induction or initiation ceremonies. While the group must
function as a continuing unit and remain in existence long enough to pursue a
course of conduct, nothing in RICO exempts an enterprise whose associates
engage in spurts of activity punctuated by periods of quiescence. Nor is the
statute limited to groups whose crimes are sophisticated, diverse, complex, or
unique; for example, a group that does nothing but engage in extortion through
old-fashioned, unsophisticated, and brutal means may fall squarely within the
statute’s reach.

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iew
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o. 1
N

226
6-4

556 U.S. at 948.
In United States v. Tillett, 763 F.2d 628, 631 (4th Cir. 1985), the evidence was
“sufficient to show that the associates functioned as a continuing unit. There was both a
continuity of structure and personality within the organization despite the change in
financiers.”
Section 1961 does not define “pattern of racketeering activity.” In H.J., Inc. v. Nw.
Bell Tel., Inc., 492 U.S. 229 (1989), the Court stated that a pattern of racketeering activity

1048

United States v. Tillett, 763 F.2d 628, 632 (4th Cir. 1985).
Jury instruction approved in United States v. Abed, No. 98-4637, 2000 W L 14190 (4th
Cir. Jan. 10, 2000).
1049

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can be established by showing that “the racketeering predicate acts are related, and that
they amount to or pose a threat of continuing criminal activity.” 492 U.S. at 239. There
are essentially two elements of a pattern of racketeering activity, which have come to be
known as “relatedness” and “continuity.” “‘Continuity’ is both a closed- and open-ended
concept, referring either to a closed period of repeated conduct, or to past conduct that by
its nature projects into the future with a threat of repetition. It is, in either case, centrally a
temporal concept, and particularly so in the RICO context, where what must be
continuous, RICO’s predicate acts or offenses, and the relationship these predicates must
bear one to another, are distinct requirements.” Id. at 241-42. Continuity over a closed
period may be proven by a series of related predicates extending over a substantial period
of time. “Predicate acts extending over a few weeks or months and threatening no future
criminal conduct do not satisfy this requirement: Congress was concerned in RICO with
long-term criminal conduct.” Id. at 242. If a RICO prosecution is brought before
continuity can be established, “liability will depend on whether the threat of continuity is
demonstrated.” Id. Continued criminal activity may be established in any number of
possibilities, such as by showing that “the related predicates themselves involve a distinct
threat of long term racketeering activity, either implicit or explicit[,]” id., or by showing
that “the predicate acts or offenses are a part of an ongoing entity’s regular way of doing
business.” Id.

017
7/2

For § 1962(c), the statute of limitations begins to run from the date of the last
predicate act of racketeering charged. For subsections (a) and (b), it is different, and runs
from using the funds or acquiring or maintaining control. See United States v. Vogt, 910
F.2d 1184, 1196 (4th Cir. 1990).

2
7/funds are run into or out of
Every time tainted funds or assets purchased with tainted
d0
eproceeds in the operation of the
an enterprise constitutes a use of those funds or w
ie their
enterprise in its intended function. Id. at 1199.
6, v
2
-42 OF RECORDS
18 U.S.C. § 2071
DESTRUCTION
16
. States Code, Section 2071 makes it a crime to destroy records of the
Title 18, United
No

United States. For you to find the defendant guilty, the government must prove each of the
following beyond a reasonable doubt:
§ 2071(a)
P

First, that the defendant did, or attempted to, conceal, remove, mutilate,
obliterate, or destroy, or take and carry away with intent to conceal, remove,
mutilate, obliterate, or destroy;

P

Second, any record, proceeding, map, book, paper, document, or other thing,
filed or deposited with any clerk or officer of any court of the United States, or
in any public office, or with any judicial or public officer of the United States;
and

P

Third, that the defendant did so willfully and unlawfully.

To act willfully, the defendant must have acted intentionally, with knowledge that he

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was violating the law.1050
§ 2071(b)
P

First, that the defendant had custody of any record, proceeding, map, book,
paper, document, or other thing, in any public office of the United States;

P

Second, that the defendant concealed, removed, mutilated, obliterated, falsified,
or destroyed the record, proceeding, map, book, paper, document, or other thing,
filed or deposited with any clerk or officer of any court of the United States, or
in any public office, or with any judicial or public officer of the United States;
and

P

Third, that the defendant did so knowing that his conduct was unlawful.1051

Custody simply means that a record or document came into the person’s possession
or control as a government official. Someone with custody does not have to be employed
as a librarian or as an official record keeper.1052
____________________NOTE____________________
“When [knowledge that his conduct was unlawful] is the nature of the intent required
for conviction, the jury by definition must measure the defendant’s intent by a subjective
standard.” United States v. North, 910 F.2d 843, 886 (D.C. Cir. 1990), modified, 920 F.2d
940 (D.C. Cir. 1990).

017
7/2

18 U.S.C. § 2073

7/2
d0

FALSE ENTRY IN GOVERNMENT RECORDS

e
iew
,v

Title 18, United States Code, Section 2073 makes it a crime to make false entries in
records of the United States. For you to find the defendant guilty, the government must
prove each of the following beyond a reasonable doubt:

o. 1
N

¶1

226
6-4

P

First, that the defendant was an officer, clerk, agent, or other employee of the
United States;

P

Second, that the defendant was charged with keeping accounts or records of any
kind;

P

Third, that the defendant made a false or fictitious entry or report in an account
or record relating to or connected with his duties; and

P

Fourth, that the defendant did so with intent to deceive, mislead, injure, or
defraud.1053

1050

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.”
(This case was all about motive, because the defendants were protesting the Vietnam war as immoral.).
1051
United States v. North, 910 F.2d 843, 884 (D.C. Cir. 1990), modified, 920 F.2d 940
(D.C. Cir. 1990). The government initially conceded this element, and was therefore barred from
arguing, on reargument, that the D.C. Circuit erred in construing § 2071(b) to require that a defendant
possess knowledge of unlawfulness. 920 F.2d at 949-50.
1052
Id. at 876 n.6.
1053
United States v. Franklin, 227 F. App’x 267 (4th Cir. 2007).

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¶2
P

First, that the defendant was an officer, clerk, agent, or other employee of the
United States;

P

Second, that the defendant was charged with receiving, holding, or paying over
moneys or securities to, for, or on behalf of the United States, or receiving or
holding in trust for any person any moneys or securities;

P

Third, that the defendant made a false report concerning those moneys or
securities; and

P

Fourth, that the defendant did so with intent to deceive, mislead, injure, or
defraud.

18 U.S.C. § 2101

INCITING A RIOT

Title 18, United States Code, Section 2101 makes it a crime to incite a riot. For you
to find the defendant guilty, the government must prove each of the following beyond a
reasonable doubt:
P

First, that the defendant traveled in interstate or foreign commerce, or used the
mail or any facility in interstate or foreign commerce;

P

Second, that the defendant did so with intent to:

017
7/2

7/2
0
3. commit any act of violence in furtherance of a riot, or
ed
w
4. aid or abet any person in inciting or participating in or carrying on a riot or
vie furtherance of a riot; and
committing any act of violence in
26,of such travel or use of a facility in interstate
2
Third, either during 4 course
the
6-such travel or use of a facility in interstate commerce, the
commerce,. 1
or
odid after
defendant
N or attempted to do an overt act for the purpose of:
1.
2.

organize, promote, encourage, participate in, or carry on a riot, or

1.

inciting a riot, or

2.

organizing, promoting, encouraging, participating in, or carrying on a riot,
or

3.

committing any act of violence in furtherance of a riot, or

4.

P

incite a riot, or

aiding or abetting any person in inciting or participating in or carrying on a
riot or committing any act of violence in furtherance of a riot.

“Riot” means a public disturbance involving (1) an act or acts of violence by one or
more persons part of an assemblage of three or more persons, which act or acts shall
constitute a clear and present danger of, or shall result in, damage or injury to the property
of any other person or to the person of any other individual or (2) a threat or threats of the
commission of an act or acts of violence by one or more persons part of an assemblage of
three or more persons having, individually or collectively, the ability of immediate
execution of such threat or threats, where the performance of the threatened act or acts of
violence would constitute a clear and present danger of, or would result in, damage or
injury to the property of any other person or to the person of any other individual.
[§ 2102(a)]

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“To incite a riot” or “to organize, promote, encourage, participate in, or carry on a
riot,” includes, but is not limited to, urging or instigating other persons to riot, but shall
not be deemed to mean the mere oral or written (1) advocacy of ideas or (2) expression of
belief, not involving advocacy of any act or acts of violence or assertion of the rightness
of, or the right to commit, any such act or acts. [§ 2102(b)]
The government does not have to prove that the situation, nature, and details of the
riot contemplated at the time of travel remained exactly identical until the time of the
overt act, but the government does have to prove that the nature of the contemplated riot
was sufficiently similar so that it is reasonable to say the riot is the same as or the
evolving product of the one intended earlier.1054
____________________NOTE____________________
The use of a facility of interstate commerce is an essential element of an anti-riot act
offense. The statute requires the government to prove a defendant’s intent at two points in
time — when the defendant uses a facility of interstate commerce with the intent to incite
a riot, and when the defendant commits an overt act to further any of the purposes
articulated in the statute. United States v. Markiewicz, 978 F.2d 786, 813 (2d Cir. 1992).
This statute is analogous to the Travel Act, 18 U.S.C. § 1952.

017
7/2

In United States v. Sigalow, 812 F.2d 783 (2d Cir. 1987), the defendant was
convicted of aiding and abetting a Travel Act violation. The Second Circuit concluded
that the defendant need not have assisted in the use of interstate facilities so long as the
scheme had substantial interstate connections. Thus, the government did not have to prove
that the defendant had knowledge of the violation of the Travel Act’s jurisdictional
element, and the use of a facility of interstate commerce was sufficient to prove the
interstate element of the crime as to all the defendants. Markiewicz, 978 F.2d at 814.

7/2
d0

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iew
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6-4

This statute can have First Amendment implications. The prosecution of the Chicago
Seven for rioting at the 1968 Democratic Convention is reported in United States v.
Dellinger, 472 F.2d 340 (7th Cir. 1973). In that case, the Court of Appeals stated that the
“most fundamental principle guarding against removal from First Amendment protection
is that the removed expression must have a very substantial capacity to propel action, or
some similarly entwining relationship with it.” 472 F.2d at 359. Before advocacy of the
use of force of law violation can be proscribed, it must be shown: (1) that such advocacy
is directed to inciting or producing imminent lawless action and (2) that such advocacy is
likely to incite or produce such action. Id. at 360.

o. 1
N

The Seventh Circuit also advised setting out in the indictment the substance of the
statement and the circumstances giving reason to believe the statement had the capacity to
propel unlawful action. Id. at 364.
In weighing the evidence, the Seventh Circuit applied the doctrine of strictissimi
juris, and adopted the First Circuit’s test set forth in United States v. Spock, 416 F.2d 165
(1st Cir. 1969):
When the alleged agreement is both bifarious and political within the shadow of

1054

See United States v. Markiewicz, 978 F.2d 786, 813 (2d Cir. 1992). In other words,
“substantially the same unlawful intent must be found to exist at two points in time.” United States v.
Dellinger, 472 F.2d 340, 394 (7th Cir. 1973).

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the First Amendment, we hold that an individual’s specific intent to adhere to
the illegal portions may be shown in one of three ways: by the individual
defendant’s prior or subsequent unambiguous statements; by the individual
defendant’s subsequent commission of the very illegal act contemplated by the
agreement; or by the individual defendant’s subsequent legal act if that act is
clearly undertaken for the specific purpose of rendering effective the later
illegal activity which is advocated.
Dellinger, 472 F.2d at 393.
18 U.S.C. § 2111

ROBBERY WITHIN THE SPECIAL
TERRITORIAL JURISDICTION

Title 18, United States Code, Section 2111 makes it a crime to take or attempt to take
from the person or presence of another anything of value by force and violence or by
intimidation, 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 did take or attempt to take from the person or presence
of another anything of value;

017 of the
2
P Third, that the defendant did so within the special territorial/jurisdiction
27
United States.
07/ States” includes lands
“Special maritime and territorial jurisdiction of the United
d
reserved or acquired for the use of the United States, and under the exclusive or
we
e
concurrent jurisdiction of the United States, i any place purchased or otherwise acquired
, v or of the State in which the land is situated,
by the United States by consent of26
the legislature
for the building of a fort, arsenal, dock, or other needed building.
42
16For intimidation to occur under this statute, the defendant’s conduct must be
.
reasonably calculated to produce fear. Intimidation occurs when an ordinary person in the
No
P

Second, that the defendant did so by force and violence, or by intimidation; and

1055

victim’s position reasonably could infer a threat of bodily harm from the defendant’s acts.
Thus, the subjective courageousness or timidity of the victim is not relevant; the acts of
the defendant must constitute intimidation to an ordinary, reasonable person.1056 The

1055

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.
1056
United States v. Wagstaff, 865 F.2d 626, 627-28 (4th Cir. 1989). The Fourth Circuit held
that, as a matter of law, where the thief was neither wearing nor carrying a weapon, produced no note
and said nothing, and made no threatening gestures, the evidence was insufficient to show a taking by
intimidation.
In United States v. Ketchum, 550 F.3d 363, 367 (4th Cir. 2008), the Fourth Circuit found that
the

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government does not have to prove that the defendant intended to intimidate.1057
____________________NOTE____________________
In an attempt to commit robbery, force and violence or intimidation do not need to
accompany the attempt, because the attempt relates to the taking, not to the force and
violence or intimidation. United States v. McFadden, 739 F.2d 149, 151 (4th Cir. 1984).
Larceny, 18 U.S.C. § 661, is a lesser included offense. United States v. Belt, 516
F.2d 873 (8th Cir. 1995).
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).
18 U.S.C. § 2113
§ 2113(a)

BANK ROBBERY AND LARCENY
Bank Robbery

Title 18, United States Code, Section 2113(a) makes it a crime to rob a federally
insured bank. For you to find the defendant guilty, the government must prove each of the
following beyond a reasonable doubt:
P

P
P

017
2
First, that the defendant did take or attempt to take from the person or presence
27/ money, or other
/
of another [or obtained or attempted to obtain] any7
0 property,management, or
thing of value belonging to, or in the care,ed
custody, control,
possession of a bank, credit union, iew
or savings and loan association;
v
Second, that the taking was 6,force and violence or by intimidation [or the
by
2
obtaining was by extortion]; and
-42 from which the money or property was taken was a
Third, that the institution
16
. union, or savings and loan association as defined in the statute [here,
bank,No
credit
the court should give the appropriate definition: § 2113(f) for bank, § 2113(g)
for credit union, and § 2113(h) for savings and loan association].1058

For intimidation to occur under this statute, the defendant’s conduct must be
reasonably calculated to produce fear. Intimidation occurs when an ordinary person in the

display of a weapon, a threat to use a weapon, or even a verbal or non-verbal hint
of a weapon is not a necessary ingredient of intimidation under § 2113(a).
M oreover, intimidation does not require proof of express threats of bodily harm,
threatening body motions, or the physical possibility of a concealed weapon.
Indeed, intimidation generally may be established based on nothing more than a
defendant’s written or verbal demands to a teller. A review of the case law reveals
that making a written or verbal demand for money to a teller is a common means of
successfully robbing banks. Demands for money amount to intimidation because
they carry with them an implicit threat: if the money is not produced, harm to the
teller or other bank employee may result. Bank tellers who receive demand notes
are not in a position to evaluate fully the actual risk they face.
550 F.3d at 367 (internal quotations and citations omitted).
1057
United States v. Woodrup, 86 F.3d 359, 363-64 (4th Cir. 1996).
1058
United States v. Coltrane, 337 F. App’x 283 (4th Cir. 2009). See also United States v.
Johnson, 71 F.3d 139 (4th Cir. 1995) (§ 2113(a) is a general intent crime).

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teller’s position reasonably could infer a threat of bodily harm from the defendant’s acts.
Thus, the subjective courageousness or timidity of the victim is not relevant; the acts of
the defendant must constitute intimidation to an ordinary, reasonable person.1059 The
government does not have to prove that the defendant intended to intimidate.1060
In an attempt to commit bank robbery, force and violence or intimidation do not need
to accompany the attempt, because the attempt relates to the taking, not to the force and
violence or intimidation.1061
§ 2113(a)

Bank Burglary

Title 18, United States Code, Section 2113(a) makes it a crime to enter a federally
insured bank with intent to commit a felony affecting the 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 did enter, or attempt to enter;

P

Second, a bank, credit union, or savings and loan association as defined in the
statute [here, the court would give the appropriate definition: § 2113(f) for bank,
§ 2113(g) for credit union, and § 2113(h) for savings and loan association];1062
and

P

Third, that the defendant did so with intent to commit in the bank a felony
affecting the bank in violation of federal law or any larceny [here, identify the
elements of the federal felony, or larceny, see § 2113(b) below].

017
7/2

/2
7crime to take money or
0
Title 18, United States Code, Section 2113(b) makes it a
edthe defendant guilty, the
property from a federally insured bank. For youwfind
ie to
government must prove each of the following beyond a reasonable doubt:
6, v carry away property, money, or any other
2
P First, that the defendant did take and
-42
. 865 6 at 627-28. The Fourth Circuit held that, as a matter of law, where the
o 1 F.2d
Wagstaff,
N
§ 2113(b)

Bank Larceny1063

1059

thief was neither wearing nor carrying a weapon, produced no note and said nothing, and made no
threatening gestures, the evidence was insufficient to show a taking by intimidation.
In Ketchum, 550 F.3d at 367, the Fourth Circuit found that the
display of a weapon, a threat to use a weapon, or even a verbal or non-verbal hint
of a weapon is not a necessary ingredient of intimidation under § 2113(a).
M oreover, intimidation does not require proof of express threats of bodily harm,
threatening body motions, or the physical possibility of a concealed weapon.
Indeed, intimidation generally may be established based on nothing more than a
defendant’s written or verbal demands to a teller. A review of the case law reveals
that making a written or verbal demand for money to a teller is a common means of
successfully robbing banks. Demands for money amount to intimidation because
they carry with them an implicit threat: if the money is not produced, harm to the
teller or other bank employee may result. Bank tellers who receive demand notes
are not in a position to evaluate fully the actual risk they face.

550 F.3d at 367 (internal quotations and citations omitted).
1060
Woodrup, 86 F.3d at 363-64.
1061
United States v. McFadden, 739 F.2d 149, 151 (4th Cir. 1984).
1062
The status of the financial institution is an essential element. United States v. Johnson,
71 F.3d 139 (4th Cir. 1995).
1063
Section 2113(b) is not limited to common-law larceny, which includes the intent to
deprive. Bell v. United States, 462 U.S. 356, 362 (1983).

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thing of value;
P

Second, that the property, money, or other thing of value belonged to, or was in
the care, custody, control, management, or possession of a bank, credit union, or
savings and loan association, as defined in the statute [here, the court should give
the appropriate definition: § 2113(f) for bank, § 2113(g) for credit union, and
§ 2113(h) for savings and loan association];1064

P

Third, that the value of the property, money or other thing of value exceeded
$1,000; and

P

Fourth, that the defendant acted with intent to steal or purloin.

L If the value did not exceed $1,000, the crime is a misdemeanor, and
defendant is entitled to a lesser-included offense instruction.
§ 2113(c)

Receiving Stolen Bank Property

Title 18, United States Code, Section 2113(c) makes it a crime to receive property
stolen 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 a person, acting with intent to steal or purloin,1065 took and carried
away property, money, or any other thing of value [exceeding $1,000.00]1066 that
belonged to, or was in the care, custody, control, management, or possession of a
bank, credit union, or savings and loan association as defined in the statute [here,
the court should give the appropriate definition: § 2113(f) for bank, § 2113(g)
for credit union, and § 2113(h) for savings and loan association];1067

017
7/2

7/2 store, barter, sell, or
P Second, that the defendant did receive, possess, 0
d conceal,
dispose of any of the property, money we thing of value which had been
or other
e
taken or stolen; and
, vi
6
P Third, that the defendant 2
knew that the property, money,
thing of
2 received, possessed, concealed, or otherbartered, value
-4
was stolen at the time he
stored,
sold,
16
or disposed.of the property, money or other thing of value.
No
L Defendant would be entitled to a lesser-included offense instruction if
1068

there is issue about value of the property stolen, not the value of the
property received.

1064

The status of the financial institution is an essential element. Johnson, 71 F.3d 139.
United States v. Harris, 346 F.2d 182, 184 (4th Cir. 1965) (§ 2113(c) incorporates the
requirements of § 2113(b), “[t]hus only possession and concealment of money taken with [intent to
steal or purloin] is criminal.”).
1066
In United States v. Wright, 540 F.2d 1247 (4th Cir. 1976), the Fourth Circuit accepted
the defendant’s position that there was a failure of proof that he received more than the misdemeanor
amount of stolen property, but rejected his argument, ruling that “the monetary requirement is satisfied
by proof of the amount taken from bank.” 540 F.2d at 1247. Thus, the amount actually received by
the defendant is not relevant.
1067
The status of the financial institution is an essential element. United States v. Johnson,
71 F.3d 139 (4th Cir. 1995).
1068
United States v. Scruggs, 549 F.2d 1097, 1103 (6th Cir. 1977). The government must
prove that the defendant knew of the stolen character of the property, however the courts are not clear
that the government must also prove that the defendant knew it was stolen from an insured bank.
Moreover, as Scruggs pointed out, a defendant could innocently receive stolen property, thereafter
learn of its character, and then continue to possess it or dispose of it. In the latter case, the defendant’s
continued possession or disposing of the property would be criminal. Id. at 1105.
1065

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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 property1069 or] knew the property
had been stolen. [The same inference may reasonably be drawn from a false explanation
of such possession.]1070 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
through other circumstances, other evidence, independent of any testimony of the
defendant.1071

017
7/2

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.1072

7/2
d0

e
iew
,v

226
6-4

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.1073

o. 1 Bank Robbery (or Larceny)
§ 2113(d) Armed
N

L After giving the charge for either § 2113(a) or (b):
P

Lastly, that in committing the offense just described, the defendant assaulted any
person or put in jeopardy the life of any person by the use of a dangerous
weapon or device.1074

L For instructions concerning assault, see 18 U.S.C. §§ 111 and 113.

1069

United States v. Long, 538 F.2d 580, 581 n.1 (4th Cir. 1976).
Id.
1071
Barnes v. United States, 412 U.S. 837, 840 n.3 (1973) (instruction in prosecution under
18 USC § 1708).
1072
United States v. Gallo, 543 F.2d 361, 368 n.6 (D.C. Cir. 1976).
1073
See United States v. Chorman, 910 F.2d 102, 108 (4th Cir. 1990).
1074
United States v. Jones, 533 F. App’x 291, 297 (4th Cir. 2013) (quoting United States v.
Davis, 437 F.3d 989, 993 (10th Cir. 2006)).
1070

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“In jeopardy” means putting the life of a person in an objective state of danger.1075
Therefore, “to put in jeopardy” means to expose a person to a risk of death.1076
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.1077
§ 2113(e)

Kidnapping or Homicide

L After giving the charge for the appropriate offense
P

Lastly, that in committing the offense just described, [or in avoiding or
attempting to avoid apprehension for the commission of the offense, or in freeing
himself or attempting to free himself from arrest or confinement for the offense]
the defendant forced any person to accompany him without that person’s consent
[or killed any person].

There is no requirement that the government prove that the victim be moved a
particular number of feet, or even leave the bank, that the victim be held for a particular
period of time, or that the victim be placed in a certain amount of danger.1078

017
2
____________________NOTE____________________
27/
07/
The status of the financial institution is an essential element. United States v.
d
Johnson, 71 F.3d 139 (4th Cir. 1995); United States v. Gallop, 838 F.2d 105, 111 (4th Cir.
we of the bank’s § 2113(f) status.
1988). However, the defendant need not actually be aware
ve
,400 in.4 (5th Cir. 1983).
United States v. Trevino, 720 F.2d 395,
226States v. Walker, 75 F.3d 178 (4th Cir. 1996).
Relating to § 2113(a), see United
-4
16see Carter v. United States, 530 U.S. 255, 262 (2000).
Regarding § 2113(b),
.
No weapon” language of § 2113(d) is the same language used in
The “dangerous
§ 111(b). 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 District of West Virginia. The Fourth Circuit held that a dysfunctional or

1075

In United States v. Newkirk, 481 F.2d 881 (4th Cir. 1973), the Fourth Circuit held the
following instruction did not constitute plain error: “To put in jeopardy the life of a person by the use
of a dangerous weapon or device means, then, to expose such person to a risk of death or to the fear
of death, by the use of such dangerous weapon or device.” 481 F.2d at 883 n.1.
However, because jeopardy “is commonly defined as referring to an objective state of danger,
not to a subjective feeling of fear,” United States v. Donovan, 242 F.2d 61, 63 (2d Cir. 1957) and
Wagner v. United States, 264 F.2d 524, 530 (9th Cir. 1959), both § 2114 cases, “fear of death”
language is not included.
1076
Newkirk, 481 F.2d 883 n.1.
1077
In United States v. Sturgis, 48 F.3d 784 (4th Cir. 1995), an HIV-positive inmate bit two
correctional officers. The Fourth Circuit concluded that “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).
1078
United States v. Turner, 389 F.3d 111, 119 (4th Cir. 2004).

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inoperable bomb “could be considered by the jury to constitute a ‘dangerous weapon’”
under § 111. Id. at 884.
A BB gun is a dangerous weapon. United States v. Best, No. 94-5080, 1995 WL
361167 (4th Cir. June 16, 1995); United States v. Black, No. 04-4512, 2005 WL 1992527
(4th Cir. Aug. 18, 2005).
Brandishing weapons during a robbery threatens victims and bystanders alike. The
same danger, apprehension, and tension are created whether the gun is loaded or
unloaded. A weapon openly exhibited violates § 2113(d). United States v. Bennett, 675
F.2d 596 (4th Cir. 1982); McLaughlin v. United States, 476 U.S. 16, 17 (1986).
One charged as an aider and abettor under § 2113(d) should be entitled to an
instruction that the government must prove that the defendant knew that his co-defendant
who perpetrated the actual robbery was armed. The government must 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) (the government must
prove that the accomplice “knew a dangerous weapon would be used ... or at least ... was
on notice of the likelihood of its use.”).1079
In United States v. Hinton, 719 F.2d 711 (4th Cir. 1983), the court affirmed the
defendant’s conviction for § 2113(d) where “one of the three bank robbers, brandishing
and waving a large revolver toward the employees and customers in the bank, threatened
them while his confederate gobbled up the money from the tellers’ boxes.” 712 F.2d at
712.

017
7/2

7/2 robbery, both
0
A defendant cannot be convicted of entry with intent to rob and
ed 322 (1957).
paragraphs of § 2113(a). Prince v. United States, 352 U.S.
w
vie
A defendant cannot be convicted of robbery, §§ 2113(a) and (d), and receiving stolen
26,
bank money, § 2113(c). Heflin v. United States, 358 U.S. 415 (1959); United States v.
2
Harris, 346 F.2d 182, 184 (4th Cir. 1965).
6-4
“Force and violence is the traditional language of assault.” Simpson v. United States,
o. 1
435 U.S. 6, 13N
(1978).
The escape phase is part of the robbery. United States v. McCaskill, 676 F.2d 995,
1000 (4th Cir. 1982).
LESSER INCLUDED OFFENSES
1. “[Section] 2113(d) creates a lesser included offense of the crime defined in
§ 2113(e).” United States v. Whitley, 759 F.2d 327, 331 (4th Cir. 1985) (en
banc).
2. Section 2113(b) is not a lesser-included offense of bank robbery § 2113(a).
Carter v. United States, 530 U.S. 255, 262 (2000).
3. Section 2113(c), receiving stolen bank money, is not a lesser included offense
within the total framework of the bank robbery provisions of § 2113. United

1079

The standard is higher for proving knowledge by an accomplice to a § 924(c) violation:
“to a practical certainty that the principal would be [using] a gun.” United States v. Spinney, 65 F.3d
231, 238 (1st Cir. 1995). See NOTE under 18 U.S.C. § 924(c). But see United States v. Chorman, 910
F.2d 102, 110-11 (4th Cir. 1990) and United States v. Wilson, 135 F.3d 291, 305 (4th Cir. 1998) (
defendant may be convicted of § 924(c) violation on basis of co-conspirator’s use of gun if use was
in furtherance of the conspiracy and reasonably foreseeable to defendant).

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States v. Gaddis, 424 U.S. 544, 548 (1976).
18 U.S.C. § 2114 ASSAULT OR ROBBERY OF FEDERAL EMPLOYEE
§ 2114(a)

Assault

Title 18, United States Code, Section 2114 makes it a crime to assault a person
having custody of mail matter or other property 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 assaulted a person having lawful custody or control of
any mail matter or other property, including money, belonging to the United
States; and

P

Second, that the defendant did so with intent to rob, steal, or purloin that
property.

“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.1080
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.1081

017
7/2

7/2
d0

Battery is defined as inflicting injury upon the person of another.1082

e
iew
,v

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.1083

226
6-4

In the case of an attempted battery, the victim need not have experienced reasonable
apprehension of immediate bodily harm.1084

.
othe 1
N defendant intended to commit a battery; and
First, that

Attempt requires two elements:
P
P

Second, that the defendant committed an act which constituted a substantial step
toward the commission of the battery.1085

A substantial step is more than mere preparation, yet may be less than the last act
necessary before the actual commission of the battery.1086
The government need not prove that the defendant intended to injure the victim. The

1080

United States v. Williams, 197 F.3d 1091, 1096 (11th Cir. 1999).
United States v. Dupree, 544 F.2d 1050, 1051 (9th Cir. 1976) (citation omitted).
1082
See United States v. Juvenile Male, 930 F.2d 727, 728 (9th Cir. 1991), for a full
definition of common law assault.
1083
Williams, 197 F.3d at 1096 (“Intention to do bodily harm is not a necessary element of
battery.”).
1084
United States v. Guilbert, 692 F.2d 1340, 1343 (11th Cir. 1982).
1085
See United States v. Pratt, 351 F.3d 131, 135 (4th Cir. 2003).
1086
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.” Id. at 136.
1081

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government need only prove that the defendant was criminally negligent or reckless.1087
§ 2114(a)

Robbery

Title 18, United States Code, Section 2114 makes it a crime to rob a postal official of
mail matter or property 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 mail matter, money, or other property belonging to
the United States;

P

Second, that the property was taken from a postal official, under whose care and
custody the property was committed; and

P

Third, that the defendant did so with intent to commit a robbery.1088

Robbery involves taking, with intent to steal, and carrying away property from
another person against his will by violence or by putting him in fear.1089
ADDITIONAL ELEMENT, IF APPROPRIATE
1. Did the defendant, in committing the offense just described, or attempting to do
so, wound the person having custody of the mail or property, or put his life in
jeopardy by the use of a dangerous weapon?

017
7/2

“In jeopardy” means putting the life of a person in an objective state of danger.1090
Therefore, “to put in jeopardy” means to expose a person to a risk of death.1091

7/2
0
Title 18, United States Code, Section 2114(b) ed it a crime to receive property
makes
stolen from a postal official. For you to find iew
v the defendant guilty, the government must
prove each of the following beyond a reasonable doubt:
26, possess, conceal, or dispose of any property
2
P First, that the defendant did receive,
6-4
or money or other thing of value which had been taken from a postal official
1
against his . by violence or by putting him in fear; and
o will
N
P Second, that the defendant knew the money or property had been unlawfully
§ 2114(b)

Receiving Stolen Postal Property

1092

obtained.
“Steal” means the wrongful and dishonest taking of property with the intent to

1087

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)]”).
1088
United States v. Merchant, 731 F.2d 186, 190 (4th Cir. 1984).
1089
Costner v. United States, 139 F.2d 429, 431 (4th Cir. 1943).
1090
In United States v. Newkirk, 481 F.2d 881 (4th Cir. 1973), the Fourth Circuit held the
following instruction did not constitute plain error: “To put in jeopardy the life of a person by the use
of a dangerous weapon or device means, then, to expose such person to a risk of death or to the fear
of death, by the use of such dangerous weapon or device.” 481 F.2d at 883 n.1
However, because jeopardy “is commonly defined as referring to an objective state of danger,
not to a subjective feeling of fear,” United States v. Donovan, 242 F.2d 61, 63 (2d Cir. 1957), “fear
of death” language is not included.
1091
Newkirk, 481 F.2d at 881.
1092
See Costner, 139 F.2d at 431.

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deprive the owner, temporarily or permanently, of the rights and benefits of ownership.1093
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 property1094 or] knew the property
had been stolen. [The same inference may reasonably be drawn from a false explanation
of such possession.]1095 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
through other circumstances, other evidence, independent of any testimony of the
defendant.1096

017
7/2

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.1097

7/2
d0

e
iew
,v

226
6-4

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.1098

o. a1dangerous weapon depends not on the object’s intrinsic character
N
What constitutes

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.1099

1093

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 motor vehicles 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.
1094
United States v. Long, 538 F.2d 580, 581 n.1 (4th Cir. 1976).
1095
Id.
1096
Barnes v. United States, 412 U.S. 837, 840 n.3 (1973) (instruction in prosecution under
18 USC § 1708).
1097
United States v. Gallo, 543 F.2d 361, 368 n. 6 (D.C. Cir. 1976).
1098
See United States v. Chorman, 910 F.2d l02, 108 (4th Cir. 1990).
1099
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

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____________________NOTE____________________
United States v. Merchant, 731 F.2d 186 (4th Cir. 1984).
“Force and violence is the traditional language of assault.” Simpson v. United States,
435 U.S. 6, 13 (1978).
Because § 2114 uses the same “dangerous weapon” language as § 2113(d), see
NOTE under § 2113.
A defendant cannot be convicted of both robbing a post office and possessing
property stolen in the robbery. United States v. Wright, 661 F.2d 60, 62 (5th Cir. 1981).
18 U.S.C. § 2117

BREAKING INTO INTERSTATE FACILITIES

Title 18, United States Code, Section 2117 makes it a crime to break into any vehicle
containing 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 broke the seal or lock of, or entered, any railroad car,
vessel, aircraft, motortruck, wagon or other vehicle or of any pipeline system;

P

Second, which contained an interstate or foreign shipment of freight; and

P

Third, that the defendant did so with intent to commit larceny.

017
2
An interstate or foreign shipment of goods or property begins7/ the property is
2ofwhen who are
segregated for interstate shipment and comes into the possession those
07/ the property arrives at
assisting its course in interstate transportation and continues until
d
its destination and is there delivered.
we
e
It is not necessary that the goods be actually moving in interstate commerce at the
, vi
6
time of the theft. It is sufficient 2they are a part of an interstate shipment.
if 2
4
Larceny means taking and carrying away with intent to steal and purloin property of
16-of the owner.
.
another without the consent
No
1100

1101

1102

____________________NOTE____________________
The removal of property from a pipeline system which extends interstate shall be
prima facie evidence of the interstate character of the shipment of the property. 18 U.S.C.
§ 659 ¶ 8 and United States v. Williams, 559 F.2d 1243, 1246 (4th Cir. 1977).
See United States v. Kiff, 377 F. Supp. 2d 586 (E.D. La. 2005) (someone who enters
a rail car without intent to steal, but who then decides to steal something from the rail car,
would violate § 659 but not § 2117).

that “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).
1100
This charge was approved in United States v. Williams, 559 F.2d 1243, 1246 (4th Cir.
1977).
1101
Id. at 1247.
1102
See United States v. Williams, No. 90-5731, 1991 W L 199870 (4th Cir. Oct. 23, 1991).

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18 U.S.C. § 2118 ROBBERY AND BURGLARY INVOLVING
CONTROLLED SUBSTANCES
§ 2118(a)

Robbery

Title 18, United States Code, Section 2118(a) makes it a crime to rob a person
registered with the Drug Enforcement Administration of controlled substances. 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 take or attempt to take from the person or presence
of another any material or compound containing any quantity of a controlled
substance;

P

Second, that the material or compound belonged to, or was in the care, custody,
control, or possession of a person registered with the Drug Enforcement
Administration under 21 U.S.C. § 822;

P

Third, that the taking was by force and violence or by intimidation;

P

Fourth,
(a) that the replacement cost of the material or compound to the registrant was
not less than $500;

017
2
(c) another person was killed or suffered significant bodily injury as a result of
27/
the taking or attempt; and
07/
d
P Fifth, that the defendant did so willfully. e
w
e
For intimidation to occur, the defendant’s conduct must be reasonably calculated to
,anvi person in the victim’s position
produce fear. Intimidation occurs when ordinary
26
2bodily harm from the defendant’s acts. Thus, the
reasonably could infer a threat of
4
subjective courageousness or timidity of the victim is not relevant; the acts of the
16.
defendant must constitute intimidation to an ordinary, reasonable person. The
No have to prove that the defendant intended to intimidate.
government does not
(b) that the defendant traveled in interstate or foreign commerce or used any
facility in interstate or foreign commerce to facilitate the taking or attempt; or

1103

1104

1105

§ 2118(b)

Burglary

Title 18, United States Code, Section 2118(b) makes it a crime to enter the premises
of a person registered with the Drug Enforcement Administration with the intent to steal

1103

See United States v. Kaylor, 877 F.2d 658, 661 (8th Cir. 1989).
See United States v. Wagstaff, 865 F.2d 626 (4th Cir. 1989). The Fourth Circuit held that,
as a matter of law, where the thief was neither wearing nor carrying a weapon, produced no note, said
nothing, and made no threatening gestures, the evidence was insufficient to show a taking by
intimidation. 865 F.2d at 627-28. In United v. Ketchum, 550 F.3d 363 (4th Cir. 2008), the Fourth
Circuit found that
1104

[a] review of the case law reveals that making a written or verbal demand for money
to a teller is a common means of successfully robbing banks. Demands for money
amount to intimidation because they carry with them an implicit threat: if the money
is not produced, harm to the teller, or other bank employee may result. Bank tellers
who receive demand notes are not in a position to evaluate fully the actual risk they
face.
550 F.3d at 367 (quotation omitted).
1105
See United States v. Woodrup, 86 F.3d 359, 363-64 (4th Cir. 1996).

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controlled substances. 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 enter, attempt to enter, or remain in;

P

Second, the business premises or property of a person registered with the Drug
Enforcement Administration under 21 U.S.C. § 822;

P

Third, that the defendant did so without authority1106 and with the intent to steal
any material or compound containing any quantity of a controlled substance; and

P

Fourth,
(a) that the replacement cost of the material or compound to the registrant was
not less than $500;
(b) that the defendant traveled in interstate or foreign commerce or used any
facility in interstate or foreign commerce to facilitate the taking or attempt; or
(c) another person was killed or suffered significant bodily injury as a result of
the taking or attempt.

§ 2118(c)(1)

Armed Robbery or Burglary

L After giving the charge for either § 2118(a) or (b):
P

017
7/2

Lastly, that in committing the offense just described, the defendant assaulted any
person or put in jeopardy the life of any person by the use of a dangerous
weapon or device.1107

7/2
0
“In jeopardy” means putting the life of a person in an objective state of danger.
edperson to a risk of death.
Therefore, “to put in jeopardy” means to expose a
iew
vdepends not on the object’s intrinsic character
What constitutes a dangerous weapon
26,its use, to endanger life or inflict physical harm.
but on its capacity, given the 42 of
manner
6Almost any weapon, as used or attempted to be used, may endanger life or inflict bodily
.1
harm, as such, in appropriate circumstances, it may be a dangerous and deadly weapon.
obe inherently dangerous to be a dangerous weapon. Innocuous objects
N
An object need not
L For instructions concerning assault, see 18 U.S.C. §§ 111 and 113.

1108

1109

or instruments may become capable of inflicting injury when put to assaultive use. Tennis
shoes can be dangerous weapons when used to stomp on a victim’s head, and a stapler can
1106

In United States v. Wise, 221 F.3d 140, 150 (5th Cir. 2000), the Fifth Circuit held that
the phrase “without lawful authority” in 18 U.S.C. § 2332a constituted an affirmative defense rather
than an essential element. But see United States v. Yokum, 417 F.2d 253, 255 (4th Cir. 1969), a § 641
case.
1107
“Dangerous weapon” includes a weapon intended to cause death or danger. Arguably this
raises the mens rea level from general intent to specific intent. See United States v. Hamrick, 43 F.3d
877, 884-85 (4th Cir. 1995) (en banc) (holding “a reasonable jury could easily have found that
Hamrick mailed the bomb he had built with the intent that it would explode and kill United States
Attorney Kolibash.”).
1108
In United States v. Newkirk, 481 F.2d 881 (4th Cir. 1973), the Fourth Circuit held the
following instruction did not constitute plain error: “To put in jeopardy the life of a person by the use
of a dangerous weapon or device means, then, to expose such person to a risk of death or to the fear
of death, by the use of such dangerous weapon or device.” 481 F.2d at 883 n.1.
However, because jeopardy “is commonly defined as referring to an objective state of danger,
not to a subjective feeling of fear,” United States v. Donovan, 242 F.2d 61, 63 (2d Cir. 1957), “fear
of death” language is not included.
1109
Newkirk, 481 F.2d at 881.

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be a dangerous weapon when used as a bludgeon. Teeth may also be a dangerous weapon
if they are employed as such.1110
§ 2118(c)(2)

Homicide

L After giving the charge for the appropriate offense:
P

Lastly, that in committing the offense just described, the defendant killed any
person.

“Controlled substance” means [see definition in 21 U.S.C. § 801]. [§ 2118(e)(1)]
“Business premises or property” includes conveyances and storage facilities.
[§ 2118(e)(2)]
“Significant bodily injury” means bodily injury which involves a risk of death,
significant physical pain, protracted and obvious disfigurement, or a protracted loss or
impairment of the function of a bodily member, organ, or mental or sensory faculty.
[§ 2118(e)(3)]
“Person” includes enterprises which dispense controlled substances.1111
IF APPROPRIATE:
The replacement cost of the materials or compounds containing controlled
substances is the amount of money necessary to replace the materials or compounds
stolen. If the replacement cost to the registrant is less than $500, you must find the
defendant not guilty.1112

017
7/2

7/2
0
____________________NOTE____________________
ed or intimidation do not need to
In an attempt to commit robbery, force andw
e violence
irelates to the taking, not to the force and
accompany the attempt, because the attempt
6, v
violence or intimidation. United States v. McFadden, 739 F.2d 149, 151 (4th Cir. 1984).
2
-42
Because § 2118 is analogous to § 2113, see NOTE for that section.
. 16
No
AFFIRMATIVE DEFENSE
Authority to enter the premises in question might constitute an affirmative defense.
See United States v. Wise, 221 F.3d 140, 150 (5th Cir. 2000), where the Fifth Circuit held
that the phrase “without lawful authority” in 18 U.S.C. § 2332a constituted an affirmative
defense rather than an essential element. But see United States v. Yokum, 417 F.2d 253,
255 (4th Cir. 1969) (§ 641 case).
18 U.S.C. § 2119

CARJACKING [LAST UPDATED : 8/15/2016]

Title 18, United States Code, Section 2119 makes carjacking a crime. For you to find

1110

See United States v. Sturgis, 48 F.3d 784, 787-88 (4th Cir. 1995).
United States v. Martin, 866 F.2d 972, 978 (8th Cir. 1989).
1112
United States v. Kaylor, 877 F.2d 658, 662 (8th Cir. 1989) (“W hen replacement occurs
within a reasonable time after the robbery, the government must prove that the registrant incurred an
actual cost of at least $500 in replacing the stolen items. On the other hand, when replacement does
not occur within a reasonable time, the proof should establish the amount of money, not less than
$500, necessary for the registrant to replace the stolen items. In such cases, the average wholesale
price for those items at or near the time of the robbery may establish the replacement cost to the
registrant.”).
1111

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the defendant guilty, the government must prove each of the following beyond a
reasonable doubt:
§ 2119(1) [simple carjacking]1113
P

First, that the defendant took, or attempted to take, a motor vehicle;

P

Second, from the person or presence of another;

P

Third, that the motor vehicle had been transported, shipped, or received in
interstate or foreign commerce;

P

Fourth, that the defendant did so by force and violence or by intimidation;1114 and

P

Fifth, that the defendant unconditionally intended to kill or seriously injure or
that the defendant possessed a conditional intent to kill or seriously injure should
such violence become necessary.1115

§ 2119(2) [carjacking resulting in serious bodily injury]
P

Sixth, that serious bodily injury resulted from the taking or attempted taking.

“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.
[§ 1365(h)(3)][“Serious bodily injury” also includes any conduct that, if the conduct
occurred in the special maritime and territorial jurisdiction of the United States, would
violate 18 U.S.C. §§ 2241 or 2242.]

017
7/2

7/2
0
P Sixth, that death resulted from the taking or attempted taking.
ed one State, Territory, Possession,
“Interstate commerce” includes commerce w
vie between Possession, or the District of
or the District of Columbia and another,
State, Territory,
26
Columbia. [18 U.S.C. § 10]
2
6-4
“Foreign commerce” includes commerce with a foreign country. [18 U.S.C. § 10]
o. 1 not be moving in interstate commerce at the time of the
The motor vehicle need
N
taking. The government need only prove a minimal connection with interstate commerce,
§ 2119(3) [carjacking resulting in death]

such as the vehicle traveled through another state when it was shipped from the
manufacturer to the dealer.1116
The government does not have to prove that the death occurred during the actual
carjacking. It is sufficient if the government proves the defendant caused the death of
[________________] during the carjacking or the defendant’s retention of the vehicle.1117
“To take” means to get into one’s hands or into one’s possession, power, or control
by force or stratagem. The government is not required to prove the defendant’s motive,
because motive is not relevant. And the government is not required to prove that the
defendant intended to deprive the victim of the vehicle permanently. “Taking” under this

1113

In Jones v. United States, 526 U.S. 227 (1999), the Supreme Court held that § 2119 has
three distinct offenses. Thus, serious bodily harm and death are elements.
1114
See text and NOTE for § 2113.
1115
United States v. Bailey, 819 F.3d 92, 95 (4th Cir. 2016). “[A]n empty threat, or
intimidating bluff, . . . standing on its own, is not enough to satisfy § 2119's specific intent element.”
Id. at 97 (quoting Holloway v. United States, 526 U.S. 1,11 (1999)).
1116
United States v. Johnson, 22 F.3d 106, 108-09 (6th Cir. 1994).
1117
United States v. Blake, 571 F.3d 331, 352 (4th Cir. 2009).

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statute means for some period of time.1118
“Taking” is when the defendant takes control of the victim’s vehicle, even if the
defendant does not force the victim to relinquish it.1119
For example, forcibly removing a victim from a vehicle and placing him in the trunk
would constitute taking the vehicle.1120
To prove that the vehicle was taken “from the presence of another,” the government
must show both a degree of physical proximity to the vehicle and an ability to control or
immediately obtain access to the vehicle.1121
The government must prove beyond a reasonable doubt that the defendant possessed
the intent to seriously harm or kill the driver [or other person who was with the vehicle] if
that action had been necessary to complete the taking of the vehicle. However, the
government need not prove that the defendant actually intended to cause the harm; it is
sufficient that the defendant was conditionally prepared to act if the person failed to
relinquish the vehicle.1122
____________________NOTE____________________
In Holloway v. United States, 526 U.S. 1, 4 (1999), the Supreme Court approved the
following instruction:

017
7/2

In some cases, intent is conditional. That is, a defendant may intend to engage
in certain conduct only if a certain event occurs. In this case, the government
contends that the defendant intended to cause death or serious bodily harm if
the alleged victims had refused to turn over their cars. If you find beyond a
reasonable doubt that the defendant had such an intent, the government has
satisfied this element of the offense.

7/2
d0

e
iew
,v

226
6-4

See United States v. Wilson, 198 F.3d 467 (4th Cir. 1999).

1
ASSAULTING
o.TO EXECUTE PERSON AUTHORIZED
N
SEARCH WARRANTS

18 U.S.C. § 2231

Title 18, United States Code, Section 2231 makes it a crime to assault a person
authorized to execute search warrants. For you to find the defendant guilty, the
government must prove each of the following beyond a reasonable doubt:
P

First, that the defendant forcibly assaulted, resisted, opposed, prevented,
impeded, intimidated, or interfered with;

P

Second, a person who was authorized to serve or execute search warrants or to
makie searches and seizures; and

P

Third, that the defendant did so while the person was engaged in the

1118

United States v. Moore, 73 F.3d 666, 668-69 (4th Cir. 1996).
Foster, 507 F.3d at 247.
1120
Moore, 73 F.3d at 669.
1121
United States v. Davis, 233 F. App’x 292 (4th Cir. 2007) (citing United States v.
Savarese, 385 F.3d 15, 20 (1st Cir. 2004)). The presence requirement can be satisfied when the victim
is inside a building and the car is outside.
1122
United States v. Foster, 507 F.3d 233, 233 (4th Cir. 2007).
1119

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performance of his duties or on account of the performance of such duties.1123
ADDITIONAL ELEMENT
1. In doing so, did the defendant use any deadly or dangerous weapon?
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.1124
____________________NOTE____________________
See generally 18 U.S.C. § 111.
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 at 495. In that case, the district
court had properly 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:

017
7/2

7/2
d0

e
iew
,v

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, resist, 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.

o. 1
N

226
6-4

Id. at 490.
In United States v. Stotts, 113 F.3d 493 (4th Cir. 1997), the defendant was
prosecuted under D.C. Code § 22-505, which punishes assaults on correctional officers
“without justifiable and excusable cause.” The Fourth Circuit held that a defendant
generally cannot invoke self-defense to justify an assault on a police or correctional
officer, and therefore a standard self-defense instruction would not apply. However, a
defendant has a limited right of self-defense if the defendant presents evidence that the
officer used excessive force in carrying out his official duties. “A defendant who responds
to an officer’s use of excessive 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.” Id. at 496. The Court added that the jury must be instructed

1123

See United States v. Ranaldson, 386 F. App’x 419 (4th Cir. 2010).
In United States v. Sturgis, 48 F.3d 784 (4th Cir. 1995), an HIV-positive inmate 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 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).
1124

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that the government bears the burden of disproving the defendant’s limited claim of selfdefense or justification beyond a reasonable doubt.
18 U.S.C. § 2232(d) GIVING NOTICE OF ELECTRONIC SURVEILLANCE
Title 18, United States Code, Section 2232(d) makes it a crime to give notice of
possible court-ordered electronic surveillance. For you to find the defendant guilty, the
government must prove each of the following beyond a reasonable doubt:
P

First, that the defendant knew that a federal law enforcement officer had been
authorized or had applied to intercept a communication;

P

Second, that the defendant gave notice or attempted to give notice of the possible
interception to any person; and

P

Third, that the defendant did so in order to obstruct, impede, or prevent the
interception.
____________________NOTE____________________

The wiretap application need not be pending at the time of the disclosure. United
States v. Aguilar, 515 U.S. 593, 602-03 (1995).

017
2
Title 18, United States Code, Section 2233 makes it a crime to rescue property seized
27/ must prove
by the United States. For you to find the defendant guilty, the government
07/
each of the following beyond a reasonable doubt:
ed
P First, that property, articles, or objects w been taken, detained, or seized by an
had
ie
officer of other person under the v
, authority of any revenue law of the United
States or by a person authorized to make searches and seizures;
226
-4
P Second, that the6
1 defendant was aware of the seizure andwas unlawful; of the
. or objects from government custody that removal
property, articles,
No
18 U.S.C. § 2233

RESCUE OF SEIZED PROPERTY

P

Third, that the defendant forcibly removed the property, articles, or objects from
custody, that is, the defendant dispossessed the appropriate authorities of
dominion and control over the property, articles, or objects; and

P

Fourth, that the defendant did so willfully.1125

“Forcible rescue” is taking an item in a way that defies and frustrates the original
seizure. Thus, rescue is forcible when it disrupts the government’s possession in a
situation where the government has lawfully asserted dominion and lawfully maintained
custody.1126
Forcible rescue is not restricted to force exerted against a person.1127
18 U.S.C. § 2241

AGGRAVATED SEXUAL ABUSE

Title 18, United States Code, Section 2241 makes it a crime to commit aggravated
sexual abuse. For you to find the defendant guilty, the government must prove each of the

1125
1126
1127

United States v. Sanders, 862 F.2d 79, 82 (4th Cir. 1988).
Id. at 83.
Id.

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following beyond a reasonable doubt:
§ 2241(a)
P

First, that the defendant caused, or attempted to cause, another person to engage
in a sexual act;

P

Second, that the defendant did so either by using force against that other person,
or by threatening or placing that other person in fear that any person would be
subjected to death, serious bodily injury, or kidnapping;

P

Third, that the act occurred in the special maritime or territorial jurisdiction of
the United States, or in a Federal prison, or in any prison, institution, or facility
in which persons are held in custody by direction of or pursuant to a contract or
agreement with the head of any Federal department or agency; and

P

Fourth, that the defendant did so knowingly.

§ 2241(b)(1)
P

First, that the defendant rendered another person unconscious and thereby
engaged in a sexual act with that other person, or attempted to do so;

P

Second, that the act occurred in the special maritime or territorial jurisdiction of
the United States, or in a Federal prison, or in any prison, institution, or facility
in which persons are held in custody by direction of or pursuant to a contract or
agreement with the head of any Federal department or agency; and

P

P

7/2
d0

Third, that the defendant did so knowingly.

e
iew
,v

§ 2241(b)(2)
P

017
7/2

First, that the defendant administered to another person by force or threat of
force, or without the knowledge or permission of that person, a drug, intoxicant,
or other similar substance and thereby substantially impaired the ability of that
other person to appraise or control conduct and engaged in a sexual act with that
other person;

226
6-4

1
o. the act occurred in the special maritime or territorial jurisdiction of
Second, that
N
the United States, or in a Federal prison, or in any prison, institution, or facility
in which persons are held in custody by direction of or pursuant to a contract or
agreement with the head of any Federal department or agency; and

P

Third, that the defendant did so knowingly.

§ 2241(c)
First clause
P

First, that the defendant crossed a state line; and

P

Second, that the defendant did so with the intent to engage in a sexual act with a
person who had not attained the age of 12 years.

Second clause
P
P

Second, that the act occurred in the special maritime or territorial jurisdiction of
the United States, or in a Federal prison, or in any prison, institution, or facility
in which persons are held in custody by direction of or pursuant to a contract or
agreement with the head of any Federal department or agency; and

P

382

First, that the defendant engaged in a sexual act with another person who had not
attained the age of 12 years;

Third, that the defendant did so knowingly.

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Third clause
P

First, that the defendant engaged, or attempted to engage, in a sexual act with
another person who had attained the age of 12 years but had not attained the age
of 16 years (and was at least 4 years younger than the defendant);

P

Second, that the defendant did so under one of the following circumstances:
(a) by using force against that other person;
(b) by threatening or placing that other person in fear that any person would be
subjected to death, serious bodily injury, or kidnapping;
(c) by rendering that other person unconscious; or
(d) by administering to that other person by force or threat of force, or without
the knowledge or permission of that person, a drug, intoxicant, or other similar
substance and thereby substantially impaired the ability of that other person to
appraise or control conduct;

P

Third, that the act occurred in the special maritime or territorial jurisdiction of
the United States, or in a Federal prison, or in any prison, institution, or facility
in which persons are held in custody by direction of or pursuant to a contract or
agreement with the head of any Federal department or agency; and

P

Fourth, that the defendant did so knowingly.

017
7/2

7/2
1. Did the conduct result in the death of the person? 0
d
L Re: § 2241(c) The government does not have to prove that the
we
vie
defendant knew that the other person engaging in the sexual
, years. [§ 2241(d)]
act had not attained the age26
of 12
42 must be sufficient to overcome, restrain, or injure a
“Force,” as used in the6 statute,
person; or the use of.a 1
threat of harm sufficient to coerce or compel submission by the
victim. The government need not show evidence of physical restraint. The government
No
ADDITIONAL ELEMENT, IF APPROPRIATE

may prove force by inference when the accused has disproportionately greater strength
than, or coercive power over, the victim.1128

“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.1129

1128

United States v. Johnson, 492 F.3d 254, 257-58 (4th Cir. 2007).
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.
1129

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“Prison” means a correctional, detention, or penal facility. [§ 2246(1)]
“Sexual act” means
(a) contact, which means penetration, however slight, between the penis and vulva
or the penis and the anus;
(b) contact between the mouth and the penis, the mouth and the vulva, or the mouth
and the anus;1130
(c) the penetration, however slight, of the anal or genital opening of another by a
hand or finger or by an object, with an intent to abuse, humiliate, harass,
degrade, or arouse or gratify the sexual desire of any person;1131 or
(d) the intentional touching, not through the clothing, of the genitalia of another
person who has not attained the age of 16 years with an intent to abuse,
humiliate, harass, degrade, or arouse or gratify the sexual desire of any person.
[§ 2246(2)]
“Serious bodily injury” means bodily injury that involves a substantial risk of death,
unconsciousness, extreme physical pain, protracted and obvious disfigurement, or
protracted loss or impairment of the function of a bodily member, organ, or mental
faculty. [§ 2246(4)]

017
____________________NOTE____________________
7/2
2States v. Johnson, 492
Unlawful restraint is not an element of § 2241(a)(1). United
07/
F.3d 254, 259 (4th Cir. 2007).
d
we
For cases discussing special jurisdiction, especially pertaining to Fort Jackson, see
e
the following: United States v. Lavender, 602 F.2d 639 (4th Cir. 1979); United States v.
, vi
Lovely, 319 F.2d 673 (4th Cir. 1963); United States v. Benson, 495 F.2d 475 (5th Cir.
226 260 S.E.2d 182 (S.C. 1979), overruled on other
1974); and State v. Zeigler, -4 S.C. 6,
16274
grounds by Joseph v. State, 351 S.C. 551, 571 S.E.2d 280 (S.C. 2002).
.
No OFFENSES:
LESSER-INCLUDED
Because the fear involved in the sexual abuse statute is not the same as that required
by the aggravated sexual abuse statute, § 2242(1) is not a lesser included offense of
§ 2241(a). United States v. Nasiruddin, No. 98-4020, 1998 WL 539468 (4th Cir. Aug. 25,
1998).
In United States v. Demarrias, 876 F.2d 674 (8th Cir. 1989), the Eighth Circuit
concluded that abusive sexual contact (§ 2244) is a lesser included offense of aggravated
sexual abuse (§ 2241). “The clear intent of Congress seems to have been to make [§ 2244]
the general ‘lesser included offenses’ provision for chapter 109A, expanding the range of
prohibited conduct.” 876 F.2d at 676-77.

1130

Subsections (a) and (b) describe conduct which needs no explicit intent element, because
one who engages in such contact inherently intends to do so for sexual purposes. United States v.
Demarrias, 876 F.2d 674, 676 (8th Cir. 1989).
1131
“The elements of this kind of “sexual act,” therefore, are (a) penetration, (b) of the anal
or genital opening of another, (c) by a hand, finger or any object, (d) with a specific intent.” United
States v. Torres, 937 F.2d 1469, 1476 (9th Cir. 1991). Subsection (c) covers conduct that is not
inherently sexual, but that may be for a sexual purpose, depending upon the intent of the actor.
Demarrias, 876 F.2d at 676.

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The Ninth Circuit has held that sometimes abusive sexual contact (§ 2244) is not a
lesser-included offense of attempted aggravated sexual abuse (§ 2241) because abusive
sexual contact requires a specific intent not required for attempted aggravated sexual
abuse. United States v. Sneezer, 900 F.2d 177, 179 (9th Cir. 1990). However, in United
States v. Torres, 937 F.2d 1469 (9th Cir. 1991), the Ninth Circuit concluded “that abusive
sexual contact is a lesser-included offense of aggravated sexual abuse where the “sexual
act” of the greater charge falls under section 2245(2)(C)(digital penetration) ....” 937 F.2d
1477. On the other hand, abusive sexual contact is not a lesser-included offense of
aggravated sexual abuse where the sexual act involves penile penetration, § 2246(2)(A).
Id. at 1478. Abusive sexual contact (§ 2244) is not a lesser-included offense of aggravated
sexual abuse (§ 2241) when the abuse charged is penile as opposed to digital penetration,
because specific intent is not an element of aggravated sexual abuse when the abuse
charged is penile as opposed to digital penetration. United States v. Garcia, 7 F.3d 885,
891 (9th Cir. 1993).
18 U.S.C. § 2242

SEXUAL ABUSE

Title 18, United States Code, Section 2242 makes it a crime to commit sexual abuse.
For you to find the defendant guilty, the government must prove each of the following
beyond a reasonable doubt:

7
01to engage in
/
P First, that the defendant caused, or attempt to cause, another 2
/27 person
a sexual act;
07 that other person in
d
P Second, that the defendant did so by threatening or placing
we
fear;
ie
, vspecial maritime or territorial jurisdiction of
P Third, that the act occurred 6 the
in
the United States, or422
in a federal prison; and
P Fourth, that the defendant did so knowingly.
16.
§ 2242(2)
No
§ 2242(1)

1132

1133

P

First, that the defendant engaged in a sexual act with another person;

P

Second, that the other person was either incapable of appraising the nature of the
conduct or was physically incapable of declining participation in, or
communicating unwillingness to engage in, the sexual act;

P

Third, that the act occurred in the special maritime or territorial jurisdiction of
the United States, or in a federal prison; and

P

Fourth, that the defendant did so knowingly.

ADDITIONAL ELEMENT, IF APPROPRIATE
1. Did the conduct result in the death of the person?
“Sexual act” means:
(a) contact, which means penetration, however slight, between the penis and vulva

1132

“Sexual abuse does not require the same type of fear required for aggravated sexual abuse
[which is fear of death, serious bodily injury, or kidnapping].” United States v. Nasiruddin, 162 F.3d
1157, 1998 W L 539468 (4th Cir. 1998) (Table).
1133
See United States v. Tail, 459 F.3d 854, 861 (8th Cir. 2006).

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or the penis and the anus;
(b) contact between the mouth andthe penis, the mouth and the vulva, or the mouth
and the anus;1134
(c) the penetration, however slight, of the anal or genital opening of another by a
hand or finger or by an object, with an intent to abuse, humiliate, harass,
degrade, or arouse or gratify the sexual desire of any person;1135 or
(d) the intentional touching, not through the clothing, of the genitalia of another
person who has not attained the age of 16 years with an intent to abuse,
humiliate, harass, degrade, or arouse or gratify the sexual desire of any person.
[§ 2246(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.1136
“Prison” means a correctional, detention, or penal facility. [§ 2246(1)]

017
7/2

____________________NOTE____________________

The crime of sexual abuse does not appear to include any element of specific intent.
United States v. Sneezer, 900 F.2d 177, 179 (9th Cir. 1990).

7/2
d0

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).

e
iew
,v

226
4
LESSER-INCLUDED OFFENSES:
16- 876 F.2d 674 (8th Cir. 1989), the Eighth Circuit
.
In United States v. Demarrias,
No sexual contact (§ 2244) is a lesser included offense of sexual
concluded that abusive

abuse (§ 2242). “The clear intent of Congress seems to have been to make [§ 2244] the

1134

Subsections (a) and (b) describe conduct which needs no explicit intent element, because
one who engages in such contact inherently intends to do so for sexual purposes. Demarrias, 876 F.2d
at 676.
1135
“The elements of this kind of “sexual act,” therefore, are (a) penetration, (b) of the anal
or genital opening of another, (c) by a hand, finger or any object, (d) with a specific intent.” United
States v. Torres, 937 F.2d 1469, 1476 (9th Cir. 1991). Subsection (c) covers conduct that is not
inherently sexual, but that may be for a sexual purpose, depending upon the intent of the actor.
Demarrias, 876 F.2d at 676.
1136
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.

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general ‘lesser included offenses’ provision for chapter 109A, expanding the range of
prohibited conduct.” 876 F.2d at 676-77.
However, the Ninth Circuit has said that abusive sexual contact (§ 2244) is not a
lesser-included offense of attempted sexual abuse (§ 2242) because abusive sexual contact
requires a specific intent not required for attempted sexual abuse. Sneezer, 900 F.2d at
179.
18 U.S.C. § 2243

SEXUAL ABUSE OF A MINOR OR WARD

Title 18, United States Code, Section 2243 makes it a crime to commit sexual abuse
with a minor or a ward. For you to find the defendant guilty, the government must prove
each of the following beyond a reasonable doubt:
§ 2243(a)
P

First, that the defendant engaged, or attempted to engage, in a sexual act with
another person;

P

Second, that the other person had attained the age of 12 years but not the age of
16 years and was at least 4 years younger than the defendant [“than the person so
engaging”];

P

Third, that the act occurred in the special maritime or territorial jurisdiction of
the United States, or in any prison, institution, or facility in which persons are
held in custody by direction of or pursuant to a contract or agreement with the
head of any Federal department or agency; and

017
7/2

7/2
0
P Fourth, that the defendant did so knowingly.d
e
w
The government does not have to prove e the defendant knew that the victim had
vi that age of 16, or that the defendant knew
reached the age of 12, but had not yet reached the
26, than the defendant.
that the victim was at least four 2 younger
years
6-4
§ 2243(b)
.
othe 1
P First,N
that
defendant engaged, or attempted to engage, in a sexual act with
1137

1138

another person who was in official detention and was under the custodial,
supervisory, or disciplinary authority of the defendant [“the person so
engaging”];

P

Second, that the act occurred in the special maritime or territorial jurisdiction of
the United States, or in any prison, institution, or facility in which persons are
held in custody by direction of or pursuant to a contract or agreement with the
head of any Federal department or agency; and

P

Third, that the defendant did so knowingly.

ADDITIONAL ELEMENT
1. Did the conduct result in the death of the person?
“Sexual act” means

1137

See United States v. Tail, 459 F.3d 854, 861 (8th Cir. 2006).
United States v. Jennings, 496 F.3d 344 (4th Cir. 2007). The Jennings court relied on
United States v. Jones, 471 F.3d 535 (4th Cir. 2006), an 18 U.S.C. § 2423 prosecution, where the
court said that “knowingly” modified the verb which constituted the crime, rather than the noun which
identified the victim.
1138

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(a) contact, which means penetration, however slight, between the penis and
vulva or the penis and the anus;
(b) contact between the mouth and the penis, the mouth and the vulva, or the
mouth and the anus;1139
(c) the penetration, however slight, of the anal or genital opening of another by
a hand or finger or by an object, with an intent to abuse, humiliate, harass,
degrade, or arouse or gratify the sexual desire of any person;1140 or
(d) the intentional touching, not through the clothing, of the genitalia of another
person who has not attained the age of 16 years with an intent to abuse,
humiliate, harass, degrade, or arouse or gratify the sexual desire of any
person. [§ 2246(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.1141
“Prison” means a correctional, detention, or penal facility. [§ 2246(1)]

017
7/2

“Official detention” means detention by a federal officer or employee, or under the
direction of a federal officer or employee following arrest for an offense; following
surrender in lieu of arrest for an offense; following a charge or conviction of an offense,
or an allegation or finding of juvenile delinquency; following commitment as a material
witness; following civil commitment in lieu of criminal proceedings or pending
resumption of criminal proceedings that are being held in abeyance, or pending
extradition, deportation, or exclusion; or for purposes incident to any detention described
above including transportation, medical diagnosis or treatment, court appearance, work,
and recreation; but does not include supervision or other control (other than custody
during specified hours or days) after release on bail, probation, or parole, or after release
following a finding of juvenile delinquency [See § 2246(5)]

7/2
d0

e
iew
,v

226
6-4

o. 1
N
AFFIRMATIVE DEFENSES

The defendant must establish, by a preponderance of the evidence, that the defendant
and the person engaging in the sexual act were married to each other at the time.

1139

Subsections (a) and (b) describe conduct which needs no explicit intent element, because
one who engages in such contact inherently intends to do so for sexual purposes. Demarrias, 876 F.2d
at 676.
1140
“The elements of this kind of “sexual act,” therefore, are (a) penetration, (b) of the anal
or genital opening of another, (c) by a hand, finger or any object, (d) with a specific intent.” United
States v. Torres, 937 F.2d 1469, 1476 (9th Cir. 1991). Subsection (c) covers conduct that is not
inherently sexual, but that may be for a sexual purpose, depending upon the intent of the actor. United
States v. Demarrias, 876 F.2d 674, 676 (8th Cir. 1989).
1141
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 a base in Afghanistan came within the statutory definition, such that
the defendant could be prosecuted for assaulting a prisoner, in violation of 18 U.S.C. § 113.

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[§ 2243(c)(2)]
The defendant must establish, by a preponderance of the evidence, that he reasonably
believed that the other person had attained the age of 16 years. [§ 2243(c)(1)] 1142
____________________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).
LESSER-INCLUDED OFFENSES:
In United States v. Demarrias, 876 F.2d 674 (8th Cir. 1989), the Eighth Circuit
concluded that abusive sexual contact (§ 2244) is a lesser included offense of sexual
abuse (§ 2243). “The clear intent of Congress seems to have been to make [§ 2244] the
general ‘lesser included offenses’ provision for chapter 109A, expanding the range of
prohibited conduct.” 876 F.2d at 676-77.
18 U.S.C. § 2244

017
7/2

ABUSIVE SEXUAL CONTACT1143

Title 18, United States Code, Section 2244 makes it a crime to commit abusive
sexual contact. For you to find the defendant guilty, the government must prove each of
the following beyond a reasonable doubt:
§ 2244(a)(1)
P
P

P

P

7/2
d0

e
iew
,v

First, that the defendant engaged in or caused sexual contact with or by another
person;

6
22did so either by using force against that other person,
Second, that the defendant
4
or by threatening or placing that other person in fear that any person would be
16.
subjected to death, serious bodily injury, or kidnapping;
No
Third, that the act occurred in the special maritime or territorial jurisdiction of
the United States, or in a Federal prison, or in any prison, institution, or facility
in which persons are held in custody by direction of or pursuant to a contract or
agreement with the head of any Federal department or agency; and
Fourth, that the defendant did so knowingly.

OR
P

First, that the defendant engaged in or caused sexual contact with or by another
person;

P

Second, that the defendant did so either by rendering the other person
unconscious, or by administering to the other person by force or threat of force,
or without the knowledge or permission of that person, a drug, intoxicant, or

1142

United States v. Jennings, 496 F.3d 344 (4th Cir. 2007).
“Instead of creating a separate scheme for abusive sexual contact in § 2244, Congress
simply repeated the scheme it had laid out for abusive sexual acts in §§ 2241 through 2243 by
incorporating those provisions into § 2244.” Id. at 353. See also United States v. John, 309 F.3d 298,
301 (5th Cir. 2002). Therefore, the government does not have to prove a sexual act to convict under
§ 2244(a)(1).
1143

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TITLE 18

other similar substance and thereby substantially impaired the ability of that
other person to appraise or control conduct;
P

Third, that the act occurred in the special maritime or territorial jurisdiction of
the United States, or in a Federal prison, or in any prison, institution, or facility
in which persons are held in custody by direction of or pursuant to a contract or
agreement with the head of any Federal department or agency; and

P

Fourth, that the defendant did so knowingly.

§ 2244(a)(2)
P

First, that the defendant engaged in or caused sexual contact with or by another
person;

P

Second, that the defendant did so by threatening or placing that other person in
fear,1144 or, the other person was either incapable of appraising the nature of the
conduct or was physically incapable of declining participation in, or
communicating unwillingness to engage in, the sexual contact;

P

Third, that the act occurred in the special maritime or territorial jurisdiction of
the United States, or in a Federal prison, or in any prison, institution, or facility
in which persons are held in custody by direction of or pursuant to a contract or
agreement with the head of any Federal department or agency; and

P

Fourth, that the defendant did so knowingly.1145

ADDITIONAL ELEMENT

017
7/2

7/2
d0

1. Was the sexual contact with a child who had not attained the age of 12 years?

e
ecaused
ior w sexual contact with or by another
First, that the defendant engagedv
6, in
person;
22
Second, that the6-4person had attained the age of 12 years but not the age of
other
16 years and was at least 4 years younger than the defendant [“than the person so
o. 1
engaging”];
N

§ 2244(a)(3)
P
P

P

Third, that the act occurred in the special maritime or territorial jurisdiction of
the United States, or in a Federal prison, or in any prison, institution, or facility
in which persons are held in custody by direction of or pursuant to a contract or
agreement with the head of any Federal department or agency; and

P

Fourth, that the defendant did so knowingly.1146

It is not necessary that the government prove that the defendant knew that the victim
had reached the age of 12, but had not yet reached the age of 16, or that the defendant
knew that the victim was at least four years younger than the defendant.1147
ADDITIONAL ELEMENT
1. Was the sexual contact with a child who had not attained the age of 12 years?

1144

“Sexual abuse does not require the same type of fear required for aggravated sexual abuse
[which is fear of death, serious bodily injury, or kidnapping].” United States v. Nasiruddin, No. 984020, 1998 W L 539468 (4th Cir. Aug. 25, 1998).
1145
See United States v. Tail, 459 F.3d 854, 861 (8th Cir. 2006).
1146
See id. at 861.
1147
United States v. Jennings, 496 F.3d 344 (4th Cir. 2007).

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§ 2244(a)(4)
P

First, that the defendant engaged in or caused sexual contact with or by another
person;

P

Second, that the other person was in official detention and was under the
custodial supervisory, or disciplinary authority of the defendant [“the person so
engaging”];

P

Third, that the act occurred in the special maritime or territorial jurisdiction of
the United States, or in a Federal prison, or in any prison, institution, or facility
in which persons are held in custody by direction of or pursuant to a contract or
agreement with the head of any Federal department or agency; and

P

Fourth, that the defendant did so knowingly.

ADDITIONAL ELEMENT
Was the sexual contact with a child who had not attained the age of 12 years?
§ 2244(a)(5)
First clause
P

First, that the defendant crossed a state line; and

P

Second, that the defendant did so with the intent to engage in sexual contact with
a person who had not attained the age of 12 years.

Second clause
P
P

P

017
7/2

7/2
d0

First, that the defendant engaged in sexual contact with another person who had
not attained the age of 12 years;

e
ew
ispecial maritime or territorial jurisdiction of
Second, that the act occurred in the
the United States, or in a Federal prison, or in any prison, institution, or facility
6, v
in which persons are held in custody by direction of or pursuant to a contract or
422
-head of any Federal department or agency; and
agreement with 6
. 1the did so knowingly.
Third, that the defendant
No
1148

Third clause
P

First, that the defendant did one of the following:
1.

2.

rendered another person unconscious and thereby engaged in sexual contact
with that other person, or attempted to do so; or

3.

P

caused, or attempt to cause, another person to engage in sexual contact
either by using force against that other person, or by threatening or placing
that other person in fear that any person would be subjected to death,
serious bodily injury, or kidnapping;

administered to another person by force or threat of force, or without the
knowledge or permission of that person, a drug, intoxicant, or other similar
substance and thereby substantially impaired the ability of that other person
to appraise or control conduct and engaged in sexual contact with that other
person;

Second, that the other person had attained the age of 12 years but not the age of
16 years and was at least 4 years younger than the defendant [“than the person so
engaging”];

1148

See United States v. Williams, 197 F.3d 1091, 1095-96 (11th Cir. 1999).

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P

Third, that the act occurred in the special maritime or territorial jurisdiction of
the United States, or in a Federal prison, or in any prison, institution, or facility
in which persons are held in custody by direction of or pursuant to a contract or
agreement with the head of any Federal department or agency; and

P

Fourth, that the defendant did so knowingly.

The government does not have to prove that the defendant knew that the other person
engaging in the sexual contact had not attained the age of 12 years. [§ 2241(d)]
“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.1149
“Prison” means a correctional, detention, or penal facility. [§ 2246(1)]
“Official detention” means detention by a federal officer or employee, or under the
direction of a federal officer or employee following arrest for an offense; following
surrender in lieu of arrest for an offense; following a charge or conviction of an offense,
or an allegation or finding of juvenile delinquency; following commitment as a material
witness; following civil commitment in lieu of criminal proceedings or pending
resumption of criminal proceedings that are being held in abeyance, or pending
extradition, deportation, or exclusion; or for purposes incident to any detention described
above including transportation, medical diagnosis or treatment, court appearance, work,
and recreation; but does not include supervision or other control (other than custody
during specified hours or days) after release on bail, probation, or parole, or after release
following a finding of juvenile delinquency [See § 2246(5)]

017
7/2

7/2
d0

e
ew
isufficient to overcome, restrain, or injure a
“Force,” as used in the statute, must be
6, v to coerce or compel submission by the
person, or the use of a threat of 22 sufficient
harm
- not
victim. The government need4 show evidence of physical restraint. The government
6
may prove force by inference when the accused has disproportionately greater strength
. 1over, the victim.
than, or coercive power
No
1150

“Sexual contact” means the intentional touching, either directly or through the
clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks of any person with
an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any
person.1151 [§ 2246(3)]
“Serious bodily injury” means bodily injury that involves a substantial risk of death,

1149

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.
1150
United States v. Johnson, 492 F.3d 254, 257(4th Cir. 2007).
1151
“[T]he essential elements of “sexual contact” are (a) the intentional touching, (b) of the
genitalia, anus, groin, breast, inner thigh, or buttocks of any other person, (c) with the specific intent.”
United States v. Torres, 937 F.2d 1469, 1476 (9th Cir. 1991).

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unconsciousness, extreme physical pain, protracted and obvious disfigurement, or
protracted loss or impairment of the function of a bodily member, organ, or mental
faculty. [§ 2245(4)]
AFFIRMATIVE DEFENSES
The defendant must establish, by a preponderance of the evidence, that the defendant
and the person engaging in the sexual act were married to each other at the time.
[§ 2243(c)(2)]
The defendant must establish, by a preponderance of the evidence, that he reasonably
believed that the other person had attained the age of 16 years. [§ 2243(c)(1)] 1152
____________________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).
LESSER-INCLUDED OFFENSES:

017
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The Eleventh Circuit has concluded that simple assault under 18 U.S.C. § 113(a)(5)
is a lesser included offense of abusive sexual contact under § 2244(a)(1). United States v.
Williams, 197 F.3d 1091, 1096 (11th Cir. 1999) (citing United States v. Eades, 633 F.2d
1075, 1077 (4th Cir. 1980)).

7/2
d0

18 U.S.C. § 2250

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iew
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SEX OFFENDER REGISTRATION AND
NOTIFICATION ACT (SORNA) [LAST UPDATED : 7/11/14]

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Title 18, United States Code, Section 2250 makes it a crime for a sex offender to fail
to register as required. For you to find the defendant guilty, the government must prove
each of the following beyond a reasonable doubt:

o. 1
N

§ 2250(a)(2)(A)
P

First, that the defendant is a sex offender by reason of a conviction under Federal
law, the law of the District of Columbia, Indian tribal law, or the law of any
territory or possession of the United States;

P

Second, that the defendant was required to register under the Sex Offender
Registration and Notification Act;

P

Third, that the defendant failed to register or update a registration as required by
the Sex Offender Registration and Notification Act; and

P

Fourth, that the defendant did so knowingly.

§ 2250(a)(2)(B)
P

First, that the defendant was required to register under the Sex Offender
Registration and Notification Act;

P

Second, that the defendant traveled in interstate or foreign commerce, or entered
or left, or resided in, Indian country;1153

1152
1153

United States v. Jennings, 496 F.3d 344 (4th Cir. 2007).
In United States v. Husted, 545 F.3d 1240, 1243 n.3 (10th Cir. 2008), the government
(continued...)

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P

Third, that the defendant failed to register or update a registration as required by
the Sex Offender Registration and Notification Act; and

P

Fourth, that the defendant did so knowingly.1154

The term “resides” means, with respect to an individual, the location of the
individual’s home or other place where the individual habitually lives. [42 U.S.C. § 16911
(13)]
AFFIRMATIVE DEFENSE
It is an affirmative defense that:
(1) uncontrollable circumstances prevented the individual from complying;
(2) the individual did not contribute to the creation of such circumstances in
reckless disregard of the requirement to comply; and
(3) the individual complied as soon as such circumstances ceased to exist.
[§ 2250(b)]
____________________NOTE____________________
The Sex Offender Registration and Notification Act (SORNA) is codified at 42
U.S.C. §§ 16901 et seq.

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SORNA’s criminal provision is not a specific intent law. “Knowingly” modifies
“fails to register.” “There is no language requiring specific intent or a willful failure to
register such that the defendant must know his failure to register violated federal law.”
United States v. Gould, 568 F.3d 459, 463 (4th Cir. 2009) (citation omitted). The term
“knowingly” merely requires proof of knowledge of the facts that constitute the offense.
Id.

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iew
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6-4

Because Congress established a jurisdictional predicate of interstate or foreign
travel, the government need only establish a de minimis effect on interstate commerce.
United States v. Hinen, 487 F. Supp. 2d 747, 758 (W.D. Va. 2007), rev’d on other
grounds by United States v. Hatcher, 560 F.3d 222 (4th Cir. 2009).

o. 1
N

In United States v. Stewart, 461 F. App’x 349 (4th Cir. 2012), the court indicated the
following regarding venue:
Stewart’s violation of § 2250(a) necessarily involved more than one district
because the traveled interstate from Virginia to Kentucky, where he failed to
register. In such a situation, venue is governed by 18 U.S.C. § 3237(a). . . .
Stewart’s offense began in Virginia because his move from that state gave rise
to his duty to register in Kentucky, where his offense was completed when he
failed to register. 42 U.S.C. § 16913(c). Because Stewart’s offense began when
he moved from the Western District of Virginia, thereafter failing to register in
Kentucky, venue was proper in the Western District of Virginia. See, e.g.,
United States v. Howell, 552 F.3d 209, 717-18 (8th Cir. 2009) (holding that
venue for a failure-to-register prosecution was proper in the Northern District of
Iowa, from which the defendant moved to Texas where he failed to register.”).
461 F. App’x at 351-52. See also United States v. Burns, 418 F. App’x 209 (4th Cir.
2011) (defendant argued venue improper in Western District of Virginia because offense

1153

(...continued)
conceded that § 2250(a)(2)(B) is an express jurisdictional element of the offense.
1154
See United States v. Gould, 568 F.3d 459, 463 (4th Cir. 2009); Husted, 545 F.3d at 1243.

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occurred in California, where SORNA required him to register; court found venue was
governed by 18 U.S.C. § 3237(a)). But see United States v. Stinson, 507 F. Supp. 2d 560,
570 (S.D. W.Va. 2007) (district court rejected the Government’s continuing offense
argument).
SORNA creates a continuing offense in the sense of an offense that can be
committed over a length of time. United States v. Dixon, 551 F.3d 578, 582 (7th Cir.
2008).
In United States v. Bruffy, 466 F. App’x 239 (4th Cir. 2012), the court dealt with the
issue of a defendant who did not have a fixed address and who thereby could have
defeated the purpose of the statute by continuously moving. SORNA defines the term
“resides” as “the location of the individual’s home or other place where the individual
habitually lives.” 42 U.S.C. § 16911(13). SORNA guidelines define “habitually lives” as
“any place in which the sex offender lives for at least 30 days.” National Guidelines for
Sex Offender Registration and Notification, 73 Fed. Reg. 38,030, 38,062 (July 2, 2008).
In Bruffy, the defendant lived in a particular apartment almost every day between January
13 and February 5, 2009. “[W]hile Bruffy did not live in the Belle Haven apartment
between February 5, 2009 and February 15, 2009, he returned there on a daily basis and
occasionally lived in his car in a parking lot behind the apartment. Thus, while Bruffy
may have been ‘transient’ during the period between January 13, 2009 and February 5,
2009, Bruffy was not ‘in transit’ during this time.” 466 F. App’x at 244. The court
affirmed Bruffy’s conviction.

017
7/2

7/2 [L U
0
18 U.S.C. § 2251
SEXUAL EXPLOITATION OF CHILDREN
:
ed
01/20/2016]
ew
Title 18, United States Code, Sectionvi makes it a crime to use any minor to
2251
6,
engage in any sexually explicit conduct for the purpose of producing any visual depiction
2defendant guilty, the government must prove each of
of such conduct. For you to -42
find the
the following beyond a16
reasonable doubt:
.
§ 2251(a)
No
AST

P

PDATED

First, that the defendant did one of the following:

(1) employed, used, persuaded, induced, enticed, or coerced any minor to engage in
any sexually explicit conduct;
(2) had a minor assist any other person to engage in any sexually explicit conduct; or
(3) transported any minor in interstate or foreign commerce, or in any territory or
possession of the United States, with the intent that such minor engage in sexually
explicit conduct;
P

Second, that the defendant did so for the purpose of either producing any visual
depiction of such sexually explicit conduct or transmitting a live visual depiction
of such sexually explicit conduct;1155 and

1155

In United States v. Palomino-Coronado, 805 F.3d 127, 130 (4th Cir. 2015), the Fourth
Circuit stated that Ҥ2251(a) contains a specific intent element: the government was required to prove
that production of a visual depiction was a purpose of engaging in the sexually explicit conduct.” The
Fourth Circuit found that it is not “sufficient simply to prove that the defendant purposefully took a
picture.” Id. at 131. Instead, the “defendant must engage in the sexual activity with the specific intent
to produce a visual depiction.” Id.
(continued...)

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P

Third, [one of the following]:

(1) that the defendant knew or had reason to know that such visual depiction would
be transported or transmitted using any means or facility of interstate or foreign
commerce or in or affecting interstate or foreign commerce or mailed;
(2) that the visual depiction was produced or transmitted using materials that had
been mailed, shipped, or transported in or affecting interstate or foreign commerce
by any means, including by computer; or
(3) that the visual depiction had actually been transported or transmitted using any
means or facility of interstate or foreign commerce or in or affecting interstate or
foreign commerce or mailed.1156
§ 2251(b)
P

First, that the defendant was, at the time alleged in the indictment, the parent,
legal guardian, or person having custody and control of a minor;

P

Second, that the defendant permitted such minor to engage in, or to assist any
other person to engage in, sexually explicit conduct;

P

Third, that the defendant acted knowingly;

P

Fourth, that the defendant did so for the purpose of either producing any visual
depiction of such sexually explicit conduct or transmitting a live visual depiction
of such sexually explicit conduct; and

017
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7/2visual depiction would
(1) that the defendant knew or had reason to know that such
d0
be transported or transmitted using any meanse facility of interstate or foreign
or
w
commerce or in or affecting interstate ore
vi foreign commerce or mailed;
, or transmitted using
(2) that the visual depiction was6
that had
2 produced affecting interstate ormaterialscommerce
been mailed, shipped, or42
transported in or
foreign
by any means, including by computer; or
16.
(3) that the visual depiction had actually been transported or transmitted using any
No
P

Fifth, [one of the following]:

means or facility of interstate or foreign commerce or in or affecting interstate or
foreign commerce or mailed.1157
§ 2251(c)
P

First, that the defendant employed, used, persuaded, induced, enticed, or coerced
any minor to engage in, or had a minor assist any other person to engage in, any
sexually explicit conduct outside of the United States, its territories or
possessions;

P

Second, that the defendant did so for the purpose of producing any visual
depiction of such sexually explicit conduct; and

P

Third, that the defendant either intended to be transported, or did transport, such
visual depiction to the United States, its territories or possessions, by any means,
including by using any means or facility of interstate or foreign commerce or
1155

(...continued)

1156

See United States v. Engle, 676 F.3d 405, 412 (4th Cir. 2012); United States v. Malloy,
568 F.3d 166, 169 (4th Cir. 2009). The statute was amended October 13, 2008, to add language
regarding transmitting a live visual depiction.
1157
See Malloy, 568 F.3d 166.

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TITLE 18

mail.
§ 2251(d)
P

First, that the defendant made, printed, or published, or caused to be made,
printed, or published, a notice or advertisement seeking or offering either

(1) to receive, exchange, buy, produce, display, distribute, or reproduce, any visual
depiction involving the use of a minor engaging in sexually explicit conduct and
such visual depiction was of such conduct; or
(2) participation in any act of sexually explicit conduct by or with any minor for the
purpose of producing a visual depiction of such sexually explicit conduct;
P

Second, that the defendant acted knowingly; and

P

Third, [one of the following]:

(1) that the defendant knew or had reason to know that the notice or advertisement
would be transported using any means or facility of interstate or foreign commerce
or in or affecting interstate or foreign commerce by any means including by
computer or mailed; or
(2) that notice or advertisement was transported using any means or facility of
interstate or foreign commerce or in or affecting interstate or foreign commerce by
any means including by computer or mailed.

017
7/2

To act knowingly means to do an act voluntarily and intentionally and not because of
mistake or accident or other innocent reason.1158

7/2
“Computer” means an electronic, magnetic, optical, 0
electrochemical, or other high
ed
speed data processing device performing logical, arithmetic, or storage functions, and
iew
includes any data storage facility or communications facility directly related to or
v[18 U.S.C. § 1030(e)(1)]
operating in conjunction with such device.
26, supervision over or responsibility for a
2
“Custody or control” includes temporary
6-4 obtained. [§ 2256(7)]
minor whether legally or illegally
o. 1 means any visual depiction, including any photograph, film
“Child pornography”
N

video, picture, or computer or computer-generated image or picture, whether made or
produced by electronic, mechanical, or other means, of sexually explicit conduct, where
—
(A)

the production of such visual depiction involves the use of a minor engaging
in sexually explicit conduct;

(B)

such visual depiction is a digital image, computer image, or computergenerated image that is, or is indistinguishable from, that of a minor engaging
in sexually explicit conduct; or

(C)

such visual depiction has been created, adapted, or modified to appear that an
identifiable minor is engaging in sexually explicit conduct. [§ 2256(8)]

“Foreign commerce” includes commerce with a foreign country. [18 U.S.C. § 10]
“Graphic” 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

1158

United States v. Dornhofer, 859 F.2d 1195, 1199 (4th Cir. 1988). But c.f. United States
v. Matthews, 209 F.3d 338, 351-52 (4th Cir. 2000) (“to act knowingly is to act with knowledge of the
facts that constitute the offense, but not necessarily with knowledge that the facts amount to illegal
conduct unless the statute indicates otherwise.”).

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TITLE 18

conduct is being depicted. [§ 2256(10)]
“Identifiable minor” means a person
(i)

who was a minor at the time the visual depiction was created, adapted, or
modified; or whose image as a minor was used in creating, adapting, or
modifying the visual depiction; and

(ii)

who is recognizable as an actual person by the person’s face, likeness, or
other distinguishing characteristic, such as a unique birthmark or other
recognizable feature; and

shall not be construed to require proof of the actual identity of the identifiable
minor. [§ 2256(9)]
“Indistinguishable” means virtually indistinguishable, in that the depiction is such
that an ordinary person viewing the depiction would conclude that the depiction is of an
actual minor engaged in sexually explicit conduct. This does not apply to depictions that
are drawings, cartoons, sculptures, or paintings. [§ 2256(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]

017
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“Minor” means any person under the age of 18 years. [§ 2256(1)]

“Producing” means producing, directing, manufacturing, issuing, publishing, or
advertising. [§ 2256(3)]

7/2
d0

“Visual depiction” includes undeveloped film and videotape, and data stored on
computer disk or by electronic means which is capable of conversion into a visual image.
[§ 2256(5)]

e
iew
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26
2including genital-genital, oral-genital, anal-genital,
sexual intercourse,
4
or oral-anal, whether between persons of the same or opposite sex;
16.
bestiality;
No

“Sexually explicit conduct”1159 means actual or simulated
(i)
(ii)

(iii) masturbation;
(iv) sadistic or masochistic abuse; or
(v) lascivious exhibition of the genitals or pubic area of any person.
[§ 2256(2)(A)]
“Visual depiction” includes undeveloped film and videotape, and data stored on
computer disk or by electronic means which is capable of conversion into a visual image.
[§ 2256(5)]
“Persuade,” “induce,” and “entice” convey the idea of one person leading or moving
another by persuasion or influence, as to some action or state of mind.1160
The government does not have to prove that the visual depictions were transported in

1159

“Sexually explicit conduct” has a different meaning for purposes of “child pornography”
when the visual depiction is a digital image, computer image, or computer-generated image that is, or
is indistinguishable from, that of a minor engaging in sexually explicit conduct. 18 U.S.C.
§ 2256(2)(B).
1160
United States v. Engle, 676 F.3d 405, 411 n.3 (4th Cir. 2012).

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interstate commerce. It is sufficient if they were mailed.1139
____________________NOTE____________________
In United States v. Malloy, 568 F.3d 166, 171, 173 (4th Cir. 2009), the Fourth
Circuit concluded that knowledge of the victim’s age is neither an element of the offense
nor textually available as an affirmative defense, and that no reasonable mistake of age
defense is constitutionally required.
There is no element of direct or implied commercial purpose in § 2251. United
States v. Matthews, 209 F.3d 338, 343 n.2 (4th Cir. 2000); United States v. Bell, 5 F.3d
64, 68 (4th Cir. 1993).
“A defendant can violate § 2251(a) in multiple ways,” including “using” and
“enticing.” A defendant “uses” a minor for purposes of § 2251(a) if he photographs the
minor engaging in sexually explicit conduct to create a visual depiction of such conduct.”
United States v. McCloud, 590 F.3d 560, 566 (8th Cir. 2009). Evidence that a female
traveled across state lines to engage in prostitution in response to the defendant’s call
asking her to do so is sufficient to sustain the finding that the defendant “induced or
persuaded” her to make the trip in violation of § 2422. Harms v. United States, 272 F.2d
478, 480 (4th Cir. 1959).

017
7/2

In Matthews, a § 2252 prosecution, the Fourth Circuit rejected the appellant’s First
Amendment defense that he was doing research for a valid journalistic purpose. See also
United States v. Bausch, 140 F.3d 739, 741-42 (8th Cir. 1998) (district court’s failure to
address Bausch’s First Amendment issue, which he raised for first time on appeal, not
plain error).

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iew
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“Transmission of photographs by means of the Internet is tantamount to moving
photographs across state lines and thus constitutes transportation in interstate commerce.”
United States v. Carroll, 105 F.3d 740, 742 (1st Cir. 1997).

226
4
In Malloy, the Fourth Circuit upheld the conviction which involved “local”
16- with a video camera and videotape that had traveled in
.
production of child pornography
NoSuch production was “part of an economic class of activities that have
foreign commerce.
a substantial effect on interstate commerce.” 568 F.3d at 180 (quotations and citations
omitted).
Section 2251(a) is a continuing offense, and therefore venue was proper in the
Eastern District of Virginia under both paragraphs of 18 U.S.C. § 3237(a), even though
the defendant produced the visual depiction of the minor in Pennsylvania, because he
transported the depiction back to his home in Virginia. United States v. Engle, 676 F.3d
405, 416 (4th Cir. 2012).

“Sexual abuse of minors can be accomplished by several means and is often carried
out through a period of grooming. Grooming refers to deliberate actions taken by a
defendant to expose a child to sexual material; the ultimate goal of grooming is the
formation of an emotional connection with the child and a reduction of the child’s
inhibitions in order to prepare the child for sexual activity.” Id. at 412 (quotations and
citations omitted). “Sections 2422(b) and 2251(a) target the sexual grooming of minors as
well as the actual sexual exploitation of them.” Id. (quotation and citation omitted).
18 U.S.C. § 2251A

1139

SELLING OR BUYING CHILDREN FOR SEX

United States v. Goodwin, 854 F.2d 33, 37 n.3 (4th Cir. 1988).

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Title 18, United States Code, Section 2251A makes it a crime to sell or buy any
minor to engage in any sexually explicit conduct. For you to find the defendant guilty, the
government must prove each of the following beyond a reasonable doubt:
§ 2251A(a)(1)
P

First, that the defendant was a parent, legal guardian, or other person who had
custody or control of a minor;

P

Second, that the defendant sold or otherwise transferred, or offered to sell or
otherwise transfer, custody or control of the minor;

P

Third, that the defendant knew that, as a consequence of the sale or transfer, the
minor would be portrayed in a visual depiction engaging in, or assisting another
person to engage in, sexually explicit conduct; and

P

Fourth, that the minor or other person traveled in or was transported in interstate
or foreign commerce in the course of the selling or transferring of custody; that
any offer to sell or otherwise transfer custody of a minor was communicated or
transported in interstate or foreign commerce by any means including by
computer or mail; or that the sale or transfer of custody took place in a territory
or possession of the United States.

017
7/2

§ 2251A(a)(2)
P

First, that the defendant was a parent, legal guardian, or other person who had
custody or control of a minor;

P

Second, that the defendant sold or otherwise transferred, or offered to sell or
otherwise transfer, custody or control of the minor;

P

Third, that the defendant did so with intent to promote the engaging in of
sexually explicit conduct by the minor for the purpose of producing a visual
depiction of sexually explicit conduct, or to promote the rendering of assistance
by the minor to any other person to engage in sexually explicit conduct for the
purpose of producing a visual depiction of sexually explicit conduct; and

P

7/2
d0

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iew
,v

226
6-4

1
o.the minor or other person traveled in or was transported in interstate
N
Fourth, that
or foreign commerce in the course of the selling or transferring of custody; that
any offer to sell or otherwise transfer custody of a minor was communicated or
transported in interstate or foreign commerce by any means including by
computer or mail; or that the sale or transfer of custody took place in a territory
or possession of the United States.

§ 2251A(b)(1)
P
P

Second, that the defendant knew that, as a consequence of the purchase or
obtaining of custody, the minor would be portrayed in a visual depiction
engaging in, or assisting another person to engage in, sexually explicit conduct;
and

P

400

First, that the defendant purchased or otherwise obtained, or offered to purchase
or otherwise obtain, custody and control of a minor;

Third, that the minor or other person traveled in or was transported in interstate
or foreign commerce in the course of the selling or transferring of custody; that
any offer to sell or otherwise transfer custody of a minor was communicated or
transported in interstate or foreign commerce by any means including by
computer or mail; or that the sale or transfer of custody took place in a territory
or possession of the United States.

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§ 2251A(b)(2)
P

First, that the defendant purchased or otherwise obtained, or offered to purchase
or otherwise obtain, custody and control of a minor;

P

Second, that the defendant did so with intent to promote the engaging in of
sexually explicit conduct by the minor for the purpose of producing a visual
depiction of sexually explicit conduct, or to promote the rendering of assistance
by the minor to any other person to engage in sexually explicit conduct for the
purpose of producing a visual depiction of sexually explicit conduct; and

P

Third, that the minor or other person traveled in or was transported in interstate
or foreign commerce in the course of the selling or transferring of custody; that
any offer to sell or otherwise transfer custody of a minor was communicated or
transported in interstate or foreign commerce by any means including by
computer or mail; or that the sale or transfer of custody took place in a territory
or possession of the United States.1140

“Minor” means any person under the age of 18 years. [§ 2256(1)]
“Sexually explicit conduct”1141 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;

017
7/2

(ii) bestiality;

7/2
d0

(iii) masturbation;
(iv) sadistic or masochistic abuse; or

e
iew
,v

(v) lascivious exhibition of the genitals or pubic area of any person.
[§ 2256(2)(A)]

226
6-4

“Producing” means producing, directing, manufacturing, issuing, publishing, or
advertising. [§ 2256(3)]

o. 1
N

“Visual depiction” includes undeveloped film and videotape, and data stored on
computer disk or by electronic means which is capable of conversion into a visual image.
[§ 2256(5)]
“Computer” means an electronic, magnetic, optical, electrochemical, or other high
speed data processing device performing logical, arithmetic, or storage functions, and
includes any data storage facility or communications facility directly related to or
operating in conjunction with such device. [18 U.S.C. § 1030(e)(1)]
“Custody or control” includes temporary supervision over or responsibility for a
minor whether legally or illegally obtained. [§ 2256(7)]
Custody means the power to manage, command, direct or restrain another person.1142

1140

See United States v. Moser, 235 F. App’x 138 (4th Cir. 2007) (district court did not
plainly err in incorrectly instructed jury that “engaging in sexually explicit conduct with a minor is in
fact obtaining control.”).
1141
“Sexually explicit conduct” has a different meaning for purposes of “child pornography”
when the visual depiction is a digital image, computer image, or computer-generated image that is, or
is indistinguishable from, that of a minor engaging in sexually explicit conduct. 18 U.S.C.
§ 2256(2)(B).
1142
Instruction approved in United States v. Buculei, 262 F.3d 322, 332 n.9 (4th Cir. 2001).
See Moser, 235 F. App’x 138 (district court did not plainly err when incorrectly instructed the jury that
(continued...)

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TITLE 18

Control involves something more than mere persuasion, inducement, or coercion.
However, the custody or control need not be of the same degree as that exercised by
a parent or guardian.1143
“Child pornography” means any visual depiction, including any photograph, film
video, picture, or computer or computer-generated image or picture, whether made or
produced by electronic, mechanical, or other means, of sexually explicit conduct, where–
(A)

the production of such visual depiction involved the use of a minor engaging
in sexually explicit conduct;

(B)

such visual depiction is a digital image, computer image, or computergenerated image that is, or is indistinguishable from, that of a minor engaging
in sexually explicit conduct; or

(C)

such visual depiction has been created, adapted, or modified to appear that an
identifiable minor is engaging in sexually explicit conduct. [§ 2256(8)]

“Identifiable minor” means a person
(i)

who was a minor at the time the visual depiction was created, adapted, or
modified; or whose image as a minor was used in creating, adapting, or
modifying the visual depiction; and

017
7/2

(ii) who is recognizable as an actual person by the person’s face, likeness, or
other distinguishing characteristic, such as a unique birthmark or other
recognizable feature; and

7/2
d0

shall not be construed to require proof of the actual identity of the identifiable
minor. [§ 2256(9)]

e
iew
,v

“Graphic” 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. [§ 2256(10)]

o. 1
N

226
6-4

“Indistinguishable” means virtually indistinguishable, in that the depiction is such
that an ordinary person viewing the depiction would conclude that the depiction is of an
actual minor engaged in sexually explicit conduct. This does not apply to depictions that
are drawings, cartoons, sculptures, or paintings. [§ 2256(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]
____________________NOTE____________________
See United States v. Cedelle, 89 F.3d 181, 185 (4th Cir. 1996) (a § 2252 case), where
the court said the government is required to prove that the defendant knew that the visual
depiction portrayed a person under the age of 18 and that the minor was engaged in
sexually explicit conduct.

1142

(...continued)
“engaging in sexually explicit conduct with a minor is in fact obtaining control.”).
1143
Buculei, 262 F.3d at 332 n.9. However, the court declined to decide whether
psychological control would be sufficient under the statute.

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TITLE 18

18 U.S.C. § 2252

SEXUAL EXPLOITATION OF MINORS

Title 18, United States Code, Section 2252 makes it a crime to transport in
interstate commerce, receive, or distribute, sell, or possess with intent to sell, visual
depictions involving the use of a minor engaging in sexually explicit conduct. For you to
find the defendant guilty, the government must prove each of the following beyond a
reasonable doubt:
§ 2252(a)(1)
P

First, that the defendant transported or shipped using any means or facility of
interstate or foreign commerce or in or affecting interstate or foreign commerce
by any means including by computer or mailed any visual depiction;

P

Second, that the producing of the visual depiction involved the use of a minor
engaging in sexually explicit conduct and the visual depiction was of such
sexually explicit conduct; and

P

Third, that the defendant acted knowingly.

§ 2252(a)(2)
P

OR
P

P

P

First, that the defendant received or distributed any visual depiction using any
means or facility of interstate or foreign commerce or in or affecting interstate or
foreign commerce, or which contained materials which had been mailed or
shipped or transported in or affecting interstate or foreign commerce by any
means including by computer;

017
7/2

7/2
0
First, that the defendant reproduced any visual depiction for distribution using
ed
any means or facility of interstate orew commerce or in or affecting
i foreign
vthrough the mails;
interstate or foreign commerce or
6,
2of the visual depiction involved the use of a minor
2
Second, that the producing
engaging in sexually explicit conduct and the visual depiction was of such
6-4
1
sexually o.
explicit conduct; and
N
Third, that the defendant acted knowingly.

§ 2252(a)(3)(A)
P

First, that the defendant sold or possessed with intent to sell any visual
depiction;

P

Second, that the producing of the visual depiction involved the use of a minor
engaging in sexually explicit conduct and the visual depiction was of such
sexually explicit conduct;

P

Third, that the defendant did so in the special maritime and territorial
jurisdiction of the United States or on any land or building owned by, leased, to,
or otherwise used by or under the control of the Government of the United
States, or in the Indian country [as defined in 18 U.S.C. § 1151]; and

P

Fourth, that the defendant acted knowingly.

§ 2252(a)(3)(B)
P

First, that the defendant sold or possessed with intent to sell any visual
depiction;

P

Second, that the producing of the visual depiction involved the use of a minor
engaging in sexually explicit conduct and the visual depiction was of such
sexually explicit conduct;

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TITLE 18

P

Third, that the visual depiction had been mailed, shipped, or transported using
any means or facility of interstate or foreign commerce, or had been shipped or
transported in or affecting interstate or foreign commerce, or was produced using
materials which had been mailed or shipped or transported using any means or
facility or interstate or foreign commerce, including by computer; and

P

Fourth, that the defendant acted knowingly.

§ 2252(a)(4)(A)
P

First, that the defendant possessed or accessed with intent to view, one or more
books, magazines, periodicals, films, videotapes, or other matter which
contained any visual depiction;

P

Second, that the producing of the visual depiction involved the use of a minor
engaging in sexually explicit conduct and the visual depiction was of such
sexually explicit conduct;

P

Third, that the defendant did so in the special territorial jurisdiction of the
United States or on any land or building owned by, leased, to, or otherwise used
by or under the control of the Government of the United States, or in the Indian
country [as defined in 18 U.S.C. § 1151]; and

P
P

P

P

P

7/2
d0

Fourth, that the defendant acted knowingly.

§ 2252(a)(4)(B)

017
7/2

e
iew
,v

First, that the defendant possessed or accessed with intent to view, one or more
books, magazines, periodicals, films, video tapes, or other matter which
contained any visual depiction;

6
22of the visual depiction involved the use of a minor
4
Second, that the producing
16- explicit conduct and the visual depiction was of such
engaging in sexually
.
sexually o
N explicit conduct;

Third, that the visual depiction had been mailed, shipped, or transported using
any means or facility of interstate or foreign commerce, or had been shipped or
transported in or affecting interstate or foreign commerce, or was produced using
materials which had been mailed or shipped or transported using any means or
facility or interstate or foreign commerce, including by computer; and
Fourth, that the defendant acted knowingly.

To act knowingly means to do an act voluntarily and intentionally and not because of
mistake or accident or other innocent reason.1144
The government is required to prove that the defendant knew that the visual
depiction portrayed a person under the age of 18 and that the minor was engaged in
sexually explicit conduct.1145
“Minor” means any person under the age of 18 years. [§ 2256(1)]

1144

United States v. Dornhofer, 859 F.2d 1195, 1199 (4th Cir. 1988) (a § 2252 case). But
c.f. United States v. Matthews, 209 F.3d 338, 351-52 (4th Cir. 2000) (a § 2252 case) (“to act
knowingly is to act with knowledge of the facts that constitute the offense, but not necessarily with
knowledge that the facts amount to illegal conduct unless the statute indicates otherwise.”).
1145
United States v. Cedelle, 89 F.3d 181, 185 (4th Cir. 1996).

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“Sexually explicit conduct”1146 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.
[§ 2256(2)(A)]
“Producing” means producing, directing, manufacturing, issuing, publishing, or
advertising. [§ 2256(3)]
“Visual depiction” includes undeveloped film and videotape, and data stored on
computer disk or by electronic means which is capable of conversion into a visual image.
[§ 2256(5)]
“Computer” means an electronic, magnetic, optical, electrochemical, or other high
speed data processing device performing logical, arithmetic, or storage functions, and
includes any data storage facility or communications facility directly related to or
operating in conjunction with such device. [18 U.S.C. § 1030(e)(1)]

017
7/2

7/2
d0

“Child pornography” means any visual depiction, including any photograph, film
video, picture, or computer or computer-generated image or picture, whether made or
produced by electronic, mechanical, or other means, of sexually explicit conduct, where–
(A)
(B)

(C)

e
iew involved the use of a minor engaging
the production of such visual depiction
6, v
in sexually explicit 22
-4conduct; image, computer image, or computersuch visual depiction is a digital
16
. image that is, or is indistinguishable from, that of a minor engaging
generated
o
in N
sexually explicit conduct; or
such visual depiction has been created, adapted, or modified to appear that an
identifiable minor is engaging in sexually explicit conduct. [§ 2256(8)]

“Identifiable minor” means a person
(i)

who was a minor at the time the visual depiction was created, adapted, or
modified; or whose image as a minor was used in creating, adapting, or
modifying the visual depiction; and

(ii) who is recognizable as an actual person by the person’s face, likeness, or
other distinguishing characteristic, such as a unique birthmark or other
recognizable feature; and
shall not be construed to require proof of the actual identity of the identifiable minor.
[§ 2256(9)]
“Graphic” means that a viewer can observe any part of the genitals or pubic area of

1146

“Sexually explicit conduct” has a different meaning for purposes of “child pornography”
when the visual depiction is a digital image, computer image, or computer-generated image that is, or
is indistinguishable from, that of a minor engaging in sexually explicit conduct. 18 U.S.C.
§ 2256(2)(B).

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TITLE 18

any depicted person or animal during any part of the time that the sexually explicit
conduct is being depicted. [§ 2256(10)]
“Indistinguishable” means virtually indistinguishable, in that the depiction is such
that an ordinary person viewing the depiction would conclude that the depiction is of an
actual minor engaged in sexually explicit conduct. This does not apply to depictions that
are drawings, cartoons, sculptures, or paintings. [§ 2256(11)]
“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.1147
“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]
AFFIRMATIVE DEFENSE TO § 2252(a)(4) [§ 2252(c)]
P

017
7/2

First, that the defendant possessed less than three matters containing any visual
depictions involving the use of a minor engaging in sexually explicit conduct and
the visual depiction was of such sexually explicit conduct; and

7/2
0
P Second, that the defendant promptly and in good faith, and without retaining or
ed agency, to access any visual
w
allowing any person, other than a law enforcement
vie steps to destroy each such visual
depiction or copy thereof, took reasonable
6,
depiction, or reported the2
matter to a law enforcement agency and afforded that
2
agency access to each such visual depiction.
6-4
The government does not have to prove that the visual depictions were transported in
o. 1
N
interstate commerce. It is sufficient if they were mailed.
1148

____________________NOTE____________________
In United States v. Matthews, 209 F.3d 338 (4th Cir. 2000), the Fourth Circuit
rejected the appellant’s First Amendment defense that he was doing research for a valid
journalistic purpose. See also United States v. Bausch, 140 F.3d 739, 741-42 (8th Cir.
1998) (holding district court’s failure to address First Amendment issue was not plain
error).

1147

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.
1148
United States v. Goodwin, 854 F.2d 33, 37 n.3 (4th Cir. 1988)

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TITLE 18

There is no commercial purpose requirement. Matthews, 209 F.3d at 343 n.2.
“Transmission of photographs by means of the Internet is tantamount to moving
photographs across state lines and thus constitutes transportation in interstate commerce.”
United States v. Carroll, 105 F.3d 740, 742 (1st Cir. 1997).
In Bausch, 140 F.3d 739 (8th Cir. 1998), the Eighth Circuit emphasized the “express
jurisdictional element requiring the transport in interstate or foreign commerce of the
visual depictions or the materials used to produce them.” 140 F.3d at 741. Bausch used a
Japanese camera.
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).
18 U.S.C. § 2252A

CHILD PORNOGRAPHY

017
7/2

Title 18, United States Code, Section 2252A makes it a crime to transport in
interstate commerce, receive, or distribute, sell or possess with intent to sell child
pornography. For you to find the defendant guilty, the government must prove each of the
following beyond a reasonable doubt:

e
ew
itransported or shipped using any means or
First, that the defendant mailed, or
v
facility of interstate or foreign,
6 commerce or in or affecting interstate or foreign
2
by any means, including by computer;
-42 and
Second, any child pornography;
. 16
No
Third, that the defendant acted knowingly.

§ 2252A(a)(1)
P

P
P

7/2
d0

§ 2252A(a)(2)
P

First, that the defendant received or distributed;

P

Second, any child pornography, or any material that contained child
pornography;

P

Third, that had been mailed, or using any means or facility of interstate or
foreign commerce or in or affecting interstate or foreign commerce by any
means, including by computer; and

P

Fourth, that the defendant acted knowingly.

§ 2252A(a)(3)(A)
P

First, that the defendant reproduced;

P

Second, any child pornography;

P

Third, for distribution through the mails, or using any means or facility of
interstate or foreign commerce or in or affecting interstate or foreign commerce
by any means, including by computer; and

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TITLE 18

P

Fourth, that the defendant acted knowingly.1149

§ 2252A(a)(3)(B)
P

First, that the defendant advertised, promoted, presented, distributed, or
solicited;1150

P

Second, through the mails, or using any means or facility of interstate or foreign
commerce or in or affecting interstate or foreign commerce by any means,
including by computer;

P

Third, any material or purported material in a manner that reflected the belief,1151
or that was intended to cause another to believe,1152 that the material or purported
material was, or contained, an obscene visual depiction of a minor engaging in
sexually explicit conduct, or a visual depiction of an actual minor engaging in
sexually explicit conduct; and

P

Fourth, that the defendant acted knowingly.1153

“Promotes” means the act of recommending purported child pornography to another
for his acquisition.1154

017
7/2

“Presents” means showing or offering child pornography to another person with a view
to his acquisition.1155

7/2
d0

The government must prove that the defendant believed the material offered was child
pornography, and that the defendant said or did something that would lead a reasonable

e
iew
,v

226 element of the two provisions.” United States v. Williams,
4
“Knowingly” “applies to every
16553 U.S. 285, 294 (2008).
.
The “string of operative verbs ... is reasonably read to have a transactional connotation.
No penalizes speech that accompanies or seeks to induce a transfer of child
That is to say, the statute
1149

1150

pornography.” However, the transactions need not be commercial. Id. at 294.
1151
In Williams, the Court determined that
the phrase “in a manner that reflects the belief” includes both subjective and
objective components. *** Thus, a misdescription that leads the listener to believe
the defendant is offering child pornography, when the defendant in fact does not
believe the material is child pornography, does not violate this prong of the statute.
(It may, however, violate the “manner ... that is intended to cause another to
believe” prong if the misdescription is intentional.) There is also an objective
component to the phrase “manner than reflects the belief.” The statement or action
must objectively manifest a belief that the material is child pornography; a mere
belief, without an accompanying statement or action that would lead a reasonable
person to understand that the defendant holds that belief, is insufficient.
553 U.S. at 295-96.
1152
The phrase “that is intended to cause another to believe” “contains only a subjective
element: the defendant must ‘intend’ that the listener believe the material to be child pornography, and
must select a manner of ‘advertising, promoting, presenting, distributing, or soliciting’ the material
that he thinks will engender that belief– whether or not a reasonable person would think the same.”
Id. at 296.
1153
Id.
1154
United States v. Williams, 553 U.S. 285, 294 (2008).
1155
Id.

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TITLE 18

person to understand that the defendant believed that the material was child pornography.1156
Finally, the government must prove that the defendant intended that the other person
believed the material to be child pornography, and that the defendant selected a manner of
advertising, promoting, presenting, distributing, or soliciting the material that the defendant
thought would cause that belief, whether or not a reasonable person would think so.1157
§ 2252A(a)(4)(A)
P

First, that the defendant sold or possessed with intent to sell any child
pornography;

P

Second, that the defendant did so in the special maritime and territorial
jurisdiction of the United States or on any land or building owned by, leased, to,
or otherwise used by or under the control of the Government of the United
States, or in the Indian country [as defined in 18 U.S.C. § 1151]; and

P

Third, that the defendant acted knowingly.

§ 2252A(a)(4)(B)

017 or
P Second, that had been mailed, or shipped or transported using any means
/2
27interstate or foreign
facility of interstate or foreign commerce or in or affecting
07/
commerce by any means, including by computer, or was produced using
d
materials that had been mailed, or shipped or transported in or affecting
we including by computer; and
interstate or foreign commerce by any means,
vie
,knowingly.
P Third, that the defendant 26
acted
42
§ 2252A(a)(5)(A) 6P First, that the defendant possessed or accessed with intent to view, any book,
o. 1
N
P

First, that the defendant sold or possessed with intent to sell any child
pornography;

magazine, periodical, film, videotape, computer disk, or any other material that
contained an image of child pornography;

P

Second, that the defendant did so in the special maritime and territorial
jurisdiction of the United States or on any land or building owned by, leased, to,
or otherwise used by or under the control of the Government of the United
States, or in the Indian country [as defined in 18 U.S.C. § 1151]; and

P

Third, that the defendant acted knowingly.

§ 2252A(a)(5)(B)
P

First, that the defendant possessed or accessed with intent to view, any book,
magazine, periodical, film, videotape, computer disk, or any other material that
contained an image of child pornography;

P

Second, that had been mailed, or shipped or transported using any means or
facility of interstate or foreign commerce or in or affecting interstate or foreign
commerce by any means, including by computer, or was produced using
materials that had been mailed, or shipped or transported in or affecting

1156
1157

Id.
Id.

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TITLE 18

interstate or foreign commerce by any means, including by computer; and
P

Third, that the defendant acted knowingly.

§ 2252A(a)(6)
P

First, that the defendant distributed, offered, sent, or provided to a minor;

P

Second, any visual depiction, including any photograph, film, video, picture, or
computer generated image or picture, whether made or produced by electronic,
mechanical, or other means, where such visual depiction was, or appeared to be,
of a minor engaging in sexually explicit conduct;

P

Third, [one of the following]:
1. that had been mailed, shipped, or transported using any means or facility of
interstate or foreign commerce or in or affecting interstate or foreign commerce
by any means, including by computer;
2. that was produced using materials that had been mailed, shipped or
transported in or affecting interstate or foreign commerce by any means,
including by computer; or

017
7/2

3. which distribution, offer, sending, or provision was accomplished using the
mails or any means or facility of interstate or foreign commerce; and
P

7/2
d0

Third, that the defendant did so knowingly and for the purpose of inducing or
persuading a minor to participate in any activity was illegal.

§ 2252A(a)(7)
P
P
P

e
iew
,v

6
22that was an adapted or modified depiction of an
4
Second, child pornography
16identifiable.minor;
No
Third, that the defendant did so by any means, including a computer, in or
First, that the defendant produced with intent to distribute or distributed;

affecting interstate or foreign commerce; and
P

Third, that the defendant acted knowingly.

To act knowingly means to do an act voluntarily and intentionally and not because of
mistake or accident or other innocent reason.1158
The government is required to prove that the defendant knew that the visual
depiction portrayed a person under the age of 18 and that the minor was engaged in
sexually explicit conduct.1159
“Minor” means any person under the age of 18 years. [§ 2256(1)]
“Sexually explicit conduct”1160 means actual or simulated

1158

See United States v. Dornhofer, 859 F.2d 1195, 1199 (4th Cir. 1988). But c.f. United
States v. Matthews, 209 F.3d 338, 351-52 (4th Cir. 2000) (“to act knowingly is to act with knowledge
of the facts that constitute the offense, but not necessarily with knowledge that the facts amount to
illegal conduct unless the statute indicates otherwise.”).
1159
See United States v. Cedelle, 89 F.3d 181, 185 (4th Cir. 1996).
1160
“Sexually explicit conduct” has a different meaning for purposes of “child pornography”
when the visual depiction is a digital image, computer image, or computer-generated image that is, or
(continued...)

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TITLE 18

(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.
[§ 2256(2)(A)]

“Visual depiction” includes undeveloped film and videotape, and data stored on
computer disk or by electronic means which is capable of conversion into a visual image.
[§ 2256(5)]
“Computer” means an electronic, magnetic, optical, electrochemical, or other high
speed data processing device performing logical, arithmetic, or storage functions, and
includes any data storage facility or communications facility directly related to or
operating in conjunction with such device. [18 U.S.C. § 1030(e)(1)]

017
7/2

“Child pornography” means any visual depiction, including any photograph, film
video, picture, or computer or computer-generated image or picture, whether made or
produced by electronic, mechanical, or other means, of sexually explicit conduct, where–

7/2
d0

(A) the production of such visual depiction involves the use of a minor engaging in
sexually explicit conduct;

e
iew
,v

(B) such visual depiction is a digital image, computer image, or computergenerated image that is, or is indistinguishable from, that of a minor engaging
in sexually explicit conduct; or

226 created, adapted, or modified to appear that an
4
(C) such visual depiction has been
16- is engaging in sexually explicit conduct. [§ 2256(8)]
identifiable minor
.
Nomeans producing, directing, manufacturing, issuing, publishing, or
“Producing”
advertising. [§ 2256(3)]
“Identifiable minor” means a person
(i) who was a minor at the time the visual depiction was created, adapted, or
modified; or whose image as a minor was used in creating, adapting, or
modifying the visual depiction; and

(ii) who is recognizable as an actual person by the person’s face, likeness, or other
distinguishing characteristic, such as a unique birthmark or other recognizable
feature; and
shall not be construed to require proof of the actual identity of the identifiable
minor. [§ 2256(9)]
“Graphic” 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. [§ 2256(10)]

1160

(...continued)
is indistinguishable from, that of a minor engaging in sexually explicit conduct. 18 U.S.C.
§ 2256(2)(B).

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TITLE 18

“Indistinguishable” means virtually indistinguishable, in that the depiction is such
that an ordinary person viewing the depiction would conclude that the depiction is of an
actual minor engaged in sexually explicit conduct. This does not apply to depictions that
are drawings, cartoons, sculptures, or paintings. [§ 2256(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]
“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.1161
The jury must determine, based on all the evidence, whether a reasonable viewer
would consider the depiction to be of an actual minor. The jury may look to the manner in
which the image was marketed to determine whether it is prohibited material.1162

017
7/2

The government does not have to prove that the visual depictions were transported
in interstate commerce. It is sufficient if they were mailed.1163

7/2
d0

AFFIRMATIVE DEFENSE TO § 2252A(a)(1), (2), (3)(A), (4), or (5) [§ 2252A(c)]

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iew
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That the alleged child pornography was produced using an actual person or persons
engaging in sexually explicit conduct and each such person was an adult at the time the
material was produced; or the alleged child pornography was not produced using any
actual minor or minors.1164

226
4
AFFIRMATIVE DEFENSE TO § 2252A(a)(5) [§ 2252A(d)]
16.
P First, that the defendant possessed less than three images of child pornography;
No
and

P

Second, that the defendant promptly and in good faith, and without retaining or
allowing any person, other than a law enforcement agency, to access any image
or copy thereof, took reasonable steps to destroy each such image, or reported
the matter to a law enforcement agency and afforded that agency access to each

1161

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.
1162
United States v. Mento, 231 F.3d 912, 922 (4th Cir. 2000).
1163
United States v. Goodwin, 854 F.2d 33, 37 n.3 (4th Cir. 1988)
1164
This defense is unavailable to mere possessors. United States v. Mento, 231 F.3d 912,
921 (4th Cir. 2000).

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such image.
____________________NOTE____________________
In United States v. Mento, 231 F.3d 912, 923 (4th Cir. 2000), the Fourth Circuit
held that the Child Pornography Protection Act does not offend the First Amendment.
In United States v. Matthews, 209 F.3d 338 (4th Cir. 2000), a § 2252 prosecution,
the Fourth Circuit rejected the appellant’s First Amendment defense that he was doing
research for a valid journalistic purpose. See also United States v. Bausch, 140 F.3d 739,
741-42 (8th Cir. 1998) (district court’s failure to address Bausch’s First Amendment issue
raised for first time on appeal was not plain error).
“Transmission of photographs by means of the Internet is tantamount to moving
photographs across state lines and thus constitutes transportation in interstate commerce.”
United States v. Carroll, 105 F.3d 740, 742 (1st Cir. 1997).
“[T]here seems to be general agreement among the circuits that pornographic
images themselves are sufficient to prove the depiction of actual minors” United States v.
Bynum, 604 F.3d. 161, 166 (4th Cir. 2010) (quotations and citation omitted).

017
7/2

Section 2252A(a)(3), which prohibits pandering, does not require the actual
existence of child pornography. United States v. Williams, 553 U.S. 285, 293 (2008).

7/2
d0

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).

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6-4

1
o.INTERSTATE DOMESTIC VIOLENCE
18 U.S.C. § 2261
N
§ 2261(a)(1)

Title 18, United States Code, Section 2261(a)(1) makes it a crime to travel in
interstate commerce with the intent to kill, injure, harass, or intimidate a spouse or
intimate partner and, in the course or as a result of such travel, commit a crime of violence
against 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 traveled in interstate or foreign commerce or entered or
left Indian country or within the special maritime and territorial jurisdiction of
the United States;

P

Second, that the defendant did so with the intent to kill, injure, harass, or
intimidate a spouse, intimate partner, or dating partner; and

P

Third, that in the course of or as a result of such travel, the defendant
committed or attempted to commit a crime of violence against that spouse or
intimate partner or dating partner.

§ 2261(a)(2)
Title 18, United States Code, Section 2261(a)(2) makes it a crime to cause a spouse
or intimate partner to travel in interstate commerce by force, coercion, duress, or fraud
and, in the course or as a result of such travel, to commit a crime of violence against such

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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 was a spouse, intimate partner, or dating partner of [the
victim];

P

Second, that the defendant caused [the victim] to travel in interstate commerce,
or to enter or leave Indian country, by force, coercion, duress, or fraud; and

P

Third, that in the course of, as a result of, or to facilitate that conduct or travel,
the defendant committed or attempted to commit a crime of violence against
[the victim].1165

ADDITIONAL ELEMENTS, IF APPROPRIATE:
1. Did the defendant’s conduct result in the death of the victim? [§ 2261(b)(1)]
2. Did the defendant’s conduct result in permanent disfigurement or life threatening
bodily injury to the victim? [§ 2261(b)(2)]
3. Did the defendant’s conduct result in serious bodily injury to the victim, or did
the defendant use a dangerous weapon during the offense? [§ 2261(b)(3)]

017
7/2

4. Did the defendant’s conduct constitute [here the Court should identify the
elements of the conduct that would constitute an offense under §§ 2241-2245,
without regard to whether the offense committed in the special maritime and
territorial jurisdiction of the United States or in a Federal prison]. [§ 2261(b)(4)]

7/2
d0

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iew
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“Spouse or intimate partner” includes a spouse or former spouse of the abuser, a
person who shares a child in common with the abuser, and a person who cohabits or has
cohabited as a spouse with the abuser [§ 2266(7)(A)(I)] and any other person similarly
situated to a spouse who is protected by the domestic or family violence laws of the state
or tribal jurisdiction in which the injury occurred or where the victim resides.
[§ 2266(7)(B)]

o. 1
N

226
6-4

“Bodily injury” means any act, except one done in self-defense, that results in
physical injury or sexual abuse. [§ 2266(1)]
“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.
§§ 2119(2) and 1365(h)(3)]
“Course of conduct” means a pattern of conduct composed of two or more acts,
evidencing a continuity of purpose. [§ 2266(2)]
“Dating partner” refers to a person who is or has been in a social relationship of a
romantic or intimate nature with the abuser. The existence of such a relationship is based
on a consideration of the length of the relationship and the type of relationship and the
frequency of interaction between the persons involved in the relationship. [§ 2266(10)]
“As” means in the role, capacity, or function of, in a manner similar to, like.1166
“Coercion” or “duress” exists when an individual is subject to actual or threatened
force of such a nature as to induce a well-founded fear of impending death or serious

1165
1166

414

See United States v. Helem, 186 F.3d 449, 453 (4th Cir. 1999).
United States v. Barnette, 211 F.3d 803, 815 (4th Cir. 2000).

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bodily harm from which there is no reasonable opportunity to escape.1167
“Crime of violence” means an offense act that has as an element the use, attempted
use, or threatened use of physical force against the person or property of another or any
other offense that is a felony and 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 act. [18 U.S.C. § 16]
The term “protection order” includes any injunction, restraining order, or any other
order issued by a civil or criminal court for the purpose of preventing violent or
threatening acts or harassment against, sexual violence, or contact or communication with
or physical proximity to, another person, including any temporary or final order issued by
a civil or criminal court whether obtained by filing an independent action or as a pendente
lite order in another proceeding so long as any civil or criminal order was issued in
response to a complaint, petition, or motion filed by or on behalf of a person seeking
protection; and any support, child custody or visitation provisions, orders, remedies or
relief issued as part of a protection order, restraining order, or injunction pursuant to
State, tribal, territorial, or local law authorizing the issuance of protection orders,
restraining orders, or injunctions for the protection of victims of domestic violence, sexual
assault, dating violence, or stalking. [§ 2266(5)]

017
2
A protection order issued by a state or tribal or territorial court/is consistent with
27
Section 2262 if:
07/ under the law of such
(1) such court has jurisdiction over the parties and matter
ed
state or Indian tribe or territory; and w
e
, vito be heard is given to the person against
(2) reasonable notice and opportunity
226
whom the order is sought sufficient to protect that person’s right to due process.
4
[See § 2265(b)]
16.
“SpecialNo
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.1168
____________________NOTE____________________
In United States v. Barnette, 211 F.3d 803 (4th Cir. 2000), the defendant argued that
the victim was not his “intimate partner.” The Fourth Circuit found no decisions

1167

Instruction given by district court in Helem, 186 F.3d at 453.
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.
1168

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construing the phrase “as a spouse,” and ruled that it was not reversible error that the
district court instructed the jury in the words of the statute and left it to the jury to decide
whether or not the defendant and victim lived together as spouses. Id. at 814-15.
Physical violence that occurs before interstate travel begins can satisfy the “in the
course or as a result of that conduct” requirement of § 2261(a)(2). United States v. Helem,
186 F.3d 449, 455 (4th Cir. 1999). The court did not reach the issue of whether preventing
the victim from obtaining medical treatment, thereby exacerbating her injuries, would
support a conviction.
In Helem, the defendant argued that the district court erred in not instructing the
jury that consent of the victim was a defense. The district court did instruct the jury that
consent was a defense to kidnapping, a separate charge in the indictment. The Fourth
Circuit stated that, given the district court’s instruction on coercion and duress, when
considered as a whole, the jury was fairly apprised that consent precluded a conviction
under § 2261(a)(2).
The venue provisions of § 3237(a) apply, therefore venue is appropriate where the
travel occurred. Barnette, 211 F.3d at 813.

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

18 U.S.C. § 2261A

o. 1
N

§ 2261A(1)

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6-4

INTERSTATE STALKING

Title 18, United States Code, Section 2261A(1) makes it a crime to travel in
interstate commerce, or within the special territorial jurisdiction of the United States, with
the intent to stalk 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 traveled in interstate or foreign commerce or within the
special maritime and territorial jurisdiction of the United States, or entered or
left Indian country;

P

Second, that the defendant did so with the intent to kill, injure, harass, or place
under surveillance with intent to kill, injure, harass, or intimidate another
person; and

P

Third, that in the course of, or as a result of , such travel, the defendant placed
that person in reasonable fear of the death of, or serious bodily injury to, or
caused substantial emotional distress to that person, a member of that person’s
immediate family, or spouse or intimate partner of that person.1169

§ 2261A(2)
Title 18, United States Code, Section 2261A(2) makes it a crime to use the mail or
any facility in interstate commerce to engage in a course of conduct that places another
1169

See United States v. Wills, 346 F.3d 476, 498, 493-94 (4th Cir. 2003). The district court
in Wills made clear that the victim had to experience the fear.

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person in reasonable fear of death or serious bodily injury. For you to find the defendant
guilty, the government must prove each of the following beyond a reasonable doubt:
§ 2261A(2)(A)
P

First, that the defendant used the mail, any interactive computer service, or any
facility of interstate or foreign commerce;

P

Second, that the defendant did so to engage in a course of conduct that caused
substantial emotional distress to another person or placed that person in
reasonable fear of the death of, or serious bodily injury to, that person, a
member of the immediate family of that person, or a spouse or intimate partner
of that person; and

P

Third, that the defendant did so with the intent to kill, injure, harass, or place
under surveillance with intent to kill, injure, harass, or intimidate, or cause
substantial emotional distress to that person; and

P

Fourth, that the other person was in another State or tribal jurisdiction or within
the special maritime and territorial jurisdiction of the United States.

17
0service, or any
First, that the defendant used the mail, any interactive computer
2
facility of interstate or foreign commerce;
27/
7/
Second, that the defendant did so to engaged a course of conduct that caused
in 0
substantial emotional distress to another e
wperson or placed that person in
reasonable fear of the death of, or ie
serious bodily injury to, that person, a
member of the immediate family of that person, or a spouse or intimate partner
6, v
2
of that person; and 42
- did so with the intent to place another person in
Third, that the defendant
.fear6 the death of, or serious bodily injury to, that person, a
o 1 of
reasonable
N

§ 2261A(2)(B)
P
P

P

member of the immediate family that person, or the spouse or intimate partner
of that person; and
P

Fourth, that the other person was in another State or tribal jurisdiction or within
the special maritime and territorial jurisdiction of the United States.

“Spouse or intimate partner” includes a spouse or former spouse of the target of the
stalking, a person who shares a child in common with the target of the stalking, and a
person who cohabits or has cohabited as a spouse with the target of the stalking or a
person who is or has been in a social relationship of a romantic or intimate nature with the
target of the stalking, as determined by the length of the relationship, the type of the
relationship, the frequency of interaction between the persons involved in the relationship.
[§ 2266(7)(A)(ii)]
“As” means in the role, capacity, or function of, in a manner similar to, like.1170
“Bodily injury” means any act, except one done in self-defense, that results in
physical injury or sexual abuse. [§ 2266(1)]
“Course of conduct” means a pattern of conduct composed of two or more acts,
evidencing a continuity of purpose. [§ 2266(2)]

1170

United States v. Barnette, 211 F.3d 803, 815 (4th Cir. 2000)(a § 2261 prosecution).

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“Dating partner” refers to a person who is or has been in a social relationship of a
romantic or intimate nature with the abuser. The existence of such a relationship is based
on a consideration of the length of the relationship and the type of relationship and the
frequency of interaction between the persons involved in the relationship. [§ 2266(10)]
“Coercion” or “duress” exists when an individual is subject to actual or threatened
force of such a nature as to induce a well-founded fear of impending death or serious
bodily harm from which there is no reasonable opportunity to escape.1171
“Crime of violence” means an offense that has as an element the use, attempted use,
or threatened use of physical force against the person or property of another or any other
offense that is a felony and 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 act. [18 U.S.C. § 16]
“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.1172
ADDITIONAL ELEMENTS, IF APPROPRIATE:

017
7/2

7/2
0
2. Did the defendant’s conduct result in permanent disfigurement or life threatening
ed
bodily injury to the victim? [§ 2261(b)(2)]
w
i serious
vine bodily injury to the victim, or did
3. Did the defendant’s conduct6,
2 result
the defendant use a dangerous weapon during the offense? [§ 2261(b)(3)]
2
6-4
4. Did the defendant’s conduct constitute [here the Court should identify the
1
elements ofo. conduct that would constitute an offense under §§ 2241-2245,
the
without N
regard to whether the offense committed in the special maritime and
1. Did the defendant’s conduct result in the death of the victim? [§ 2261(b)(1)]

territorial jurisdiction of the United States or in a Federal prison]. [§ 2261(b)(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.
§§ 2119(2) and 1365(h)(3)]

1171

Instruction given by district court in United States v. Helem, 186 F.3d 449, 453 (4th Cir.

1999).
1172

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.

418

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____________________NOTE____________________
In United States v. Barnette, 211 F.3d 803 (4th Cir. 2000), a § 2261 prosecution, the
defendant argued that the victim was not his “intimate partner.” The Fourth Circuit found
no decisions construing the phrase “as a spouse,” and ruled that it was not reversible error
that the district court instructed the jury in the words of the statute and left it to the jury to
decide whether or not the defendant and victim lived together as spouses. 211 F.3d at 81415.
The venue provisions of § 3237(a) apply, therefore venue is appropriate where the
travel occurred. Id. at 813.
In United States v. Wills, 346 F.3d 476, 499 n.17 (4th Cir. 2003), the Fourth Circuit
rejected the argument that stalking does not begin until a person is placed in fear of death
or serious bodily injury.
In United States v. Young, 248 F.3d 260, 274 n.9 (4th Cir. 2001), the defendant
contended that the government had to prove that he possessed the intent to injure the
victim prior to traveling. The Fourth Circuit did not need to, and did not, decide that issue,
as the evidence supporting the kidnapping conviction supported the stalking conviction.

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

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iew
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226
4
Title 18, United States Code, Section 2262 makes it a crime to travel in interstate
16-to travel in interstate commerce, with intent to violate a
commerce, or cause .
No another
protection order. For you to find the defendant guilty, the government must prove each of

18 U.S.C. § 2262

INTERSTATE VIOLATION OF PROTECTION ORDER

the following beyond a reasonable doubt:
§ 2262(a)(1)
P

First, that there was a protection order that prohibited or provided protection
against violence, threats, or harassment against, contact or communication with,
or physical proximity to, another person;

P

Second, that the defendant traveled in interstate or foreign commerce or,
entered or left Indian country, or within the special maritime and territorial
jurisdiction of the United States;

P

Third, that the defendant did so with the intent to engage in conduct that
violated the portion of the protection order that prohibited or provided
protection against violence, threats, or harassment against, contact or
communication with, or physical proximity to, another person, or that would
violate such a portion of a protection order in the jurisdiction in which the order
was issued; and

P

Fourth, that the defendant thereafter engaged in such conduct, that violated the

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protection order.1173
The government must prove the defendant’s intent at the time he traveled.1174
§ 2262(a)(2)
P

First, that there was a protection order that prohibited or provided protection
against violence, threats, or harassment against, contact or communication with,
or physical proximity to, another person;

P

Second, that the defendant caused the another person to travel in interstate or
foreign commerce or to enter or leave Indian country;

P

Third, that the defendant caused such travel by force, coercion, duress, or fraud;
and

P

Fourth, that, in the course of, as a result of, or to facilitate such conduct or
travel, the defendant engaged in conduct that violated the protection order that
prohibited or provided protection against violence, threats, or harassment
against, contact or communication with, or physical proximity to, another
person, or that would violate such a portion of the protection order in the
jurisdiction in which the order was issued.

017
7/2

7/2 [§ 2261(b)(1)]
0
1. Did the defendant’s conduct result in the death of the victim?
ed disfigurement or life threatening
w
2. Did the defendant’s conduct result in permanent
vie
bodily injury to the victim? [§ 2261(b)(2)]
26,
3. Did the defendant’s conduct result in serious bodily injury to the victim, or did
2
the defendant use a6-4
dangerous weapon during the offense? [§ 2261(b)(3)]
4. Did the defendant’s conduct constitute [here the Court should identify the
o. 1
N
elements of the conduct that would constitute an offense under §§ 2241-2245,

ADDITIONAL ELEMENTS, IF APPROPRIATE:

without regard to whether the offense committed in the special maritime and
territorial jurisdiction of the United States or in a Federal prison]. [§ 2261(b)(4)]
The term “protection order” includes any injunction, restraining order, or any other
order issued by a civil or criminal court for the purpose of preventing violent or
threatening acts or harassment against, sexual violence, or contact or communication with
or physical proximity to, another person, including any temporary or final order issued by
a civil or criminal court whether obtained by filing an independent action or as a pendente
lite order in another proceeding so long as any civil or criminal order was issued in
response to a complaint, petition, or motion filed by or on behalf of a person seeking
protection; and any support, child custody or visitation provisions, orders, remedies or
relief issued as part of a protection order, restraining order, or injunction pursuant to
State, tribal, territorial, or local law authorizing the issuance of protection orders,
restraining orders, or injunctions for the protection of victims of domestic violence, sexual

1173

See United States v. Young, 208 F.3d 216 (6th Cir. 2000) (Table); United States v. Von
Foelkel, 136 F.3d 339, 341 (2d Cir. 1998).
1174
Young, 218 F.3d 216.

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assault, dating violence, or stalking. [§ 2266(5)]
A protection order issued by a state or tribal or territorial court is consistent with
Section 2262 if:
(1) such court has jurisdiction over the parties and matter under the law of such
state or Indian tribe or territory; and
(2) reasonable notice and opportunity to be heard is given to the person against
whom the order is sought sufficient to protect that person’s right to due process.
[See § 2265(b)]
“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.
[§ 2266(6)][“Serious bodily injury” also includes any conduct that, if the conduct
occurred in the special maritime and territorial jurisdiction of the United States, would
violate 18 U.S.C. §§ 2241 or 2242.]
“Spouse or intimate partner” includes a spouse or former spouse of the abuser, a
person who shares a child in common with the abuser, and a person who cohabits or has
cohabited as a spouse with the abuser; or a person who is or has been in a social
relationship of a romantic or intimate nature with the abuser, as determined by the length
of the relationship, the type of the relationship, the frequency of interaction between the
persons involved in the relationship; and any other person similarly situated to a spouse
who is protected by the domestic or family violence laws of the state or tribal jurisdiction
in which the injury occurred or where the victim resides. [§ 2266(7)]

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“Dating partner” refers to a person who is or has been in a social relationship of a
romantic or intimate nature with the abuser. The existence of such a relationship is based
on a consideration of the length of the relationship, and the type of the relationship, and
the frequency of interaction between the persons involved in the relationship.[§ 2266(10)]

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18 U.S.C. § 2265

FULL FAITH AND CREDIT FOR PROTECTION ORDERS

____________________NOTE____________________
In United States v. Casciano, 124 F.3d 106, 111 (2d Cir. 1997), the defendant
contested the validity of the protection order. In rejecting his argument, the Second
Circuit held “that the question whether a protection order was validly issued is at most an
issue for the judge to resolve.” Moreover, “we are not holding that the [district] judge was
required to pass upon the validity of service on Casciano under state law.” Id. at 114 n.5.
Thus, validity of the protection order under the law of the jurisdiction in which it
was issued is not an essential element of the crime that must be submitted to the jury.
“[W]e are comforted by the thought that it is unlikely that in prosecutions under
§ 2262(a)(1) Congress intended federal juries to explore the intricacies of 50 state statutes
relating to service of process.” Id. at 111.
18 U.S.C. § 2312

INTERSTATE TRANSPORTATION OF STOLEN VEHICLE

Title 18, United States Code, Section 2312 makes it a crime to transport a stolen

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motor vehicle 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 a motor vehicle in interstate or foreign
commerce;

P

Second, that the motor vehicle was a stolen vehicle; and

P

Third, that the defendant knew the motor vehicle was stolen.1175

“Motor vehicle” includes an automobile, truck, motorcycle, or any other selfpropelled vehicle designed for running on land but not on rails. [§ 2311]
“Interstate commerce” means commerce or trade 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. [18 U.S. C. § 10]
“Foreign commerce” includes commerce with a foreign country. [18 U.S.C. § 10]
“Stolen” includes all wrongful and dishonest takings of property with the intent to
deprive the owner, temporarily or permanently, of the rights and benefits of ownership.1176

017
2
Possession may be either sole, by the defendant alone, or joint,/that is, it may be
27 or authority over the
shared with other persons, as long as the defendant exercised control
07/
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
16- is when a person does not have direct physical control or
Constructive possession
.
authority, but has o power and the intention to exercise control or authority over the
the
Nsometimes through another person.
item or property,
To possess an item or property means to exercise control or authority over the item
or property, voluntarily and intentionally.

1177

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

1175

United States v. Spoone, 741 F.2d 680, 686 (4th Cir. 1984).
In United States v. Turley, 352 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 motor vehicles 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.
1177
“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
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, 358 (4th Cir. 2010).
1176

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property.1178
Proof of constructive possession requires proof that the defendant had knowledge of
the presence of the item or property.1179
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.1180
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 property1181 or] knew the property
had been stolen. [The same inference may reasonably be drawn from a false explanation
of such possession.]1182 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
through other circumstances, other evidence, independent of any testimony of the
defendant.1183

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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

1178

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).
1179
Herder, 594 F.3d 352.
1180
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).
1181
United States v. Long, 538 F.2d 580, 581 n.1 (4th Cir. 1976).
1182
Id. at 580.
1183
Barnes v. United States, 412 U.S. 837, 840 n.3 (1973) (instruction in prosecution under
18 USC § 1708).

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discounted price permits, but does not require, an inference that the defendant knew the
property was stolen.1184
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.1185
____________________NOTE____________________
United States v. Turley, 352 U.S. 407 (1957).
In United States v. Bunch, 399 F. Supp. 1156 (D. Md. 1975), aff’d, 542 F.2d 629
(4th Cir. 1976), the prosecution proceeded on two theories: first, that the car was stolen;
second, that Bunch drove the car across state lines at the request of the owner, knowing
that the car was subject to a bank’s security interest and that the owner wished to get rid
of it since he could not keep up the payments. The owner used the insurance proceeds to
pay off the bank loan. The Fourth Circuit held that a car which has been taken with the
intent to deprive a creditor of a security interest can said to have been stolen within the
meaning of the act. Stolen does not require possession, but a significant property interest,
tantamount to ownership. Nevertheless, not every interstate transportation of a car that
defeats a security interest can support a Dyer Act prosecution. “[B]efore Bunch took the
car across a state line, he intended to deprive the bank of its security. It is this intent that
made his conduct criminal.” United States v. Bunch, 542 F.2d 629, 630 (4th Cir. 1976).

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Stolen property loses its character when the owner or his agent has recovered
actual, physical possession of the property. Law enforcement officers holding recaptured
stolen property in trust for the owner are agents of the owner. However, the courts
recognize a distinction between recovering the property and merely observing the stolen
property for the purpose of apprehending criminals. See United States v. Dove, 629 F.2d
325 (4th Cir. 1980).

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Regarding interstate transportation, the Fourth Circuit stated the following in
Barfield v. United States, 229 F.2d 936, 939 (4th Cir. 1956):
We think the offense does not necessarily require the actual, physical driving
across a state line by the accused. The offense is interstate transportation and,
assuming the presence of the requisite knowledge and guilty purpose, any
driving, whether wholly within the state of origin, state of destination, or from
and to, if done as a substantial step in the furtherance of the intended
interstate journey is, we think, within the act.
18 U.S.C. § 2313

RECEIPT OF STOLEN VEHICLE

Title 18, United States Code, Section 2313 makes it a crime to receive or sell a
motor vehicle which had crossed a state line after being stolen. 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, possessed, concealed, stored, bartered, sold,
1184
1185

424

United States v. Gallo, 543 F.2d 361, 368 n.6 (D.C. Cir. 1976).
See United States v. Chorman, 910 F.2d 102, 108 (4th Cir. 1990).

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or disposed of a motor vehicle;
P

Second, that the motor vehicle had crossed a state or United States boundary
after being stolen; and

P

Third, that the defendant knew the motor vehicle had been stolen.

“Motor vehicle” includes an automobile, truck, motorcycle, or any other selfpropelled vehicle designed for running on land but not on rails. [§ 2311]
“State” includes a state of the United States, any commonwealth, territory, or
possession of the United States, and the District of Columbia. [§ 2313(b)]
Stolen includes all wrongful and dishonest takings of property with the intent to
deprive the owner, temporarily or permanently, of the rights and benefits of ownership.1186
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
2
Actual possession is knowingly having direct physical control / authority over the
27or
item or property.
07/
d
Constructive possession is when a person does not have direct physical control or
we control or authority over the
authority, but has the power and the intentione exercise
vi to
item or property, sometimes through 6,
another person.
2
Constructive possession can be established by evidence, either direct or
-42 control or authority over the item or property itself, or
circumstantial, showing ownership,
16
. or container where the item or property is, such that a person
the premises, vehicle,
No
exercises or has the power and intention to exercise control or authority over that item or
Possession may be either actual or constructive.

1187

property.1188
Proof of constructive possession requires proof that the defendant had knowledge of

1186

In United States v. Turley, 352 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 motor vehicles 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.
1187
“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
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, 358 (4th Cir. 2010).
1188
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).

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the presence of the item or property.1189
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.1190
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 property1191 or] knew the property
had been stolen. [The same inference may reasonably be drawn from a false explanation
of such possession.]1192 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
through other circumstances, other evidence, independent of any testimony of the
defendant.1193

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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.1194
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

1189

Herder, 594 F.3d 352.
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).
1191
United States v. Long, 538 F.2d 580, 581 n.1 (4th Cir. 1976).
1192
Id. at 580.
1193
Barnes v. United States, 412 U.S. 837, 840 n.3 (1973) (instruction in prosecution under
18 USC § 1708).
1194
United States v. Gallo, 543 F.2d 361, 368 n. 6 (D.C. Cir. 1976).
1190

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possession.1195
____________________NOTE____________________
In United States v. Gipson, 553 F.2d 453 (5th Cir. 1977), the district judge, in
answer to a question from the jury, stated that it would be possible for one juror to believe
that the defendant had stored property, and another to believe that he had received
property, that as long as each juror was satisfied that the defendant did any one of those
acts, there would be a unanimous verdict, even though there may be disagreement as to
which one it was. The Fifth Circuit reversed, ruling that Gipson’s right to a unanimous
jury verdict was violated. In doing so, the Fifth Circuit found that the six acts proscribed
fall into two distinct conceptual groupings, keeping a vehicle and marketing a vehicle.
This approach was disapproved in Schad v. Arizona, 501 U.S. 624, 635-36 (1991).
18 U.S.C. § 2314

INTERSTATE TRANSPORTATION
OF STOLEN PROPERTY

017
7/2

Title 18, United States Code, Section 2314 makes it a crime to transport stolen
property in interstate commerce and certain other related offenses. For you to find the
defendant guilty, the government must prove each of the following beyond a reasonable
doubt:

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¶1
P

First, that the defendant transported, transmitted, or transferred in interstate or
foreign commerce any goods, wares, merchandise, securities, or money;

P

Second, that the goods, wares, merchandise, securities, or money had a value of
$5,000 or more; and

226
6-4

1
o.the defendant knew that the goods, wares, merchandise, securities,
Third, that
N

P

or money had been stolen, converted, or taken by fraud.1196
¶2
P

First, that the defendant devised or participated in a scheme or artifice to
defraud or to obtain money or property;

P

Second, that the scheme involved false or fraudulent pretenses, representations,
or promises that were material;1197

P

Third, that the defendant transported, or caused to be transported, or induced a
person to travel in, or to be transported in interstate or foreign commerce;

P

Fourth, that the travel in interstate or foreign commerce was in the execution or
concealment of the scheme to defraud that person of money or property having
a value of $5,000 or more; and

1195

See United States v. Chorman, 910 F.2d 102, 108 (4th Cir. 1990).
Dowling v. United States, 473 U.S. 207, 214 (1985).
1197
Since this paragraph is obviously modeled on the mail fraud statute, and materiality is
an element of mail fraud, materiality is included here.
1196

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P

Fifth, that the defendant did so knowingly and with intent to defraud.1198

¶ 31199
P

First, that the defendant transported in interstate or foreign commerce any
falsely made, forged, altered, or counterfeited security or tax stamp;

P

Second, that the false making, forgery, alteration, or counterfeit was material;

P

Third, that the defendant did so knowing that the security or tax stamp was
falsely made, forged, altered, or counterfeited; and

P

Fourth, that the defendant did so with unlawful or fraudulent intent.1200

¶4
P

First, that the defendant transported in interstate or foreign commerce any
traveler’s check bearing a forged countersignature; and

P

Second, that the defendant did so with unlawful or fraudulent intent.

¶5

017
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P

First, that the defendant transported in interstate or foreign commerce any tool,
implement, or thing used or fitted to be used in falsely making, forging, altering,
or counterfeiting any security or tax stamp, or any part thereof; and

P

Second, that the defendant did so with unlawful or fraudulent intent.

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Regarding “taken by fraud,” fraud is a broad term, which includes false
representations, dishonesty, and deceit. It may result from reckless and needless
representations, even when not made with a deliberate intent to deceive.1201

226
4
The goods, wares, merchandise, securities, or money must have been physically
16taken before they o. transported.
N were
1202

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

1198

See generally United States v. Biggs, 761 F.2d 184 (4th Cir. 1985); United States v.
Hassel, 341 F.2d 427 (4th Cir. 1965) (§ 2314 requires proof of specific intent to defraud).
1199
A violation of ¶ 3 can be proved by either of two means: that the defendant actually
transported a counterfeit security from one state to another, or the defendant caused a counterfeit
security to be transported from one state to another through the negotiation process. In the first means,
transporting as a group any number of counterfeit securities would constitute one offense. In the
second means, the negotiation of each separate check is a separate offense, “but there is only one
offense if the defendant can prove the negotiated checks actually traveled in one package.” United
States v. Squires, 581 F.2d 408, 411-12 (4th Cir. 1978).
1200
Moskal v. United States, 498 U.S. 103, 118 (1990). See also United States v. Pomponio,
517 F.2d 460, 463 (4th Cir. 1975).
1201
United States v. Grainger, 701 F.2d 308, 311 (4th Cir. 1983).
1202
Dowling v. United States, 473 U.S. 207, 216 (1985). The Supreme Court held that § 2314
does not cover “bootleg” phonorecords, manufactured and distributed without the consent of the
copyright owner of the musical composition performed on the record.

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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.1203
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.1204
Proof of constructive possession requires proof that the defendant had knowledge of
the presence of the item or property.1205
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.1206

017
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iew
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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 property1207 or] knew the property
had been stolen. [The same inference may reasonably be drawn from a false explanation

o. 1
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1203

“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
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, 358 (4th Cir. 2010).
1204
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).
1205
Herder, 594 F.3d at 358.
1206
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).
1207
United States v. Long, 538 F.2d 580, 581 n.1 (4th Cir. 1976).

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of such possession.]1208 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
through other circumstances, other evidence, independent of any testimony of the
defendant.1209
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.1210

017
7/2

7/2 or of explaining
The law never imposes on a defendant the burden of testifying
d0
possession, and it is the jury’s province to draw or e any inference from
reject
w
possession.
vie
The government does not need6 prove an actual defrauding. It is enough for the
2 to, to defraud. The $5,000 amount applies to the
2
government to prove a scheme intending
6-4
scheme and not to its execution.
o. 1 not prove personal contact between the defendant and the
The government need
N
1211

1212

victim. Nor does the government need to prove a specific representation to each of the
victims.1213
“Falsely made” securities include genuine documents that contain false
information.1214

1208

Id. at 580.
Barnes v. United States, 412 U.S. 837, 840 n.3 (1973) (instruction in prosecution under
18 USC § 1708).
1210
United States v. Gallo, 543 F.2d 361, 368 n.6 (D.C. Cir. 1976).
1211
See United States v. Chorman, 910 F.2d 102, 108 (4th Cir. 1990).
1212
United States v. Hassel, 341 F.2d 427, 431 (4th Cir. 1965).
1213
United States v. Biggs, 761 F.2d 184, 187 (4th Cir. 1985). However, the defendant must
be the “motivating force” in the transportation. Id. at 188 (citing United States v. Kelly, 569 F.2d 928,
935 (5th Cir. 1978)).
1214
Moskal v. United States, 498 U.S. 103, 109 (1990). The defendant participated in a
titlewashing scheme in which used cars had their odometers rolled back, titles were altered to reflect
the lower mileage figures, and new genuine titles were obtained from a different state but which
incorporated the false mileage figures. Documents validly issued containing material false information
(continued...)
1209

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It is not necessary for the government to prove that the defendant knew that the
counterfeit securities would be transported in interstate commerce, or that the defendant
intended to transport the counterfeit securities in interstate commerce.1215
The government does not have to prove that the security had been forged before
crossing state lines.1216
“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]
Interstate commerce may begin before state lines are crossed, and ends only when
movement of the item in question has ceased in the destination State.1217
A shipment is “in foreign commerce” once property bound for a foreign destination
arrives in a customs area.1218
“Securities” includes any note, stock certificate, bond, debenture, check, draft,
warrant, traveler’s check, letter of credit, warehouse receipt, negotiable bill of lading,
evidence of indebtedness, certificate of interest, or participation in any profit-sharing
agreement, collateral-trust certificate, preorganization certificate or subscription,
transferable share, investment contract, voting-trust certificate; valid or blank motor
vehicle title; certificate of interest in property, tangible or intangible; instrument or
document or writing evidencing ownership of goods, wares, and merchandise, or
transferring or assigning any right, title, or interest in or to goods, wares, and
merchandise; or, in general, any instrument commonly known as a “security,” or any
certificate of interest or participation in, temporary or interim certificate for, receipt for
warrant, or right to subscribe to or purchase any of the foregoing, or any forged,
counterfeited, or spurious representation of any of the foregoing. [§ 2311]1219

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1214

(...continued)
are “falsely made” for the purposes of § 2314. United States v. Cotoia, 785 F.2d 497, 502 (4th Cir.
1986).
1215
United States v. Squires, 581 F.2d 408, 409 (4th Cir. 1978) (the interstate commerce
requirement is a jurisdictional basis).
1216
McElroy v. United States, 455 U.S. 642, 654 (1982).
1217
Id. at 653. Section 2314 proscribes the
transportation of a forged security at any and all times during the course of its
movement in interstate commerce, and ... the stream of interstate commerce may
continue after a state border has been crossed. [T]ransportation of the forged check
within Pennsylvania would violate § 2314 if the jury found that movement to be a
continuation of the movement that began out of state.
Id. at 654.
1218

United States v. Ajlouny, 629 F.2d 830, 837 (2d Cir. 1980).
Section 2314 does not apply to any falsely made, forged, altered, counterfeited or
spurious representation of an obligation or other security of the United States. In United States v.
Jones, 553 F.2d 351 (4th Cir. 1977), the defendant caused checks to be transported from Canada to
Maryland, which checks were issued based on altered accounts payable data. The district court
dismissed the indictment, citing the exclusion. The Fourth Circuit reversed. “Falsely made and forged”
(continued...)
1219

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“Value” means the face, par, or market value, whichever is greatest, and the
aggregate value of all goods, wares, and merchandise, securities, and money referred to in
a single indictment shall constitute the value thereof. [§ 2311]
Market value is simply what a willing buyer would pay a willing seller.1220
Stolen includes all wrongful and dishonest takings of property with the intent to
deprive the owner, temporarily or permanently, of the rights and benefits of ownership.1221
____________________NOTE____________________
To satisfy the “interstate transportation” requirement, the government need only
show that an individual knowingly cashed a check in one state drawn on an out-of-state
bank. United States v. Boone, 460 F.2d 1285 (4th Cir. 1972).
In United States v. Ruhe, 191 F.3d 376 (4th Cir. 1999), the defendant was convicted
of transporting stolen scrap aircraft parts. The court distinguished United States v.
Clutterbuck, 421 F.2d 485 (9th Cir. 1970), which held “that where as here machine parts
have been used by the government to the point where their usefulness to the government
as such has been exhausted; and where they have been discarded and held for disposal as
scrap rather than as classified, segregated parts, they have lost their original identity and
have been transformed into scrap.” Thus, the fact that the parts were “scrap” determined
their value. The Fourth Circuit held that even though the parts in Ruhe were destined for
sale as scrap, they also had an independent resale value in the overhaul market, and the
government had met the jurisdictional requirement.

017
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d0

we
ieto a thieves’ market. United States v.
Value may also be satisfied by reference
,v
Moore, 571 F.2d 157 (3d Cir. 1978). 6
2
-42
The $5,000 requirement is designed to avoid overtaxing the Department of Justice.
In Moore, blank Ticketron tickets were stolen. The government conceded that the blank
. 16
No
tickets were not securities. The defendants were responsible for completing the tickets to

appear legitimate. The Third Circuit held that the value element may be proved by
evidence of the stolen property’s value either at the time of theft or at the time of
transportation. “Although the defendants may have increased the value of the Ticketron
blanks by their counterfeiting efforts, they did not by their actions so substantially alter
the stolen blanks as to render the transported counterfeit tickets essentially different from
what was stolen.” Id. at 157. See also United States v. Jones, 797 F.2d 184, 187 (4th Cir.
1986) (citing Moore, 571 F.2d 157).
In such a case, the jury should be instructed to determine the value of the stolen

1219

(...continued)
relate to genuineness of execution and not falsity of content. In this case, the victim company had
issued a genuine instrument containing a false statement of fact as to the true creditor. Because the
alteration of supporting documents generated a valid security, the court concluded that the crime was
fraud or false pretense, not forgery, and not covered by the exclusion.
1220
United States v. Wentz, 800 F.2d 1325, 1326 (4th Cir. 1986).
1221
In United States v. Turley, 352 U.S. 407, 411, 417 (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 ... with intent to deprive the owner of the rights and benefits of
ownership, regardless of whether or not the theft constitutes common-law larceny.”

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property in light of the condition in which the property had been placed by the defendant,
i.e., blanks filled in to appear legitimate. Moore, 571 F.2d at 158 (citing United States v.
Kramer, 289 F.2d 909 (2d Cir. 1961)).
In United States v. Holtzclaw, NO. 97-4133, 1997 WL 734026 (4th Cir. Nov. 26,
1997), the court stated that reliance is not an essential element under § 2314.
In United States v. Cotoia, 785 F.2d 497 (4th Cir. 1986), the defendants were
prosecuted for a title-washing scheme which involved the interstate transportation of
motor vehicles with false mileage readings. The court found that the statute is designed
“to reach all ways by which an owner is wrongfully deprived of the use or benefits of the
use of his property, then surely procuring issuance of a certificate of title falsely stating
the odometer reading and thereby substantially affecting the sale value of the vehicle is
material.” 785 F.2d at 501.
Stolen property loses its character when the owner or his agent has recovered
actual, physical possession of the property. Law enforcement officers holding recaptured
stolen property in trust for the owner are agents of the owner. However, the courts
recognize a distinction between recovering the property and merely observing the stolen
property for the purpose of apprehending criminals. See United States v. Dove, 629 F.2d
325 (4th Cir. 1980).

017
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0
18 U.S.C. § 2315
RECEIPT OF STOLEN PROPERTY
ed it a crime to receive stolen
Title 18, United States Code, Section 2315 makes
w
vie
property valued at more than $5,000 which had crossed a state boundary after being
,
stolen. For you to find the defendant 6
2 guilty, the government must prove each of the
following beyond a reasonable doubt:
-42
6wares, merchandise, securities, or money were/was stolen,
P First, that . 1
goods,
No
unlawfully converted, or taken;
P

Second, that the goods, wares, merchandise, securities, or money had a value of
$5,000.00 or more;

P

Third, that the goods, wares, merchandise, securities, or money crossed a State
or United States boundary after being stolen;

P

Fourth, that the defendant willfully received, possessed, concealed, stored,
bartered, sold, or disposed of the goods, wares, merchandise, securities, or
money; and

P

Fifth, that the defendant knew the goods, wares, merchandise, securities, or
money had been stolen, unlawfully converted, or taken.1222

The government must prove that the defendant knew that the property was stolen,
but the government need not prove that the defendant knew that the property had crossed
a state boundary after being stolen.1223
“Interstate commerce” includes commerce between one State, Territory, Possession,
or the District of Columbia and another State, Territory, Possession, or the District of

1222
1223

See United States v. Jones, 797 F.2d 184, 186 (4th Cir. 1986).
See Corey v. United States, 305 F.2d 232, 237 (9th Cir. 1962).

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Columbia. [18 U.S.C. § 10]
“Foreign commerce” includes commerce with a foreign country. [18 U.S.C. § 10]
“Securities” includes any note, stock certificate, bond, debenture, check, draft,
warrant, traveler’s check, letter of credit, warehouse receipt, negotiable bill of lading,
evidence of indebtedness, certificate of interest or participation in any profit-sharing
agreement, collateral-trust certificate, preorganization certificate or subscription,
transferable share, investment contract, voting-trust certificate; valid or blank motor
vehicle title; certificate of interest in property, tangible or intangible; instrument or
document or writing evidencing ownership of goods, wares, and merchandise, or
transferring or assigning any right, title, or interest in or to goods, wares, and
merchandise; or, in general, any instrument commonly known as a “security”, or any
certificate of interest or participation in, temporary or interim certificate for, receipt for,
warrant, or right to subscribe to or purchase any of the foregoing, or any forged,
counterfeited, or spurious representation of any of the foregoing; [§ 2311]1224
“Value” means the face, par, or market value, whichever is greatest, and the
aggregate value of all goods, wares, and merchandise, securities, and money referred to in
a single indictment shall constitute the value thereof. [§ 2311]

017
Market value is simply what a willing buyer would pay a willing seller.
2
27/with the intent to
Stolen includes all wrongful and dishonest takings of property
07/
deprive the owner, temporarily or permanently, of the rights and benefits of ownership.
d
To possess an item or property means to exercise control or authority over the item
we
e
or property, voluntarily and intentionally. vi
,
6
Possession may be either 22 by the defendant alone, or joint, that is, it may be
sole,
shared with other persons, as 4 as the defendant exercised control or authority over the
16- long
item or property. .
No
1225

1226

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

1224

Section 2315 does not apply to any falsely made, forged, altered, counterfeited or
spurious representation of an obligation or other security of the United States, etc. In United States
v. Jones, 553 F.2d 351 (4th Cir. 1977), the defendant caused checks to be transported from Canada
to Maryland, which checks were issued based on altered accounts payable data. The district court
dismissed the indictment, citing the exclusion. The Fourth Circuit reversed. “Falsely made and forged”
relate to genuineness of execution and not falsity of content. In this case, the victim company had
issued a genuine instrument containing a false statement of fact as to the true creditor. Because the
alteration of supporting documents generated a valid security, the court concluded that the crime was
fraud or false pretense, not forgery, and not covered by the exclusion.
1225
United States v. Wentz, 800 F.2d 1325, 1326 (4th Cir. 1986).
1226
In Turley, 352 U.S. at 411, 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
... 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.

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item or property, sometimes through another person.1227
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.1228
Proof of constructive possession requires proof that the defendant had knowledge of
the presence of the item or property.1229
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.1230
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 property1231 or] knew the property
had been stolen. [The same inference may reasonably be drawn from a false explanation
of such possession.]1232 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

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1227

“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
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, 358 (4th Cir. 2010).
1228
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).
1229
Herder, 594 F.3d 352.
1230
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).
1231
United States v. Long, 538 F.2d 580, 581 n.1 (4th Cir. 1976).
1232
Id. at 580.

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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
through other circumstances, other evidence, independent of any testimony of the
defendant.1233
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.1234
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.1235

17
0States v.
Value may also be satisfied by reference to a thieves market. United
2
Moore, 571 F.2d 154, 157 (3d Cir. 1978).
27/
07/
“[S]everal courts have held that value may be determined as of the time of theft or
d
at any time upon receipt or during concealment.” Id. at 156. The $5,000 requirement is
we In Moore, blank Ticketron tickets
designed to avoid overtaxing the Department e Justice.
of
,that ithe blank tickets were not securities. The
were stolen. The government conceded
6 v
2
defendants were responsible for2
the tickets to appear
The Third
-4 completingproved by evidence oflegitimate. property’s
6
Circuit held that the value element may be
the stolen
1
value whether at the.
at the
“Although the
o time of theft orvalue oftime of transportation. by their counterfeiting
N
defendants may have increased the
the Ticketron blanks
____________________NOTE____________________

efforts, they did not by their actions so substantially alter the stolen blanks as to render the
transported counterfeit tickets essentially different from what was stolen.” Id. at 157. See
also United States v. Jones, 797 F.2d 184, 187 (4th Cir. 1986) (citing Moore, 571 F.2d
157).
In such a case, the jury should be instructed to determine the value of the stolen
property in light of the condition in which the property had been placed by the defendant,
i.e., blanks filled in to appear legitimate. Id. at 158 (citing United States v. Kramer, 289
F.2d 909 (2d Cir. 1961)).
18 U.S.C. § 2319

COPYRIGHT INFRINGEMENT (17 U.S.C. § 506)

Title 18, United States Code, Section 2319 makes it a crime to infringe a copyright.
For you to find the defendant guilty, the government must prove each of the following

1233

Barnes v. United States, 412 U.S. 837, 840 n.3 (1973) (instruction in prosecution under
18 USC § 1708).
1234
United States v. Gallo, 543 F.2d 361, 368 n. 6 (D.C. Cir. 1976).
1235
See United States v. Chorman, 910 F.2d 102, 108 (4th Cir. 1990).

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beyond a reasonable doubt:
P

First, that there was a valid copyright protecting the work involved;

P

Second, that the defendant infringed the copyright;

P

Third, that the defendant did so willfully; and 1236

§ 2319(b)(1)
P

Fourth, that the defendant did so by reproducing or distributing, including by
electronic means, during any 180-day period, at least 10 copies or phonorecords
of one or more copyrighted works, having a total retail value of more than
$2,500.

§ 2319(b)(3)
P

Fourth, that the defendant did so
a. for purposes of commercial advantage or private financial gain;1237
b. by reproducing or distributing, including by electronic means, during any
180-day period, one or more copies or phonorecords of one or more copyrighted
works, having a total retail value of more than $1,000; or

017by making
c. by distributing a work being prepared for commercial distribution,
2
it available on a computer network accessible to members of the public,
27/
provided the defendant knew or should have known that the work was intended
07/
d
for commercial distribution.
we
ie
§ 2319(c)(1)
,sovby reproducing or distributing 10 or more
P Fourth, that the defendant did
2
2of 6 or more copyrighted works, having a total retail
copies or phonorecords one
-4
value of more than $2,500.
. 16
No
§ 2319(c)(3)
P

Fourth, that the defendant did so by reproducing or distributing one or more
copies or phonorecords of one or more copyrighted works, having a total retail
value of more than $1,000.

§ 2319(d)(1)
P

Fourth, that the defendant did so by distributing a work being prepared for
commercial distribution, by making it available on a computer network
accessible to members of the public, provided the defendant knew or should
have known that the work was intended for commercial distribution.

§ 2319(d)(2)
P

Fourth, that the defendant did so by distributing a work being prepared for
commercial distribution, by making it available on a computer network

1236

See United States v. Manzer, 69 F.3d 222, 227 (8th Cir. 1995); United States v. Goss,
803 F.2d 638, 642 (11th Cir. 1986).
1237
The government does not have to prove that the defendant actually realized either a
commercial advantage or private financial gain. The government must prove that the activity be for
the purpose of financial gain or benefit. United States v. Cross, 816 F.2d 297, 301 (7th Cir. 1987).

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accessible to members of the public, provided the defendant knew or should
have known that the work was intended for commercial distribution; and
P

Fifth, that the defendant did so for purposes of commercial advantage or private
financial gain.1238

“Work being prepared for commercial distribution” means:
1. a computer program, a musical work, a motion picture or other audiovisual
work, or a sound recording, if at the time of unauthorized distribution, the
copyright owner had a reasonable expectation of commercial distribution and
the copies or phonorecords of the work had not been commercially distributed,
or
2. a motion picture, if, at the time of unauthorized distribution, the motion picture
had been made available for viewing in a motion picture exhibition facility and
had not been made available in copies for sale to the general public in the
United States in a format intended to permit viewing outside a motion picture
exhibition facility.[17 U.S.C. § 506(a)(3)]

017
7/2

“Phonorecords” are material objects in which sounds, other than those
accompanying a motion picture or other audiovisual work, are fixed by any method now
known or later developed, and from which the sounds can be perceived, reproduced, or
otherwise communicated, either directly or with the aid of a machine or device. The term
“phonorecords” includes the material object in which the sounds are first fixed. [17
U.S.C. § 101]

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[“Audiovisual work,” “computer program,”“copies,”“financial gain,” “fixed,”
“motion pictures,” “sound recordings,” “work of visual art,” and other terms are also
defined in 17 U.S.C. § 101.]

.1
ocopyright [17 U.S.C. § 501(a)] means to violate one of the exclusive
N
To infringe a

rights of a copyright owner, which are:

1. to reproduce the copyrighted work in copies or phonorecords;
2. to prepare derivative works based upon the copyrighted work;
3. to distribute copies or phonorecords of the copyrighted work to the public by
sale or other transfer of ownership, or by rental, lease, or lending;
4. in the case of literary, musical, dramatic, and choreographic works,
pantomimes, and motion pictures and other audiovisual works, to perform the
copyrighted work publicly;
5. in the case of literary, musical, dramatic, and choreographic works,
pantomimes, and pictorial, graphic, or sculptural works, including the
individual images of a motion picture or other audiovisual work, to display the
copyrighted work publicly; and
6. in the case of sound recordings, to perform the copyrighted work publicly by

1238

The government does not have to prove that the defendant actually realized either a
commercial advantage or private financial gain. The government must prove that the activity be for
the purpose of financial gain or benefit. Id. at 301.

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means of a digital audio transmission. [17 U.S.C. § 106]
Importing into the United States, without the authority of the owner of the
copyright, copies or phonorecords of a work that have been acquired outside the United
States is an infringement of the exclusive right to distribute copies or phonorecords. [17
U.S.C. § 602]
Evidence of reproduction or distribution of a copyrighted work, by itself, is not
sufficient to establish willful infringement of a copyright. [17 U.S.C. § 506(a)(2)]
“Retail value” refers to prices assigned to commodities and goods for sale at the
retail level at the time of the sales alleged in this case, representing face value or par
value, or prices of commodities and goods determined by actual transactions between
willing buyers and willing sellers at the retail [as opposed to wholesale] level, whichever
is the greatest.1239
AFFIRMATIVE DEFENSE (“First sale” doctrine)
If the defendant is the owner of a particular copy or phonorecord lawfully made, he
is entitled, without authority of the copyright owner, to sell or otherwise dispose of that
copy or phonorecord. [17 U.S.C. § 109(a)]1240

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INNOCENT INFRINGEMENT

“Innocent infringement” is not a defense if a notice of copyright in the form and
position specified by 17 U.S.C. § 401 appears on the published copy or copies to which
the defendant had access. [17 U.S.C. § 401(d)]

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____________________NOTE____________________

o. 1
N

In United States v. Goss, 803 F.2d 638 (11th Cir. 1986), a case dealing with the
distribution of allegedly counterfeit video games, the Eleventh Circuit held it is necessary
to identify precisely the audiovisual work and the copy in which it was fixed. In a
footnote, the court indicated that the trier of fact must determine which component of a
video game constituted the copy in which the audiovisual work was fixed. The Court of
Appeals reversed the conviction, implicitly criticizing the government for incorrectly
analyzing what was copyrighted and what was copied. In addition, the government failed
to rebut evidence that the defendant owned certain ROMs that he distributed.
In United States v. Cross, 816 F.2d 297, 303 (7th Cir. 1987), the Seventh Circuit
stated that it was not error for the district court to include civil definitions in its
instructions, because “[i]n order to understand the meaning of criminal copyright
infringement it is necessary to resort to the civil law of copyright.”
18 U.S.C. § 2320

TRAFFICKING IN COUNTERFEIT GOODS [LAST UPDATED :
7/3/14]

1239

United States v. Armstead, 524 F.3d 442, 446 (4th Cir. 2008).
In Goss, 803 F.2d at 644, the Eleventh Circuit held that § 109(a) was a defense, and that
when the defendant makes a showing under the section, the burden shifted to the government to
demonstrate beyond a reasonable doubt that the pertinent copies were either not legally made or not
owned by the defendant.
1240

439

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Title 18, United States Code, Section 2320 makes it a crime to traffic in counterfeit
goods. 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 or attempted to traffic in goods or services;

P

Second, that the defendant did so intentionally;

P

Third, that the defendant used a counterfeit mark on or in connection with such
goods or services; and

P

Fourth, that the defendant knew that the mark was counterfeit.1241

OR
P

First, that the defendant trafficked or attempted to traffic in labels, patches,
stickers, wrappers, badges, emblems, medallions, charms, boxes, containers,
cans, cases, hangtags, documentation, or packaging of any type or nature;

P

Second, that the defendant did so intentionally;

P

Third, that a counterfeit mark had been applied to the labels, patches, stickers,
wrappers, badges, emblems, medallions, charms, boxes, containers, cans, cases,
hangtags, documentation, or packaging of any type or nature; and

017
2
P Fourth, that the defendant knew that the mark was counterfeit.
27/
A “counterfeit mark” means
07/
d
(1) a spurious mark that is used in connection with trafficking in goods, services,
we emblems, medallions, charms,
e
labels, patches, stickers, wrappers, badges,
, vi documentation, or packaging of any
boxes, containers, cans, cases, hangtags,
26
type or nature that42
is identical with, or substantially indistinguishable from a
mark registered on the principal register in the United States Patent and
16- and in use, whether or not the defendant knew such mark
.
Trademark Office
No
was so registered, that is applied to or used in connection with the goods or
1242

services for which the mark is registered with the United States Patent and
Trademark Office, or is applied to or consists of a label, patch, sticker,
wrapper, badge, emblem, medallion, charm, box, container, can, case, hangtag,
documentation, or packaging of any type or nature that is designed, marketed,
or otherwise intended to be used on or in connection with the goods or services
for which the mark is registered in the United States Patent and Trademark
Office, and the use of which is likely to cause confusion, to cause mistake, or
to deceive; or
(2) a spurious designation that is identical with, or substantially indistinguishable
from, a designation as to which the remedies of the Lanham Act are made
available by reason of 36 U.S.C. § 220506. [§ 2320(e)(1)]

L

Counterfeit mark does not include any mark or designation used in connection
with goods or services, or a mark or designation applied to labels, patches,
stickers, wrappers, badges, emblems, medallions, charms, boxes, containers, cans,
cases, hangtags, documentation, or packaging of any type or nature used in

1241
1242

440

United States v. Habegger, 370 F.3d 441, 444 (4th Cir. 2004).
Id. at 441. The statute was amended March 16, 2006.

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connection with such goods or services, of which the manufacturer or producer
was, at the time of the manufacture or production in question, authorized to use
the mark or designation for the type of goods or services so manufactured or
produced, by the holder of the right to use such mark or designation.
[§ 2320(e)(1)] 1243

“Traffic” means to transport, transfer, or otherwise dispose of, to another, for
purposes of commercial advantage or private financial gain, or to make, import, export,
obtain control of, or possess, with intent so to transport, transfer, or dispose of.
[§ 2320(e)(2)]
“Financial gain” includes the receipt, or expected receipt, of anything of value.
[§ 2320(e)(3)]
“Spurious” means deceptively suggesting an erroneous origin; fake.1244
“Substantial” means considerable in importance, value, degree, amount, or
extent.1245

017
7/2

“Indistinguishable” means impossible to differentiate or tell apart.1246

“A mark does not have to be an exact replica of a registered trademark to be
deemed a counterfeit.”1247

7/2
d0

“You have to determine whether or not the mark that is alleged to be counterfeit is
identical to or substantially indistinguishable from the mark that is registered [with the
Patent and Trademark Office]. In order to carry out your responsibility, you have to
compare the marks, the mark alleged to be counterfeit and the mark that is the genuine
mark. You do that, and you make a decision. This is based on your side-by-side
comparison, use of your own eyes, and any other evidence that came into the record that
might help you in that task.”1248

e
iew
,v

226
6-4

o. 1 prove that the defendant knowingly used a counterfeit mark
The government must
N

that was likely to cause confusion or to mislead. The government does not have to prove
either actual confusion or an intent to mislead.1249
____________________NOTE____________________
In United States v. Habegger, 370 F.3d 441 (4th Cir. 2004), the Fourth Circuit
reversed a conviction for insufficient evidence of trafficking. The only evidence was that
the defendant was furnishing the counterfeit clothing as samples, not as consideration for
anything of value.

1243

These are so-called gray market goods, overruns, etc.
United States v. Chong Lam, 677 F.3d 190, 202 (4th Cir. 2012) (quoting B LACK ’S L AW
D IC TIO N ARY 1533 (9th ed. 2009)).
1245
Id. (quoting American Heritage Dictionary 1727 (4th ed. 2006)).
1246
Id. (quoting American Heritage Dictionary 893 (4th ed. 2006)).
1247
Id. at 199.
1248
Id. (approvingly quoting district court jury charge).
1249
United States v. Brooks, 111 F.3d 365, 372 (4th Cir. 1997).
1244

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18 U.S.C. § 2381

TREASON

The United States Constitution, Article III, § 3, clause 1, and Title 18, United States
Code, Section 2381 make it a crime to commit treason against 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 owed allegiance to the United States;

P

Second, that the defendant did wage war against the United States, or did give
aid and comfort to the enemies of the United States;

P

Third, that two witnesses testified to the same overt act of waging war or giving
aid and comfort; and

P

Fourth, that the defendant acted with a purpose to aid the enemy.

The overt act must be established by direct evidence of two witnesses.1250 The
defendant must not only intend the act, but he must intend to betray his country by means
of the act. In that regard, every man is assumed to intend the natural consequences which
one standing in his circumstances and possessing his knowledge would reasonably expect
to result from his acts.1251

017to
The overt act must show sufficient action by the defendant, in /2
its setting,
demonstrate that the defendant actually gave aid and comfort to27
the enemy.
07/
d
____________________NOTE____________________
we
e
See Haupt v. United States, 330 U.S. 631, 641 (1947); Morissette v. United States,
, vi
342 U.S. 246, 265 (1952).
226of two elements: adherence to the enemy; and
“[T]he crime of treason4
16- consists v. United States, 325 U.S. 1, 29 (1945).
rendering him aid and comfort.” Cramer
.
No
1252

18 U.S.C. § 2384

SEDITIOUS CONSPIRACY

Title 18, United States Code, Section 2384 makes it a crime to conspire to
overthrow or wage war against the Government 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 conspired with at least one other person; and

P

Second, the defendant did so to overthrow, put down, or to destroy by force the
Government of the United States, or
to levy war against the Government of the United States, or
to oppose by force the authority of the Government of the United States, or

1250

The Constitutional requirement is not satisfied by testimony to some separate act from
which it can be inferred that the charged overt act took place. Haupt v. United States, 330 U.S. 631,
640 (1947). Two witnesses must testify to the same overt act. Cramer v. United States, 325 U.S. 1,
30 (1945).
1251
Cramer, 325 U.S. at 30-31.
1252
Id. at 34.

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by force to prevent, hinder, or delay the execution of any law of the United
States, or
by force to seize, take, or possess any property of the United States contrary to
the authority of the Government of the United States.
____________________NOTE____________________
See United States v. Khan, 461 F.3d 477 (4th Cir. 2006).
18 U.S.C. § 2390

ENLISTMENT TO SERVE AGAINST THE UNITED STATES

Title 18, United States Code, Section 2390 makes it a crime to enlist to serve in
armed hostility against 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 enlisted or was engaged within the United States or in
any place subject to the jurisdiction of the United States; and

P

Second, that the defendant did so with intent to serve in armed hostility against
the United States.

017
7/2

7/2
d0

____________________NOTE____________________

e
iew
,v

United States v. Khan, 461 F.3d 477 (4th Cir. 2006).

226
4
Title 18, United States Code, Section 2421 makes it a crime to transport an
16- to engage in prostitution or other illegal sexual activity.
.
individual in interstate commerce
No
For you to find the defendant guilty, the government must prove each of the following
18 U.S.C. § 2421

MANN ACT/WHITE SLAVE TRAFFIC ACT

beyond a reasonable doubt:
P

First, that the defendant transported, or attempted to transport, an individual in
interstate or foreign commerce;

P

Second, that the defendant did so with intent that the individual engage in
prostitution or in any sexual activity for which any person could be charged
with a criminal offense [the court must identify the elements of the criminal
offense];1253 and

P

Third, that the defendant did so knowingly.

Whether the sexual activity is of a commercial (prostitution) or noncommercial
nature, criminal sexual activity must be a purpose motivating the interstate
transportation.1254

1253

See United States v. Kaye, 243 F. App’x 763 (4th Cir. 2007) (“To obtain a conviction
under § 2422(b), the Government must also prove that the additional elements of Va. Code Ann.
§ 18.2-370, which makes it unlawful for an individual to take indecent liberties with a child, were
satisfied.”)
1254
See United States v. Bennett, 364 F.2d 77, 78 (4th Cir. 1966). But see United States v.
Vang, 128 F.3d 1065, 1071 n.9 (7th Cir. 1997) (intent that individual engage in sexual activity must

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The defendant’s intent that the individual engage in prostitution or criminal sexual
activity is an element of the crime and must exist prior to, or at the same time as, the
interstate trip.1255
The government does not need to prove that the defendant accomplished his intent
that the individual engage in prostitution or any criminal sexual activity after the interstate
transportation.1256
“Congress made the statute gender-neutral in a 1986 amendment, retired the
‘purpose’ test for interstate transportation, and clarified the amorphous phrase ‘any
immoral purpose’ by narrowing the statute’s coverage to illegal sexual activity.” United
States v. Vang, 128 F.3d 1065, 1069 (7th Cir. 1997). In interpreting § 2423, a statutory
cousin of § 2421, the Seventh Circuit drew upon its own Mann Act precedent.
The unit of prosecution is the transportation. See Bell v. United States, 349 U.S. 81
(1955) (two women transported on the same trip in the same vehicle equals one offense).
See also Nelms v. United States, 291 F.2d 390, 394 (4th Cir. 1961) (number of separate
transportations determines number of offenses). Thus, a round trip might be one offense
or two.

017
7/2

“[W]here an interstate journey is motivated by an innocent purpose, no violation of
the Mann Act can be predicated upon incidental immoral activities during the trip or upon
the resumption of such activities after returning.” Nelms, 291 F.2d at 393.

7/2
d0

e
iew it a crime to induce any
Title 18, United States Code, Section 2422 makes
6, v engage in prostitution, or to induce a minor
individual to travel in interstate 22
commerce to
to engage in prostitution. 6-4 to find the defendant guilty, the government must prove
For you
each of the following beyond a reasonable doubt:
o. 1
N
§ 2422(a)
18 U.S.C. § 2422

WHITE SLAVE TRAFFIC ACT [LAST UPDATED : 5/1/14]

P

First, that the defendant persuaded, induced, enticed, or coerced [or attempted
or conspired to do so];

P

Second, another person;

P

Third, to travel in interstate or foreign commerce;

P

Fourth, that the purpose of the travel was for the person to engage in
prostitution or in any sexual activity for which any person could be charged
with a criminal offense [the court must identify the elements of the criminal

be one of dominant purposes of the interstate travel); United States v. Drury, 582 F.2d 1181, 1185 (8th
Cir. 1978) (same). In United States v. Wadford, 331 F. App’x 198 (4th Cir. 2009), the Fourth Circuit
acknowledged that the government does not need to establish that an unlawful purpose was the sole
factor motivating interstate travel. “Some courts have sustained Mann Act convictions where the
unlawful purpose was simply one of the purposes motivating the interstate travel while other courts
have required the unlawful purpose to be the dominant purpose.” 331 F. App’x at 203.
1255
United States v. Sapperstein, 312 F.2d 694, 697 (4th Cir. 1963).
1256
United States v. Marks, 274 F.2d 15, 18-19 (7th Cir. 1959).

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offense];1257 and
P

Fifth, that the defendant did so knowingly.

§ 2422(b)
P

First, that the defendant persuaded, induced, enticed, or coerced [or attempted
to do so];

P

Second, another person who had not attained the age of 18 years;

P

Third, to engage in prostitution or in any sexual activity for which any person
could be charged with a criminal offense [the court must identify the elements
of the criminal offense];

P

Fourth, that in doing so, the defendant used the mail, any facility or means of
interstate or foreign commerce, or the conduct occurred within the special
maritime and territorial jurisdiction of the United States; and

P

Fifth, that the defendant did so knowingly.1258

“Foreign commerce” includes commerce with a foreign country. [18 U.S.C. § 10]

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
d0

e
iewthat the defendant directed or knew that
The government does not have to prove
the individual would travel by interstate carrier. The government must prove that the
6, v
2
defendant knowingly induced42
- or persuaded the individual, and that a trip by interstate
carrier followed.
. 16is required is any offer sufficient to cause the person to
The inducement that
No does not have to prove an affirmative directive act by the
respond. The government
“ Persuade,” “induce,” and “entice” convey the idea of one person leading or
moving another by persuasion or influence, as to action or state of mind.1259

1260

defendant.1261
Whether the sexual activity is of a commercial (prostitution) or noncommercial
nature, criminal sexual activity must be a purpose motivating the interstate
transportation.1262
1257

See United States v. Kaye, 243 F. App’x 763 (4th Cir. 2007) (“To obtain a conviction
under § 2422(b), the Government must also prove that the additional elements of Va. Code Ann.
§ 18.2-370, which makes it unlawful for an individual to take indecent liberties with a child, were
satisfied.”).
1258
See United States v. Engle, 676 F.3d 405, 411-12 (4th Cir. 2012); United States v.
Helder, 452 F.3d 751, 755 (8th Cir. 2006).
1259
Engle, 676 F.3d at 411 n.3.
1260
Harms v. United States, 272 F.2d 478, 480 (4th Cir. 1959).
1261
Id. at 481; United States v. Truglio, 731 F.2d 1123 (4th Cir. 1984).
1262
See United States v. Bennett, 364 F.2d 77, 78 (4th Cir. 1966). But see United States v.
Vang, 128 F.3d 1065, 1071 n.9 (7th Cir. 1997) (intent that individual engage in sexual activity must
be one of dominant purposes of interstate travel); United States v. Drury, 582 F.2d 1181, 1185 (8th
Cir. 1978) (same). In United States v. Wadford, 331 F. App’x 198 (4th Cir. 2009), the Fourth Circuit
acknowledged that the government does not need to establish that an unlawful purpose was the sole

445

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The defendant’s intent that the individual engage in prostitution or criminal sexual
activity is an element of the crime and must exist prior to, or at the same time as, the
interstate trip.1263
The government does not need to prove that the defendant accomplished his intent
that the individual engage in prostitution or any criminal sexual activity after the interstate
transportation.1264
The government does not have to prove that an actual minor was placed at risk. In
other words, the government must prove that the defendant believed the person to be a
minor regardless of whether the person actually was a minor.1265
“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.1266

017
7/2

____________________NOTE____________________

“Congress made the statute gender-neutral in a 1986 amendment, retired the
‘purpose’ test for interstate transportation, and clarified the amorphous phrase ‘any
immoral purpose’ by narrowing the statute’s coverage to illegal sexual activity.” United
States v. Vang, 128 F.3d 1065, 1069 (7th Cir. 1997). In interpreting § 2423, a statutory
cousin of § 2421, the Seventh Circuit drew upon its own Mann Act precedent. The same
argument can be made concerning § 2422.

7/2
d0

e
iew
,v

226
6-4

In Harms v. United States, 272 F.2d 478, 480 (4th Cir. 1959), the court stated that the
offense was complete, once the government proved knowing inducement or persuasion and
the fact of resultant interstate travel. “It is sufficient if the accused knows or should have
known that interstate transportation by common carrier would reasonably result and if it
does.” Id. at 481 (quoting United States v. Saledonis, 93 F.2d 302, 304 (2d Cir. 1937)).

o. 1
N

If the defendant is charged with attempt under § 2422(b), an actual minor victim is

factor motivating interstate travel. “Some courts have sustained Mann Act convictions where the
unlawful purpose was simply one of the purposes motivating the interstate travel while other courts
have required the unlawful purpose to be the dominant purpose.” 331 F. App’x at 203.
1263
See United States v. Sapperstein, 312 F.2d 694, 697 (4th Cir. 1963) (§ 2421 prosecution).
1264
See United States v. Marks, 274 F.2d 15, 18-19 (7th Cir. 1959) (§ 2421 prosecution).
1265
See United States v. Kaye, 243 F. App’x 763 (4th Cir. 2007); United States v. Kelly, 510
F.3d 433, 441 n.7 (4th Cir. 2007).
1266
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.

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TITLE 18

not required. United States v. Helder, 452 F.3d 751, 756 (8th Cir. 2006). See also United
States v. Root, 296 F.3d 1222 (11th Cir. 2002), superseded by statute on other grounds as
recognized in United States v. Jerchower, 631 F.3d 1181, 1186–87 (11th Cir. 2011).
In United States v. Evans, 272 F.3d 1069, 1084 (8th Cir. 2001), the district court
failed to identify the victims in its instructions. The Eighth Circuit held that the failure
was not plain error.
The number of separate transportations determines the number of offenses. Nelms v.
United States, 291 F.2d 390, 394 (4th Cir. 1961) (§ 2421 prosecution). Thus, a round trip
might be one offense or two.
“[W]here an interstate journey is motivated by an innocent purpose, no violation of
the Mann Act can be predicated upon incidental immoral activities during the trip or upon
the resumption of such activities after returning.” Id. at 393.
“When a defendant initiates conversation with a minor, describes the sexual acts
that he would like to perform on the minor, and proposes a rendezvous to perform those
acts, he has crossed the line toward [enticing] a minor to engage in unlawful sexual
activity.” United States v. Goetzke, 494 F.3d 1231, 1237 (9th Cir. 2007). Moreover, “the
prohibited act of persuasion can occur over a distance, as the statute expressly
contemplates, and logic would appear to dictate that having discussions with [minors]
about meeting to have sex is a substantial step toward persuading them to have sex.”
United States v. Broussard, 669 F.3d 537, 550 (5th Cir.2012).

017
7/2

7/2
d0

e
iew
,v

“Although it may be rare for there to be a separation between the intent to persuade
and the follow-up intent to perform the act after persuasion, they are two clearly separate
and different intents and the Congress has made a clear choice in § 2422(b) to criminalize
persuasion and the attempt to persuade, not the performance of the sexual acts
themselves.” United States v. Engle, 676 F.3d 405, 419 (4th Cir. 2012) (quotation and
citation omitted).

o. 1
N

226
6-4

In Engle, the Fourth Circuit found that
[s]exual abuse of minors can be accomplished by several means and is often
carried out through a period of grooming. Grooming refers to deliberate
actions taken by a defendant to expose a child to sexual material; the ultimate
goal of grooming is the formation of an emotional connection with the child
and a reduction of the child's inhibitions in order to prepare the child for
sexual activity.
Id. at 412 (quotations and citations omitted). “Sections 2422(b) and 2251(a) target the
sexual grooming of minors as well as the actual sexual exploitation of them.” Id.
(quotation and citation omitted).
18 U.S.C. § 2423

TRANSPORTING A MINOR FOR SEX

Title 18, United States Code, Section 2423 makes it a crime to transport a minor in
interstate commerce to engage in prostitution, or to travel in interstate commerce to
engage in any illicit sexual conduct with another person. For you to find the defendant
guilty, the government must prove each of the following beyond a reasonable doubt:
§ 2423(a)
P

First, that the defendant transported an individual in interstate or foreign

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commerce;
P

Second, that the defendant did so knowingly;

P

Third, that the defendant did so with intent that the individual engage in
prostitution or in any sexual activity for which any person could be charged
with a criminal offense [the court must identify the elements of the criminal
offense];1267 and

P

Fourth, that the individual transported had not attained the age of 18 years.1268

The government does not have to prove that the defendant knew that the individual
had not attained the age of 18 years.1269
§ 2423(b)
P

First, that the defendant
(1) traveled in interstate commerce, or
(2) traveled into the United States, or

017 and
2
(4) was an alien admitted for permanent residence in the United States
27/
traveled in foreign commerce; and
07/ in any illicit sexual
P Second, the defendant did so for the purpose of engaging
d
we
conduct with another person.
vie
The government does not have6,
to prove that actual sexual activity took place. The
government is required to prove22 the defendant had formed the intent to engage in
4 that
-when he traveled.
sexual activity with a minor
. 16 not have to prove that an actual minor was placed at risk. In
The government does
No
other words, the government must prove that the defendant believed the person to be a
(3) was a United States citizen and traveled in foreign commerce, or

1270

minor regardless of whether the person actually was a minor.1271
§ 2423(c)
P

First, that the defendant was a United States citizen or an alien admitted for
permanent residence in the United States;

P

Second, that the defendant traveled in foreign commerce; and

P

Third, that the defendant engaged in any illicit sexual conduct with another

1267

See United States v. Kaye, 243 F. App’x 763, 766 (4th Cir. 2007) (“To obtain a
conviction under § 2422(b), the Government must also prove that the additional elements of Va. Code
Ann. § 18.2-370, which makes it unlawful for an individual to take indecent liberties with a child, were
satisfied.”).
1268
See United States v. Bonty, 383 F.3d 575, 578 (7th Cir. 2004). In United States v. Wild,
143 F. App’x 938 (10th Cir. 2005), the Tenth Circuit combined the second and third elements above.
1269
United States v. Jones, 471 F.3d 535, 541 (4th Cir. 2006). “Knowingly” modifies the
verb “transports,” not the noun “individual.” Id. at 539. Accord United States v. Washington, 743 F.3d
938 (4th Cir. 2014).
1270
United States v. Hersh, 297 F.3d 1233, 1245-46 (11th Cir. 2002).
1271
United States v. Kelly, 510 F.3d 433, 441 (4th Cir. 2007).

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person [or attempted or conspired to do so].1272
The statute does not require that the illicit sexual conduct occur while traveling in
foreign commerce.1273
“Travel” includes an active motion component, as to go on or as if on a trip, to go
from place to place.1274
§ 2423(d)
P

First, that the defendant arranged, induced, procured, or facilitated the travel of
another person in interstate or foreign commerce [or attempted or conspired to
do so];

P

Second, that the defendant did so knowing that such person was traveling for
the purpose of engaging in illicit sexual conduct; and

P

Third, that the defendant did so for the purpose of commercial advantage or
private financial gain.

“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]

017 § 10]
2
“Foreign commerce” includes commerce with a foreign country. [18 U.S.C.
27/
“Illicit sexual conduct” means:
07/
(1) a sexual act, that is, any of the following: d
e
e vulva
ithe w or the penis and the anus — contact
(a) contact between the penis and
occurs upon penetration, however slight;
6, v
2
(b) contact between the mouth and the penis, the mouth and the vulva, or the
-42
6
mouth and the anus;. 1
No
(c) the penetration, however slight, of the anal or genital opening of another by
a hand or finger or by any object, with an intent to abuse, humiliate, harass, degrade, or
arouse or gratify the sexual desire of any person; or

(d) the intentional touching, not through the clothing, of the genitalia of another
person who has not attained the age of 16 years with an intent to abuse, humiliate, harass,
degrade, or arouse or gratify the sexual desire of any person. [§ 2246(2)]
with a person under 18 years of age that would be [here the Court must identify the
elements of the violation of §§ 2241-2245 if the sexual act occurred in the special

1272

United States v. Clark, 435 F.3d 1100, 1114 (9th Cir. 2006). The Ninth Circuit did not
identify the status of the defendant as an element. Clark was a 71 year old U.S. citizen who paid boys
in Cambodia for sex.
1273
Id. at 1107.
1274
In United States v. Jackson, 480 F.3d 1014 (9th Cir. 2007), the defendant moved to
Cambodia before the effective date of the statute, and engaged in commercial sex after the effective
date of the statute. The Ninth Circuit set forth two alternate meanings of the term “travel.” “Travel
could end when the citizen arrives in a foreign country, or travel could end only once the citizen
resettles in or takes up residence in a foreign country.” 480 F.3d at 1023. The court did not need to
choose between the two alternatives, as the defendant’s travel had ended before the effective date of
the statute.

449

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TITLE 18

maritime and territorial jurisdiction of the United States] [§ 2423(f)(1)];1275 or
(2) any commercial sex act, that is, any sex act on account of which anything of
value was given to or received by any person, with a person under 18 years of
age..[§ 2423(f)(2) and 18 U.S.C. § 1591]1276
Whether the sexual activity is of a commercial (prostitution) or noncommercial
nature, criminal sexual activity must be a purpose motivating the interstate
transportation.1277
The defendant’s intent that the individual engage in prostitution or criminal sexual
activity is an element of the crime and must exist prior to, or at the same time as, the
interstate trip.1278
The government does not need to prove that the defendant accomplished his intent
that the individual engage in prostitution or any criminal sexual activity after the interstate
transportation.1279
AFFIRMATIVE DEFENSE [§ 2423(g)]1280
It is a defense that the defendant reasonably believed that the person with whom the
defendant engaged in the commercial sex act had attained the age of 18 years. The
defendant must establish his belief by a preponderance of the evidence.

017
7/2

7/2
d0

____________________NOTE____________________

e
iew a 1986 amendment, retired the
“Congress made the statute gender-neutral in
6, v
‘purpose’ test for interstate transportation, and clarified the amorphous phrase ‘any
2
immoral purpose’ by narrowing the statute’s coverage to illegal sexual activity.” United
-42
16
States v. Vang, 128 F.3d 1065, 1069 (7th Cir. 1997). In interpreting § 2423, a statutory
. Seventh Circuit drew upon its own Mann Act precedent.
cousin of § 2421, o
N the
Section 2423(e) has its own attempt and conspiracy provision.

Section 2423(b) requires that the foreign travel be with the specific intent to engage
in illicit sex, whereas § 2423(c) does not have such a specific intent requirement. See
United States v. Clark, 435 F.3d 1100, 1116 (9th Cir. 2006).

1275

In other words, non-commercial criminal sexual conduct.
In other words, commercial sex.
1277
See United States v. Bennett, 364 F.2d 77, 78 (4th Cir. 1966) (a § 2421 prosecution).
“W hen the charge here is so viewed and considered we reach the conclusion that the jury was not
misled and that they fully understood that immoral activities must be found to be a ‘purpose’ of the
interstate transportation.” Id. at 79. But see United States v. Vang, 128 F.3d 1065, 1071 n.9 (7th Cir.
1997) (intent that individual engage in sexual activity must be one of dominant purposes of interstate
travel); United States v. Drury, 582 F.2d 1181, 1185 (8th Cir. 1978) (same). In United States v.
Wadford, 331 F. App’x 198 (4th Cir. 2009), the Fourth Circuit acknowledged that the government
does not need to establish that an unlawful purpose was the sole factor motivating interstate travel.
“Some courts have sustained Mann Act convictions where the unlawful purpose was simply one of the
purposes motivating the interstate travel while other courts have required the unlawful purpose to be
the dominant purpose.” 331 F. App’x at 203.
1278
See United States v. Sapperstein, 312 F.2d 694, 697 (4th Cir. 1963) (§ 2421 prosecution).
1279
See United States v. Marks, 274 F.2d 15, 18-19 (7th Cir. 1959) (§ 2421 prosecution).
1280
See discussion of this defense in United States v. Buttrick, 432 F.3d 373 (1st Cir. 2005).
1276

450

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18 U.S.C. § 2511

WIRETAPPING

Title 18, United States Code, Section 2511 makes it a crime to intercept certain
wire, oral, or electronic communications. For you to find the defendant guilty, the
government must prove each of the following beyond a reasonable doubt:
§ 2511(1)(a)
P

First, that the defendant intercepted, endeavored to intercept, or procured any
other person to intercept or endeavor to intercept;

P

Second, any wire, oral, or electronic communication; and

P

Third, that the defendant did so intentionally.

§ 2511(1)(b)(i)
P

First, that the defendant used, endeavored to use, or procured any other person
to use or endeavor to use any electronic, mechanical, or other device;

P

Second, to intercept an oral communication;

P

Third, that the device was affixed to, or otherwise transmitted a signal through a
wire, cable, or other like connection used in wire communication; and

P

Fourth, that the defendant did so intentionally.

§ 2511(1)(b)(ii)
P
P
P
P

017
7/2

7/2
d0

e
iew
,v

First, that the defendant used, endeavored to use, or procured any other person
to use or endeavor to use any electronic, mechanical, or other device;

2
2oral6
Second, to intercept an
-4 communication;
Third, that the device transmitted communications by radio, or interfered with
. 16of such communication; and
the transmission
No
Fourth, that the defendant did so intentionally.

§ 2511(1)(b)(iii)
P

First, that the defendant used, endeavored to use, or procured any other person
to use or endeavor to use any electronic, mechanical, or other device;

P

Second, to intercept an oral communication;

P

Third, that the defendant or other person knew, or had reason to know, that the
device or any component of the device had been sent through the mail or
transported in interstate or foreign commerce; and

P

Fourth, that the defendant did so intentionally.

§ 2511(1)(b)(iv)
P

First, that the defendant used, endeavored to use, or procured any other person
to use or endeavor to use any electronic, mechanical, or other device;

P

Second, to intercept an oral communication;

P

Third, that the interception occurred on the premises of a business or other
commercial establishment the operations of which affect interstate or foreign
commerce; and

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P

Fourth, that the defendant did so intentionally.

§ 2511(1)(c)
P

First, that the defendant disclosed, or endeavored to disclose, to any other
person the contents of a wire, oral, or electronic communication;

P

Second, that the defendant knew or had reason to know that the information
which was disclosed or endeavored to be disclosed was obtained through the
interception of a wire, oral, or electronic communication intercepted in
violation of this statute;1281 and

P

Third, that the defendant did so intentionally.1282

§ 2511(1)(d)
P

First, that the defendant used, or endeavored to use, the contents of a wire, oral,
or electronic communication;

P

Second, that the defendant knew or had reason to know that the information
which was used or endeavored to be used was obtained through the interception
of a wire, oral, or electronic communication intercepted in violation of this
statute;1283 and

P

017
7/2

7/2
d0

Third, that the defendant did so intentionally.1284

§ 2511(1)(e)

e
iew
,v

P

First, that the defendant disclosed, or endeavored to disclose, to any other
person the contents of a wire, oral, or electronic communication intercepted
lawfully;

P

Second, that the defendant knew or had reason to know that the information
was obtained through the interception of a wire, oral, or electronic
communication in connection with a criminal investigation;

P

Third, that the defendant obtained or received the information in connection
with a criminal investigation; and

P

Fourth, that the defendant did so with intent to improperly obstruct, impede, or
interfere with a duly authorized criminal investigation.

o. 1
N

226
6-4

“Wire communication” means any aural transfer made in whole or in part through
the use of facilities for the transmission of communications by the aid of wire, cable, or
other like connection between the point of origin and the point of reception (including the
use of such connection in a switching station) furnished or operated by any person
engaged in providing or operating such facilities for the transmission of interstate or
foreign communications or communications affecting interstate or foreign commerce.
[§ 2510(1)]
“Oral communication” means any oral communication uttered by a person
exhibiting an expectation that such communication is not subject to interception under

1281
1282
1283
1284

452

United States v. Wuliger, 981 F.2d 1497, 1501 (6th Cir. 1992).
See id.
Id.
See id.

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TITLE 18

circumstances justifying such expectation, but such term does not include any electronic
communication. [§ 2510(2)]
“Intercept” means the aural or other acquisition of the contents of any wire,
electronic, or oral communication through the use of any electronic, mechanical or other
device. [§ 2510(4)]
“Electronic, mechanical, or other device” means any device or apparatus which can
be used to intercept a wire, oral, or electronic communication other than
(a) any telephone or telegraph instrument, equipment or facility, or any component
thereof, (i) furnished to the subscriber or user by a provider of wire or
electronic communication service in the ordinary course of its business and
being used by the subscriber or user in the ordinary course of its business or
furnished by such subscriber or user for connection to the facilities of such
service and used in the ordinary course of its business; or (ii) being used by a
provider of wire or electronic communication service in the ordinary course of
its business, or by an investigative or law enforcement officer in the ordinary
course of his duties;

017
7/2

(b) a hearing aid or similar device being used to correct subnormal hearing to not
better than normal. [§ 2510(5)]

7/2
d0

“Electronic communication” means any transfer of signs, signals, writing, images,
sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio,
electromagnetic, photoelectronic or photooptical system that affects interstate or foreign
commerce, but does not include

e
iew
,v

6
22through a tone-only paging device;
4
(b) any communication made
16- from a tracking device (as defined in 18 U.S.C. § 3117);
.
(c) any communication
No funds transfer information stored by a financial institution in a
(d) electronic
(a) any wire or oral communication;

communications system used for the electronic storage and transfer of funds.
[§ 2510(12)]
“Intentionally” means that the defendant acted deliberately and purposefully; that is,
the defendant’s act must have been the product of the defendant’s conscious objective
rather than the product of a mistake or an accident.1285
The government does not need to prove the identity of the conversant whose
communications were intercepted.1286
____________________NOTE____________________
In United States v. Burroughs, 564 F.2d 1111 (4th Cir. 1977), overruled in part on
other grounds by United States v. Steed, 674 F.2d 284, 285 n.2 (4th Cir. 1982) (en banc),

1285

Instruction suggested by Second Circuit in United States v. Townsend, 987 F.2d 927, 930
(2d Cir. 1993). The statute “only requires intentional interception of communications, not willful
interception. The question of whether the defendant had a good or evil purpose ... is, therefore,
irrelevant.” Id. at 931.
1286
United States v. Duncan, 598 F.2d 839, 848 (4th Cir. 1979).

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two management employees of J.P. Stevens & Co. were charged with violating
§ 2511(1)(a) for endeavoring to intercept the oral communications of union organizers by
converting a telephone in a motel room into a listening device. The district court granted
judgment of acquittal, and the Fourth Circuit affirmed because the government had failed
to prove a federal nexus. The Fourth Circuit pointed out that in § 2511(1)(b), Congress
had legislated based on its power to regulate interstate commerce, and each subsection
required a specific showing of an effect upon interstate commerce. In § 2511(1)(a), the
statutory definitions for wire and electronic communications provide the necessary federal
nexus concerning those communications. However, for oral communications, there must
be some demonstrated federal nexus. 564 F.2d at 1115.
In United States v. Duncan, 598 F.2d 839, 850 (4th Cir. 1979), the Fourth Circuit
stated the following instruction “could have been clearer [but did not constitute]
reversible error”:
If a person knows for a fact that his conversations are being monitored ... the
person would not have a reasonable expectation that his communications
were private and not subject to interception. However, the mere fact that one
might suspect that his private conversations could or might be surreptitiously
intercepted does not remove his utterances from the definition of oral
communication. The test is whether the utterances were made by a person
exhibiting an expectation that his utterances were not subject to interception,
that is, his utterances were private and that under the circumstances such
expectation was justified.

017
7/2

7/2
d0

e
iewCir. 1984), the Fourth Circuit held
In Pritchard v. Pritchard, 732 F.2d v (4th
6, 372
there is no interspousal exception in 18 U.S.C. § 2511.
2
-42
. 16 TO STORED COMMUNICATIONS [L U
18 U.S.C. § 2701 o ACCESS
N 7/11/14]
AST

PDATED :

Title 18, United States Code, Section 2701 makes it a crime to access stored
communications. For you to find the defendant guilty, the government must prove each of
the following beyond a reasonable doubt:
§ 2701(a)(1)
P

First, that the defendant accessed without authorization;

P

Second, a facility through which an electronic communication service is
provided;

P

Third, that thereby the defendant obtained, altered, or prevented authorized
access to a wire or electronic communication while it was in electronic storage
in such system; and

P

Fourth, that the defendant did so intentionally.1287

AGGRAVATED PENALTY [§2701(b)(1)]
1. Did the defendant commit the offense for purposes of commercial advantage,
malicious destruction or damage, private commercial gain, or in furtherance of

1287

454

See United States v. Moriarty, 962 F. Supp. 217, 218 (D. Mass. 1997).

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TITLE 18

[specify the elements of the criminal or tortious act in violation of the Constitution
or laws of the United States or any State]?
§ 2701(a)(2)
P

First, that the defendant had authorization to access a facility through which an
electronic communication service is provided;

P

Second, that the defendant exceeded that authorization;

P

Third, that thereby the defendant obtained, altered, or prevented authorized
access to a wire or electronic communication while it was in electronic storage
in such system; and

P

Fourth, that the defendant did so intentionally.

AGGRAVATED PENALTY [§ 2701(b)(1)]
1. Did the defendant commit the offense for purposes of commercial advantage,
malicious destruction or damage, private commercial gain, or in furtherance of
[specify the elements of the criminal or tortious act in violation of the Constitution
or laws of the United States or any State]?

017
/2
____________________NOTE____________________
27violation of §
Access to unopened emails is a requirement for proving a
07/
2701(a). United States v. Cioni, 649 F.3d 276 (4th Cir. 2011).
d
wesimilar, and a violation of § 1030 may
The crimes described in §§ 1030 and 2701 “are
e
, vi
be a lesser included offense of a violation of § 2701, since a person usually must obtain
6
information through access to a22
computer in order to obtain access to communications in
4 Section
electronic storage.” Id. 61 at 282.completed 1030 criminalizes attempts, see 18 U.S.C. §
1030(c)(2), but § o. requires
2701
access. Id. at 283.
N
18 U.S.C. § 3146

FAILURE TO APPEAR – BAIL JUMPING

Title 18, United States Code, Section 3146 makes it a crime to fail to appear for
court after having been released on bond. 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 released on bond;

P

Second, that the defendant failed to appear before a court as required [or failed
to surrender for service of sentence pursuant to a court order]; and

P

Third, that the defendant did so knowingly.
____________________NOTE____________________

See Section 3146(c) for affirmative defense concerning uncontrollable
circumstances.
If the defendant was released on bond in connection with a misdemeanor, the
offense is a misdemeanor.
18 U.S.C. § 3591

DEATH PENALTY

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The defendant shall be sentenced to death if you find, unanimously and beyond a
reasonable doubt, the following:
P

First, that the defendant was older than 18 years of age at the time of the
offense [§ 3591(a)]; and

P

Second, you must find one of the following four factors. Consider them in
order. Once you have agreed unanimously on one factor, do not consider any
more of these four factors [§ 3591(a)(2)(A)-(D)] (see below):1288

P

Third, you must find an aggravating factor:1289 [§ 3592(c)]

AGGRAVATING FACTORS:
1. Did the death, or injury resulting in death, occur during the commission or
attempted commission of, or during the immediate flight from the commission
of [specify the enumerated offense]?
2. Has the defendant previously been convicted of a state or federal offense
punishable by a term of imprisonment of more than one year, involving the use
or attempted or threatened use of a firearm?

017
7/2

3. Has the defendant previously been convicted of another state or federal offense
resulting in the death of a person, for which a sentence of life imprisonment or
of death was authorized by statute?
4.

5.

2
7/or more state or federal
0
Has the defendant previously been convicted of two
ed
offenses punishable by a term of imprisonment of more than one year,
ew
committed on different occasions,iinvolving the infliction of, or attempted
v or death upon another person?
infliction of, serious bodily injury
26,
Did the defendant, 4 the commission of the offense, or in escaping
-in 2
6the violation of the offense, knowingly create a grave risk of
apprehension for
o. 1 more persons in addition to the victim of the offense?
death to one or
N

“Grave risk of death” means a significant and considerable possibility of death and

1288

See United States v. Tipton, 90 F.3d 861, 899 (4th Cir. 1996). “[C]umulative findings of
more than one of the (n)(1) circumstances as an aggravating factor is constitutional error.”
1289
Aggravating factors do not need to be alleged in the indictment, but they are required to
be found by the jury. See Ring v. Arizona, 536 U.S. 584, 589 (2002); United States v. Wills, 346 F.3d
476, 501 (4th Cir. 2003) (Wills II).
The jury may take into account the circumstances of the crime, even though this information
duplicates elements of the underlying crime, so long as this does not duplicate another aggravating
factor. United States v. Johnson, 136 F. Supp. 2d 553, 559 (W .D. Va. 2001). “[I]t is constitutional
error for the same aggravating factor to be considered by the sentencer more than once, even if dressed
in new clothing.” United States v. Rivera, 405 F. Supp. 2d 662, 668 (E.D. Va. 2005). See also United
States v. Tipton, 90 F.3d 861, 899 (4th Cir. 1996). But see United States v. McCullah, 76 F.3d 1087,
1107-08 (10th Cir. 1996) (commission of the charged offense may be used as a non-statutory
aggravating factor). However, the McCullah court held “that the use of duplicative aggravating factors
creates an unconstitutional skewing of the weighing process.” Id. at 1112.
“Because a death sentence cannot be imposed unless at least one statutory aggravating factor
has been proved, statutory aggravating factors are determined before any alleged mitigating or nonstatutory aggravating factors are considered.” United States v. Caro, 597 F.3d 608, 611 n.4 (4th Cir.
2010).

456

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TITLE 18

placing other persons in a zone of danger.1290
6. Did the defendant commit the offense in an especially heinous, cruel, or
depraved manner in that it involved torture or serious physical abuse to the
victim?
7. Did the defendant procure the commission of the offense by payment, or
promise of payment, of anything of pecuniary value?
8. Did the defendant commit the offense as consideration for the receipt, or in the
expectation of the receipt, of anything of pecuniary value?
9. Did the defendant commit the offense after substantial planning and
premeditation to cause the death of a person or commit an act of terrorism?
“Substantial planning” means planning which is considerable or ample for the
commission of this offense [that is, the underlying offense].1291
10. Has the defendant previously been convicted of two or more state or federal
offenses punishable by a term of imprisonment of more than one year,
committed on different occasions, involving the distribution of a controlled
substance?

17
0infirmity?
11. Was the victim particularly vulnerable due to old age, youth, or
/2
27___________ for
12. Has the defendant previously been convicted of violating
7/
which a sentence of five or more years mayd 0
be imposed, or has previously been
convicted of engaging in a continuingwe
criminal enterprise?
ie in the course of engaging in a continuing
13. Did the defendant commit the offense
6, v
criminal enterprise in violation of 21 U.S.C. § 848, and that violation involved
422
the distribution of-drugs to persons under the age of 21?
14. Did the defendant commit the offense against [an enumerated individual–the
. 16
No
fourth category of enumerated officials requires, in addition, that the offense

was committed while the person was engaged in the performance of official
duties, because of the performance of official duties, or because of the person’s
status as a public servant]?

15. Has the defendant previously been convicted of a crime of sexual assault or a
crime of child molestation?
16. Did the defendant intentionally kill or attempt to kill more than one person in a
single criminal episode?
[17. Does any other aggravating factor exist, for which notice has been given?
§ 3592(c)]
If you unanimously find, beyond a reasonable doubt, at least one aggravating factor,
then you must weigh these aggravating factors against mitigating factors. Any juror may
consider any mitigating factor found by him to exist by a preponderance of the evidence,
without regard to whether it has been found by any other juror.

1290

Clarifying instruction given by district court in United States v. Barnette, 211 F.3d 803,
819 (4th Cir. 2000).
1291
The Tenth Circuit found no error in this instruction. Substantial planning does not require
considerably more planning than is typical. See McCullah, 76 F.3d at 1110-11 (§ 848(e) prosecution).

457

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TITLE 18

§ 3591(a)(2)(A)
P

First, that the defendant killed the victim; and

P

Second, that the defendant did so intentionally.

§ 3591(a)(2)(B)
P

First, that the defendant inflicted serious bodily injury on the victim;

P

Second, that the victim died as a result of the serious bodily injury; and

P

Third, that the defendant did so intentionally.

“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.
§ 1365(h)(3)]
§ 3591(a)(2)(C)
P

First, that the defendant participated in an act;

P

Second, that the defendant contemplated that the life of a person would be taken
or the defendant intended that lethal force would be used in connection with a
person [other than one of the participants in the offense];

017
7/2

7/2
0
P Fourth, that the defendant acted intentionally.
ed
§ 3591(a)(2)(D)
i w
vine act of violence;
P First, that the defendant 26,
an
2 engaged intentionally and specifically;
P Second, that the defendant did so
6-4
1defendant knew that the act of violence created a grave risk of
.
P Third, that the
No
death to a person [other than one of the participants in the offense] so that
P

Third, that the victim died as a direct result of the act; and

participating in the act of violence constituted a reckless disregard for human
life; and

P

Fourth, that the victim died as a direct result of the act.

MITIGATING FACTORS:1292 [§ 3592]
The word “mitigate” means to make less severe or to moderate. A “mitigating
factor” is information that you deem relevant that would suggest that a sentence of death
is not the most appropriate punishment.
The defendant has the burden of proving any of the following factors by a
preponderance of the information. Something is proved by a preponderance of the
evidence if the evidence proves that it is more likely than not that the factor is so.
First, you must determine if the evidence establishes the existence of the factor by a
preponderance of the evidence. If it has been proved, then you must determine whether

1292

The range of possible sentences that the defendant might receive in the event the jury
does not recommend death does not fall within the definition of mitigating factors. And the jury is not
required to return written findings of mitigating factors that the jury has either found to exist or found
not to exist. United States v. Chandler, 996 F.2d 1073, 1086 (11th Cir. 1993).

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TITLE 18

the factor mitigates against a sentence of death. Moreover, the law does not require that
you be unanimous as to mitigating factors. Any juror who is persuaded that a mitigating
factor exists, must consider that factor in this case. It is up to each individual juror to
determine how much weight to give to any particular mitigating factor.
1. The defendant’s capacity to appreciate the wrongfulness of his conduct or to
conform his conduct to the requirements of law was significantly impaired.
2. The defendant was under unusual and substantial duress.
3. The defendant’s participation in the offense was relatively minor.
4. Another defendant, equally culpable in the crime, will not be punished by death.
5. The defendant does not have a significant prior history of other criminal
conduct.
6. The defendant committed the offense under a severe mental or emotional
disturbance.
7. The victim consented to the criminal conduct that resulted in the victim’s death.

017
7/2

8. Other factors in the defendant’s background, record, or character or any other
circumstance of the offense that mitigate against imposition of the death
sentence.

7/2
d0

Unlike aggravating factors, the law does not limit your consideration of mitigating
factors to those that are listed for you; therefore, if there are any mitigating factors not
listed in these instructions, but which any juror finds to be established by a preponderance
of the evidence, that juror is free to consider them in his or her sentencing decision.1293

e
iew
,v

226
6-4

You have the option to return written findings of mitigating factors if you choose,
but you are not required to do so.1294

o. 1
N

You must consider whether the aggravating factors sufficiently outweigh the
mitigating factors to justify a sentence of death.

L

If no mitigating factors

You must consider whether the aggravating factor(s) is/are sufficient to justify a
sentence of death.1295
This weighing process is not a mechanical process and the different factors can be
given different weights. Moreover, you should not reach a decision based on the number
of aggravating or mitigating factors.1296
Even if you find that all of the aggravating factors are established beyond a
reasonable doubt and that none of you have found that any mitigation has been established
at all, you still have the right to decide against the death penalty in this case.1297
In deciding what recommendation to make, you are not to be concerned with the

1293
1294
1295
1296
1297

United States v. Basham, 561 F.3d 302, 336 (4th Cir. 2009).
Chandler, 996 F.2d at 1087 (§ 848(e) case).
Id. at 1091.
Id. at 1093.
Instruction given by the district court in United States v. Higgs, 353 F.3d 281, 332 (4th

Cir. 2003).

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TITLE 18

question of what sentence the defendant might receive in the event you determine not to
recommend a death sentence. That is a matter for me to decide in the event you conclude
that a sentence of death should not be recommended. If you do not make such a
recommendation, the court is required by law to impose a sentence other than death,
which sentence is to be determined by the court alone.1298
In the event of disagreement as to punishment, the defendant will be sentenced as
provided by law up to life without the possibility of release.1299
Finally, you are not to consider the race, color, religious beliefs, national origin, or
sex of the defendant or the victim. Moreover, you should not recommend a sentence of
death unless you would have recommended a sentence of death no matter what the race,
color, religious beliefs, national origin, or sex of the defendant are, and no matter what the
race, color, religious beliefs, national origin, or sex of the victim were. [§ 3593(f)]

L

Limiting instruction in the event of rebuttal evidence

Rebuttal evidence may only be considered by you insofar as it may rebut the
mitigating factor[s] that [was/were] specified by the defendant. It is not to be considered
by you for any other purpose.1300

017
/2
The jury must unanimously agree that the government has proved beyond a
27statutory aggravating
reasonable doubt at least one statutory intent factor and at least one
07/ F.3d 281, 298 (4th Cir.
d
factor for which notice was given. See United States v. Higgs, 353
we
2003); United States v. Johnson, 136 F. Supp. 2d 553, 557 (W.D. Va. 2001).
e
, vi
The defendant’s burden of establishing any mitigating factor is by a preponderance
of the information, and unanimity 2not required. Johnson, 136 F. Supp. 2d at 558.
2is 6
4
The jury is required to recommend by unanimous vote whether the defendant
16- or life imprisonment. Id.
should be sentenced. death
No to factor must not be overbroad. The circumstances may not apply
An aggravating
____________________NOTE____________________

to every defendant convicted of murder; it must apply only to a subclass of defendants
convicted of murder. Id.
An aggravating factor must not be unconstitutionally vague. Vagueness is
ascertained by assessing whether an aggravating factor is defined in terms too vague to
provide sufficient guidance to the sentencer. The factor must have some common-sense
core meaning that criminal juries should be capable of understanding. Id.
An aggravating factor must be sufficiently relevant to the question who should live
and who should die. Id. A relevant factor is one that assists the sentencer in distinguishing
those who deserve capital punishment from those who do not. If the aggravator has only a
tangential relationship to a determination of who is more worthy of receiving a sentence

1298

Instruction approved as proper in United States v. Chandler, 996 F.2d 1073, 1086 (11th
Cir. 1993). Moreover, the district court is not required to inform the jury of the possible sentences the
defendant might face. Id.
1299
Instruction given by district court in United States v. Barnette, 211 F.3d 803, 817 (4th
Cir. 2000). But see Chandler, 996 F.2d at 1089 (“[T]he district court is not required to instruct the jury
on the consequences of an inability to reach a unanimous verdict.”)
1300
Limiting instruction given by district court in Higgs, 353 F.3d at 330.

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TITLE 18

of death, it should be excluded from the sentencer’s review. Relevant information is
particularized to the individual defendant. United States v. Cisneros, 363 F. Supp. 2d 827,
834 (E.D. Va. 2005).
An aggravating factor must be measured in perspective of the fundamental
requirement of heightened reliability that is keystone to making the determination that
death is the appropriate punishment in the specific case. Johnson, 136 F. Supp. 2d at 558.
The jury may be instructed that the nonstatutory aggravating factor relates solely to
conduct underlying the defendant’s contemporaneous convictions during the guilt phase
of trial and the existence of those contemporaneous convictions, and further, that the
defendant will be separately punished for those alleged crimes. United States v. Le, 327 F.
Supp. 2d 601, 614 (E.D. Va. 2004).
General deterrence is not an aggravating factor within the meaning of § 3591.
United States v. Caro, 461 F. Supp. 2d 459, 462 (W.D. Va. 2006), aff’d, 597 F.3d 608
(4th Cir. 2010).
A defendant’s immigration status is unconstitutionally irrelevant to whether he
merits the death penalty. Cisneros, 363 F.Supp.2d at 835.

017
7/2

The indictment need only allege one aggravating factor, but need not allege prior
convictions. Higgs, 353 F.3d at 299, 304.

7/2
d0

The jury must determine whether the victim is dead, and if so, whether his death
resulted from the willful and intentional conduct of the defendant. United States v. Wills,
346 F.3d 476, 500 (4th Cir. 2003) (Wills II).

e
iew 447 U.S. 625 (1980), “as granting
The Eleventh Circuit interprets6, v Alabama,
2 Beck v.
a defendant, who faces the possibility of a death sentence, the constitutional right to have
2
a lesser included instruction-4 to the jury.” United States v. Chandler, 996 F.2d 1073,
6 read
1099 (11th Cir. 1993). 1
.
No
In Caro, the sentencing hearing was divided into two phases, an “eligibility” phase
and a “selection” phase. The first phase involved determining whether Caro had
committed a capital offense under § 3591 and whether the government had proved at least
one statutory aggravating factor beyond a reasonable doubt, together making Caro eligible
for the death penalty. The second phase involved determining the mitigating and nonstatutory aggravating factors and selecting either a death sentence or life imprisonment.
Estelle v. Smith, 451 U.S. 454 (1981), and Mitchell v. United States, 526 U.S. 314
(1999), together suggest that the Fifth Amendment may well prohibit considering a
defendant’s silence regarding the non-statutory aggravating factor of lack of remorse.
United States v. Caro, 597 F.3d 608, 630 (4th Cir. 2010).
In Caro, the Fourth Circuit held that because the defendants proposed instruction
that mercy alone could justify a life sentence was legally incorrect, the district court’s
refusal to give the instruction was not an abuse of discretion. 597 F.3d at 631-33.

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IV. OTHER TITLES
7 USC § 2024

FOOD STAMP FRAUD

Title 7, United States Code, Section 2024, makes it a crime to use food stamp access
devices illegally. For you to find the defendant guilty, the government must prove each of
the following beyond a reasonable doubt:
§ 2024(b)(1)
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, transferred, acquired, altered, or possessed food
stamp coupons, authorization cards, or access devices;

P

Second, that the defendant did so in a manner contrary to law [the court should
instruct on the underlying illegality];

P

Third, that the defendant did so knowingly and willfully.

AGGRAVATED PENALTIES

L

017
7/2

The jury must determine the value of the coupons, authorization cards, or
access devices, as follows: $5,000 or more, $100 or more, but less than $5,000 less
than $100.

7/2
0
The government must prove that the defendant knew that his use, transfer,
ed cards, or access devices was in a
w
acquisition, or possession of food stamps, authorization
vie
manner unauthorized by the food stamp,law or regulations.
§ 2024(c)
226
-4
P First, that the 16
defendant presented, or caused to be presented, food stamp
coupons o. payment or redemption;
for
Nthat the food stamp coupons had been received, transferred, or used
P Second,
1

illegally [the court should instruct on the underlying illegality];
P

Third, that the defendant knew the food stamp coupons had been received,
transferred, or used illegally.

AGGRAVATED PENALTIES

L

The jury must determine the value of the coupons, authorization cards, or
access devices, as follows: $100 or more; or less than $100.

The government must prove that the defendant knew that the food stamps,
authorization cards, or access devices had been received, transferred, or used in a manner
unauthorized by the food stamp law or regulations.2
7 U.S.C. § 2156

ANIMAL FIGHTING

§ 2156(a)(1)
1

Liparota v. United States, 471 U.S. 419, 433 (1985), where the Supreme Court’s concern
was to avoid criminalizing otherwise non-culpable conduct.
2
See id. at 433.

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Title 7, United States Code, Section 2156(a), makes it a crime to sponsor or exhibit
an animal in an animal fighting venture. For you to find the defendant guilty, the
government must prove each of the following beyond a reasonable doubt:
P

First, that the defendant sponsored or exhibited;

P

Second, an animal in;

P

Third, an animal fighting venture; and

P

Fourth, that the defendant did so knowingly.3

§ 2156(b)
Title 7, United States Code, Section 2156(b), makes it a crime to sell, buy, possess,
train, transport, deliver, or receive any animal for purposes of having the animal
participate in an animal fighting venture. For you to find the defendant guilty, the
government must prove each of the following beyond a reasonable doubt:
P

First, that the defendant sold, bought, possessed, trained, transported, delivered,
or received;

P

Second, an animal;

017
/2
P Third, that the defendant did so for the purpose of having7 animal participate
2 the
in an animal fighting venture; and
07/
d
P Fourth, that the defendant did so knowingly.
we
e
§ 2156(c)
, vi
Title 7, United States Code, Section 2156(c), makes it a crime to use the mail to
226 you to find the defendant guilty, the government
advertise an animal fighting-4
6 venture. For
must prove each of the1
following beyond a reasonable doubt:
.
Nothe defendant used the mail service of the United States Postal Service
P First, that
4

or any instrumentality of interstate commerce for commercial speech;
P

Second, that the defendant did so for the purposes of any of the following:
(1) advertising an animal for use in an animal fighting venture;
(2) advertising a knife, gaff, or any other sharp instrument attached, or designed
or intended to be attached, to the leg of a bird for use in an animal fighting
venture; or
(3) promoting or in any other manner furthering an animal fighting venture; and

P

Third, that the defendant did so knowingly.

§ 2156(e)
Title 7, United States Code, Section 2156(e), makes it a crime to sell, buy, transport,

3

See United States v. Kingrea, 573 F.3d 186 (4th Cir. 2009). Kingrea was indicted on
September 18, 2007. The statute was amended in 2008, deleting “if any animal in the venture was
moved in interstate or foreign commerce.” The opinion cites the 2008 version of the statute, but does
not address the amendment. It would appear that federal jurisdiction is grounded on the definition of
animal fighting venture, which means any event in or affecting interstate or foreign commerce.
4
Id.

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or deliver in interstate or foreign commerce certain sharp instruments for use in an animal
fighting venture. For you to find the defendant guilty, the government must prove each of
the following beyond a reasonable doubt:
P

First, that the defendant sold, bought, transported, or delivered in interstate or
foreign commerce;

P

Second, a knife, gaff, or any other sharp instrument attached, or designed or
intended to be attached, to the leg of a bird for use in an animal fighting venture;
and

P

Third, that the defendant did so knowingly.

“Animal fighting venture” means any event, in or affecting interstate or foreign
commerce, that involves a fight conducted or to be conducted between at least two
animals for purposes of sport, wagering, or entertainment, except that the term “animal
fighting venture” shall not be deemed to include any activity the primary purpose of
which involves the use of one or more animals in hunting another animal. [§ 2156(g)(1)]

017
7/2

“Instrumentality of interstate commerce” means any written, wire, radio, television
or other form of communication in, or using a facility of, interstate commerce.
[§ 2156(g)(2)]

7/2
d0

“Animal” means any live bird, or any live mammal, except man. [§ 2156(g)(4)]

e
iew
8 U.S.C. § 1324
BRINGING IN ORv
HARBORING ALIENS [
:
6,
7/2/14]
2
-42
Title 8, United States Code, Section 1324 makes it a crime to bring or harbor certain
6
aliens in the United . 1 For you to find the defendant guilty, the government must
States.
prove each of the following beyond a reasonable doubt:
No
LAST UPDATED

§ 1324(a)(1)(A)(i)
P

First, that the defendant brought [or attempted to bring] a person who was an
alien into the United States at a place other than a designated port of entry or at a
place other than as designated by a United States immigration official;

P

Second, that the defendant knew that the person was an alien; and

P

Third, that the defendant acted with the intent to violate the United States
immigration laws by assisting that person to enter the United States at a time or
place other than as designated by a United States immigration official or to
otherwise elude United States immigration officials.5

§ 1324(a)(1)(A)(ii)
P

First, that the defendant transported, moved, or attempted to transport or move
an alien within the United States by means of transportation or otherwise;

P

Second, that the alien was in the United States in violation of law;

P

Third, that the defendant was aware of the alien’s status, [or recklessly
disregarded the fact, that the alien had come to, entered, or remained in the

5

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United States in violation of law]; and
P

Fourth, that the defendant acted willfully in furtherance of the alien’s violation
of the law.6

To “come to” the United States means to cross the border into the United States so as
to be physically present in the United States whether or not one has actually “entered” [an
immigration law term of art] the United States.7
The government must prove that the defendant transported within this country an
alien who had come to the United States unlawfully.8
The government must prove a direct and substantial relationship between the
transportation of the illegal alien and furthering his illegal presence in the United States. In
other words, mere or incidental transportation of an alien is not enough to prove this
offense.9
The government can prove that the defendant was aware of the alien’s illegal status
by showing that the defendant had actual knowledge of his status or that he recklessly
disregarded the fact that the alien was in the country illegally.10

017
7/2

§ 1324(a)(1)(A)(iii)

7/2
d0

P

First, that an alien had come to, entered, or remained in the United States in
violation of law;

P

Second, that the defendant knew or acted in reckless disregard of the fact that the
alien had come to, entered, or remained in the United States in violation of law;

P

Third, that the defendant concealed, harbored, or shielded from detection, or

e
iew
,v

6

o. 1
N

226
6-4

United States v. Barajas-Chavez, 162 F.3d 1285, 1287 (10th Cir. 1999) (en banc). See also
United States v. Barajas-Montoya, 223 F. App’x 293 (4th Cir. 2007); United States v. MartinezMarin, No. 05-5167, 2006 W L 2520319 (4th Cir. Aug. 31, 2006). The statute includes “reckless
disregard,” apparently a reference to willful blindness. Regardless, the Tenth Circuit found that the
“defendant’s guilty knowledge that his transportation activity furthers an alien’s illegal presence in the
United States is an essential element of the crime.” Barajas-Chavez, 162 F.3d at 1287 (citing United
States v. Parmelee, 42 F.3d 387, 391 (7th Cir. 1994)). See also United States v. Nolasco-Rosas, 286
F.3d 762 (5th Cir. 2002), which identified the elements as follows:
1. an alien entered or remained in the United States in violation of the law; 2. the
defendant transported the alien within the United States with intent to further the
alien’s unlawful presence; and 3. the defendant knew or recklessly disregarded the
fact that the alien was in the country in violation of the law.
286 F.3d at 765.
7
United States v. Munoz, 412 F.3d 1043, 1049 (9th Cir. 2005). The Immigration Reform and
Control Act, by utilizing the phrase “come to,” removed the official restraint doctrine as a hurdle to
criminal liability for alien smuggling. “Congress intended to separate the concept of bringing or
coming to the United States from ‘entry.’” United States v. Hernandez-Garcia, 284 F.3d 1135, 1138
(9th Cir. 2002).
8
Hernandez-Garcia, 284 F.3d at 1139.
9
See United States v. Merkt, 794 F.2d 950, 965 (5th Cir. 1986) (predecessor statute).
10
Barajas-Montoya, 223 F. App’x at 294 (citing United States v. Nolasco-Rosas, 286 F.3d
762, 765 (5th Cir. 2002)). For “recklessly disregarded the fact,” see instruction on W illful Blindness.

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attempted to conceal, harbor, or shield from detection, the alien in any place,
including any building or any means of transportation; and
P

Fourth, that the defendant’s conduct tended to substantially facilitate the alien
remaining in the United States illegally.11

To “harbor” means to afford shelter to and does not require an intent to avoid
detection.12
§ 1324(a)(1)(A)(iv)
P

First, that the defendant encouraged or induced an alien;

P

Second, to come to, enter, or reside in the United States in violation of law; and

P

Third, that the defendant knew or acted in reckless disregard of the fact that the
alien’s coming to, entry, or residence in the United States was or would be in
violation of law.

“Encouraging” relates to actions taken to convince the illegal alien to come to this
country or to stay in this country.13

017
2
1. Was the offense done for the purpose of commercial advantage or private
27/
financial gain?
07/
d
2. Did the defendant cause serious bodily injury to, or place in jeopardy the life of,
we
any person during and in relationvie offense?
, to the person?
3. Did the offense result in the6
death of any
422bodily injury which involves a substantial risk of
“Serious bodily injury” means
16death, extreme physical pain, protracted and obvious disfigurement, or protracted loss or
o.
impairment of N function of a bodily member, organ, or mental faculty. [18 U.S.C.
the

AGGRAVATED PENALTIES

14

§ 1365(h)(3)]

“In jeopardy” means putting the life of a person in an objective state of danger.15

11

United States v. De Jesus-Batres, 410 F.3d 154, 160 (5th Cir. 2005). A circuit split exists
regarding whether this is an element of the offense. Compare United States v. Cuevas-Reyes, 572 F.3d
119, 121-22 (3d Cir. 2009) (requiring substantial facilitation), with United States v. Ye, 588 F3d. 411,
416-17 (7th Cir. 2009) (rejecting defendant’s argument that element is required). The Fourth Circuit
has not decided this issue. United States v. Aquilar, 477 F. App’x 1000, 1002 (4th Cir. 2012).
12
United States v. Aguilar, 883 F.2d 662, 690 (9th Cir. 1989), superceded by 8 U.S.C. §
1324.
13
United States v. Oloyede, 982 F.2d 133, 137 (4th Cir. 1993).
14
But see United States v. Gonzalez-Flores, 418 F.3d 1093, 1098 (9th Cir. 2005) (“the
indictment’s reference to the girls’ injuries was surplusage because it was an issue relevant to
sentencing rather than an element of the offense.”).
15
In United States v. Newkirk, 481 F.2d 881 (4th Cir. 1973), the Fourth Circuit held the
following instruction did not constitute plain error: “To put in jeopardy the life of a person by the use
of a dangerous weapon or device means, then, to expose such person to a risk of death or to the fear
of death, by the use of such dangerous weapon or device.” 481 F.2d at 883 n.1. However, jeopardy
“is commonly defined as referring to an objective state of danger, not to a subjective feeling of fear.”
United States v. Donovan, 242 F.2d 61, 63 (2d Cir. 1957). See also Wagner v. United States, 264 F.2d

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Therefore, “to put in jeopardy” means to expose a person to a risk of death.16
§ 1324(a)(2)(B)(i)17
P

First, that the defendant brought to or attempted to bring to the United States in
any manner whatsoever;

P

Second, an alien who had not received prior official authorization to come to,
enter, or reside in the United States;

P

Third, that the defendant knew, or recklessly disregarded the fact that the alien
had not received prior official authorization to come to, enter, or reside in the
United States; and

P

Fourth, that the defendant acted with intent or with reason to believe that the
alien unlawfully brought into the United States would commit an offense against
the United States or any state punishable by imprisonment for more than one
year.

017
7/2

§ 1324(a)(2)(B)(ii)
P

First, that the defendant brought to or attempted to bring to the United States in
any manner whatsoever;

P

Second, an alien who had not received prior official authorization to come to,
enter, or reside in the United States;

P

Third, that the defendant knew, or recklessly disregarded the fact that the alien
had not received prior official authorization to come to, enter, or reside in the
United States; and

7/2
d0

e
iew
,v

226
4
P Fourth, that the defendant acted for the purpose of commercial advantage or
16.
private financial gain.
No
§ 1324(a)(2)(B)(iii)
18

P

First, that the defendant brought to or attempted to bring to the United States in
any manner whatsoever;

P

Second, an alien who had not received prior official authorization to come to,
enter, or reside in the United States;

P

Third, that the defendant knew, or recklessly disregarded the fact that the alien
had not received prior official authorization to come to, enter, or reside in the
United States; and

P

Fourth, that the alien was not, upon arrival, immediately brought and presented

524, 530 (9th Cir. 1959). Therefore, the “fear of death” language is not included.
16
Newkirk, 481 F.3d at 883 n.1.
17
“Smuggling aliens to the United States does not require entry.” United States v. GonzalezTorres, 309 F.3d 594, 599 (9th Cir. 2001).
18
If the defendant is being prosecuted as a principal, as opposed to an aider and abettor, the
government must prove that the defendant intended to receive financial gain, not someone else. See
United States v. Munoz, 412 F.3d 1043, 1047 (9th Cir. 2005). However, “[w]hen a defendant is tried
... for aiding and abetting under 8 U.S.C. § 1324, the question of financial gain by the defendant or
others is immaterial.” United States v. De Jesus-Batres, 410 F.3d 154, 161 (5th Cir. 2005).

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to an appropriate immigration officer at a designated port of entry.
“Alien” means any person not a citizen or national of the United States. [8 U.S.C.
§ 1101(a)(3)].
A “national” is 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)]
The term does not include a person who illegally enters the United States and
subjectively considers himself a person who owes permanent allegiance to the United
States.19
To “come to” the United States means to cross the border into the United States so as
to be physically present in the United States whether or not one has actually “entered” [an
immigration law term of art] the United States.20
To “enter,” an alien must cross the United States border free from official restraint.
An alien is under official restraint if, after crossing the border without authorization, he is
deprived of his liberty and prevented from going at large within the United States. An
alien does not have to be in the physical custody of the authorities to be officially
restrained. Restraint may take the form of surveillance, unbeknownst to the alien. When
under surveillance, the alien has still not made an entry despite having crossed the border
with the intention of evading inspection, because he lacks the freedom to go at large and
mix with the population. On the other hand, if an alien is not discovered until some time
after exercising his free will within the United States, he has entered free from official
restraint.21

017
7/2

7/2
d0

e
iew
,v

226States when his physical presence is discovered
A person is “found in”-4 United
16 the
and noted by the immigration authorities.
.
No
The government does not have to prove that the defendant knew he was not entitled
22

to enter [or re-enter] the United States without the permission of the Attorney General.23
____________________NOTE____________________

Specific intent to violate the immigration laws is not an element of the offense of
alien harboring [8 U.S.C. § 1324(a)(1)(A)(ii)]. United States v. De Jesus-Batres, 410 F.3d
154, 162 (5th Cir. 2005). But see United States v. Barajas-Montiel, 185 F.3d 947, 951-53
(9th Cir. 1999).

19

United States v. Sotelo, 109 F.3d 1446, 1448 (9th Cir. 1997).
Munoz, 412 F.3d at 1049. The Immigration Reform and Control Act, by utilizing the
phrase “come to,” removed the official restraint doctrine as a hurdle to criminal liability for alien
smuggling.”Congress intended to separate the concept of bringing or coming to the United States from
‘entry.’” United States v. Hernandez-Garcia, 284 F.3d 1135, 1138 (9th Cir. 2002).
21
Gonzalez-Torres, 309 F.3d at 598.
22
United States v. Uribe-Rios, 558 F.3d 347, 352 (4th Cir. 2009) (quoting United States v.
Reyes-Nava, 169 F.3d 278, 280 (5th Cir. 1999)).
23
United States v. Pena-Cabanillas, 394 F.2d 785, 790 (9th Cir. 1968), abrogated on other
grounds by United States v. Smith–Baltiher, 424 F.3d 913, 920 (9th Cir.2005).
20

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Concerning the “in furtherance of” element, the Tenth Circuit in United States v.
Barajas-Chavez, 162 F.3d 1285, 1288 (10th Cir. 1999), agreed that
the element does not encompass persons who come into daily contact with
undocumented aliens and who, with no evil or criminal intent, intermingle with
illegal aliens socially or otherwise, [but] we do not agree that the element is
limited solely to those who support the presence of illegal aliens in this country
through a smuggling operation or some other form of illicit transportation.
162 F.3d at 1288. The court found that
the element is sufficiently broad to encompass any person who acts, regardless
of profit motive or close relationship, with knowledge or with reckless
disregard of the fact that the person transported is an illegal alien and that
transportation or movement of the alien will help, advance, or promote the
alien’s illegal entry or continued illegal presence in the United States.
Id.

017
7/2

Circuit Courts have adopted different tests for determining whether the “in
furtherance of” element is satisfied. The Eighth and Ninth Circuits have adopted the
“direct or substantial relationship” test. The element is not satisfied if a defendant’s
transportation of an alien is only incidentally connected to the alien’s illegal entry or
continued illegal presence. The Ninth Circuit has suggested relevant factors include the
time, place, distance and overall impact of the transportation.

7/2
d0

we
ieapproach, under which the factfinder is
v
The Sixth Circuit uses the “intent-based”
6, concerning a defendant’s intentions in
directed to consider all credible 22
evidence
transporting an illegal alien,-4 as compensation, what efforts the defendant took to
such
conceal or harbor the alien, and whether the alien was a friend, co-worker, companion, or
. 16 Fifth Circuit appears to have adopted a more general
merely “human cargo.” The
No

approach that encompasses the ‘direct or substantial relationship test, but also focuses on
the defendant’s intent in transporting the alien. United States v. Merkt, 794 F.2d 950, 96465 (5th Cir. 1986). The Seventh Circuit has refused to adopt either test, allowing the
government to prove the element by reference to the facts and circumstances surrounding
each particular case. The Tenth Circuit rejected the use of any particular test. “We believe
the proper approach is a general one.... [A] factfinder may consider any and all relevant
evidence bearing on the ‘in furtherance of’ element (time, place, distance, reason for trip,
overall impact of trip, defendant’s role in organizing and/or carrying out the trip).”
Barajas-Chavez, 162 F.3d at 1288-89.
In United States v. Rivera, 859 F.2d 1204, 1209 (4th Cir. 1988), the defendant
appealed the district court’s failure to instruct on the “substantial relationship between the
transportation of the alien and the furtherance of the alien’s unlawful presence in the
United States.” The Fourth Circuit affirmed, finding the trial judge covered this element
in his instructions; however, the instructions are not reprinted in the opinion.
An aider and abettor is subject to a lesser penalty. 8 U.S.C. § 1324(a)(1)(B)(I).
8 U.S.C. § 1325

ILLEGAL ENTRY BY ALIEN/MARRIAGE FRAUD [LAST
UPDATED : 2/4/15]

Title 8, United States Code, Section 1325 makes it a crime for an alien to enter the
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United States in violation of certain requirements. For you to find the defendant guilty,
the government must prove each of the following beyond a reasonable doubt:
§ 1325(a)
P

First, that the defendant is an alien; and

P

Second, that the defendant did one of the following:
1. entered or attempted to enter the United States at any time or place other
than as designated by immigration officers, or
2. eluded examination or inspection by immigration officers, or
3. attempted to enter or obtain entry to the United States by a willfully false or
misleading representation or the willful concealment of a material fact.

L

First offense is a petty offense; a subsequent offense is a felony.

“Alien” means any person not a citizen or national of the United States. [8 U.S.C.
§ 1101(a)(3)].

017
7/2

A “national” is 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)]

7/2 States and
0
The term does not include a person who illegally enters the United
ed allegiance to the United
subjectively considers himself a person who owes permanent
w
States.
vie
To “enter,” an alien must cross the United States border free from official restraint.
26,
An alien is under official restraint if, after crossing the border without authorization, he is
-42
6prevented from going at large within the United States. An
deprived of his liberty 1
. and
alien does not Noto be in the physical custody of the authorities to be officially
have
24

restrained. Restraint may take the form of surveillance, unbeknownst to the alien. When
under surveillance, the alien has still not made an entry despite having crossed the border
with the intention of evading inspection, because he lacks the freedom to go at large and
mix with the population. On the other hand, if an alien is not discovered until some time
after exercising his free will within the United States, he has entered free from official
restraint.25
A person is “found in” the United States when his physical presence is discovered
and noted by the immigration authorities.26
“Elude” means to avoid or escape from, by quickness or cunning, or to escape
detection.27
The government does not have to prove that the defendant knew he was not entitled

24

United States v. Sotelo, 109 F.3d 1446, 1448 (9th Cir. 1997).
United States v. Gonzalez-Torres, 309 F.3d 594, 598 (9th Cir. 2002).
26
United States v. Uribe-Rios, 558 F.3d 347, 352 (4th Cir. 2009) (quoting United States v.
Reyes-Nava, 169 F.3d 278, 280 (5th Cir. 1999)).
27
United States v. Oscar, 496 F.2d 492, 494 (9th Cir. 1974).
25

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to enter [or re-enter] the United States without the permission of the Attorney General.28
§ 1325(c)
P

First, that the defendant knowingly entered into a marriage with a United States
citizen;

P

Second, that the defendant entered into the marriage for the purpose of evading
any provision of the immigration laws of the United States; and

P

Third, that the defendant knew of said purpose and had reason to know that his
conduct was unlawful.29

The government need not prove that the defendant knew the specific law being
violated, but that he was violating some immigration law.30
§ 1325(d)
P

First, that the defendant knowingly established a commercial enterprise;

P

Second, that the defendant established the commercial enterprise for the purpose
of evading any provision of the immigration laws of the United States; and

P

Third, that the defendant knew or had reason to know of the relevant
immigration laws.

017
7/2

7/2
d0

we
ie(4th Cir. 2015), the Fourth Circuit rejected
In United States v. Sonmez, 777 F.3dv
6, 684
the defendant’s argument that the Government must prove the sole reason the marriage
422
was entered into was to obtain an immigration benefit. The court recognized that “the
-one’s spouse is a relevant consideration in determining
16
intent to establish a life with
. 690. “However, the relevance of this concept does not transform
whether a 777 Noat
F.3d
that consideration into an element of the offense . . . .” Id. The court concluded that “the
____________________NOTE____________________

district court did not abuse its discretion in refusing to instruct the jury that the
government had the burden of proving that Sonmez did not ‘intend to establish a life’ with
[the woman he married]. . . . [T]he test of Section 1325(c) does not provide any support
for such a requirement.” Id.
In United States v. Chowdhury, 169 F.3d 402, 407 (6th Cir. 1999), the Sixth Circuit
rejected the appellant’s argument that the government must prove that the defendant knew
the specific law being violated. The Sixth Circuit also rejected his argument that the jury
instruction should have included, as part of the second element, “with the intention and
for the sole purpose of evading the immigration laws.”
The Ninth Circuit has extensive case law on the term “entry.” “Entry” is defined as
physical presence free from official restraint.31 According to the Ninth Circuit, other

28

United States v. Pena-Cabanillas, 394 F.2d 785, 790 (9th Cir. 1968), abrogated on other
grounds by United States v. Smith-Baltiher, 424 F.3d 913, 920 (9th Cir. 2005).
29
United States v. Sonmez, 777 F.3d 684, 687 (4th Cir. 2015).
30
United States v. Chowdhury, 169 F.3d 402, 407 (6th Cir. 1999).
31
United States v. Oscar, 496 F.2d 492, 493 (9th Cir. 1974). “Illegal aliens who technically
had crossed the international border but were in the constructive custody of immigration authorities

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circuits have established a similar doctrine. United States v. Vela-Robles, 397 F.3d 786,
789 n.3 (9th Cir. 2004). In United States v. Ramos-Godinez, 273 F.3d 820, 823-24 (9th
Cir. 2001), a § 1326 prosecution, the court reiterated that mere physical presence on
United States soil is not enough. To have entered the United States, the alien must not
only have crossed the border, but also be exercising his free will while physically present
in this country. Thus, the government must establish that the alien entered the United
States “free from official restraint at the time officials discovered or apprehended him.”
273 F.3d at 824. The concept of “official restraint” includes continuous surveillance from
the border. See United States v. Vela-Robles, 397 F.3d 786, 789 (9th Cir. 2004) (“An alien
must be in the visual or physical grasp of the authorities at all times to show that he is
under official restraint.”) (citation omitted). When the defendant has managed to evade
detection, even for a brief period, he has “entered” the United States.
In United States v. Madrigal-Valadez, 561 F.3d 370, 376 (4th Cir. 2009), the court
stated “[o]ur research has not disclosed any authority that makes the status of being in the
United States after entering in violation of § 1325(a) a separate crime.”
8 U.S.C. § 1326(a) REENTRY OF REMOVED ALIEN

017
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7/2
d0

Title 8, United States Code, Section 1326(a) makes it a crime for a removed alien to
reenter 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

e
ew
ithat is, not a citizen of the United States;
First, that the defendant is an alien,
v
6,been denied admission, excluded, deported, or
Second, that the defendant had
22
removed or had 6-4 the United States while an order of exclusion,
departed
deportation, or removal was outstanding;
o. 1
N
Third, that the defendant entered, [attempted to enter,] or was found in the
United States;

P

Fourth, that the defendant failed to secure the express permission of the Attorney
General to reenter [or attempt to reenter]; and

P

Fifth, the defendant did so voluntarily.32

AGGRAVATED PENALTIES §§ 1326(b)(3) and (4)33

at that time are not said to have entered the United States. Continuous surveillance by immigration
authorities can be sufficient to place an alien under official restraint.” United States v. Aguilar, 883
F.2d 662, 693 (9th Cir. 1989), superceded by 8 U.S.C. § 1324.
32
See United States v. Espinoza-Leon, 873 F.2d 743, 746 (4th Cir. 1989) (§ 1326 is a general
intent crime). But see United States v. Gracidas-Ulibarry, 231 F.3d 1188, 1191-92 (9th Cir. 2000)
(when attempt to reenter is alleged, mens rea is elevated to specific intent).
See also United States v. De La Pava, 268 F.3d 157, 160-62 (2d Cir. 2001) (omission of the
term “alien” did not render indictment charging § 1326 violation invalid); United States v. JaimesBustos, 360 F. App’x 481 (4th Cir. 2010).
33
In United States v. Crawford, 18 F.3d 1173 (4th Cir. 1994), the Fourth Circuit held that
§ 1326(b), and particularly § (b)(2), is a sentence enhancement and not an element. In AlmendarezTorres v. United States, 523 U.S. 224 (1998), the Supreme Court held that Congress set forth a
sentencing factor in subsection (b)(2) and not a separate criminal offense. Clearly, Sections (b)(1) and

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1. Was the defendant previously excluded from the United States [pursuant to 8
U.S.C. § 1225(c)] or removed from the United States [pursuant to 8 U.S.C.
§ 1231(a)(4)(B)].
“Alien” means any person not a citizen or national of the United States. [8 U.S.C.
§ 1101(a)(3).
A “national” is 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)]
The term does not include a person who illegally enters the United States and
subjectively considers himself a person who owes permanent allegiance to the United
States.34
To “enter,” an alien must cross the United States border free from official restraint.
An alien is under official restraint if, after crossing the border without authorization, he is
deprived of his liberty and prevented from going at large within the United States. An
alien does not have to be in the physical custody of the authorities to be officially
restrained. Restraint may take the form of surveillance, unbeknownst to the alien. When
under surveillance, the alien has still not made an entry despite having crossed the border
with the intention of evading inspection, because he lacks the freedom to go at large and
mix with the population. On the other hand, if an alien is not discovered until some time
after exercising his free will within the United States, he has entered free from official
restraint.35

017
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7/2
d0

e
iew
,v

226
6-4

A person is “found in” the United States when his physical presence is discovered
and noted by the immigration authorities.36

o. 1
N

The government does not have to prove that the defendant knew he was not entitled
to enter [or re-enter] the United States without the permission of the Attorney General.37
____________________NOTE____________________
In United States v. Uribe-Rios, 558 F.3d 347 (4th Cir. 2009), the court held that the
statute of limitations does not begin to run until the defendant’s presence as well as the
illegal status of that presence is discovered by federal immigration authorities. The
immigration agency’s discovery of the alien is not an element of the offense. Moreover,
the “found in” violation of § 1326 is a continuing offense.
“Because a deportation order is an element of the offense of illegal reentry, the
Supreme Court has recognized that an alien can collaterally attack the propriety of the

(2), which set forth recidivism-based enhancements, are not elements. United States v. Cheek, 415
F.3d 349 (4th Cir. 2005). However, the other two enhancements, in Sections (b)(3) and (4), might be
considered elements.
34
United States v. Sotelo, 109 F.3d 1446, 1448 (9th Cir. 1997).
35
United States v. Gonzalez-Torres, 309 F.3d 594, 598 (9th Cir. 2002).
36
United States v. Uribe-Rios, 558 F.3d 347, 352 (4th Cir. 2009) (quoting United States v.
Reyes-Nava, 169 F.3d 278, 280 (5th Cir. 1999)).
37
United States v. Pena-Cabanillas, 394 F.2d 785, 790 (9th Cir. 1968), abrogated on other
grounds by United States v. Smith-Baltiher, 424 F.3d 913, 920 (9th Cir. 2005).

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original deportation order in the later criminal proceeding.” United States v. El Shami,
434 F.3d 659, 663 (4th Cir. 2005) (citing United States v. Mendoza-Lopez, 481 U.S. 828,
838-39 (1987)).
To attack the underlying deportation order successfully, the defendant must
demonstrate that: (a) he exhausted any administrative remedies that may have been
available to seek relief against the order; (b) the deportation proceedings at which the
order was issued improperly deprived the alien of the opportunity for judicial review; and
(c) the entry of the deportation order was fundamentally unfair. 8 U.S.C. § 1326(d).
An order of deportation is insufficient as a matter of law to establish a defendant’s
alien status. United States v. Sotelo, 109 F.3d 1446, 1449 (9th Cir. 1997).
The Ninth Circuit has extensive case law on the term “entry.” “Entry” is defined as
physical presence free from official restraint.38 According to the Ninth Circuit, other
circuits have established a similar doctrine. United States v. Vela-Robles, 397 F.3d 786,
789 n.3 (9th Cir. 2004). In United States v. Ramos-Godinez, 273 F.3d 820, 823-24 (9th Cir.
2001), a § 1326 prosecution, the court wrote that mere physical presence on United States
soil is not enough. To have entered the United States, the alien must not only have crossed
the border, but also be exercising his free will while physically present in this country. Thus,
the government must establish that the alien entered the United States free from official
restraint at the time officials discovered or apprehended him. The concept of “official
restraint” includes continuous surveillance from the border. See Vela-Robles, 397 F.3d at
789 (“An alien must be in the visual or physical grasp of the authorities at all times to show
that he is under official restraint.”).

017
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e
iew
,v

226
6-4

When the defendant has managed to evade detection, even for a brief period, he has
“entered” the United States. In Vela-Robles, the Ninth Circuit declined to extend the
definition to a person who merely tripped a seismic sensor.

o. 1
N

“[A]n indictment alleging attempted illegal reentry under § 1326(a) need not
specifically allege a particular overt act or any other ‘component par[t]’ of the offense.”
United States v. Resendiz-Ponce, 549 U.S. 102, 107 (2007).
12 U.S.C. § 1715z-19

EQUITY SKIMMING

Title 12, United States Code, Section 1715z-19 makes it a crime to use any part of
the rents, assets, income, or other funds derived from property covered by a Department
of Housing mortgage for any purpose other than reasonable and necessary expenses. 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 owner, agent, manager, or otherwise in custody,
control, or possession of a multifamily project or a one- to four-family residence;

38

United States v. Oscar, 496 F.2d 492, 493 (9th Cir. 1974). “Illegal aliens who technically
had crossed the international border but were in the constructive custody of immigration authorities
at that time are not said to have entered the United States. Continuous surveillance by immigration
authorities can be sufficient to place an alien under official restraint.” United States v. Aguilar, 883
F.2d 662, 693 (9th Cir. 1989), superceded by statute, 8 U.S.C. § 1324.

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P

Second, that the property in question was security for a mortgage that was
1. insured, acquired, or held by the Secretary of Housing
and Urban Development;
2. made [pursuant to § 1701q]; or
3. insured or held [pursuant to section 542 of the Housing
and Community Development Act of 1992];

P

Third, that the defendant used or authorized the use of any part of the rents,
assets, proceeds, income, or other funds derived from the property covered by
that mortgage for any purpose other than to meet reasonable and necessary
expenses; and

P

Fourth, the defendant did so willfully.

____________________NOTE____________________

017
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See United States v. Norris, 749 F.2d 1116 (4th Cir. 1984), abrogated on other
grounds by United States v. Gaudin, 471 U.S. 1065 (4th Cir. 1995). The statute was
amended in 1988. § 1715z-4(b) was eliminated, and z-19 was added.

/2
7[L U
0
15 U.S.C. § 1
TRUST IN RESTRAINT OF TRADE
: 7/11/14]
edcrime to combine or conspire to
w
Title 15, United States Code, Section 1imakes it a
v e or with foreign nations. For you to
restrain trade or commerce among the several States
26,
find the defendant guilty, the government must prove each of the following beyond a
2
reasonable doubt:
6-4
P First, that the defendant entered into an agreement with others to restrain trade;
o. 1
N
AST

PDATED

P

Second, that the purpose of the agreement was to restrain trade or commerce
among the several States;

P

Third, that the defendant did so knowingly; in other words, the defendant acted
with knowledge of the probable consequences of his actions;39 and

P

Fourth, that the defendant’s activity was itself in interstate commerce or it had a
substantial effect on interstate commerce.40

39

In United States v. U.S. Gypsum Co., 438 U.S. 422 (1978), the Supreme Court held that
intent is a necessary element of a criminal antitrust violation, but opted for knowledge over purpose.
438 U.S. at 443. Thus, the government does not have to prove that the conduct was undertaken with
the conscious object of producing anticompetitive effects, only that the conduct was undertaken with
knowledge that anticompetitive effects would most likely follow. Id. at 444. In so holding, the Court
did “not mean to suggest that conduct undertaken with the purpose of producing anticompetitive
effects would not also support criminal liability, even if such effects did not come to pass.” Id. at 444
n.21.
40
The jurisdictional requirement may be satisfied under the “in commerce” or the “effect on
commerce” theory. McLain v. Real Estate Bd. Of New Orleans, 444 U.S. 232 (1980). The traditional
mode of analysis seeks the requisite nexus along one or both of two general lines of inquiry unrelated
in terms to particular categories of commercial activities. One inquires whether the activities alleged
to be under illegal restraint lie directly in the flow of interstate commerce; the other, whether though

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An agreement among suppliers upon the prices to charge for their products is an
unreasonable restraint of trade without regard to the reasonableness of the prices or the
good intentions of those who agree.41
An agreement formed for the purpose and with the effect of raising, depressing,
fixing, pegging, or stabilizing the price of a commodity in interstate or foreign commerce
is illegal.42
____________________NOTE____________________
“To prove a conspiracy under § 1 of the Sherman Act, the government must prove
that (1) the defendant entered into a contract, combination or conspiracy, and (2) the
contract, combination or conspiracy amounted to an unreasonable restraint of trade or
commerce among the several States. Cont’l Cablevision of Ohio, Inc. v. Am. Elec. Power
Co., 715 F.2d 1115, 1118 (6th Cir. 1983). Dissemination of price information alone,
without a purpose to restrain competition, does not offend the Act. Similarly, absent an
unlawful purpose, a company may examine and consider in the establishment of its own
rates, the rates charged by similar companies in the industry.” United States v. True, 250
F.3d 410, 423 (6th Cir. 2001) (citation omitted).

017
2
The government does not have to prove that the prices were raised and maintained at
27/
high, arbitrary, and non-competitive levels.
07/
d
The government does not have to prove that the defendant had the power to fix
we
e
prices.
, vi
226
MEETING-COMPETITION DEFENSE (15 U.S.C. § 13(b))
4
16-Code § 13(b) provides that a seller may show that his lower
Title 15, United States
.
price “was made in good faith to meet an equally low price of a competitor ....”
No
43

44

45

This statute “at least requires the seller, who has knowingly discriminated in price, to
show the existence of facts which would lead a reasonable and prudent person to believe
that the granting of a lower price would in fact meet the equally low price of a
competitor.”46
Thus, “a good-faith belief, rather than absolute certainty, that a price concession is

intrastate in nature, they nevertheless have so great an impact on interstate commerce that they
substantially affect it.” United States v. Foley, 598 F.2d 1323, 1328 (4th Cir. 1979). “Under either test,
the impact must be upon an identifiable stream of ‘commerce,’ and not simply upon a particular
business that may be engaged in interstate commerce.” Id. at 1329.
41
United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 212 (1940) (“no showing of socalled competitive abuses or evils which those agreements were designed to eliminate or alleviate may
be interposed as a defense”).
42
Id. at 223.
43
Id. at 222.
44
Id. at 224 n.59.
45
The kind of showing which a seller must make was set out in FTC v. A.E. Staley Mfg. Co.,
324 U.S. 746.
46
Id. at 759.

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being offered to meet an equally low price offered by a competitor is sufficient to satisfy”
this defense.47 Evidence that a seller had received reports of similar discounts from other
customers or was threatened with a termination of purchases if the discount were not met
would be relevant.48
____________________NOTE____________________
Sections 1 and 2 require proof of conspiracies which are reciprocally distinguishable
from and independent of each other although the objects of the conspiracies may partially
overlap. American Tobacco Co. v. United States, 328 U.S. 781, 788 (1946).
The monopolist must have both the power to monopolize and the intent to
monopolize. Id. at 814.
There is no requirement of an overt act, and the amount of interstate or foreign trade
involved is not material–it is the character of the restraint not the amount of commerce
affected. United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 224 n. 59 (1940)(a § 1
prosecution).

017
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Acceptance by competitors of an invitation to participate in a plan, the necessary
consequence of which, if carried out, is a restraint of commerce, is sufficient to establish
an unlawful conspiracy under the Sherman Act, where each competitor knew that
cooperation was essential to the successful operation of the plan. United States v. Foley,
598 F.2d 1323, 1331 (4th Cir. 1979)(a § 1 prosecution) (quoting 3 P. Areeda & D. Turner,
Antitrust Law: An Analysis of Antitrust Principles and Their Application P 841a at 361-62
(1978)).

7/2
d0

e
iew
,v

226
6-4

“Proof that there was a conspiracy, that its purpose was to raise prices, and that it
caused or contributed to a price rise is proof of the actual consummation or execution of a
conspiracy ....” United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 219-20 (1940).

1
o.prices, without more, will not support a criminal conviction under
N
“[A]n effect on

the Sherman Act.” United States v. U.S. Gypsum Co., 438 U.S. 422, 435 (1978).
Venue lies where the agreement was formed, or where some act pursuant to the
conspiracy took place. Socony-Vacuum Oil Co., 310 U.S. at 252.
Certain business agreements, because of their inherent tendency to eliminate
competition, are presumed unreasonable and are therefore illegal per se. Under such
circumstances, the government is not required to prove unreasonablesness. Price fixing,
contract allocation, and bid rigging schemes are typical of those agreements and are
illegal per se under § 1. United States v. Portsmouth Paving Corp., 694 F.2d 312, 317 (4th
Cir. 1983).
Bid-rigging is defined as any agreement between competitors pursuant to which
contract offers are to be submitted to or withheld from a third party. Id. at 325.
“Collusive bidding is an agreement between competitors in a bidding contest to
submit identical bids or, by preselecting the lowest bidder, to abstain from all bona fide
effort to obtain the contract.” Id. at 325, n.18 (quotations and citation omitted).

47
48

United States v. U.S. Gypsum Co., 438 U.S. 422, 453 (1978).
Id. at 455.

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Section 1 proscribes agreement alone. Therefore, the government need not prove an
overt act. Id. at 324.
The practice of inter-seller price verification is not, in itself, unlawful per se. An
effect on prices, without more, will not support a criminal conviction. It is necessary to
show that such a consequence was intended by the alleged participants. United States v.
SIGMA, 624 F.2d 461, 465 (4th Cir. 1980).
Regarding statute of limitations, the government must prove that the offending
agreement continued into the five-year limitations period, but the government is not
required to prove a new agreement. Portsmouth Paving, 694 F.2d at 324.
15 U.S.C. § 2

MONOPOLIZING TRADE

Title 15, United States Code, Section 2 makes it a crime to combine or conspire to
monopolize any part of the trade or commerce among the several States or with foreign
nations. For you to find the defendant guilty, the government must prove each of the
following beyond a reasonable doubt:

7
01or commerce
2
P Second, that the purpose of the agreement was to monopolize trade
27/
/
among the several States;
07words, the defendant acted
P Third, that the defendant did so knowingly, in other
d
we
with knowledge of the probable consequences of his actions; and
vie
P Fourth, that the defendant’s6,
activity was itself in interstate commerce or it had a
2
substantial effect on interstate commerce.
-42 the joint acquisition or maintenance by the members
The term “monopolize” means
. 16that purpose, of the power to control and dominate interstate
of a conspiracy formed for
No
P

First, that the defendant entered into an agreement with others to monopolize
trade;

49

50

49

In United States v. U.S. Gypsum Co., 438 U.S. 422, 443 (1978) (a § 1 prosecution), the
Supreme Court held that intent is a necessary element of a criminal antitrust violation, but opted for
knowledge over purpose. Thus, the government does not have to prove that the conduct was
undertaken with the conscious object of producing anticompetitive effects, only that the conduct was
undertaken with knowledge that anticompetitive effects would most likely follow. Id. at 444. In so
holding, the court did “not mean to suggest that conduct undertaken with the purpose of producing
anticompetitive effects would not also support criminal liability, even if such effects did not come to
pass.” Id. at 444 n.21.
50
The jurisdictional requirement may be satisfied under the “in commerce” or the “effect on
commerce” theory. McLain v. Real Estate Bd. Of New Orleans, 444 U.S. 232 (1980).
In United States v. Foley, 598 F.2d 1323 (4th Cir. 1979), the Fourth Circuit found in this §
1 prosecution that
[t]he traditional mode of analysis seeks the requisite nexus along one or both of two
general lines of inquiry unrelated in terms to particular categories of commercial
activities. One inquires whether the activities alleged to be under illegal restraint lie
directly in the flow of interstate commerce; the other, whether although intrastate
in nature, they nevertheless have so great an impact on interstate commerce that
they substantially affect it.
598 F.2d at 1329. Under either test, “the impact must be upon an identifiable stream of ‘commerce,’
and not simply upon a particular business that may be engaged in interstate commerce.” Id.

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trade and commerce in a commodity to such an extent that they are able, as a group, to
exclude actual or potential competitors from the field, accompanied with the intention and
purpose to exercise such power.
The phrase “attempt to monopolize” means the employment of methods, means and
practices which should, if successful, accomplish monopolization, and which, though
falling short, nevertheless approach so close as to create a dangerous probability of it,
which methods, means and practices are so employed by the members of a combination or
conspiracy and pursuant to a combination or conspiracy formed for the purpose of such
accomplishment.
It is in no respect a violation of the law that a number of individuals or corporations,
each acting for himself or itself, may own or control a large part, or even all of a
particular commodity, or all the business of a particular commodity.
An essential element of the illegal monopoly or monopolization is the existence of a
combination or conspiracy to acquire and maintain the power to exclude competitors to a
substantial extent.51
The government does not have to prove that competitors were actually excluded.
What is required is the power to exclude competitors with the intent and purpose to
exercise that power.52

017
7/2

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d0

It is not the form of the combination or the particular means used but the result to be
achieved that the statute condemns. It is not of importance whether the means used to
accomplish the unlawful objective are in themselves lawful or unlawful.53

e
iew a monopoly exists is not that
The material consideration in determining whether
prices are raised and that competition actually is excluded but that power exists to raise
6, v
2 is
prices or to exclude competition2
do
-4ofwhen it to desired tosuchso. Trade and commercea are
6 efforts that end, power is obtained that few
monopolized when, as 1
a result
persons acting together can control the prices of a commodity moving in interstate
o.
N
commerce. It is not necessary that the power thus obtained should be exercised. Its
existence is sufficient.54
The government must prove a connection between the conspiracy and interstate
commerce. However, the government does not have to prove that the activities of each
charged defendant had an effect on interstate commerce.55
MEETING-COMPETITION DEFENSE56 (15 U.S.C. § 13(b))

Title 15, United States Code § 13(b) provides that a seller may show that his lower
price “was made in good faith to meet an equally low price of a competitor ....”
This statute “at least requires the seller, who has knowingly discriminated in price, to
show the existence of facts which would lead a reasonable and prudent person to believe

51

These four paragraphs were instructions given by the district court, and approved in
American Tobacco Co. v. United States, 328 U.S. 781, 784-85, 815 (1946).
52
See id. at 809.
53
Id. at 809.
54
Id. at 811.
55
See United States v. Foley, 598 F.2d 1323, 1328 (4th Cir. 1979) (a § 1 prosecution).
56
The kind of showing which a seller must make was set out in FTC v. A.E. Staley Mfg. Co.,
324 U.S. 746.

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that the granting of a lower price would in fact meet the equally low price of a
competitor.”57
Thus, “a good-faith belief, rather than absolute certainty, that a price concession is
being offered to meet an equally low price offered by a competitor is sufficient to satisfy”
this defense.58 Evidence that a seller had received reports of similar discounts from other
customers or was threatened with a termination of purchases if the discount were not met
would be relevant.
59

____________________NOTE____________________
Sections 1 and 2 require proof of conspiracies which are reciprocally distinguishable
from and independent of each other although the objects of the conspiracies may partially
overlap. American Tobacco Co. v. United States, 328 U.S. 781, 788 (1946).
The monopolist must have both the power to monopolize and the intent to
monopolize. Id. at 814.
There is no requirement of an overt act, and the amount of interstate or foreign trade
involved is not material–it is the character of the restraint not the amount of commerce
affected. United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 224 n.59 (1940)(§ 1
prosecution).

017
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d0

Acceptance by competitors of an invitation to participate in a plan, the necessary
consequence of which, if carried out, is a restraint of commerce, is sufficient to establish
an unlawful conspiracy under the Sherman Act, where each competitor knew that
cooperation was essential to the successful operation of the plan. United States v. Foley,
598 F.2d 1323, 1331 (4th Cir. 1979) (§ 1 prosecution).

e
iew
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226
6-4

Venue lies where the agreement was formed, or where some act pursuant to the
conspiracy took place. Socony-Vacuum Oil Co., at 252.

o. 1
N

15 U.S.C. § 77q SECURITIES FRAUD [LAST UPDATED : 7/1/14]
Title 15, United States Code, Section 77q makes it a crime to commit securities
fraud. For you to find the defendant guilty, the government must prove each of the
following beyond a reasonable doubt:
§ 77q(a)
P First, that the defendant offered or sold the securities described in the indictment;
P

Second, that in the offer or sale of these securities, the defendant made use of
any means or instruments of transportation or communication in interstate
commerce or made use of the United States mails;

P

Third, that, in the offer or sale of these securities, the defendant did one of the
following:
1. employed any device, scheme, or artifice to defraud, or
2. obtained money or property by means of any untrue statement of a material

57
58
59

480

Id. at 759.
United States v. U.S. Gypsum Co., 438 U.S. 422, 453 (1978).
Id. at 455.

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fact or any omission to state a material fact necessary in order to make the
statements made, in the light of the circumstances under which they made, not
misleading, or
3. engaged in a transaction, practice, or course of business which operated or
would operate as a fraud or deceit upon the purchaser; and
P

Fourth, that the defendant did so knowingly and willfully, that is, deliberately.60

“Security” means any note, stock, treasury stock, bond, debenture, evidence of
indebtedness, any collateral trust certificate, preorganization certificate or subscription,
transferable share, voting trust certificate, certificate of deposit, certificate of deposit for a
security, or any security future (as that term is defined in § 78c(a)(55)(A)), any
investment contract or certificate of interest or participation in any profit-sharing
agreement or in any oil, gas, or mineral royalty or lease (if such investment contract or
interest is the subject of a registration statement with the Commission pursuant to the
provision os 15 U.S.C. § 77a et seq.) any put, call, straddle, option, or privilege on any
security, or group of index of securities (including any interest therein or based on the
value thereof), or any put, call, straddle, option, or privilege entered into on a national
securities exchange relating to foreign currency, any certificate of interest or participation
in, temporary or interim certificate for, receipt for, guarantee of, or warrant or right to
subscribe to or purchase or sell any of the foregoing, and any other instrument commonly
known as a security. Except as specifically provided above, the term “security” does not
include any currency, or any commodity or relate contract or futures contract, or any
warrant or right to subscribe to or purchase or sell any of the foregoing. [§ 78lll(14)]

017
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e
iew includes every contract of sale or
“Sell,” “sale,” “offer to sell,” and “offer for sale”
6, v
disposition of, attempt or offer to dispose of, or solicitation of an offer to buy, a security
22
or interest in a security, for -4 Any security given or delivered with, or as a bonus on
value.
account of, any purchase 6 securities or any other thing, shall be conclusively presumed
. 1 subject
oof the of of such purchase and to have been sold for value. [§ 80ato constitute a N
part
2(a)(34)]
The government is required to prove specific intent only as it relates to the action
constituting the fraudulent misleading or deceitful conduct, but not as to the knowledge
that the instrument used is a security under the Securities Act. The government need only
prove that the object sold or offered is, in fact, a security; it need not be proved that the
defendant had specific knowledge that the object sold or offered was a security.61
It is not necessary for the government to prove that the defendant either purchased or
sold securities. It is sufficient for the government to prove that there were purchases or
sales and that the device or scheme employed was of a kind which would cause

60

“To obtain a conviction for securities fraud under 15 U.S.C. § 77q(a), the government must
show that the defendant willfully offered to sell or actually sold a security through the mails, knowing
that he was employing a statement containing either material misstatements or omissions of material
fact.” United States v. Abdulwahab, 713 F.3d 521, 533 (4th Cir. 2013) (citing United States v. Med.
& Surgical Supply Corp., 989 F.2d 1390, 1402 (4th Cir. 1993)).
61
United States v. Brown, 578 F.2d 1280, 1284-85 (9th Cir. 1978). See also United States
v. Tucker, 345 F.3d 320, 330 (5th Cir. 2003) (defendant’s belief concerning nature of the securities
is irrelevant).

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reasonable investors to rely and that some purchasers or seller did rely.62
No amount of honest belief that the enterprise would ultimately make money can
justify baseless, false or reckless misrepresentations or promises.63
The use of the mails, or any means of communication in interstate commerce, need
not be central to the fraudulent scheme and may be entirely incidental to the fraudulent
scheme.64
The government does not need to prove that the defendant knew that the mails or an
interstate communication would be used.65
The government need not establish a direct or close relationship between the
fraudulent transaction and the purchase or sale of a security. The government need only
show that the fraudulent conduct touches the purchase or sale of the security.66
“Deceptive device” includes so-called insider-trading, when a corporate insider
trades in the securities of his corporation on the basis of material, nonpublic
information.67
“Deceptive device” also includes when a person misappropriates material nonpublic
information in connection with the purchase or sale of securities, in breach of a duty owed
to the source of the information.68

017
2
A person may not gain advantage by conduct constituting secreting, stealing,
27/ in breach of an
purloining or otherwise misappropriating material non-public information
07/
employer-imposed fiduciary duty of confidentiality. d
e
“In connection with the purchase or saleew
of
be satisfied
ibut a security” candisclosure tonot when the
, v when, without
fiduciary gains the confidential information,
his principal,
26
he uses the information to purchase or sell securities. The securities transaction and the
2
breach of duty thus coincide.
6-4
1
In other words,.
o there must be some connection between the alleged fraudulent
N
69

70

conduct and the sale or purchase of securities. The connection is satisfied if there is proof
that accomplishing the fraudulent conduct directly related to the trading process.
Fraudulent conduct may be in connection with the purchase or sale of securities if you
find that the alleged fraudulent conduct touched upon a securities transaction or was of a
62
63

United States v. Persky, 520 F.2d 283, 288 (2d Cir. 1975).
Appropriate instruction, based on the facts. United States v. Boyer, 694 F.2d 58, 60 (3d

Cir. 1982).
64

United States v. Cashin, 281 F.2d 669, 673 (2d Cir. 1960) (“The purpose of the
requirement that there be a use of the mails or other facilities of commerce is solely to create a basis
for federal jurisdiction.”). See also Little v. United States, 331 F.2d 287, 292 (8th Cir. 1964).
65
United States v. Kaufman, 429 F.2d 240, 245 (2d Cir. 1970).
66
United States v. Gruenberg, 989 F.2d 971, 976 (8th Cir. 1993).
67
Referred to as the “traditional” or “classical” theory of insider trading liability, it qualifies
as deceptive “because a relationship of trust and confidence exists between the shareholders of a
corporation and those insiders who have obtained confidential information by reason of their position
with that corporation.” United States v. O’Hagan, 521 U.S. 642, 651-52 (1997) (quoting Chiarella
v. United States, 445 U.S. 222, 228 (1980)).
68
Referred to as the “misappropriation theory.” See id.
69
United States v. Carpenter, 791 F.2d 1024, 1031 (2d Cir. 1986).
70
O’Hagan, 521 U.S. at 657.

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sort that would cause a reasonable investor to rely upon and in connection with it did rely
to purchase or sell a security.71
In other words, while the defendant was a participant in the scheme he used or
caused to be used the facilities of the National Securities Exchange in connection with the
purchase or sale of stock. An act done with knowledge that the national securities
exchange would be used in the ordinary course of business is one which knowingly causes
the exchange to be used.72
The fraudulent and deceptive practice need not result in defrauding a purchaser or
seller of a security, as long the device or practice is used in connection with the purchase
or sale of a security.73
The government does not need to prove that the defendant intended that his action
would influence a security transaction.74
____________________NOTE____________________
Intent to defraud is not an element of § 77q(a). United States v. Tucker,, 345 F.3d
320, 335 n. 46 (5th Cir. 2003).

017
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The statute can be violated even if the ultimate purchaser is not harmed by the
transaction. United States v. Brown, 555 F.2d 336, 338 (2d Cir. 1977).

7/2
d0

In United States v. Gentile, 530 F.2d 461 (2d Cir. 1976), the defendant pledged
fraudulent stock certificates at a bank as collateral for a loan. The court found this type of
transaction to be a sale of a security within § 77q, holding that “[t]here is no requirement
that title pass to constitute a ‘sale’ ... Congress intended that Act to protect defrauded
lenders as well as defrauded buyers.” 530 F.2d at 466-67.

e
iew
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226facts is tantamount to intentional misrepresentation
Reckless indifference for the true
6-4
1United States v. Boyer, 694 F.2d 58, 59-60 (3d Cir. 1982).
in the sale of securities.
.
No
Venue lies where the illegal scheme was devised as well as where the mailed matter
had its impact. United States v. Cashin, 281 F.2d 669, 674-75 (2d Cir. 1960).

In United States v. Rubin, 836 F.2d 1096, 1103 (8th Cir. 1988), a conviction for the
use of a blatantly fraudulent prospectus, based on falsified financial records, was upheld.
Each sale of a security is a separate offense. United States v. Naftalin, 606 F.2d 809,
810 (8th Cir. 1979).
Section 77q(a)(1) prohibits frauds against brokers as well as investors, because the
section does not require injury to a purchaser, unlike § 77q(a)(3). United States v.
Naftalin, 441 U.S. 768, 770, 773 (1979).
Section 77q is intended to cover any fraudulent scheme in an offer or sale of
securities, whether in the course of an initial distribution or in the course of ordinary

71

United States v. Gruenberg, 989 F.2d 971, 976 (8th Cir. 1993) (“After reviewing the jury
instructions as a whole, we conclude that the jury instructions correctly defined the ‘in connection
with’ requirement.”).
72
Instruction approved in United States v. Read, 658 F.2d 1225, 1240-41 (7th Cir. 1980).
73
See United States v. Newman, 664 F.2d 12, 19 (2d Cir. 1981), overruled on other grounds
by McNally v. United States, 483 U.S. 350 (1987), superseded by statute, 18 U.S.C. § 1346.
74
United States v. Read, 658 F.2d 1225, 1241 (7th Cir. 1980) (“No such intent is required.”).

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market trading. Id. at 778.
The statute does not confine its coverage to deception of a purchaser or seller of
securities, but reaches any deceptive device used in connection with the purchase or sale
of any security.
Under the classical theory, a person violates 10b-5 when an insider buys or sells
securities on the basis of material, non-public information.
Under the misappropriation theory, the trader breached a fiduciary obligation to the
party from whom the material nonpublic information was obtained, notwithstanding
whether that party had any connection to, or even an interest in, the securities transaction,
and also without concern as to whether a party who did care about the securities
transaction was defrauded. See United States v. O’Hagan, 92 F.3d 612, 616, 617 (8th Cir.
1996), overruled on other grounds, 521 U.S. 642 (1997).
The two theories [“classical” and “misappropriation”] “are complementary, each
addressing efforts to capitalize on nonpublic information through the purchase or sale of
securities. The classical theory targets a corporate insider’s breach of duty to shareholders
with whom the insider transacts; the misappropriation theory outlaws trading on the basis
of nonpublic information by a corporate outsider in breach of a duty owed not to a trading
party, but to the source of the information. The misappropriation theory is thus designed
to protect the integrity of the securities markets against abuses by outsiders to a
corporation who have access to confidential information that will affect the corporation’s
security price when revealed, but who owe no fiduciary or other duty to that corporation’s
shareholders.” United States v. O’Hagan, 521 U.S. at 642, 652-53 (1997) (citation
omitted).

017
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iew
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226
6-4

Failure to disclose that market prices are being artificially depressed operates as a
deceit on the market place and is an omission of a material fact. United States v. Regan,
937 F.2d 823, 829 (2d Cir. 1991).

o. 1
N

Failure to disclose material information prior to consummating a transaction
constitutes fraud only when the person is under a duty to disclose. Chiarella v. United
States, 445 U.S. 222, 228 (1980). In Chiarella, the defendant learned from confidential
documents of one corporation that it was planning an attempt to secure control of a
second corporation, and he failed to disclose the impending takeover before trading in the
securities of the target company. In reversing the conviction, the Supreme Court held that
a duty to disclose under § 10(b) does not arise from the mere possession of nonpublic
market information. Id. at 235.
Failure to disclose material information may be excused where that information has
been made credibly available to the market by other sources. Raab v. General Physics
Corp., 4 F.3d 286, 289 (4th Cir. 1993) (quoting In re Apple Computer Sec. Litig., 886
F.2d 1109, 1115 (9th Cir. 1989)).
Puffing and nonspecific predictions concerning future growth lack materiality, as do
projections of future performance not worded as guarantees. However, predictions
supported by specific statements of fact that are false or misleading are material. See id. at
289, 290.
A defendant may not be imprisoned for violating this section if he proves that he had
no knowledge of SEC Rule 10b-5. O’Hagan, 521 U.S. at 666.
The following instruction was approved in United States v. Gruenberg, 989 F.2d

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971, 976 (8th Cir. 1993):
First, that the defendant did one or more of the following in connection with the
purchase or sale of a security:
1. employed a device, scheme, or artifice to defraud;
2. made an untrue statement of a material fact or omitted to state a
material fact which made what was said, under the circumstances,
misleading; or
3. engaged in an act, practice or course of business that operated or would
operate, as a fraud or deceit upon a purchaser or seller.
Venue lies in any district wherein any act or transaction constituting the violation
occurred. § 78aa. United States v. Johnson, 510 F.3d 521, 524, 527 (4th Cir. 2007)
(causing transmission of Form 10-Q to Eastern District of Virginia sufficient to sustain
venue).
15 U.S.C. § 714m

COMMODITY CREDIT CORPORATION

017
7/2

Title 15, United States Code, Section 714m makes it a crime to make false
statements to, or steal from, the Commodity Credit Corporation. For you to find the
defendant guilty, the government must prove each of the following beyond a reasonable
doubt:

we
iestatement or report, or overvalued any
First, that the defendant made a false
6, v
security;
2
Second, that the defendant did so for the purpose of influencing in any way the
-42
action of the Commodity Credit Corporation, or for the purpose of obtaining for
. 16 money, property, or anything of value; and
himself or another,
No

§ 714m(a) 75
P
P

P

7/2
d0

Third, that the defendant did so knowingly [concerning a false statement] or
willfully [concerning overvaluing land, property, or security].

§ 714m(b)(i) 76
P

First, that the defendant was connected in any capacity with the Commodity
Credit Corporation or any of its programs;

P

Second, that the defendant embezzled, abstracted, purloined or misapplied any
money, funds, securities, or other things of value, whether belonging to the
Corporation or pledged or otherwise entrusted to the Corporation; and

P

Third, the defendant did so willfully.

§ 714m(b)(ii) 77
P

First, that the defendant was connected in any capacity with the Commodity
Credit Corporation or any of its programs;

P

Second, that the defendant made a false entry in any book, report, or statement

75
76
77

This section is analogous to 18 U.S.C. § 1014.
This section is analogous to 18 U.S.C. § 656.
This section is analogous to 18 U.S.C. § 1005.

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of, or to, the Corporation, or drew any order, or issued, put forth or assigned any
note or other obligation or draft, mortgage, judgment, or decree of the
Corporation; and
P

Third, that the defendant did so with intent to defraud the Corporation, or any
other entity or individual, or any officer, auditor, or examiner of the Corporation.

§ 714m(b)(iii) 78
P

First, that the defendant was connected in any capacity with the Commodity
Credit Corporation or any of its programs;

P

Second, 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 Corporation; and

P

Third, that the defendant did so with intent to defraud the Corporation.

§ 714m(c) 79
P

First, that the defendant stole, concealed, removed, disposed of, or converted to
his own use or to that of another;

P

Second, any property owned or held by, or mortgaged or pledged to the
Corporation, or any property mortgaged or pledged as security for any
promissory note, or other evidence of indebtedness, which the Corporation had
guaranteed or was obligated to purchase upon tender;

017
7/2

7/2
d0

e
iew
P Fourth, that the defendant did , v
6 so willfully.
2
____________________NOTE____________________
-42
. 16
Section 714m(d) has its own conspiracy provision.
No should be interpreted to mean not only false statements of
“[Section] 714m(a)

P

Third, that the value of the property exceeded $500.00;80 and

existing fact but also false and fraudulent promises which the maker does not intend to
perform.” Elmore v. United States, 267 F.2d 595, 603 (4th Cir. 1959).
16 U.S.C. §§ 704 and 707 MIGRATORY BIRD TREATY ACT
Title 16, United States Code, Sections 704 and 707 make certain conduct regarding
migratory birds illegal. For you to find the defendant guilty, the government must prove
each of the following beyond a reasonable doubt:
§ 704(b)(1)
P

First, that the defendant took a migratory bird by the aid of baiting, or on or over
any baited area; and

P

Second, that the defendant knew or reasonably should have known that the area
was a baited area.

78
79
80

486

This section is analogous to 18 U.S.C. § 1005.
This section is analogous to 18 U.S.C. § 658.
If the value of the property is $500 or less, the penalty is a misdemeanor.

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§ 704(b)(2)
P

First, that the defendant placed or directed the placement of bait on or adjacent
to an area; and

P

Second, that the defendant did so for the purpose of causing, inducing, or
allowing any person to take or attempt to take any migratory game bird by the
aid of baiting on or over the baited area.

§ 707(b)(1)
P

First, that the defendant took a migratory bird;

P

Second, that the defendant did so with intent to sell, offer to sell, barter or offer
to barter the migratory bird; and

P

Third, that the defendant did so knowingly.

§ 707(b)(2)
P

First, that the defendant sold, offered for sale, bartered, or offered to barter a
migratory bird; and

P

Second, that the defendant did so knowingly.

017
7/2

“Possession” means the detention and control, or the manual or ideal custody of
anything which may be the subject of property, for one’s use and enjoyment, either as
owner or as the proprietor of a qualified right in it, and either held personally or by
another who exercises it in one’s place and name. Possession includes the act or state of
possessing and that condition of facts under which one can exercise his power over a
corporeal thing at his pleasure to the exclusion of all other persons. Possession includes
constructive possession which means not actual but assumed to exist, where one claims to
hold by virtue of some title, without having actual custody. [50 C.F.R. § 10.12, Sept. 24,
2007]

7/2
d0

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iew
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226
6-4

.1
oto pursue, hunt, shoot, wound, kill, trap, capture, or collect, or attempt
N
“Take” means

to pursue, hunt, shoot, wound, kill, trap, capture, or collect. [50 C.F.R. § 10.12, Sept. 24,
2007 81 ]

Normal agricultural planting, harvesting, or post-harvest manipulation means a
planting or harvesting undertaken for the purpose of producing and gathering a crop, or
manipulation after such harvest and removal of grain, that is conducted in accordance
with official recommendations of State Extension Specialists of the Cooperative
Extension Service of the U.S. Department of Agriculture. [50 C.F.R. § 20.11(g), Aug. 20,
2007]
Normal agricultural operation means a normal agricultural planting, harvesting, postharvest manipulation, or agricultural practice, that is conducted in accordance with
official recommendations of State Extension Specialists of the Cooperative Extension
Service of the U.S. Department of Agriculture. [50 C.F.R. § 20.11(h), Aug. 20, 2007]
Baited area means any area on which salt, grain, or other feed has been placed,
exposed, deposited, distributed, or scattered, if that salt, grain, or other feed could serve as
a lure or attraction for migratory game birds to, on, or over areas where hunters are
attempting to take them. Any such area will remain a baited area for ten days following

81

See also United States v. Chew, 540 F.2d 759, 761 (4th Cir. 1976).

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the complete removal of all such salt, grain, or other feed. [50 C.F.R. § 20.11(j), Aug. 20,
2007]
Baiting means the direct or indirect placing, exposing, depositing, distributing, or
scattering of salt, grain, or other feed that could serve as a lure or attraction for migratory
game birds to, on, or over any areas where hunters are attempting to take them. [50 C.F.R.
§ 20.11(k), Aug. 20, 2007]82
Manipulation means the alteration of natural vegetation or agricultural crops by
activities that include but are not limited to mowing, shredding, discing, rolling, chopping,
trampling, flattening, burning, or herbicide treatments. The term manipulation does not
include the distributing or scattering of grain, seed, or other feed after removal from or
storage on the field where grown. [50 C.F.R. § 20.11(l), Aug. 20, 2007]
____________________NOTE____________________
In United States v. Boynton, 63 F.3d 337 (4th Cir. 1995), the defendant argued that
the grain which constituted the bait came within the regulatory exception in concerning
agricultural operations. The regulation now provides that nothing in the regulation
prohibits the taking of any migratory game bird on or over “lands or areas where seeds or
grains have been scattered solely as the result of a normal agricultural planting,
harvesting, post-harvest manipulation or normal soil stabilization practice.” 50 C.F.R.
§ 20.21(i)(1)(I). The regulation no longer contains “as a result of bona fide agricultural
operations or procedures,” which language the Fourth Circuit said led “to the absurd
result of requiring the prosecution to prove an intent element ....” Id. at 342. The Fourth
Circuit held that the exception for “normal” planting refers to an objective measure of the
agricultural practices of the community. Id. at 345.

017
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226strict liability aspect of the crime by amending
In 1998, Congress eliminated the
6-4
1mens rea requirement.
§ 704(b)(1) to impose a
.
No
16 U.S.C. § 1538

ENDANGERED SPECIES ACT

Title 16, United States Code, Section 1538 makes it a crime to sell in interstate
commerce endangered animals or plants. For you to find the defendant guilty, the
government must prove each of the following beyond a reasonable doubt:

82

However, baiting does not include, among other things, taking birds over the following
lands or areas that are not otherwise baited areas:
“(i) standing crops ... or lands or areas where seeds or grains have been scattered solely as
the result of a normal agricultural planting, harvesting, post-harvest manipulation or normal
soil stabilization practice;
****
(2) ... and where grain or other feed has been distributed or scattered solely as a result of
manipulation of an agricultural crop or other feed on the land where grown, or solely as the result of
a normal agricultural operation. [50 C.F.R. § 20.21(i)]
In United States v. Adams, 174 F.3d 571, 578 (5th Cir. 1999), the Fifth Circuit held that the
above exceptions are not affirmative defenses, but rather “[t]he onus is therefore on the Government
to prove that neither circumstance existed in the present case.”

488

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§ 1538(a)(1)
P

First, that the defendant did one of the following with respect to a species of fish
or wildlife listed as an endangered species:
1. imported into, or exported from the United States such fish or wildlife;
2. took such fish or wildlife within the United States or the territorial sea of the
United States;
3. took such fish or wildlife upon the high seas;
4. possessed, sold, delivered, carried, transported, or shipped, by any means
whatever, such fish or wildlife taken in the United States or the territorial sea
of the United States or the high seas;
5. sold or offered for sale in interstate or foreign commerce such fish or
wildlife; and

P

Second, the defendant did so knowingly.

The government must prove that the defendant acted with general intent to commit
the act which is prohibited by the statute. The government does not have to prove that the
defendant knew that he was violating a particular law.83

017
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§ 1538(a)(2)
P

First, that the defendant did one of the following with respect to a species of
plant listed as an endangered species:

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1. imported into, or exported from the United States such plant;

226
6-4

2. removed and reduced to possession such plant from areas under Federal
jurisdiction; maliciously damaged or destroyed such plant on areas under
Federal jurisdiction; or removed, cut, dug up, or damaged or destroyed such
plant on any other area in knowing violation of any law or regulation of any
state or in the course of any violation of a state criminal trespass law;

o. 1
N

3. delivered, received, carried, transported, or shipped in interstate or foreign
commerce, by any means whatever and in the course of a commercial
activity, such plant;
4. sold or offered for sale in interstate or foreign commerce such plant; and
P

Second, the defendant did so knowingly.

§ 1538(c)
P

First, that the defendant was subject to the jurisdiction of the United States;

P

Second, that the defendant engaged in any trade in endangered species contrary
to the provisions of the Convention on International Trade in Endangered
Species of Wild Fauna and Flora [16 U.S.C § 1532(4)]; and

P

Third, the defendant did so knowingly.

§ 1538(d)
P

First, that the defendant engaged in business as an importer or exporter of fish or

83

United States v. Ivey, 949 F.2d 759, 766 (5th Cir. 1991) (knowledge of the law is not an
element of § 1538).

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wildlife or plants listed as endangered species, or as an importer or exporter of
any amount of raw or worked African elephant ivory;
P

Second, that the defendant did so without first having obtained permission from
the Secretary of the Interior; and

P

Third, that the defendant did so knowingly.
____________________NOTE____________________

Section 1538(g) includes an attempt provision applicable to all provisions.
“Convention” refers to the Convention as of the date an offense is committed, and
therefore includes animals on the endangered species list on the date the offense was
committed. United States v. Ivey, 949 F.2d 759, 764 (5th Cir. 1991).
See also United States v. Clark, 986 F.2d 65 (4th Cir. 1993).
16 U.S.C. § 3372

LACEY ACT

Title 16, United States Code, Section 3372 makes it a crime to import, export, sell,
possess, or transport fish, wildlife, or plants taken illegally, or falsely label fish, wildlife,
or plants. For you to find the defendant guilty, the government must prove each of the
following beyond a reasonable doubt:

017
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§ 3372(a)(1)

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84

P

First, that the defendant knowingly did, or attempted to, import or export any
fish, wildlife, or plant;

P

Second, that the fish, wildlife, or plant was taken, possessed, transported, or sold
in violation of any law, treaty, or regulation of the United States, or in violation
of any Indian tribal law [here, the court should instruct on the elements of the
law violated]; and

P

Third, that the defendant knew that the fish, wildlife, or plant was taken,
possessed, transported, or sold in violation of, or in a manner unlawful under,
any underlying law, treaty or regulation.

o. 1
N

226
6-4

§ 3372(a)(2) 85
P

First, that the defendant did, or attempted to, import, export, transport, sell,
receive, acquire, or purchase in interstate or foreign commerce any of the
following:
1. any fish or wildlife taken, possessed, transported, or sold in violation of any
law or regulation of any state or in violation of any foreign law [here, the
court should instruct on the elements of the law violated];
2. any plant taken, possessed, transported, or sold in violation of any law or
regulation of any state [here, the court should instruct on the elements of the
law violated]; or
3. any prohibited wildlife species;

84
85

490

Penalty set forth in § 3373(A)(1)(a).
Penalty set forth in § 3373(d)(1)(B).

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P

Second, that the defendant’s conduct involved the sale or purchase, offer of sale
or purchase, or intent to sell or purchase, fish, wildlife, or plant(s) with a market
value in excess of $350; and

P

Third, that the defendant knew that the fish, wildlife, or plant was/were taken,
possessed, transported, or sold in violation of, or in a manner unlawful under,
any underlying law, treaty or regulation.

The government can establish the requirement of interstate or foreign commerce by
proving that the defendant knew that [fish, wildlife, or plants] would be transported in
interstate commerce and took the steps that began their travel to interstate markets.86
§ 3372(a)(3) 87
P

First, that the defendant did possess, or attempt to possess, any fish or wildlife
taken, possessed, transported, or sold in violation of any law or regulation of any
state or in violation of any foreign law or Indian tribal law, or any plant taken,
possessed, transported, or sold in violation of any law or regulation of any state
[here, the court should instruct on the elements of the law violated];

017 of sale or
2
P Third, that the defendant’s conduct involved the sale or purchase, offer
27/ with a market
purchase, or intent to sell or purchase, fish, wildlife, or plant(s)
07/
value in excess of $350; and
ed
P Fourth, that the defendant knew thatew
the fish, wildlife, or plant was taken,
i
possessed, transported, or sold,inv
violation of, or in a manner unlawful under,
any underlying law, treaty or regulation.
226
4
“Special maritime and 6 use of the United States, and under States” includes
1the territorial jurisdiction of the United the exclusive or lands
reserved or acquired.for
No
concurrent jurisdiction of the United States, or any place purchased or otherwise acquired
P

Second, that the defendant did so within the special maritime and territorial
jurisdiction of the United States;

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.88
§ 3373(d)(3)
P

First, that the defendant made or submitted any false record, account or label for,
or any false identification of, any fish, wildlife, or plant which had been, or was

86

United States v. Fejes, 232 F.3d 696, 703 (9th Cir. 2000) (citing United States v. Atkinson,
966 F.2d 1270, 1275 (9th Cir. 1992), and United States v. Gay-Lord, 799 F.2d 124, 126 (4th Cir.
1986)).
87
Penalty set forth in § 3373(d)(1)(B).
88
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.

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intended to be imported, exported, transported, sold, purchased, or received from
any foreign country, or transported in interstate or foreign commerce;
P

Second, that the fish, wildlife, or plant was/were imported or exported, or
involved the sale or purchase, the offer of sale or purchase, or commission of an
act with intent to sell or purchase, fish, wildlife, or plants with a market value in
excess of $350.00;89 and

P

Third, that the defendant acted knowingly.

The government does not have to prove that the defendant had a duty to file the
records or accounts.90
A sale of fish or wildlife is deemed in violation of this statute if a person, for money
or other consideration, offers or provides guiding, outfitting, or other services, or a
hunting or fishing license or permit, for the illegal taking, acquiring, receiving,
transporting, or possessing of fish or wildlife. [The court should identify the elements of
the underlying illegality of the taking, acquiring, receiving, transporting, or possession.]
[§ 3372(c)(1)]

017
7/2

A purchase of fish or wildlife is deemed in violation of this statute if a person, for
money or other consideration, obtains guiding, outfitting, or other services, or a hunting or
fishing license or permit, for the illegal taking, acquiring, receiving, transporting, or
possessing of fish or wildlife. [The court should identify the elements of the underlying
illegality of the taking, acquiring, receiving, transporting, or possession.] [§ 3372(c)(2)]91

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Market value may be determined by the price that the fish, wildlife, or plant would
bring if sold on the open market, or by the price paid for guiding services in which the
fish, wildlife, or plant was taken.92

226
4
____________________NOTE____________________
16.
The felony penalty in § 3373(d)(1) requires knowledge that the animal or plant was
No
illegally taken.
The misdemeanor penalty in § 3373(d)(2) requires only “exercise of due care should
know” that the animal or plant was illegally taken.
The substantive elements of other laws, be they federal, state, or tribal, are
incorporated in the Lacey Act. United States v. Borden, 10 F.3d 1058, 1062 (4th Cir.
1993). Therefore, the court should instruct on the elements of the law incorporated.
However, the Lacey Act does not incorporate state procedural law. Id.
“In order to violate the Lacey Act a person must do something to wildlife that has
already been ‘taken or possessed’ in violation of law.” United States v. Carpenter, 933
F.2d 748, 750 (9th Cir. 1991). The government claimed that the defendant violated the

89

The penalty is a misdemeanor if the animal or plant was not imported, exported, or had a
market value less then $350. 16 U.S.C. § 3373(d)(3)(B).
90
United States v. Allemand, 34 F.3d 923, 926 (10th Cir. 1994) (“making or submitting false
records is illegal regardless of whether one has a duty to submit those records”).
91
In United States v. Romano, 137 F.3d 677 (1st Cir. 1998), the First Circuit held that
§ 3373(d)(1) does not encompass prospective conduct. Thus, a hunter could be prosecuted for
purchasing guide services only after wildlife was illegally taken.
92
Instruction approved in United States v. Atkinson, 966 F.2d 1270, 1273 (9th Cir. 1992).

492

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Lacey Act by acquiring birds taken in violation of the Migratory Bird Treaty Act, 16
U.S.C. § 703. “The bird must be taken before acquiring it violates the Lacey Act.” Id.
Interstate commerce nexus is an element in § 3372(a)(2), see United States v. GayLord, 799 F.2d 124, 126 (4th Cir. 1986), but not in § 3372(a)(1), where the jurisdictional
basis is a law of the United States or a tribal law. See United States v. Gardner, 244 F.3d
784, 788 (10th Cir. 2001).
Willfulness and materiality are not elements of § 3372(d). United States v. Fountain,
277 F.3d 714, 717 (5th Cir. 2001).
In United States v. Hale, No. 113 F. App’x 108 (6th Cir. 2004), vacated on other
grounds, 545 U.S. 1112 (2005), the defendants argued that the indictment failed to allege
an essential element of § 3372(d). The defendants falsified the identity and address of the
seller, and argued that the indictment did not allege a false identification of the fish. The
court rejected defendants’ argument, finding that the “statute clearly criminalizes making
and submitting false records relating to fish that are sold in interstate commerce. It does
not, as the defendants suggest, criminalize only the false identification of fish (i.e.,
passing off paddlefish caviar as sturgeon caviar).” 113 F. App’x at 112.

017
7/2

“[T]he government need not prove that [the defendant] actually hunted or exported
the animal trophies in violation of a foreign law himself, but only that he received and
acquired them in interstate and foreign commerce knowing that they had been hunted,
possessed or transported in violation of foreign law.” United States v. Mitchell, 985 F.2d
1275, 1284 (4th Cir. 1993).

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In United States v. Fejes, 232 F.3d 696 (9th Cir. 2000), the defendant was convicted
of violating §§ 3372(a)(2)(A) and 3373(d)(1)(B) for providing guide services to two
hunters who took caribou in violation of Alaska law. The Ninth Circuit held that “a ‘sale’
of wildlife for purposes of § 3373(d)(1)(B) [the felony provision] encompasses not only
the agreement to provide guide or outfitting services, but also the actual provision of such
services,” 232 F.3d at 698, and therefore the district court properly instructed the jury as
follows:

o. 1
N

226
6-4

to convict Fejes, the jury must find (1) that Fejes “knowingly engaged in
conduct that involved a sale or purchase of the caribou,” (2) that Fejes “knew
that the caribou had been taken, possessed, transported or sold” in violation of
law, (3) that the market value of the caribou exceeded $350, and (4) that Fejes
“knowingly sold or transported the caribou in interstate commerce.”
Id. at 700.
The criminal penalty section, § 3373(d), has its own venue provision. “[N]ot only in
the district where the violation first occurred, but also in any district in which the
defendant may have taken or been in possession of the said fish or wildlife or plants.” 16
U.S.C. § 3373(d)(2).
20 U.S.C. § 1097

STUDENT LOANS

Title 20, United States Code, Section 1097 makes it a crime to steal or obtain by
fraud federally guaranteed student loans. For you to find the defendant guilty, the
government must prove each of the following beyond a reasonable doubt:
§ 1097(a)

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P

First, that the defendant embezzled, misapplied, stole, or obtained by fraud,93
false statement, or forgery, or failed to refund [or attempted to do so];

P

Second, any funds, assets, or property provided under the federally guaranteed
student aid program [such as Pell grants, 42 U.S.C. § 1070, work-study
programs, 42 U.S.C. § 2753, and the Federal Family Education Loan Program];

P

Third, that the amount of the funds, assets, or property exceeded $200.00; and

P

Fourth, that the defendant did so knowingly and willfully.

L

If by false statement, the statement must be material.

L

If a disputed issue is whether the property stolen had a value exceeding $200.00, the
court should consider given a lesser included offense instruction.

To misapply funds means to use funds in a way that deprives the Department of
Education of its right to make its own decisions as to how the funds or credits were to be
used.94

017
7/2

Misapplication requires the defendant to have intentionally converted funds or
property to his own use or the use of a third party.95

7/2
d0

Conversion 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.96

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To embezzle funds means to take for the defendant’s own use, or the use of another,
funds belonging to the Department of Education over which the defendant had been given
control.97

1
o. defendant may have intended to repay the funds at the time the
The fact that the
N

funds were taken is not a defense. Nor is it a defense that the defendant believed he would
eventually be entitled to the funds, if at the time the funds were taken the defendant acted
knowingly and with the intent to appropriate the funds to use inconsistent with the rights
of the Department of Education.98
§ 1097(b)
P

First, that the defendant made a false statement, furnished false information, or
concealed material information, or attempted to do so;

93

“A traditional element of fraud is the requirement that the defendant intend for someone
to rely upon a particular misrepresentation.” United States v. Ranum, 96 F.3d 1020, 1030 (7th Cir.
1996).
94
Jury instruction from United States v. Bailie, No. 96-30047, 1996 W L 580350 (9th Cir.
Oct. 8, 1996).
95
United States v. Bates, 96 F.3d 964, 968 (7th Cir. 1996). Misapplication implies
conversion. “Fails to refund” “does not imply that a conversion must exist.” United States v. Weaver,
275 F.3d 1320, 1333 (11th Cir. 2001).
96
Morissette v. United States, 342 U.S. 246, 271-72 (1952).
97
Bailie, No. 96-30047, 1996 W L 580350.
98
Id.

494

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P

Second, in connection with the assignment of a federally guaranteed or insured
student loan; and

P

Third, that the defendant did so knowingly and willfully.

§ 1097(c)
P

First, that the defendant made, or attempted to make, an unlawful payment to an
eligible lender as an inducement to make, or to acquire by assignment, a loan
insured by the Secretary of Education; and

P

Second, that the defendant did so knowingly and willfully.

§ 1097(d)
P

First, that the defendant destroyed or concealed, or attempted to destroy or
conceal;

P

Second, any record relating to the provision of assistance of federally guaranteed
or insured student loans;

P

Third, that the defendant did so with intent to defraud the United States or to
prevent the United States from enforcing any right obtained by subrogation; and

P

Fourth, that the defendant did so knowingly and willfully.

017
72
A statement is material if it has a natural tendency to influence, / is capable of
2It isorirrelevant whether
influencing, the decision-making body to which it was addressed.
07/
the false statement actually influenced or affected thed
decision-making process. A false
we
statement’s capacity to influence must be measured at the point in time that the statement
e
was made.
, vi
An act is done willfully when2 is committed voluntarily and purposefully, with the
2 it6
4
specific intent to do something the law forbids, that is with bad purpose, either to disobey
16or disregard the law..
No
99

100

____________________NOTE____________________

Specific intent to injure or defraud someone, whether the United States or another, is
not an element of the misapplication of funds proscribed by § 1097(a). Bates v. United
States, 522 U.S. 23, 25 (1997).
The following charge was upheld in United States v. Redfearn, 906 F.2d 352 (8th
Cir. 1990):
You are instructed that a statement is false if untrue when made and known to
be untrue by the person making it or causing it to be made. A statement or
representation is fraudulent if known to be untrue and made or caused to be
made with the intent to deceive the governmental agency to whom submitted.
This would include a statement made to a loan guaranty agency authorized by
the government.
You are instructed that “willfully” means to do an act voluntarily and
intentionally. An act is done knowingly if the defendant realized what she was
doing and did not act through ignorance, mistake, or accident. You may

99
100

United States v. Sarihifard, 155 F.3d 301, 307 (4th Cir. 1998).
United States v. Weaver, 275 F.3d 1320, 1325 (11th Cir. 2001).

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consider the evidence of defendant’s acts and words, along with all the other
evidence in deciding whether the defendant acted knowingly. You should view
the element of knowingly and willfully by looking at whether the evidence
showed that the defendant knew she was filling out a student loan form falsely.
In this regard your focus should be upon the state of mind of the defendant
when she completed the application for funds under the student guaranteed loan
provision of the federal law.
906 F.2d at 354-55.
The crime is not complete until the loan funds are obtained. In United States v.
Redfearn, 906 F.2d 352 (8th Cir. 1990), the Eighth Circuit found that the offense was a
continuing offense which was begun in the district where the application was filled out,
continued in another district when the loan was approved and completed in the first
district when the funds were received. Therefore, venue was proper in the district where
the loan was approved.
In Redfearn, which was before United States v. Gaudin, 515 U.S. 506 (1995), the
district court found as a matter of law that the false statement was material. Redfearn, 906
F.2d at 354.

017
7/2

7/2 do certain acts
Title 21, United States Code, Section 331 makesd a0
e itthecrime to guilty, the
concerning food, drugs, and cosmetics. For you wfind
to
defendant
i beyond a reasonable doubt:
government must prove each of the followinge
6, v
§ 331(a)
2
-42introduced or delivered for introduction into interstate
P First, that the defendant
6
. caused to be introduced or delivered);
commerce (or1
No
P Second, a food, drug, device, or cosmetic that was adulterated or misbranded;
21 U.S.C. § 331

ADULTERATED OR MISBRANDED FOOD OR DRUGS

and
P

Third, that the defendant did so with intent to defraud or mislead.

§ 331(b)
P

First, that the defendant adulterated or misbranded (or caused the adulteration or
misbranding);

P

Second, of a food, drug, device, or cosmetic in interstate commerce; and

P

Third, that the defendant did so with intent to defraud or mislead.

§ 331(c)
P

First, that the defendant received in interstate commerce any food, drug, device,
or cosmetic that was adulterated or misbranded;

P

Second, that the defendant delivered or proffered delivery of the adulterated or
misbranded food, drug, device, or cosmetic for pay or otherwise; and

P

Third, that the defendant did so with intent to defraud or mislead.101

101

Section 331 is a felony if committed with intent to defraud or mislead. 21 U.S.C.
§ 333(a)(2). Otherwise, the offense is a misdemeanor. In United States v. Ellis, 326 F.3d 550, 556-57

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§ 331(d)
P

First, that the defendant introduced or delivered for introduction into interstate
commerce any article;

P

Second, in violation of [§ 344, when the Secretary finds that any class of food
may be injurious to health because of contamination with micro-organisms; or
§ 355, no person shall introduce any new drug, unless an approval of an
application is effective; or § 360bbb-3, the Secretary may authorize introduction
of a drug, device, or biological product intended for use in an actual or potential
emergency]; and

P

Third, that the defendant did so with intent to defraud or mislead.

§ 331(e)
P

First, that the defendant refused to permit access to or copying of any record
required to be maintained by [enumerated sections], or failed to establish or
maintain any record, or make any report, required by [enumerated sections]; and

P

Second, that the defendant did so with intent to defraud or mislead.

017
P First, that the defendant refused to permit entry or inspection;
2
27/ and
P Second, that the entry or inspection was authorized [by § 374];
07/or mislead.
P Third, that the defendant did so with intent to defraud
d
we
§ 331(h)
vie
,guaranty or undertaking [referred to in
P First, that the defendant gave a
226
§ 333(c)(2)];
4
16- or undertaking was false; and
P Second, that the guaranty
.
No
P Third, that the defendant did so with intent to defraud or mislead.
§ 331(f)

§ 331(i)
P

First, that the defendant forged, counterfeited, simulated, or falsely represented,
or without proper authority used any mark, stamp, tag, label, or other
identification device authorized or required; and

P

Second, that the defendant did so with intent to defraud or mislead.

§ 331(k)
P

First, that the defendant altered, mutilated, destroyed, obliterated, or removed all
or any part of the labeling of a food, drug, device, or cosmetic, or did any other
act with respect to a food, drug, device, or cosmetic (or caused such alteration,

(4th Cir. 2003), the Fourth Circuit approvingly quoted the following instruction:
You are further charged that the defendants could be in violation of the law, even
if they did not act with the intent to defraud or mislead. Therefore, if you find that
the government has proven each of the elements of the offense charged but did not
prove beyond a reasonable doubt that the defendants acted with the intent to defraud
or mislead, you should indicate that you are finding that they have violated the law
without the intent to defraud or mislead.
326 F.3d at 556-57.

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etc. or act);
P

Second, that the act resulted in the food, drug, device, or cosmetic being
adulterated or misbranded;

P

Third, that the act was done while the food, drug, device, or cosmetic was held
for sale after being shipped in interstate commerce; and

P

Fourth, that the defendant did so with intent to defraud or mislead.102

§ 331(t) and § 333(b)(1)(A)
P

First, that the defendant imported into the United States;

P

Second, a prescription drug or a drug composed wholly or partly of insulin
which was manufactured in a state and exported;

P

Third, that the defendant is someone other than the manufacturer of the drug;
and

P

Fourth, that the defendant did so knowingly.

§ 331(t) and § 333(b)(1)(B)
P

017
7/2

First, that the defendant sold, purchased, or traded, or offered to sell, purchase,
or trade;

7/2
P Third, that the defendant did so knowingly. d 0
we
The term “drug sample” means a unit ofedrug, [subject to § 353(b)] which is not
i athe sale of the drug. [§ 353(c)(1)]
intended to be sold and is intended to promote
6, v
§ 331(t) and § 333(b)(1)(C) 2
2
6-4 sold, purchased, or traded, or offered to sell, purchase,
P First, that the 1
. defendant
or trade, o counterfeited;
or
N
P

Second, a drug sample; and

P

Second, a coupon; and

P

Third, that the defendant did so knowingly.

The term “coupon” means a form which may be redeemed, at no cost or at a reduced
cost, for a drug which is prescribed in accordance with § 353(b). [§ 353(c)(2)]
§ 331(t) and § 333(b)(1)(D)
P

First, that the defendant engaged in the wholesale distribution of drugs;

P

Second, that the distribution was in interstate commerce;

P

Third, that the drugs were subject to § 353(b);

P

Fourth, that the defendant was not licensed by a State; and

P

Fifth, that the defendant did so knowingly.

§ 331(w)
P

First, that the defendant did one of the following:
1. knowingly made a false statement in any statement, certificate of analysis,
record, or report required under § 381(d)(3);

102

498

See United States v. Sullivan, 332 U.S. 689, 695 (1948).

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2. failed to submit a certificate of analysis as required under § 381(d)(3);
3. failed to maintain records or to submit records or reports as required under
§ 381(d)(3);
4. released into interstate commerce any article or portion of any article
imported into the United States under § 381(d)(3) or any finished product
made from such article or portion; or
5. failed to export or to destroy any article or portion of any article imported
into the United States under § 381(d)(3) or any finished product made from
such article or portion; and
P

Second, that the defendant did so with intent to defraud or mislead.

L

“Food,” “drug,” “counterfeit drug,” “device,” “cosmetic,” “label,” “immediate
container,” “labeling,” “new drug,” “pesticide chemical,” “raw agricultural
commodity,” “food additive,” “color additive,” “safe,” “new animal drug,” “animal
feed,” “saccharin,” “infant formula,” “high managerial agent,” “drug product,”
“dietary supplement,” “processed food,” “compounded positron emission
tomography drug,” and “antibiotic drug” are all defined in § 321.
Adulterated food is defined in § 342.

017
7/2

7/2
d0

e
iew352.
M isbranded drugs and devices are defined in §
6, v
2
“Knowingly” or “knew”42 that a person, with respect to information, had actual
- means in deliberate ignorance or reckless disregard of the
knowledge of the information, or acted
16
.information. [§ 321(bb)]
truth or falsity of o
the
Nan “intent to defraud” means to act with a specific intent to deceive or
To act with
M isbranded food is defined in § 343.

Adulterated drugs and devices are defined in § 351.

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.103
It does not matter how long after the shipment in interstate commerce that the
alleged adulteration or misbranding occurred, or how many sales occurred in between the
interstate shipment and the alleged adulteration or misbranding, or who received the food,
drug, device, or cosmetic at the end of the interstate shipment.104
The defendant need not have participated personally in the conduct charged in this
case, if the government proves that he held a position of authority and responsibility in the
operation of the business and, by reason of that position, he either failed to prevent the
conduct charged in this case, or failed to correct promptly the conduct charged in this

103

United States v. Ellis, 326 F.3d 550, 556 (4th Cir. 2003).
United States v. Sullivan, 332 U.S. 689, 696 (1948). The purpose of the act is to
“safeguard the consumer by applying the Act to articles from the moment of their introduction into
interstate commerce all the way to the moment of their delivery to the ultimate consumer.” 332 U.S.
at 698.
104

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case. Thus, the government must prove more than just the defendant’s position in the
business organization. The government must prove that the defendant is accountable
because of the responsibility and authority of his position.105
AFFIRMATIVE DEFENSE
The defendant has the burden of coming forward with evidence that he was
powerless to prevent or correct the violation.106
____________________NOTE____________________
Violating § 331 is a felony if a second offense, or if committed with intent to defraud
or mislead. 21 U.S.C. § 333(a)(2). Thus, the lesser included offense does not require
intent to defraud or mislead.
In United States v. Dotterweich, 320 U.S. 277 (1943), the president of a
pharmaceutical company invoked what is now § 335, which requires the Food and Drug
Administration to give a suspect an opportunity to present his views before reporting a
violation to the United States Attorney. The Supreme Court held the giving of such an
opportunity is not a prerequisite to prosecution. Id. at 279.

017
7/2

In United States v. Abbott Laboratories, 505 F.2d 565 (4th Cir. 1974), the court
stated that “scienter is not a necessary element” of § 331(a). However, only those
employees of Abbott who shared in the responsibility of distributing adulterated or
misbranded drugs were criminally liable. And responsibility depended on knowledge,
“and if knowledge is established it depends further on the action or nonaction of the
officer or employee after he has obtained knowledge.” Id. at 573.

7/2
d0

e
iew
,v

226
6-4

The statute imposes strict liability, at least at the misdemeanor level, on those
persons who hold a position of responsibility. See United States v. Park, 421 U.S. 658
(1975); Abbott Laboratories, 505 F.2d 565.

o. 1
N

21 U.S.C. § 333(e) HUMAN GROWTH HORMONES
Title 21, United States Code, Section 333(e) makes it a crime to distribute, or
possess with intent to distribute, human growth hormones. For you to find the defendant
guilty, the government must prove each of the following beyond a reasonable doubt:
P

First, that the defendant distributed, or possessed with intent to distribute;

P

Second, human growth hormone for any use in humans other than the treatment
of a disease or other recognized medical condition; and

P

Third, that the defendant did so knowingly.

AGGRAVATED PENALTY
1. Did the offense involve an individual under 18 years of age?
“Human growth hormone” means somatrem, somatropin, or an analogue of either of
them. [§ 333(e)(4)]

105

United States v. Park, 421 U.S. 658, 671, 673-74, 675 (1975) (“the Act punishes neglect
where the law requires care, or inaction where it imposes a duty”).
106
Id. at 673.

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21 U.S.C. § 622

BRIBERY/MEAT INSPECTION ACT

Title 21, United States Code, Section 622 makes it a crime to give or receive gifts in
connection with meat inspections. For you to find the defendant guilty, the government
must prove each of the following beyond a reasonable doubt:
L Briber
P

First, that the defendant gave, paid, or offered, directly or indirectly;

P

Second, any money or other thing of value;

P

Third, to any inspector or officer or employee of the United States authorized to
perform duties prescribed by the Meat Inspection Act; and

P

Fourth, that the defendant did so with intent to influence the discharge of any
official duty under the Meat Inspection Act.107

L Bribee
P

First, that the defendant was an inspector or officer or employee of the United
States authorized to perform duties prescribed by the Meat Inspection Act;

P

Second, that the defendant accepted any money, gift, or other thing of value;

P

Third, that the money, gift, or other thing of value was from a person, firm,
corporation, or officer, agent, or employee of a firm or corporation; and

P

Third, that the money, gift or thing of value was from a person, firm, or
corporation engaged in commerce; and

P

Fourth, that the money, gift or thing of value was given with any purpose or
intent whatsoever.108

017
7/2

7/2 intent to influence
P Fourth, that the money, gift or thing of value was given with
0
the official action of the inspector.
ed
w
OR
vie
P First, that the defendant was an inspector or officer or employee of the United
26,
2
States authorized to 4
6- perform duties prescribed by the Meat Inspection Act;
1
P Second, o. the defendant accepted any money, gift, or other thing of value;
that
N
The term “commerce” means commerce between any state, any territory, or the
District of Columbia, and any place outside thereof; or within any territory not organized
with a legislative body, or the District of Columbia. [21 U.S.C. § 601(h)]
“Thing of value” must be something of monetary value. And it must be of more than
trivial value.109
The government must prove a connection between the gift and the official duties of
the inspector.110
____________________NOTE____________________
107

United States v. Schaffer, 183 F.3d 833, 845 (D.C. Cir. 1999), vacated as moot, 240 F.3d
35 (D.C. Cir. 2001). “The statute requires an intent to influence, not an attempt to block or to
eviscerate some particular official act.” Id. at 849.
108
See United States v. Seuss, 474 F.2d 385, 387 n.3 (1st Cir. 1973).
109
United States v. Mullens, 583 F.2d 134, 138 (5th Cir. 1978); Seuss, 474 F.2d 390 n.9.
110
Seuss, 474 F.2d at 388.

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“While it is necessary to establish specific intent to sustain a conviction under the
statute as regards a donor ... such intent is not necessary as regards a donee meat
inspector.” United States v. Mullens, 583 F.2d 134, 139 (5th Cir. 1978).
This statute’s “gratuity provision is actually more expansive than the general gratuity
statute [18 U.S.C. § 201(c)], as it seemingly can be triggered without reference to a
particular official act.” United States v. Schaffer, 183 F.3d 833, 846 (D.C. Cir. 1999),
vacated as moot, 240 F.3d 35 (D.C. Cir. 2001).
In United States v. Mullens, 583 F.2d 134 (5th Cir. 1978), the Fifth Circuit approved
the following instruction:
Under the terms of the statute the purpose or intent with which the money, gift,
or things of value was given to the defendant or was accepted by him is
irrelevant. The acceptance by a meat inspector of the United States for any
purpose of money, gifts, or other things of value from a corporation he was
inspecting or should reasonably expect that he would inspect is sufficient to
establish the offense charged. However, the jury must find that he received the
money, gift or other thing of value willfully and knowingly beyond a reasonable
doubt, and not by accident, mistake, inadvertence or misunderstanding.

017
7/2

583 F.2d at 138 n.1.

7/2INTENT TO
21 U.S.C. § 841 DISTRIBUTION OR POSSESSION 0
ed WITH
DISTRIBUTE [L
U
: 8/14/14]
iewBY PHYSICIAN and DISTRIBUTION
(INSTRUCTIONS RE: DISTRIBUTION
6, v
OF CONTROLLED SUBSTANCE ANALOGUE FOLLOW)
422
-Code, Section 841 makes it a crime to distribute a controlled
Title 21, United States
. 16
substance or to possess a controlled substance with intent to distribute it. For you to find
No
the defendant guilty, the government must prove each of the following beyond a
AST

PDATED

reasonable doubt:
P

First, that the defendant distributed the amount of controlled substance alleged in
the indictment;

P

Second, that the defendant knew that the substance distributed was a controlled
substance under the law at the time of the distribution; and

P

Third, that the defendant did so knowingly or intentionally.

OR
P

First, that the defendant possessed the amount of controlled substance alleged in
the indictment;

P

Second, that the defendant knew that the substance possessed was a controlled
substance under the law at the time of the possession; and

P

Third, that the defendant did so with the intent to distribute the controlled
substance.111

AGGRAVATED PENALTIES

111

United States v. Burgos, 94 F.3d 849, 873 (4th Cir. 1996) (en banc); United States v.
Collins, 412 F.3d 515, 519 (4th Cir. 2005).

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1. Did death or serious bodily injury result from the use of the controlled
substance?
2. Specific threshold quantities.112
Distribute means to deliver a controlled substance. [§ 802(11)]
Thus, distribution includes a range of conduct broader than selling controlled
substances and is not limited to just selling controlled substances.113
Deliver means the actual, constructive, or attempted transfer of a controlled
substance or a listed chemical, whether or not there exists an agency relationship.
[§ 802(8)]
You are instructed that, as a matter of law, [the controlled substance charged in the
indictment] is a controlled substance as that term is used in these instructions and in the
indictment and the statute I just read to you. You must, of course, determine whether or
not the substance in question was, in fact [the controlled substance charged in the
indictment].114
Possession means to exercise dominion and control over an item or property,
voluntarily and intentionally.

017
7/2

Possession may be either sole, by the defendant himself, or joint, that is, it may be
shared with other persons, as long as the defendant exercised dominion and control over
the item or property.

7/2
d0

e
iew over property.
Actual possession is defined as physical control
,v
Constructive possession occurs 6 a person exercises or has the power and the
when
2
intention to exercise dominion and control over an item or property.
-42
16
Constructiveo.
possession can be established by evidence, either direct or
circumstantial,N
showing ownership, dominion, or control over the item or property itself,
Possession may be either actual or constructive.

115

or the premises, vehicle, or container in which the item or property is concealed, such that
a person exercises or has the power and intention to exercise dominion and control over
that item or property.116
112

United States v. Promise, 255 F.3d 150 (4th Cir. 2001) (en banc).
United States v. Washington, 41 F.3d 917, 919 (4th Cir. 1994) (“Sharing drugs with
another constitutes ‘distribution.’”).
114
United States v. Cotton, 261 F.3d 397, 402 n.2 (4th Cir. 2001) (district court did not
charge jury on what it must find to convict, but instead instructed that substance qualified as controlled
substance as defined in § 802(6)), overruled on other grounds, 535 U.S. 625 (2002). See 21 U.S.C.
§ 802(6) (“The term ‘controlled substance’ means a drug or other substance, or immediate precursor,
included in schedule I, II, III, IV, or V of part B of this subchapter. The term does not include distilled
spirits, wine, malt beverages, or tobacco, as those terms are defined or used to subtitle E of the Internal
Revenue Code of 1986.”).
115
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).
116
Id. 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. Burgos, 94 F.3d 849, 873 (4th Cir. 1996) (en banc)); United
113

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A defendant’s mere presence at, or joint tenancy of, a location where contraband
is found, or his mere association with another person who possesses contraband, is not
sufficient to establish constructive possession.117 However, proximity to the contraband
coupled with 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 contraband was found.118
Multiple persons possessing a large quantity of drugs and working in concert would
be evidence of constructive possession.119
However, 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.
Intent to distribute may be inferred from a number of factors, including but not
limited to: (1) the quantity of the drugs is greater than for personal use; (2) the packaging
and/or possession of packaging paraphernalia; (3) where the drugs were hidden; and (4)
the amount of cash seized with the drugs.120
You may not infer an intent to distribute from possession of a small quantity of drugs
by itself.121

7
01substance
The government must prove that the defendant possessed the controlled
2
reasonably near the “on or about” date specified in the indictment.7
2 /
07/
Mere presence on the premises where drugs are found, or association with one who
d
possesses drugs, is insufficient to establish possession needed under the statute.
we
e
, vi
____________________NOTE____________________
226
4
United States v. Burgos, 94 F.3d 849 (4th Cir. 1996) (en banc).
16.
“[P]ossession with intent to distribute and distribution are necessarily two different
No
122

123

offenses.” United States v. Randall, 171 F.3d 195, 209 (4th Cir. 1999).

States v. Pearce, 65 F.3d 22, 26 (4th Cir. 1995) (citing United States v. Blue, 957 F.2d 106, 108 (4th
Cir. 1992).
117
United States v. Blue, __ F.3d __, 2015 W L 8479810, at *5 (4th Cir. Dec. 10, 2015).

118

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).
119
Burgos, 94 F.3d at 873.
120
See United States v. Collins, 412 F.3d 515, 519 (4th Cir. 2005); United States v. Fisher,
912 F.2d 728, 730 (4th Cir. 1990); Burgos 94 F.3d at 873 (en banc).
121
Fisher, 912 F.2d at 730.
122
United States v. Smith, 441 F.3d 254, 261 (4th Cir. 2006) (“time is not an element of
possession with the intent to distribute”).
123
United States v. Samad, 754 F.2d 1091, 1096 (4th Cir. 1984).

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Drug quantity is a substantive element of the offense. United States v. Alvarado, 440
F.3d 191, 199 (4th Cir. 2006) (citing United States v. Promise, 255 F.3d 150, 156-57 (4th
Cir. 2001) (en banc)).
In United States v. Ramos, 462 F.3d 329, 332 (4th Cir. 2006), the court commended
the district court for a thorough special verdict form which asked about drug quantities.
In United States v. Swiderski, 548 F.2d 445 (2d Cir. 1977), the Second Circuit held
that “where two individuals simultaneously and jointly acquire possession of a drug for
their own use, intending only to share it together, their only crime is personal drug
abuse–simple joint possession, without any intent to distribute the drug further.” 548 F.2d
at 450. The Fourth Circuit has, on several occasions, declined to reach whether Swiderski
is good law in the Fourth Circuit. See, e.g., United States v. Washington, 41 F.3d 917, 920
n.2 (4th Cir. 1994).
See United States v. Ramos, 462 F.3d 329 (4th Cir. 2006), for the court’s
“contribut[ion] to the ongoing discussion among the circuits regarding the definition of
‘cocaine base’ under 21 U.S.C. § 841.” 462 F.3d at 331. The substance was referred to as
both cocaine base and crack in the indictment, trial, and jury instructions. “We are of
opinion that no further inquiry is necessary than a reference to the statutory text.” Id. at 333.
Congress did not use the term “crack.” The Fourth Circuit agrees with the Second Circuit
that while Congress probably contemplated that cocaine base would include crack, Congress
did not limit the term to that form. Congress used the chemical term cocaine base without
explanation or limitation. Id. at 333-34 (citing United States v. Jackson, 968 F.2d 158, 162
(2d Cir. 1992)).

017
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iof possession with intent to distribute,
Possession is a lesser included offense
6, v
“unless, as a matter of law, the evidence would rule out the possibility of a finding of
22
simple possession, because -4quantity of drugs found was so huge as to require that the
the
case proceed on the . 16that the quantity conclusively has demonstrated an intent to
otheory
distribute.” United States v. Baker, 985 F.2d 1248, 1259 (4th Cir. 1993) (quotations,
N
citations, and alternations in original omitted). See also United States v. Wright, 131 F.3d
1111 (4th Cir. 1997) (fact that defendant found in possession of 3.25 grams of crack
cocaine insufficient alone to require the lesser-included offense instruction requested).
21 U.S.C. § 841 DISTRIBUTION OF CONTROLLED SUBSTANCES BY
PHYSICIAN
Title 21, United States Code, Section 841 makes it a crime for a physician to
distribute controlled substances outside the bounds of his professional medical practice.
For you to find the defendant guilty, the government must prove each of the following
beyond a reasonable doubt:
P

First, that the defendant distributed or dispensed the controlled substance alleged
in the indictment;

P

Second, that the defendant did so knowingly or intentionally, that is to say, that
the defendant knew the substance was a controlled substance under the law; and

P

Third, that the defendant did so outside the usual course of professional

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practice.124
AGGRAVATED PENALTIES
1. Did death or serious bodily injury result from the use of the controlled
substance?
2. Specific threshold quantities.125
Acting outside the bounds of professional medical practice would include writing
prescriptions for the purpose of assisting another in the maintenance of a drug habit or the
personal profit of the physician.126
You are instructed that, as a matter of law, [the controlled substance charged in the
indictment] is a controlled substance as that term is used in these instructions and in the
indictment and the statute I just read to you. You must, of course, determine whether or
not the substance in question was, in fact [the controlled substance charged in the
indictment].127
GOOD FAITH
Good faith is relevant to your determination of whether the defendant acted outside
the bounds of medical practice [or with a legitimate medical purpose] when prescribing
narcotics. However, the good faith must be objective. Good faith means good intentions
and honest exercise of best professional judgment as to a patient’s medical needs. It
connotes an observance of conduct in accordance with what the physician should
reasonably believe to be proper medical practice.128

017
7/2

7/2
d0

e
iew
____________________NOTE____________________
6, v
2
See United States v. Moore, 423 U.S. 122, 142 (1975); United States v. McIver, 470
-42 v. Hurwitz, 459 F.3d 463 (4th Cir. 2006); United
F.3d 550 (4th Cir. 2006);6
United States
o. 1
States v. Singh, 54 F.3d 1182, 1187 (4th Cir. 1995); United States v. Tran Trong Cuong,
N
18 F.3d 1132 (4th Cir. 1994). See also United States v. Alerre, 430 F.3d 681 (4th Cir.
2005), where the court discussed the distinction between the criminal and civil standards
for liability and standard-of-care evidence.
In United States v. McIver, 470 F.3d 550 (4th Cir. 2006), the court found no error in
the following instruction:
There are no specific guidelines concerning what is required to support a
conclusion that a defendant physician acted outside the usual course of
professional practice and for other than a legitimate medical purpose. In making

124

United States v. McIver, 470 F.3d 550 (4th Cir. 2006). In United States v. Hurwitz, 459
F.3d 463, 475 n.7 (4th Cir. 2006), the Fourth Circuit acknowledged that other circuits have concluded
that whether the defendant’s actions were for legitimate medical purposes or were beyond the bounds
of medical practice is not an essential element of a § 841 charge against a practitioner.
125
United States v. Promise, 255 F.3d 150 (4th Cir. 2001) (en banc).
126
United States v. Tran Trong Cuong, 18 F.3d 1132, 1138 (4th Cir. 1994).
127
United States v. Cotton, 261 F.3d 397, 402 n. 2 (4th Cir. 2001) (district court did not
charge jury on what it must find to convict; instructed jury that substance qualified as controlled
substance defined in § 802(6)), overruled on other grounds, 535 U.S. 625 (2002).
128
United States v. Hurwitz, 459 F.3d 463 (4th Cir. 2006), citing United States v. Voorhies,
663 F.2d 30, 34 (6th Cir. 1981). See Judge Floyd’s instruction in Note Section.

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a medical judgment concerning the right treatment for an individual patient,
physicians have discretion to choose among a wide range of options. Therefore,
in determining whether a defendant acted without a legitimate medical purpose,
you should examine all of a defendant’s actions and the circumstances
surrounding the same. If a doctor dispenses a drug in good faith, in medically
treating a patient, then the doctor has dispensed that drug for a legitimate
medical purpose in the usual course of medical practice. That is, he has
dispensed the drug lawfully. Good faith in this context means good intentions,
and the honest exercise of professional judgment as to the patent’s needs. It
means that the defendant acted in accordance with what he reasonably believed
to be proper medical practice. If you find that a defendant acted in good faith in
dispensing the drugs charged in this indictment, then you must find that
defendant not guilty. For you to find that the government has proved this
essential element, you must determine that the government has proved beyond a
reasonable doubt that the defendant was acting outside the bounds of
professional medical practice, as his authority to prescribe controlled
substances was being used not for treatment of a patient, but for the purpose of
assisting another in the maintenance of a drug habit or dispensing controlled
substances for other than a legitimate medical purpose, in other words, the
personal profit of the physician. Put another way, the government must prove as
to each count beyond a reasonable doubt that the defendant dispensed the
specific controlled substance other than for a legitimate medical purpose and
not within the bounds of professional medical practice. A physician’s own
methods do not themselves establish what constitutes medical practice. In
determining whether the defendant’s conduct was within the bounds of
professional practice, you should, subject to the instructions I give you
concerning the credibility of experts and other witnesses, consider the
testimony you have heard relating to what has been characterized during the
trial as the norms of professional practice. You should also consider the extent
to which, if at all, any violation of professional norms you find to have been
committed by the defendant interfered with his treatment of his patients and
contributed to an over prescription and/or excessive dispensation of controlled
substances. You should consider the defendant’s actions as a whole and the
circumstances surrounding them. A physician’s conduct may constitute a
violation of applicable professional regulations as well as applicable criminal
statutes. However, a violation of a professional regulation does not in and of
itself establish a violation of the criminal law. As I just indicated, in
determining whether or not the defendant is guilty of the crimes with which he
is charged, you should consider the totality of his actions and the circumstances
surrounding them and the extent and severity of any violations of professional
norms you find he committed. There has been some mention in this case from
time to time of the standard of care. During the trial the words medical
malpractice may have been used. Those words relate to civil actions. When you
go to see a doctor, as a patient, that doctor must treat you in a way so as to meet
the standard of care that physicians of similar training would have given you
under the same or similar circumstances. And if they fall below that line or
what a reasonable physician would have done, then they have not exercised that
standard of care, which makes them negligent and which subjects themselves to
suits for malpractice. That is not what we’re talking about. We’re talking about

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this physician acting better or worse than other physicians. We’re talking about
whether or not this physician prescribed a controlled substance outside the
bounds of his professional medical practice.
470 F.3d 556 n.9.
In Tran Trong Cuong, the Fourth Circuit approved a charge that included the
following:
[E]vidence that a doctor warns his patients to fill their prescriptions at different
drug stores, prescribes drugs without performing any physical examinations or
only very superficial ones, or asks patients about the amount or type of drugs
they want, may suggest that the doctor is not acting for a legitimate medical
purpose and is outside the usual course of medical practice. ... A doctor
dispenses a drug in good faith in medically treating a patient, then the doctor
has dispensed the drug for a legitimate medical purpose in the usual course of
medical practice. Good faith in this context means good intentions in the honest
exercise of best professional judgment as to a patient’s need. **** If you find
the defendant acted in good faith in dispensing the drug, then you must find him
not guilty.

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In Hurwitz, the court stated the instruction approved in Tran Trong correctly
established a criminal standard of liability, but incorrectly set out a subjective standard for
measuring a physician’s good faith. Instead, the physician’s good faith must be measured
by an objective standard. 459 F.3d at 479.

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21 U.S.C. § 841 DISTRIBUTION OF CONTROLLED SUBSTANCE ANALOGUE
[LAST UPDATED : 1/20/2016]

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Commonly referred to as the “analogue statute,” Section 813 of Title 21 extends the
prohibitions contained in § 841 to substances which are not themselves listed as
controlled substances, but which are chemical analogues of controlled substances. It
reads: “A controlled substance analogue shall, to the extent intended for human
consumption, be treated, for purposes of any Federal law as a controlled substance in
Schedule I.” Accordingly, distribution or possession with intent to distribute controlled
substance analogues is prosecuted under § 841, with the government required to prove
several additional elements related to the controlled substance analogue.
For you to find the defendant guilty, the government must prove each of the
following beyond a reasonable doubt:
P

First, that the defendant has knowledge that the substance is a controlled
substance analogue129 ;

P

Second, that the substance has a chemical structure substantially similar to the
chemical structure of a controlled substance classified under Schedule I or
Schedule II;

P

Third, that the substance has an actual, intended or claimed stimulant,
depressant, or hallucinogenic effect on the central nervous system that is
substantially similar to or greater than such effect produced by a Schedule I or

129

508

McFadden v. United States, 135 S. Ct. 2298 (2015).

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Schedule II controlled substance; and
P

Fourth, that the substance was intended for human consumption.130

A defendant has knowledge that a substance is an analogue when the defendant knows
that the substance was controlled under the Controlled Substances Act or the Analogue Act,
even if the defendant does not know the identity of the substance.131 A defendant also has
knowledge if the defendant knows the specific analogue with which he was dealing, even
if he did not know its legal status as an analogue.132 A defendant knows the specific
analogue with which he is dealing when the defendant possesses a substance with
knowledge that the substance has a substantially similar chemical structure to a controlled
substance and that it produces substantially similar effects on the user as a controlled
substance produces.133 The Government need not show that the defendant had knowledge
of the existence of the Analogue Act to find that the defendant possessed the requisite
knowledge.134
A “controlled substance analogue” means a “substance the chemical structure of which
is substantially similar to the chemical structure of a controlled substance in schedule I or
II; which has a stimulant, depressant, or hallucinogenic effect on the central nervous system
that is substantially similar to or greater than the stimulant, depressant, or hallucinogenic
effect on the central nervous system of a controlled substance in schedule I or II; or with
respect to a particular person, which such person represents or intends to have a stimulant,
depressant, or hallucinogenic effect on the central nervous system that is substantially
similar to or greater than the stimulant, depressant, or hallucinogenic effect on the central
nervous system of a controlled substance in schedule I or II.”135

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“Human consumption” means “the use of a
,v
that introduces the substance into26
the body.”
2
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____________________NOTE____________________
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N
136

In United States v. McFadden, 753 F.3d 432 (4th Cir. 2014), and United States v.
Klecker, 348 F.3d 69 (4th Cir. 2003), the Fourth Circuit held that the mens rea requirement
for a conviction under the Controlled Substance Analogue Enforcement Act (“CSAEA”) is
that the defendant intended the substance to be used for human consumption. On June 18,
2015, the Supreme Court vacated and remanded the Fourth Circuit’s decision in McFadden,
finding that the Government must prove more than just intent by the defendant that the
substance be consumed by humans. McFadden v. United States, 135 S. Ct. 2298 (2015).
The Supreme Court determined that the Government can prove the mens rea for a

130

See United States v. Klecker, 348 F.3d 69, 71 (4th Cir. 2003). W hether a particular
substance qualifies as a controlled substance analogue is a question of fact. Id. at 72.
131
McFadden, 135 S. Ct. at 2305.
132
Id.
133
Id.
134
Id.
135
21 U.S.C. § 802(32)(A).
136
United States v. McFadden, 753 F.3d 432, 440 (4th Cir. 2014), rev’d on other grounds,
135 S. Ct. 2298 (2015).

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CSAEA prosecution one of two ways:
First, it can be established by evidence that a defendant knew that the
substance with which he was dealing is some controlled substance—that is,
one actually listed on the federal drug schedules or treated as such by
operation of the Analogue Act—regardless of whether he knew the
particular identity of the substance. Second, it can be established by
evidence that the defendant knew the specific analogue he was dealing with,
even if he did not know its legal status as an analogue.
Id. at 2305. Under the first method, a defendant has the requisite mental state for a violation
of the CSAEA if he knew the substance was considered an analogue, regardless of whether
the person knew the identity of the specific substance. Id. Under the second method, a
defendant has the requisite mental state if he “knew the specific analogue [he] was dealing
with” and knew the features that make it an analogue, regardless of whether he knew it was
an analogue. Id. Additionally, the Supreme Court found that the Government could prove
the mens rea through either direct or circumstantial evidence. Id. at 2306 n.3. The Court
stated that when the Government attempts to prove the requisite mental state through
circumstantial evidence “it will be left to the trier of fact to determine whether the
circumstantial evidence proves that the defendant knew that the substance was a controlled
substance under the CSA or Analogue Act . . . .” Id.

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21 U.S.C. § 843(a)(3) ACQUIRING , v
26 DRUGS BY
Title 21, United States Code, Section 843 makes it a crime to acquire or obtain a
2
controlled substance by misrepresentation, fraud, deception, or subterfuge. For you to find
6-4 must prove each of the following beyond a
the defendant guilty,.the government
o 1
reasonable doubt:
N
See 21 U.S.C. 841 for other instructions, as appropriate.

P
P
P

First, that the defendant acquired or obtained possession of a controlled
substance;
Second, that the defendant did so by misrepresentation, fraud, deception,
or subterfuge; and
Third, that the defendant did so knowingly and intentionally.

21 U.S.C. § 843(b)

USING COMMUNICATION FACILITY
TO COMMIT DRUG FELONY
Title 21, United States Code, Section 843(b) makes it a crime to use any
communication facility in committing or facilitating a drug felony. 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 a communication facility;
P
Second, that the defendant did so in committing or in causing or
facilitating the commission of a drug felony [the elements of the drug
felony must be identified]; and
P
Third, that the defendant did so knowingly or intentionally.137
“Felony drug offense” means an offense that is punishable by imprisonment for

137

510

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more than one year under any law of the United States or of any state or foreign country
that prohibits or restricts conduct relating to narcotic drugs, marihuana, anabolic steroids,
or depressant or stimulant substances. [21 U.S.C. § 802(44)]
The government must prove the commission of the underlying substantive drug
offense.138
Communication facility means any and all public and private instrumentalities
used or useful in the transmission of writing, signs, signals, pictures, or sounds of all
kinds and includes mail, telephone, wire, radio, and all other means of communication.
[§ 843(b)]
“Facilitating” means to make easier or less difficult, or to assist or aid.139
Thus, to prove that the use of the communication facility facilitated the
commission of a drug felony, the government must establish that the communication made
committing the drug felony easier or less difficult, or assisted or aided the commission of
the drug felony.140
The government must specify and prove the type of communication facility used,
the controlled substance involved, and what is being facilitated with that controlled
substance which constitutes a felony.141
The government does not have to prove who committed the drug felony.142

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27/ Court overruled
In Abuelhawa v. United States, 556 U.S. 816 (2009), the Supreme
07/
the Fourth Circuit and reversed the conviction of a misdemeanant drug user who had used
d
a telephone to order drugs from his supplier. we
e
, vi
21 U.S.C. § 844
SIMPLE26
2 POSSESSION
Title 21, United States Code, Section 844 makes it a crime to possess a controlled
4
substance. For you to find the defendant guilty, the government must prove each of the
16- doubt:
.
following beyondoreasonable
N a that the defendant possessed a controlled substance [amount is an
P
First,
element if the drug is cocaine base]; and
P
Second, that the defendant did so knowingly and intentionally.
The government must prove that the defendant knew that the substance possessed
was a controlled substance under the law at the time of the possession.
Possession means to voluntarily and intentionally exercise dominion and control
over an item or property.
Possession may be either sole, by the defendant himself, or joint, that is, it may be
shared with other persons, as long as the defendant exercised dominion and control over
the item or property.
Possession may be either actual or constructive.

138

United States v. Lee, No. 95-5782, 1996 W L 383917 (4th Cir. July 10, 1996) (citing
United States v. Webster, 639 F.2d 174, 189 (4th Cir. 1981), cert. denied, 454 U.S. 857 (1981);
modified on other grounds on reh’g, 669 F.2d 185 (4th Cir.), cert. denied, 456 U.S. 935 (1982)).
139
United States v. Lozano, 839 F.2d 1020, 1023 (4th Cir. 1988).
140
See id.
141
United States v. Hinkle, 637 F.2d 1154, 115\8 (7th Cir. 1981).
142
United States v. Abuelhawa, 523 F.3d 415, 421 (4th Cir. 2008), overruled on other
grounds, 556 U.S. 816 (2009).

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Actual possession is defined as physical control over property.
Constructive possession occurs when a person exercises or has the power and the
intention to exercise dominion and control over an item or property.143
Constructive possession can be established by evidence, either direct or
circumstantial, 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
a person exercises or has the power and intention to exercise dominion and control over
that item or property.144
However, 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.
The government must prove that the defendant possessed the controlled substance
reasonably near the “on or about” date specified.145
____________________NOTE____________________
United States v. Schocket, 753 F.2d 336, 340 (4th Cir. 1985).
In United States v. Swiderski, 548 F.2d 445 (2d Cir. 1977), the Second Circuit
held that where two individuals simultaneously and jointly acquire possession of a drug
for their own use, intending only to share it together, their only crime is personal drug
abuse–simple joint possession, without any intent to distribute the drug further. The
Fourth Circuit has, on several occasions, declined to reach whether Swiderski is good law
in the Fourth Circuit. See, e.g., United States v. Washington, 41 F.3d 917, 920 n.2 (4th
Cir. 1994).
Simple possession of the 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).

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21 U.S.C. § 846
CONSPIRACY
Title 21, United States Code, Section 846 makes it a crime to conspire with
someone else to commit a drug offense against the laws of the United States. A
conspiracy is an agreement between two or more persons to join together to accomplish
an 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 there was an agreement between two or more persons to

143

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).
144
Id. 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) (citing United States
v. Blue, 957 F.2d 106, 108 (4th Cir. 1992), and United States v. Burgos, 94 F.3d 849, 873 (4th Cir.
1996) (en banc)).
145
United States v. Smith, 441 F.3d 254, 261 (4th Cir. 2006) (“time is not an element of
possession with the intent to distribute”).

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[specify the object of the conspiracy];146
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.147
FOR AGGRAVATED PENALTIES:
P
Fourth, you must determine the type and quantity of controlled substance
attributable to the defendant. You should include the type and quantity
that the defendant himself was involved in, and you should include the
type and quantity that other members of the conspiracy were involved in,
provided that the actions of those other members were in furtherance of
the conspiracy and reasonably foreseeable to the defendant as a necessary
or natural consequence of the conspiracy.148
L Collins instruction149
A special verdict form will be given to you on which, if you find the government
has proved the defendant’s membership in the charged conspiracy beyond a reasonable
doubt, you must use to determine the quantity of drugs attributable to the defendant.
In determining what quantity of controlled substance is attributable to the
defendant, if any, you should consider the following factors:
P
First, the defendant is accountable for the quantity of drugs which he
personally distributed or possessed with intent to distribute;
P
Second, the defendant is also accountable for any quantity of drugs which
he attempted to or planned to distribute or possess with intent to
distribute. Specifically, the defendant is accountable for those drugs even

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If necessary, a special verdict form
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1substance involved. United States v. Rhynes, 196 F.3d 207 (4th Cir. 1999),
and quantity of controlled
.
vacated in partNo
on other grounds, 218 F.3d 310 (4th Cir. 2000) (en banc); United States v. Barnes,
158 F.3d 662, 672 (4th Cir. 1998) (government’s responsibility to seek special verdicts).
146

147

United States v. Strickland, 245 F.3d 368, 384-85 (4th Cir. 2001); United States v.
Burgos, 94 F.3d 849, 857 (4th Cir. 1996)(en banc). However, in United States v. Stewart, 256 F.3d
231, 250 (4th Cir. 2001), the court stated the elements as follows:
“(1) an agreement with another person to violate the law, (2) knowledge of the
essential objectives of the conspiracy, (3) knowing and voluntary involvement, and
(4) interdependence among the alleged conspirators..”
In United States v. Mills, 995 F.2d 480, 483 (4th Cir. 1993), the court identified the essential
elements as (1) an agreement, (2) which the defendant willfully joined, (3) “with intent to accomplish
the criminal purpose of the conspiracy.”
Section 846 does not require proof of an overt act. United States v. Clark, 928 F.2d 639, 641
(4th Cir. 1991).
148
United States v. Collins, 415 F.3d 304, 314 (4th Cir. 2005). In United States v. Aramony,
88 F.3d 1369, 1381 (4th Cir. 1996), the court held that the district court did not abuse its discretion
in omitting the “reasonably foreseeable” language from the Pinkerton instruction. However, in United
States v. Foster, 507 F.3d 233 (4th Cir. 2007), the Court reiterated that “the jury must determine that
the threshold drug amount was reasonably foreseeable to the individual defendant.” 507 F.3d at 250.
The Court also acknowledged that “other [circuit] courts have held that, in drug conspiracy cases, the
jury is not required to determine the amount of drugs attributable to individual co-conspirators; rather,
a jury’s finding of drug amounts for the conspiracy as a whole sets the maximum sentence that each
coconspirator could be given.” Id. at 251 n.12.
149
United States v. Collins, 415 F.3d 304, 314 (4th Cir. 2005).

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if those drugs were never actually obtained or distributed, so long as an
objective of the conspiracy was for the defendant to distribute or possess
with intent to distribute such a quantity of drugs;
P
Third, the defendant is also accountable for any quantity of drugs which
another member of the conspiracy distributed or possessed with intent to
distribute as part of the conspiracy, so long as it was reasonably
foreseeable to the defendant that such a quantity of drugs would be
involved in the conspiracy which he joined;
P
Fourth and finally, the defendant is also accountable for any quantity of
drugs which another member of the conspiracy attempted to or planned to
distribute or possess with intent to distribute, so long as it was reasonably
foreseeable to the defendant that such a quantity of drugs would be
involved in the conspiracy which he joined. The defendant is accountable
for those drugs even if those drugs were never actually obtained or
distributed by other members of the conspiracy, so long as an objective of
the conspiracy was for the other members of the conspiracy to distribute
or possess with intent to distribute such a quantity of drugs.
These last two rules apply even if the defendant did not personally participate in
the acts or plans of his co-conspirators or even if the defendant did not have actual
knowledge of those acts or plans, so long as those acts or plans were reasonably
foreseeable to the defendant. The reason for this is simply that a co-conspirator is deemed
to be the agent of all other members of the conspiracy. Therefore, all of the coconspirators bear criminal responsibility for acts or plans that are undertaken to further
the goals of the conspiracy.
You are instructed that, as a matter of law, [the controlled substance charged in
the indictment] is a controlled substance as that term is used in these instructions and in
the indictment and the statute I just read to you. You must, of course, determine whether
or not the substance in question was, in fact [the controlled substance charged in the
indictment].150
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

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150

United States v. Cotton, 261 F.3d 397, 402 n.2 (4th Cir. 2001) (district court did not
charge jury on what it must find to convict; instructed jury that substance qualified as controlled
substance defined in § 802(6)), overruled on other grounds, 535 U.S. 625 (2002).
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.

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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, 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 all 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.
Once it has been shown that a conspiracy existed, 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.
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 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, mere similarity of conduct among various
persons and the fact that they may have associated with each other or 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

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152

Salinas v. United States, 522 U.S. 52, 63-64 (1997).
United States v. Read, 658 F.2d 1225, 1231 (7th Cir. 1980).
154
The principles stated in these four paragraphs come from United States v. Burgos, 94 F.3d
849, 857-61, 869 (4th Cir. 1996) (en banc).
155
Salinas, 522 U.S. at 65.
153

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thereby become a conspirator.156
The statements 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
Mere knowledge, acquiescence, or approval of a crime is not enough to establish
that an individual is part of a conspiracy.159 The government must show that the defendant
knew the purpose of the conspiracy and took some action indicating his participation.160
The conduct of alleged conspirators can give rise to an inference that an
agreement exists.161
If the government proves that the defendant understood the unlawful nature of the
agreement and intentionally joined in that agreement on one occasion, that is sufficient to
find him guilty of conspiracy, even though the defendant had not participated before and
even though the defendant played only a minor part.162
In determining if the defendant knowingly and voluntarily participated in the
conspiracy, you may consider the purity of the controlled substance, the quantity of the
controlled substance, the presence of equipment used in processing or sale of the
controlled substances, and large amounts of cash or weapons.163
Evidence of a large quantity of controlled substances creates an inference of a
conspiracy.164
ADDITIONAL INSTRUCTIONS, IF APPLICABLE
Buyer-Seller Defense165
Multiple sales of controlled substances can be evidence of a conspiracy to
distribute controlled substances.166 However, mere evidence of a simple buy-sell
transaction is sufficient to prove a distribution violation, but not conspiracy. This is so
because the buy-sell agreement, while illegal in itself, is not an agreement to commit an

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156

Instruction given by the district court and approved in United States v. Heater, 63 F.3d
311, 326 (4th Cir. 1995). See also United States v. Fleschner, 98 F.3d 155, 160 (4th Cir. 1996).
157
United States v. Neal, 78 F.3d 901, 905 (4th Cir. 1996) (citing United States v. Blevins,
960 F.2d 1252, 1255 (4th Cir. 1992)).
158
United States v. Gallardo-Trapero, 185 F.3d 307, 322 (5th Cir. 1999).
159
See United States v. Pupo, 841 F.2d 1235, 1238 (4th Cir. 1988) (en banc).
160
United States v. Chorman, 910 F.2d 102, 109 (4th Cir. 1990).
161
United States v. Collazo, 732 F.2d 1200, 1205 (4th Cir. 1984).
162
United States v. Mabry, 953 F.2d 127, 130 (4th Cir. 1991).
163
Jury so instructed in United States v. Strickland, 245 F.3d 368, 377 (4th Cir. 2001).
164
United States v. Bourjaily, 781 F.2d 539, 545 (6th Cir. 1986).
165
In United States v. Mills, 995 F.2d 480 (4th Cir. 1993), the appellant argued that the
district court should have instructed the jury on the buyer-seller defense. The Fourth Circuit assumed
that there may be instances where one is merely a buyer or seller, but not a conspirator. 995 F2d. at
485. However, “the facts of this case demonstrate [the defendant] was far more than a mere buyer.”
Id.
In United States v. Edmonds, 679 F.3d 169 (4th Cir. 2012), vacated on other grounds, 568
U.S. __, 133 S. Ct. 376 (2012), the court stated that “a conspiracy to commit the distribution [of
narcotics] offense must involve an agreement separate from the immediate distribution conduct that
is the object of the conspiracy.” 649 F.3d at 174.
166
United States v. Sullivan, 455 F.3d 249, 261 (4th Cir. 2006).

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offense, it is the offense of distribution itself. But evidence of any understanding reached
as part of the buy-sell transaction that either party will engage in or assist in further
distribution is sufficient to prove both a distribution violation and a conspiracy violation.
Pinkerton Liability167
A member of a conspiracy who commits another crime during the existence or
life of a conspiracy and commits this other crime in order to further or somehow advance
the goals or objectives of the conspiracy, may be found by you to be acting as the agent of
the other members of the conspiracy. The illegal actions of this person in committing this
other crime 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 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, during the existence
or life of the conspiracy and in furtherance of the goals and objectives of the conspiracy.
You must also find that at the time this offense was committed, the defendant was a
member of the conspiracy.168
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
foreseen 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.169
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.
Whenever it appears beyond a reasonable doubt from the evidence 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 any other person also found to be a member of the conspiracy. These statements
and acts may have occurred in the absence of and without the knowledge of the defendant,

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167

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).
168
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.
169
Irvin, 2 F.3d 72.

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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.170
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 had that effect.
For example, statements made by a conspirator to a non-member of the conspiracy may be
considered to be in furtherance of the conspiracy if they are designed to induce that
person either to join the conspiracy or to act in a way that will assist the conspiracy in
accomplishing its objectives.171
Multiple versus Single Conspiracy172
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.173
Whether the evidence proves a single conspiracy or, instead, multiple

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See United States v. Chorman, 910 F.2d 102, 111 (4th Cir. 1990), 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.

6
22(district court did not abuse discretion in omitting “reasonably
4
See Aramony, 88 F.3d at 1381
16- instruction).
foreseeable” language from Pinkerton
.
United States v. Smith, 441 F.3d 254, 262 (4th Cir. 2006).
No need only instruct on multiple conspiracies if such an instruction is supported
“A court
171

172

by the facts.” United States v. Bowens, 224 F.3d 302, 307 (4th Cir. 2000) (quoting United States v.
Mills, 995 F.2d 480, 485 (4th Cir. 1993)). “A multiple conspiracy instruction is not required unless
the proof demonstrates that the defendant was involved only in a separate conspiracy unrelated to the
overall conspiracy charged in the indictment.” United States v. Squillacote, 221 F.3d 542, 574 (4th
Cir. 2000) (quotation and citation omitted). The Double Jeopardy Clause prevents the government
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).
173
This instruction was approved as correct and fair in United States v. Sullivan, 455 F.3d
248, 259 (4th Cir. 2006).

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conspiracies, is an issue for you, the jury.174
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.175
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.176
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.177
You may find a single conspiracy, despite looseness of organization structure,
changing membership, shifting roles of participants, limited roles and knowledge of some
members.178
A conspiracy is an ongoing crime, and if a criminal conspiracy is established, it is
presumed to continue until its termination is affirmatively shown.179
Withdrawal180
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 coconspirators.181
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

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174

United States v. Banks, 10 F.3d 1044, 1051 (4th Cir. 1993); United States v. Harris, 39
F.3d 1262, 1267 (4th Cir. 1994).
175
Squillacote, 221 F.3d at 574 (quotation and citation omitted).
176
United States v. Johnson, 54 F.3d 1150, 1154 (4th Cir. 1995).
177
United States v. Leavis, 853 F.2d 215, 218-19 (4th Cir. 1988).
178
Banks, 10 F.3d at 1051.
179
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.
180
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.
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).
181
United States v. Walker, 796 F.2d 43, 49 (4th Cir. 1986).

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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.182 Merely
doing nothing or avoiding contact with other members of the conspiracy is not enough.
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.183 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.184
____________________NOTE____________________
“In a conspiracy, two different types of intent are generally required–the basic
intent to 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. U.S.
Gypsum Co., 438 U.S. 422, 444 n.20 (1978). See also United States v. Atkinson, 966 F.2d
1270, 1275 (9th Cir. 1992) (“and (3) the requisite intent to commit the underlying
substantive offense”).
Sections 963 and 846 proscribe separate statutory offenses. Albernaz v. United
States, 450 U.S. 333, 339 (1981).
Aiding and abetting is not a lesser included offense of conspiracy. United States
v. Price, 763 F.2d 640, 642 (4th Cir. 1985).
Conspiracy to possess is a lesser included offense of conspiracy to possess with
intent to distribute, unless, as a matter of law, the evidence would rule out the possibility
of a finding of simple possession because the quantity of drugs found was so huge as to
require that the case proceed on the theory that the quantity conclusively has
demonstrated an intent to distribute. United States v. Baker, 985 F.2d 1248, 1259 (4th Cir.
1993).
The jury must also be instructed on the elements of the object of the conspiracy.
If that crime is charged in a separate substantive count of the indictment, the instruction
can be by reference to that portion of the charge.

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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).
“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).

182

“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.
183
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.
184
United States v. West, 877 F.2d 281, 289 (4th Cir. 1989).

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“Escaping detection and apprehension by police officers further[s] the continued
viability of [a] conspiracy.” United States v. Neal, 78 F.3d 901, 905 (4th Cir. 1996)
(citation omitted).
A conspiracy ends when its central purpose has been accomplished. United States
v. United Medical and Surgical Supply Corp., 989 F.2d 1390, 1399 (4th Cir. 1993).
A conspiracy continues until the “spoils are divided among the miscreants,” and
the payments made constitute overt acts made in furtherance of the conspiracy. United
States v. Automated Sciences Group, Inc., No. 91-5063, 1992 WL 103647 (4th Cir. May
18, 1992). In Automated Sciences, one of the objects of the conspiracy involved sharing
money.
The scope of the conspiratorial agreement determines the duration of the
conspiracy. In Grunewald v. United States, 353 U.S. 391, 397 (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.

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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.
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.”
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. United States
v. Chase, 372 F.2d 453, 460 (4th Cir. 1967).
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.
Factual impossibility is not a defense to an attempt crime or conspiracy. United States v.
Hamrick, 43 F.3d 877, 885 (4th Cir. 1995).

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21 U.S.C. § 846
ATTEMPT
Title 21, United States Code, Section 846 makes it a crime to attempt to commit a
drug offense against the laws 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 intended to [here, the court should instruct the
jury on the elements of the object of the attempt]185 ; and

185

If necessary, a special verdict form should be submitted, so the jury can determine the type
and quantity of controlled substance involved. United States v. Rhynes, 196 F.3d 207 (4th Cir. 1999),
vacated in part on other grounds, 218 F.3d 310 (4th Cir. 2000) (en banc); United States v. Barnes,
158 F.3d 662, 672 (4th Cir. 1998) (“it is the government’s responsibility to seek special verdicts”).

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Second, that the defendant committed an act which constituted a
substantial step toward the commission of [the object of the attempt].186
A substantial step is more than mere preparation, yet may be less than the last act
necessary before the actual commission of the substantive crime.187
You are instructed that, as a matter of law, [the controlled substance charged in
the indictment] is a controlled substance as that term is used in these instructions and in
the indictment and the statute I just read to you. You must, of course, determine whether
or not the substance in question was, in fact [the controlled substance charged in the
indictment].188
21 U.S.C. § 848
CONTINUING CRIMINAL ENTERPRISE
Title 21, United States Code, Section 848 makes it a crime to engage in a
continuing criminal enterprise (CCE). 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 a felony violation of the federal drug
laws [the court must specify the elements of the particular felony
violation or may refer to the instruction if that violation is a separate
substantive count];
P
Second, that this violation was part of a continuing series of violations of
the drug laws, that is, at least three violations of the drug laws;
P
Third, that the series of violations was undertaken by the defendant in
agreement with five or more other persons;
P
Fourth, that the defendant occupied a position of organizer, a supervisory
position, or any other position of management with respect to these other
persons; and
P
Fifth, that the defendant received substantial income or resources from
the continuing series of violations of the drug laws.189
“A continuing series of violations of the drug laws” means a total of three or more
violations of the federal drug laws committed over a period of time with a single or
similar purpose.190
The jury must agree, unanimously, about which specific violations make up the

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See United States v. Pratt, 351 F.3d 131, 135 (4th Cir. 2003).
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.
188
United States v. Cotton, 261 F.3d 397, 402 n.2 (4th Cir. 2001) (district court did not
charge jury on what it must find to convict; instructed jury that substance qualified as controlled
substance defined in § 802(6)), overruled on other grounds, 535 U.S. 625 (2002).
189
United States v. Stewart, 256 F.3d 231, 254 (4th Cir. 2001); United States v. Hall, 93 F.3d
126, 129 (4th Cir. 1996), abrogated on other grounds by Richardson v. United States, 526 U.S. 813
(1999); United States v. Heater, 63 F.3d 311, 316-17 (4th Cir. 1995); United States v. Ricks, 882 F.2d
885, 890-91 (4th Cir. 1989).
190
Instruction given in Hall, 93 F.3d 126. In Hall, the defendant complained that the district
court failed to instruct the jury that it must unanimously agree that the three or more drug violations
were “related” to each other. The Fourth Circuit said there “[t]here was no need to instruct on any
requirement of ‘relatedness.’” 93 F.3d at 129. “[T]he very phrase, ‘continuing series,’ denotes related
events.” Id.
187

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continuing series of violations and that the defendant committed each of the individual
violations necessary to make up the continuing series of violations. In other words, you
must agree on which three drug crimes the defendant committed.191
“Organizer,” “supervisor,” and “management capacity” should be given their
usual and ordinary meaning. The terms imply the exercise of power and authority by a
person who occupies some position of management or supervision, but who need not be
the sole or only organizer, supervisor, or manager of the activities in question. It is
possible for a single criminal enterprise to have more than one organizer.192
The government does not have to prove that the five individuals were supervised
and acted in concert at the same time, or even that they were collectively engaged in at
least one specific offense. The statute does not require that the additional five individuals
be under the direct and immediate control or supervision of the defendant. The
government does not have to prove that the defendant had personal contact with the five
persons because organizational authority and responsibility may be delegated. Rather, the
government need only prove that the defendant occupied a position of organizer, a
supervisory position, or any other position of management. A defendant may not insulate
himself from liability by carefully pyramiding authority so as to maintain fewer than five
direct subordinates.193
The defendant’s relationships with the other persons need not have existed at the
same time, the five persons involved need not have acted in concert at the same time or
with each other, and further the same type of relationship need not exist between the
defendant and each of the five. The defendant did not have to have personal contact with
the five persons because organizational authority and responsibility may be delegated.
Although proof of a supervisory or managerial relationship requires a showing of some
degree of control by the defendant over the persons, such proof is not required to show
that a defendant acted as an organizer. An organizer can be defined as a person who puts
together a number of people engaged in separate activities and arranges them in an
essentially orderly operation or enterprise. A management role may be proved by showing
that the defendant arranged delivery, and set price and credit terms.194
You are instructed that, as a matter of law, [the controlled substance charged in
the indictment] is a controlled substance as that term is used in these instructions and in
the indictment and the statute I just read to you. You must, of course, determine whether
or not the substance in question was, in fact [the controlled substance charged in the
indictment].195
AGGRAVATED PENALTIES:

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§ 848(b)

191

Richardson, 526 U.S. 813, 815 (1999).
Charge approved in United States v. Tipton, 90 F.3d 861, 886 (4th Cir. 1996). A
defendant need not fit the label of kingpin or ringleader, and a CCE may have more than one head.
United States v. Johnson, 54 F.3d 1150, 1155 (4th Cir. 1995).
193
Ricks, 882 F.2d at 891; Heater, 63 F.3d at 317.
194
United States v. Butler, 885 F.2d 195, 200-01 (4th Cir. 1989). The mere showing of a
buyer-seller relationship, without more, is not sufficient under § 848.
195
United States v. Cotton, 261 F.3d 397, 402 n.2 (4th Cir. 2001) (district court did not
charge jury on what it must find to convict; instructed jury that substance qualified as controlled
substance defined in § 802(6)), overruled on other grounds, 535 U.S. 625 (2002).
192

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First, that the defendant was the principal administrator, organizer, or
leader of the enterprise, or was one of several such principal
administrators, organizers, or leaders; and

P

Second, that the continuing criminal enterprise involved at least 30,000
grams of heroin; 150,000 grams of cocaine; 1,500 grams of cocaine base;
3,000 grams of PCP or 30,000 grams of a mixture containing a detectable
amount of PCP; 300 grams of LSD; 12,000 grams of N-phenyl-N-[1-(2phenylethyl)-4-piperidinyl] propanamide or 3,000 grams of a mixture
containing a detectable amount; 30,000 kilograms of marijuana or 30,000
marijuana plants; or 1,500 grams of methamphetamine;

OR
the enterprise received $10 million in gross receipts during any twelvemonth period of its existence for the manufacture, importation, or
distribution of controlled substances.
DEATH PENALTY – § 848(e)
The defendant shall be sentenced to death if you find, unanimously and beyond a
reasonable doubt, the following:
§ 848(e)(1)(A)
P
First, that the defendant was engaged in or working in furtherance of the
continuing criminal enterprise charged in the indictment, or engaged in
[an offense punishable under § 841(b)(1)(A) or § 960(b)(1)];
P
Second, that while so engaged, the defendant either killed or counseled,
commanded, induced, procured, or caused the killing of an individual;
P
Third, the defendant acted intentionally; and
P
Fourth, the death of [the victim] resulted from the activity of the
defendant.196
It is not enough for the government to prove that the defendant killed someone.
The defendant must be engaged in or working in furtherance of the continuing criminal
enterprise and the killing must have occurred while the defendant was so engaged.197
A killing may be committed “in furtherance” of a continuing criminal enterprise
even though it does not actually further the goals of the enterprise. However, the
government must prove that the killing was designed and intended to further the
enterprise, even though it may have failed to fulfill that goal.198
The government does not have to prove that the defendant had full knowledge of
the objectives or the extent of the continuing criminal enterprise.199
§ 848(e)(1)(B)
P
First, that the defendant killed or counseled, commanded, induced,

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See Tipton, 90 F.3d at 887. The Fourth Circuit found this instruction sufficiently required
proof of a substantive as well as merely temporal connection between the § 848(e) murder and the
§ 848(a) CCE, although the substantive connection was not as clearly expressed as it might have been.
See also United States v. Chandler, 996 F.2d 1073, 1097 (11th Cir. 1993).
197
Both a substantive and a temporal connection must be proved between the § 848(e)
murder and the § 848(a) CCE. United States v. Tipton, 90 F.3d 861, 887 (4th Cir. 1996).
198
United States v. McCullah, 76 F.3d 1087, 1103 (10th Cir. 1996).
199
Id. at 1102-03 (§ 848(e) extends to hired henchmen who commit murder to further a drug
enterprise in which they may not otherwise be intimately involved).

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procured, or caused the killing of a Federal, State, or local law
enforcement officer engaged in, or on account of the performance of that
officer’s official duties while the defendant was committing, in
furtherance of, or while the defendant was attempting to avoid
apprehension, prosecution or service of a prison sentence for [any federal
drug felony];
P
Second, that the death of the law enforcement officer resulted from the
activity of the defendant; and
P
Third, that the defendant acted intentionally.200
“Law enforcement officer” means a public servant authorized by law or by a
government agency or Congress to conduct or engage in the prevention, investigation,
prosecution or adjudication of an offense, and includes those engaged in corrections,
probation, or parole functions. [§ 848(e)(2)]
____________________NOTE____________________
Section 846 conspiracy is a lesser included offense of § 848. Rutledge v. United
States, 517 U.S. 292, 307 (1996). However, a lesser included § 846 conspiracy may not
always be coterminous with the larger CCE. Id. at 307, n.17.
A defendant convicted under § 848 may not also be convicted for any predicate
conspiracy charges proved as elements of the § 848 offense. United States v. Wilson, 135
F.3d 291, 303 (4th Cir. 1998).
A CCE offense is different from the predicate offenses. Garrett v. United States,
471 U.S. 773, 779-86 (1985).
In United States v. Tipton, 90 F.3d 861 (4th Cir. 1996), the appellant argued that
the district court should have instructed the jury that it must be unanimous as to the three
predicate violations and the five supervisees. No “special unanimity” instruction was
requested. The Fourth Circuit acknowledged the division among the circuits on whether a
special unanimity instruction is required as to predicate violations, and did not decide that
question because it was not plain error. The court did hold that no special unanimity
instruction is required concerning the five supervisees because the focus of this element is
upon the size of the enterprise rather than the particular identities of those who make up
the requisite number. Id. at 885-86.
The “murder-in-furtherance” provision in § 848(e) may be counted “a part of a
continuing series of violations” making up the proscribed continuing enterprise.
Therefore, the “district court did not err in instructing the jury that it might consider any
murder-in-furtherance violations found under § 848(e) among the predicate violations
required to convict on the CCE count.” Id. at 884.
Using a communication facility in committing a drug felony can also be a
predicate violation in a CCE prosecution. See United States v. Head, 755 F.2d 1486, 1490
(11th Cir. 1985).
Section 848(e) defines an offense; it is not merely a sentencing provision. United
States v. Chandler, 996 F.2d 1073, 1099-1100 (11th Cir. 1993).
An outside hitman, hired by a continuing criminal enterprise is subject to
prosecution under § 848(e), provided he knows he is working to the benefit of the
criminal enterprise. It is inconsequential that the hitman may not otherwise be involved
with the organization. As long as he realizes that he is working to further the enterprise,

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he is subject to § 848(e). United States v. McCullah, 76 F.3d 1087, 1103 n.4 (10th Cir.
1996).
Section 848(e) is not victim-specific. As long as the required nexus is established,
the identity of the actual victim does not matter. Id. at 1103.
21 U.S.C. § 856
MAINTAINING DRUG-INVOLVED PREMISES
Title 21, United States Code, Section 856 makes it a crime to maintain any place
for the purpose of manufacturing, distributing, or using any controlled substance. For you
to find the defendant guilty, the government must prove each of the following beyond a
reasonable doubt:
§ 856(a)(1)
P
First, that the defendant opened, leased, rented, used, or maintained any
place, either permanently or temporarily; and
P
Second, that the defendant did so knowingly; and
P
Third, that the defendant did so for the purpose of manufacturing,
distributing, or using any controlled substance.201
§ 856(a)(2)
P
First, that the defendant managed or controlled, either permanently or
temporarily, as an owner, lessee, agent, employee, occupant, or
mortgagee, any place;
P
Second, that the defendant rented, leased, profited from, or made
available for use the place; and
P
Third, that the defendant did so knowingly and intentionally; and
P
Fourth, that the defendant did so for the purpose of manufacturing,
storing, distributing, or using a controlled substance.202
You are instructed that, as a matter of law, [the controlled substance charged in
the indictment] is a controlled substance as that term is used in these instructions and in
the indictment and the statute I just read to you. You must, of course, determine whether
or not the substance in question was, in fact [the controlled substance charged in the
indictment].203
Where the “place” in question is a residence, the defendant must have a
substantial connection to the home and must be more than a casual visitor.204
However, it is not necessary that the defendant lease or own the “place.” Acts that
evidence “maintenance” are such matters as control, duration, acquisition of the site,
renting or furnishing the site, repairing the site, supervising, protecting, supplying food to
those at the site, and continuity.205
“For the purpose of” means a significant or important reason.206

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United States v. Goff, 404 F. App’x 768 (4th Cir. 2010).
See id.
203
United States v. Cotton, 261 F.3d 397, 402 n.2 (4th Cir. 2001) (district court did not
charge jury on what it must find to convict; instructed jury that substance qualified as controlled
substance defined in § 802(6)), overruled on other grounds, 535 U.S. 625 (2002).
204
United States v. Williams, 923 F.2d 1397, 1403 (10th Cir. 1990).
205
United States v. Russell, 595 F.3d 633, 644 (6th Cir. 2010) (citing United States v. Clavis,
956 F.2d 1079, 1091 (11th Cir. 1992)).
206
Id. at 642-43.
202

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____________________NOTE____________________
See United States v. Valencia-Tepoz, 93 F. App’x 500, 502 (4th Cir. 2004) (“the
offense of maintaining a stash house could involve maintaining a place for drug use
only”).
In Abuelhawa v. United States, 556 U.S.816 (2009), a § 843(b) case, the Court
made the following observation:
The Government does nothing for its own cause by noting that 21 U.S.C.
§ 856 makes it a felony to facilitate “the simple possession of drugs by
others by making available for use ... a place for the purpose of
unlawfully using a controlled substance” even though the crime
facilitated may be a mere misdemeanor. Brief for United States 21
(internal quotation marks and alterations omitted). This shows that
Congress knew how to be clear in punishing the facilitation of a
misdemeanor as a felony, and it only highlights Congress’s decision to
limit § 843(b) to the facilitation of a “felony.”
556 U.S. at 824 n.4.
In United States. v. Verners, 53 F.3d 291 (10th Cir. 1995), the Tenth Circuit
agreed with the Fifth Circuit that “for the purpose of” is synonymous with objective,
intention, and aim. Thus, the defendant must personally have the specific purpose; it is
not sufficient for others to possess it. Although the purpose of the drug offense need not
be the sole purpose for which the place is used, it must be at least one of the primary or
principal uses to which the place is put. The Sixth Circuit, in United States v. Russell, 595
F.3d 633, 643 (6th Cir. 2010), disagreed, stating that the “purpose” need only be
“significant or important.”
The Seventh Circuit has drawn upon a business analogy to interpret the term “for
the purpose of.” United States v. Banks, 987 F.2d 463 (7th Cir. 1993). Evidence that a
place is being ued to run such a business might include: investment in the tools of the
trade (e.g., laboratory equipment, scales, guns and ammunition to protect the inventory
and profits); packaging materials (e.g., baggies, vials, gelcaps); financial records; profits
(either in the form of cash or in expensive merchandise); and the presence of multiple
employees or customers. Verners, at 53 F.3d at 297.

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21 U.S.C. § 858

ENDANGERING LIFE WHILE MANUFACTURING
CONTROLLED SUBSTANCE
Title 21, United States Code, Section 858 makes it a crime to create a substantial
risk of harm to human life while manufacturing a controlled substance. For you to find the
defendant guilty, the government must prove each of the following beyond a reasonable
doubt:
P
First, that the defendant manufactured, or attempted to manufacture, a
controlled substance in violation of federal law, or transported or caused
to be transported materials, including chemicals, to manufacture a
controlled substance in violation of federal law;
P
Second, that while doing so, the defendant created a substantial risk of
harm to a human life other than his own; and
P
Third, that the risk of harm originated from the process of manufacturing
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controlled substance in violation of federal law.207
You are instructed that, as a matter of law, [the controlled substance charged in
the indictment] is a controlled substance as that term is used in these instructions and in
the indictment and the statute I just read to you. You must, of course, determine whether
or not the substance in question was, in fact [the controlled substance charged in the
indictment].208
Substantial means real and significantly large, and harm refers to physical
damage.209
____________________NOTE____________________
In United States v. Evans, 318 F.3d 1011 (10th Cir. 2003), the Tenth Circuit was
impressed that the district court instructed the jury that the government could not satisfy
the risk element by proving that weapons were present where the defendant was
manufacturing methamphetamine, and that the risk had to be to someone other than the
defendant.
The court also noted that “the district court did not read a particular scienter
requirement into § 858, and the parties do not argue that such a requirement exists.” Id. at
1017 n.3.

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21 U.S.C. § 860
DISTRIBUTION NEAR SCHOOLS
Title 21, United States Code, Section 860 makes it a crime to distribute, possess
with intent to distribute, or manufacture a controlled substance within 1,000 feet of a
school, playground, or public housing facility, or within 100 feet of a youth center, public
swimming pool, or video arcade facility. For you to find the defendant guilty, the
government must prove each of the following beyond a reasonable doubt:
§ 860(a)(§ 841(a)(1))
P
First, that the defendant distributed, possessed with intent to distribute, or
manufactured, the amount of controlled substance alleged in the
indictment;
P
Second, that the defendant knew that the substance was a controlled
substance under the law;
P
Third, that the defendant did so in or on, or within one thousand feet of,
the real property comprising a public or private elementary, vocational,
secondary school or a public or private college, junior college, or
university, or a playground or housing facility owned by a public housing
authority, or within 100 feet of a public or private youth center, public
swimming pool, or video arcade facility; and
P
Fourth, that the defendant did so knowingly or intentionally.210
§ 860(a)(§ 856(a)(1))
P
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See United States v. Evans, 318 F.3d 1011, 1016 n.2 (10th Cir. 2003).
United States v. Cotton, 261 F.3d 397, 402 n.2 (4th Cir. 2001) (district court did not
charge jury on what it must find to convict; instructed jury that substance qualified as controlled
substance defined in § 802(6)), overruled on other grounds, 535 U.S. 625 (2002).
209
Evans, 318 F.3d at 1016.
210
See United States v. Burgos, 94 F.3d 849, 873 (4th Cir. 1996) (en banc); United States
v. Collins, 412 F.3d 515, 519 (4th Cir. 2005).
208

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place, either permanently or temporarily;
Second, that the place was within one thousand feet of the real property
comprising a public or private elementary, vocational, secondary school
or a public or private college, junior college, or university, or a
playground or housing facility owned by a public housing authority, or
within 100 feet of a public or private youth center, public swimming pool,
or video arcade facility; and
P
Third, that the defendant did so knowingly and for the purpose of
manufacturing, distributing, or using any controlled substance.
§ 860(a)(§ 856(a)(2))
P
First, that the defendant managed or controlled, either permanently or
temporarily, as an owner, lessee, agent, employee, occupant, or
mortgagee, any place;
P
Second, that the defendant rented, leased, profited from, or made
available for use the place;
P
Third, that the place was within one thousand feet of the real property
comprising a public or private elementary, vocational, secondary school
or a public or private college, junior college, or university, or a
playground or housing facility owned by a public housing authority, or
within 100 feet of a public or private youth center, public swimming pool,
or video arcade facility; and
P
Fourth, that the defendant did so knowingly and intentionally and for the
purpose of manufacturing, storing, distributing, or using a controlled
substance.
§ 860(c)(1)
P
First, that the defendant was at least twenty-one years of age at the time
of the offense;
P
Second, that the defendant employed, hired, used, persuaded, induced,
enticed, or coerced, a person under eighteen years of age to [violate
§ 860– the court must specify the elements]; and
P
Third, that the defendant did so knowingly and intentionally.
§ 860(c)(2)
P
First, that the defendant was at least twenty-one years of age at the time
of the offense;
P
Second, that the defendant employed, hired, used, persuaded, induced,
enticed, or coerced, a person under eighteen years of age to assist in
avoiding detection or apprehension by any law enforcement official for
[any offense under § 860– the court must specify the elements]; and
P
Third, that the defendant did so knowingly and intentionally.
“Playground” means any outdoor facility (including any parking lot appurtenant
thereto) intended for recreation, open to the public, and with any portion thereof
containing three or more separate apparatus intended for the recreation of children
including, but not limited to, sliding boards, swingsets, and teeterboards. [§ 860(e)(1)]
“Youth center” means any recreational facility and/or gymnasium (including any
parking lot appurtenant thereto) intended primarily for use by persons under 18 years of
age, which regularly provides athletic, civic, or cultural activities. [§ 860(e)(2)]
“Video arcade facility” means any facility, legally accessible to persons under 18
years of age, intended primarily for the use of pinball and video machines for amusement
P

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containing a minimum of ten pinball and/or video machines. [§ 860(e)(3)]
“Swimming pool” includes any parking lot appurtenant thereto. [§ 860(e)(4)]
You are instructed that, as a matter of law, [the controlled substance charged in
the indictment] is a controlled substance as that term is used in these instructions and in
the indictment and the statute I just read to you. You must, of course, determine whether
or not the substance in question was, in fact [the controlled substance charged in the
indictment].211
It is not necessary that the government prove that the defendant knew or had
knowledge that he was within one thousand feet of the real property comprising a public
or private elementary, vocational, secondary school or a public or private college, junior
college, or university, or a playground or housing facility owned by a public housing
authority, or within 100 feet of a public or private youth center, public swimming pool, or
video arcade facility.212
It is not necessary that the government prove that the defendant knew or had
knowledge that the juvenile with whom the defendant was dealing was under eighteen
years of age.213

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____________________NOTE____________________
See United States v. Bledsoe, 898 F.2d 430 (4th Cir. 1990). The indictment
alleged a distribution “within one thousand feet of ... a public secondary school,” but the
sale took place 800 feet from a private secondary school. The district court allowed the
government to amend the indictment by deleting the word “public.” Bledsoe has since
been limited to its facts by United States v. Floresca, 38 F.3d 706 (4th Cir. 1994).
“The proper measurement of distance for purposes of § 860 is a straight line; that
is, an ‘as the crow flies’ measurement.” United States v. Hardy, 322 F. App’x 298, 299
(4th Cir. 2009) (citation omitted).

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21 U.S.C. § 861(a) USING MINORS IN DRUG OPERATIONS
Title 21, United States Code, Section 861(a) makes it a crime to use minors to
violate federal drug 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 was at least eighteen years of age at the time of
the offense;
P
Second, that the defendant employed, hired, used, persuaded, induced,
enticed, or coerced, a person under eighteen years of age
1.
to [violate any provision of this subchapter–specify elements] OR
2.
to assist in avoiding detection or apprehension by any law
enforcement official for [any offense of this subchapter–specify
elements] OR
3.
to receive a controlled substance from a person under eighteen
years of age, other than an immediate family member, [in

211

Cotton, 261 F.3d at 402 n.2 (district court did not charge jury on what it must find to
convict; instructed jury that substance qualified as controlled substance defined in § 802(6)), overruled
on other grounds, 535 U.S. 625 (2002).
212
See United States v. Jackson, 443 F.3d 293 (3d Cir. 2006).
213
United States v. Cook, 76 F.3d 596, 602 (4th Cir. 1996); United States v. Chin, 981 F.2d
1275, 1280 (D.C. Cir. 1992)(opinion by then Judge Ruth Bader Ginsburg).

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violation of this subchapter–specify elements]; and
P
Third, that the defendant did so knowingly and intentionally.
You are instructed that, as a matter of law, [the controlled substance charged in
the indictment] is a controlled substance as that term is used in these instructions and in
the indictment and the statute I just read to you. You must, of course, determine whether
or not the substance in question was, in fact [the controlled substance charged in the
indictment].214
It is not necessary that the government prove that the defendant knew or had
knowledge that the juvenile with whom the defendant was dealing was under eighteen
years of age.215
____________________NOTE____________________
Section 861 is a continuing offense for venue purposes. United States v. Chin, 981
F.2d 1275, 1278 (D.C. Cir. 1992).
21 U.S.C. § 863
DRUG PARAPHERNALIA
Title 21, United States Code, Section 863 makes it a crime to sell, transport, or
import, drug paraphernalia. For you to find the defendant guilty, the government must
prove each of the following beyond a reasonable doubt:
§ 863(a)(1)
P
First, that the defendant sold or offered for sale;
P
Second, drug paraphernalia; and
P
Third, that the defendant did so knowingly.216
§ 863(a)(2)
P
First, that the defendant used the mails or any other facility of interstate
commerce to transport;
P
Second, drug paraphernalia; and
P
Third, that the defendant did so knowingly.
§ 863(a)(3)
P
First, that the defendant imported or exported;
P
Second, drug paraphernalia; and
P
Third, that the defendant did so knowingly.
“Drug paraphernalia” means any equipment, product, or material of any kind
which is primarily intended or designed for use in manufacturing, compounding,
converting, concealing, producing, processing, preparing, injecting, ingesting, inhaling, or
otherwise introducing into the human body a controlled substance, possession of which is
unlawful under [federal law]. It includes items primarily intended or designed for use in
ingesting, inhaling, or otherwise introducing marijuana, cocaine, hashish, hashish oil,
PCP, methamphetamine, or amphetamines into the human body, such as (1) metal,
wooden, acrylic, glass, stone, plastic, or ceramic pipes with or without screens, permanent
screens, hashish heads, or punctured metal bowls; (2) water pipes; (3) carburetion tubes

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214

United States v. Cotton, 261 F.3d 397, 402 n.2 (4th Cir. 2001) (district court did not
charge jury on what it must find to convict; instructed jury that substance qualified as controlled
substance defined in § 802(6)), overruled on other grounds, 535 U.S. 625 (2002).
215
United States v. Cook, 76 F.3d 596, 602 (4th Cir. 1996). See also United States v. Chin,
981 F.2d 1275, 1280 (D.C. Cir. 1992).
216
Posters ‘N’ Things, Ltd. v. United States, 511 U.S. 513, 523 (1994).

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and devices; (4) smoking and carburetion masks; (5) roach clips: meaning objects used to
hold burning material, such as a marihuana cigarette, that has become too small or too
short to be held in the hand; (6) miniature spoons with level capacities of one-tenth cubic
centimeter or less; (7) chamber pipes; (8) carburetor pipes; (9) electric pipes; (10) airdriven pipes; (11) chillums; (12) bongs; (13) ice pipes or chillers; (14) wired cigarette
papers; or (15) cocaine freebase kits. [§ 863(d)]
There are two categories of drug paraphernalia: “items primarily intended for
use” and “items designed for use.”
An item is “designed for use” if it is principally used with illegal drugs by virtue
of its objective features or characteristics, in other words, features designed by the
manufacturer.
Thus, an item meets the “designed for use” standard regardless of the knowledge
or intent of the person who sells or transports it.217
The term “primarily intended for use” refers generally to an item’s likely use.218
In determining whether an item constitutes drug paraphernalia, you may consider,
in addition to other evidence, the following:
1.
instructions, oral or written, provided with the item concerning its use;
2.
descriptive materials accompanying the item which explain or depict its
use;
3.
national and local advertising concerning its use;
4.
the manner in which the item is displayed for sale;
5.
whether the owner, or anyone in control of the item, is a legitimate
supplier of like or related items to the community, such as a licensed
distributor or dealer of tobacco products;
6.
direct or circumstantial evidence of the ratio of sales of the item to the
total sales of the business enterprise;
7.
the existence and scope of legitimate uses of the item in the community;
and
8.
expert testimony concerning its use. [§ 863(e)]
The government must prove that the defendant knew that the item involved is
likely to be used with an illegal drug, but the government does not have to prove that the
defendant knew that a particular customer would actually use an item of drug
paraphernalia with illegal drugs.219
The government does not have to prove that the defendant had specific knowledge
that the item involved was “drug paraphernalia” within the meaning of the statute.220

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____________________NOTE____________________
In United States v. Marshall, 332 F.3d 254 (4th Cir. 2003), the district court
refused to include in its instruction the list of examples in the statutory definition. The
Fourth Circuit held the district court did not abuse its discretion in refusing to do so, as
listing the examples “might well have been more confusing than helpful.” Id. at 262.
See discussion of “intended for” and “designed for” concerning destructive
217

Id. at 518 (“The ‘designed for use’ element ... does not establish a scienter requirement.”).
Id. at 521. See also United States v. Marshall, 332 F.3d 254, 260 (4th Cir. 2003).
“Primarily intended” states an objective standard.
219
Posters ‘N’ Things, 511 U.S. at 524.
220
Id. at 524.
218

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devices in 26 U.S.C. § 5861.
21 U.S.C. § 952
IMPORTING CONTROLLED SUBSTANCES
Title 21, United States Code, Section 952 makes it a crime to import a controlled
substance. For you to find the defendant guilty, the government must prove each of the
following beyond a reasonable doubt:
P
First, that the defendant imported into the United States from any place
outside of the United States [or into the customs territory of the United
States from any place outside of the customs territory but within the
United States];
P
Second, the amount of controlled substance alleged in the indictment; and
P
Third, that the defendant did so knowingly or intentionally.221
AGGRAVATED PENALTY
1.
Did death or serious bodily injury result from the use of the controlled
substance?
2.
[Specific threshold quantities.]222
“Import” means any bringing in or introduction of any article into any area [of the
United States]. [§ 951(a)(1)]
“Customs territory of the United States” includes only the States, the District of
Columbia and Puerto Rico. [The Harmonized Tariff Schedule is not published in the
Code. It is published periodically by the United States International Trade Commission.]
[§ 951(a)(2)]
The government must prove that the defendant in some manner participated in or
helped effectuate the act of importing.223
The government must prove that the defendant knew the item being imported was
a controlled substance.224
You are instructed that, as a matter of law, [the controlled substance charged in
the indictment] is a controlled substance as that term is used in these instructions and in
the indictment and the statute I just read to you. You must, of course, determine whether
or not the substance in question was, in fact [the controlled substance charged in the
indictment].225
And the government must prove that the defendant knew that the destination of
the controlled substance would be the United States.226
Evidence of the foreign origin of the controlled substance is a factor to be
considered, but is not sufficient in itself to prove importation.227

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221

See United States v. Samad, 754 F.2d 1091, 1096 (4th Cir. 1984); United States v. Seni,
662 F.2d 277, 280 (4th Cir. 1981).
222
United States v. Promise, 255 F.3d 150 (4th Cir. 2001) (en banc).
223
United States v. Manbeck, 744 F.2d 360, 385 (4th Cir. 1984).
224
Although knowledge that the substance imported is a particular narcotic need not be
proven, § 952(a) is a specific intent statute and requires knowledge that such substance is a controlled
substance. United States v. Restrepo-Granda, 575 F.2d 524, 527 (5th Cir. 1978).
225
United States v. Cotton, 261 F.3d 397, 402 n.2 (4th Cir. 2001) (district court did not
charge jury on what it must find to convict; instructed jury that substance qualified as controlled
substance defined in § 802(6)), overruled on other grounds, 535 U.S. 625 (2002).
226
United States v. Londono-Villa, 930 F.2d 994, 998 (2d Cir. 1991).
227
Manbeck, 744 F.2d 385.

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Mere possession of a controlled substance that is of foreign origin is not sufficient
to establish importation.228
____________________NOTE____________________
The mens rea is stated in the penalty section, § 960.
A critical element of the offense is that the defendant import the substance or
cause it to be imported. United States v. Samad, 754 F.2d 1091, 1096 (4th Cir. 1984).
“[I]f a boat is encountered in territorial waters, and the only evidence advanced to
support a claim of importation is the size of the boat and the quantity of marijuana, that is
not enough.” United States v. Seni, 662 F.2d 277, 287 (4th Cir. 1981).
In United States v. Manbeck, 744 F.2d 360, 385 (4th Cir. 1984), the court found
that the size of the ship and the quantity of the substance alone are not enough to prove
importation. However, there was a navigational chart which indicated a path of travel
extending deep into the customs waters of the United States.
Conspiracy to import does not require proof of the existence of a subsequent plan
for distribution. Id. at 387.
Venue is proper in any district “along the way” because importing is a continuous
crime that is not complete until the controlled substance reaches its final destination.
United States v. Lowry, 675 F.2d 593, 596 (4th Cir. 1982). See also United States v.
MacDougall, 790 F.2d 1135, 1151 (4th Cir. 1986).
A violation of § 952(a) and § 957(a) merge if based on the same episode. United
States v. Zabaneh, 837 F.2d 1249, 1258-59 (5th Cir. 1988).

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EXPORTING CONTROLLED SUBSTANCES
v
Title 21, United States Code,6,
Section 953 makes it a crime to export a controlled
2
substance. For you to find the42
- defendant guilty, the government must prove each of the
following beyond a reasonable doubt:
. that6 defendant exported from the United States;
P
First,
o 1 the
N

P
Second, the amount of controlled substance alleged in the indictment; and
P
Third, that the defendant did so knowingly or intentionally.
AGGRAVATED PENALTY
1.
Did death or serious bodily injury result from the use of the controlled
substance?
____________________NOTE____________________
The mens rea is stated in the penalty section, § 960. See Notes and cases under
§ 952.
21 U.S.C. § 955

POSSESSION OF CONTROLLED SUBSTANCES ON BOARD
AIRCRAFT OR VESSELS ARRIVING IN OR DEPARTING
FROM THE UNITED STATES
Title 21, United States Code, Section 955 makes it a crime to possess a controlled
substance on board any vessel or aircraft arriving in or departing from the United States.
For you to find the defendant guilty, the government must prove each of the following
beyond a reasonable doubt:

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P

First, that the defendant was on board a vessel or aircraft, or any vehicle
of a carrier, arriving in or departing from the United States or the customs
territory of the United States;
Second, that the defendant brought or possessed on board a controlled
substance; and
Third, that the defendant did so knowingly or intentionally; that is to say,
the defendant knew the item was a controlled substance.

P
P

AGGRAVATED PENALTY
1.
Did death or serious bodily injury result from the use of the controlled
substance?
2.
[Specific threshold quantities.]229
“Customs territory of the United States” includes only the States, the District of
Columbia and Puerto Rico. [The Harmonized Tariff Schedule is not published in the
Code. It is published periodically by the United States International Trade Commission.]
[§ 951(a)(2)]
The government must prove that the defendant was on board a vessel or aircraft
arriving in, or departing from, the United States or the customs territory of the Untied
States.230
The government does not have to prove that the defendant knew that the aircraft
or vessel would stop in the United States.231

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The mens rea is stated in the penalty section, § 960.
Section 955 contains a statutory exception, “unless such substance is a part of the
cargo entered in the manifest or part of the official supplies.”
The statute does not prohibit failure to make a declaration. United States v.
Bernal-Rojas, 933 F.2d 97, 100 (1st Cir. 1991).
Section 955 applies not only to common carriers but also to private craft. United
States v. Zabaneh, 837 F.2d 1249, 1253 (5th Cir. 1988).

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21 U.S.C. § 957

REGISTERED IMPORTERS AND EXPORTERS OF
CONTROLLED SUBSTANCES
Title 21, United States Code, Section 957 makes it a crime to import or export a
controlled substance unless one is registered. For you to find the defendant guilty, the
government must prove each of the following beyond a reasonable doubt:
P
First, that the defendant imported into the United States from any place
outside of the United States [or into the customs territory of the United
States from any place outside of the customs territory but within the
United States], or exported from the United States;
P
Second, the amount of controlled substance or list I chemical alleged in
the indictment;

229

United States v. Promise, 255 F.3d 150 (4th Cir. 2001) (en banc).
United States v. Rendon, 354 F.3d 1320, 1325 n.2 (11th Cir. 2003).
231
In United States v. Bernal-Rojas, 933 F.2d 97, 101 (1st Cir. 1991), the defendant traveled
from Venezuela to Spain, with a brief scheduled stop in Puerto Rico, where she was arrested in
possession of cocaine. Her conviction was affirmed.
230

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P

Third, that the defendant was not registered with the Attorney General;
and
P
Fourth, that the defendant did so knowingly or intentionally.232
“Import” means any bringing in or introduction of any article into any area [of the
United States]. [§ 951(a)(1)]
“Customs territory of the United States” includes only the States, the District of
Columbia and Puerto Rico. [The Harmonized Tariff Schedule is not published in the
Code. It is published periodically by the United States International Trade Commission.]
[§ 951(a)(2)]
You are instructed that, as a matter of law, [the controlled substance charged in
the indictment] is a controlled substance as that term is used in these instructions and in
the indictment and the statute I just read to you. You must, of course, determine whether
or not the substance in question was, in fact [the controlled substance charged in the
indictment].233
Evidence of the foreign origin of the controlled substance is a factor to be
considered, but is not sufficient in itself to prove importation.234
Mere possession of a controlled substance that is of foreign origin is not sufficient
to establish importation.235
The government must prove that the defendant knew the item being imported was
a controlled substance.236
[FOR IMPORTATION]
And the government must prove that the defendant knew that the destination of
the controlled substance would be the United States.237
AGGRAVATED PENALTY
1.
Did death or serious bodily injury result from the use of the controlled
substance?
2.
[Specific threshold quantities.]238
____________________NOTE____________________
The mens rea is stated in the penalty section, § 960.
A critical element of the offense is that the defendant import the substance or
cause it to be imported. United States v. Samad, 754 F.2d 1091, 1096 (4th Cir. 1984).
The government must prove that the defendant in some manner participated in or
helped effectuate the act of importing. United States v. Manbeck, 744 F.2d 360, 385 (4th
Cir. 1984).

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See Samad, 754 F.2d at 1096. See also United States v. Seni, 662 F.2d 277, 280 (4th Cir.

1981).
233

United States v. Cotton, 261 F.3d 397, 402 n.2 (4th Cir. 2001) (district court did not
charge jury on what it must find to convict; instructed jury that substance qualified as controlled
substance defined in § 802(6)), overruled on other grounds, 535 U.S. 625 (2002).
234
Manbeck, 744 F.2d 360 (4th Cir. 1984).
235
United States v. Samad, 754 F.2d 1091, 1096 (4th Cir. 1984).
236
In United States v. Restrepo-Granda, 575 F.2d 524, 527 (5th Cir. 1978), the Eleventh
Circuit held that § 952(a) is a specific intent statute and requires knowledge that the substance is a
controlled substance, although knowledge that the substance imported is a particular narcotic need not
be proven.
237
United States v. Londono-Villa, 930 F.2d 994, 998 (2d Cir. 1991).
238
United States v. Promise, 255 F.3d 150 (4th Cir. 2001) (en banc).

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A violation of § 957(a) and § 952(a) merge if based on the same episode. United
States v. Zabaneh, 837 F.2d 1249, 1258-59 (5th Cir. 1988).
21 U.S.C. § 959

POSSESSION, MANUFACTURE, OR
DISTRIBUTION
OF CONTROLLED SUBSTANCE, INTENDING IT
BE IMPORTED
Title 21, United States Code, Section 959 makes it a crime to manufacture or
distribute controlled substances knowing or intending that they be imported into the
United States, or possess a controlled substance on an aircraft, with intent to distribute it.
For you to find the defendant guilty, the government must prove each of the following
beyond a reasonable doubt:
§ 959(a)
P
First, that the defendant manufactured or distributed a [schedule I or II]
controlled substance, flunitrazepam, or listed chemical;
P
Second, that the defendant intended or knew that the substance or listed
chemical would be unlawfully imported into the United States or into
waters within a distance of 12 miles of the coast of the United States; and
P
Third, that the defendant did so knowingly or intentionally. That is to say,
the defendant knew the substance was a controlled substance or listed
chemical.
§ 959(b)
P
First, that the defendant was either a United States citizen on board an
aircraft, or the defendant was on board an aircraft owned by a United
States citizen or registered in the United States;
P
Second, that the defendant manufactured or distributed a controlled
substance or listed chemical, or possessed a controlled substance or listed
chemical with intent to distribute it; and
P
Third, that the defendant did so knowingly or intentionally. That is to say,
the defendant knew the substance was a controlled substance or listed
chemical.
AGGRAVATED PENALTY
1.
Did death or serious bodily injury result from the use of the controlled
substance or listed chemical?
2.
[Specific threshold quantities.]239
“Customs territory of the United States” includes only the States, the District of
Columbia and Puerto Rico. [The Harmonized Tariff Schedule is not published in the
Code. It is published periodically by the United States International Trade Commission.]
[§ 951(a)(2)]

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____________________NOTE____________________
The mens rea is stated in the penalty section, § 960.
Section 959(c) says this section is intended to reach acts committed outside the
territorial jurisdiction of the United States. Venue is point of entry or the District of
Columbia. However, this venue provision is not exclusive; 18 U.S.C. §3237 still applies.
United States v. Zabaneh, 837 F.2d 1249, 1256 (5th Cir. 1988).

239

Id.

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21 U.S.C. § 963
CONSPIRACY 240
Title 21, United States Code, Section 963 makes it a crime to conspire to import
controlled substances (§ 952), export controlled substances (§ 953) or possess controlled
substances on board certain vessels (§ 955). A conspiracy is an agreement between two or
more persons to join together to accomplish an 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 there was an agreement between two or more persons to
[specify the object of the conspiracy] [specify the type and quantity of
controlled substance];241
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.242
____________________NOTE____________________
Sections 963 and 846 proscribe separate statutory offenses. Albernaz v. United
States, 450 U.S. 333, 339 (1981).

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21 U.S.C. § 963
ATTEMPT243
Title 21, United States Code, Section 963 makes it a crime to attempt to import
controlled substances (§ 952), export controlled substances (§ 953) or possess controlled
substances on board certain vessels (§ 955). For you to find the defendant guilty, the
government must prove each of the following beyond a reasonable doubt:
P
First, that the defendant intended to commit the crime [this will
necessitate instructing the jury on the elements of the crime charged];244
and
P
Second, that the defendant committed an act which constituted a
substantial step toward the commission of the crime.245

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240

See instructions for 21 U.S.C. §846.
If necessary, a special verdict form should be submitted, so the jury can determine the type
and quantity of controlled substance involved. United States v. Rhynes, 196 F.3d 207 (4th Cir. 1999),
vacated in part on other grounds, 218 F.3d 310 (4th Cir. 2000) (en banc); United States v. Barnes,
158 F.3d 662, 672 (4th Cir. 1998) (“it is the government’s responsibility to seek special verdicts”).
242
United States v. Strickland, 245 F.3d 368, 384-85 (4th Cir. 2001; United States v. Burgos,
94 F.3d 849, 857 (4th Cir. 1996) (en banc). However, in United States v. Stewart, 256 F.3d 231 (4th
Cir. 2001), the court stated the elements as follows: “(1) an agreement with another person to violate
the law, (2) knowledge of the essential objectives of the conspiracy, (3) knowing and voluntary
involvement, and (4) interdependence among the alleged conspirators.” 256 F.3d at 250.
241

In United States v. Mills, 995 F.2d 480, 483 (4th Cir. 1993), the court identified the essential
elements as (1) an agreement, (2) which the defendant willfully joined, (3) “with intent to accomplish
the criminal purpose of the conspiracy.” 995 F.2d at 483.
243
See instructions for §846, Attempt.
244
If necessary, a special verdict form should be submitted, so the jury can determine the type
and quantity of controlled substance involved. United States v. Rhynes, 196 F.3d 207 (4th Cir. 1999),
vacated in part on other grounds, 218 F.3d 310 (4th Cir. 2000) (en banc); United States v. Barnes,
158 F.3d 662, 672 (4th Cir. 1998) (“it is the government’s responsibility to seek special verdicts”).
245
See United States v. Pratt, 351 F.3d 131, 135 (4th Cir. 2003).

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A substantial step is more than mere preparation, yet may be less than the last act
necessary before the actual commission of the substantive crime.246
22 U.S.C. § 2778

CONTROL OF ARMS EXPORTS AND IMPORTS [LAST
UPDATED : 4/7/14]

The Arms Export Control Act (AECA), 22 U.S.C. § 2778, regulates the export
and import of certain “defense articles,” such as ammunition, and subjects to criminal
liability anyone who “willfully” violates its requirements. The Department of State has
promulgated the International Traffic in Arms Regulations (ITAR). These regulations
include the United States Munitions List, which consists of categories of certain items
that cannot be exported without a license issued by the Department of State’s Office of
Defense Trade Controls.247 For you to find the defendant guilty under the applicable
section of this statute, the government must prove each of the following beyond a
reasonable doubt:
§ 2778(b)(1)(A)(i) and (ii)
P
First, that the defendant engaged in the business of248 manufacturing,
exporting, or importing, or of brokering activities with respect to the
manufacture, export, import, or transfer of any defense articles designated
on the United States Munitions List;
P
Second, that the defendant did not register with the United States
Department of State, Office of Munitions Control; and
P
Third, that the defendant did so willfully.
§ 2778(b)(2)
P
First, that the defendant exported [or imported] or attempted to export [or
attempted to import];249
P
Second, goods that were on the United States Munitions List;
P
Third, that the defendant did so without first having obtained a license for
the export [or import]; and
P
Fourth, that the defendant did so willfully.250
§ 2778(c)
P
First, that the defendant made an untrue statement of a material fact, or
omitted to state a material fact required to be stated or necessary to make
the statements not misleading;
P
Second, in a registration or license application or required report; and
P
Third, that the defendant did so willfully.
The government must prove that the defendant voluntarily and intentionally

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246

United States v. Sutton, 961 F.2d 476, 478 (4th Cir. 1992). Preparation may become
attempt if it “comes so near to the accomplishment of the crime that it becomes probable that the crime
will be committed absent an outside intervening circumstance ....” Pratt, 351 F.3d at 136.
247
United States v. Sun, 278 F.3d 302, 306 (4th Cir. 2002).
248
In United States v. Durrani, 659 F. Supp. 1177, 1181 (D. Conn. 1987), aff’d, 835 F.2d
410 (2d Cir. 1987), the defendant moved to dismiss the § 2778(b) charge, arguing that “engaging in
the business” was void for vagueness. The district court found the case law for 18 U.S.C. § 922(a)(1)
helpful (engaging in the business means “more than one isolated sale or transaction”) and denied the
motion.
249
Attempts to export are covered in 22 C.F.R. § 127.1(a)(1).
250
United States v. Bishop, 740 F.3d 927 (4th Cir. 2014).

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violated the law.251
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. A false
statement’s capacity to influence must be measured at the point in time that the statement
was made.252
“Engaged in the business” means devoting time, attention, and labor to ... a
regular course of trade or business with the principal objective of livelihood and profit
through the repetitive purchase and resale ..., but such term shall not include a person who
makes occasional sales, exchanges, or purchases ... for the enhancement of a personal
collection or for a hobby, or who sells all or part of his personal collection.... [18 U.S.C.
§ 921(a)(21)(C)]
____________________NOTE____________________
“STATUTORY” DEFENSES
In United States v. Sun, 278 F.3d 302 (4th Cir. 2002), the defendants argued that
the exported material fell within the so-called “scrap exemption” contained in a
Department of Commerce regulation, 15 C.F.R. § 770.2(g)(3). The district court allowed
the defendants to pursue their defense theory and instructed the jury as follows:
There has been some reference to the Department of Commerce in this
case and demilitarization in this case. Title 15, Part 770.2, § (g)(3) of the
Federal Code of Regulations states, in part, that “commodities that may
have been on the United States munitions list are scrap and, therefore,
under the jurisdiction of the Department of Commerce, if they have been
rendered useless beyond the possibility of restoration to their original
identity only by means of mangling, crushing, or cutting.”
This section means that if any item that may have been on the munitions
list has been rendered useless beyond the possibility of restoration to its
original identity by means of mangling, cutting, or crushing, it may be
exported without a license or written authorization from the Department
of State. If, on the other hand, that item that may have been on the
munitions list has not been rendered useless beyond the possibility of
restoration to its original identity by means of mangling, crushing, or
cutting, it may not be exported without a license or a written
authorization from the State Department.
The defendants contend that items which they purchased that may have
been on the munitions list were rendered useless beyond the possibility of
restoration to their original identity by means of mangling, crushing, or
cutting and therefore, could be exported without a license or a written
authorization from the State Department....
If you find and accept as true the evidence in support of this contention
and theory and believe the defendants’ defense theory, and this defense
leaves you with a reasonable doubt as to whether the government has
proved beyond a reasonable doubt each and every element of the crimes
charged ... then you must find the defendants not guilty.

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Id.
United States v. Sarihifard, 155 F.3d 301, 307 (4th Cir. 1998).

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278 F.3d at 310-11. The Fourth Circuit assumed for the sake of argument that the
regulation applied and held that the exception is not an element of the offense which the
government must prove does not apply, but rather is an affirmative defense, and the jury
was instructed correctly. Id. at 312.
In United States v. Durrani, 835 F.2d 410 (2d Cir. 1987), the defendant claimed
that his activities derived from the officially-sanctioned covert operations in the Oliver
North-Iran/Contra scandal. The Second Circuit discussed two exemptions from the
International Traffic in Arms Regulations (ITAR). The “foreign assistance” exception,
which requires that parts be sold to a foreign government representative in the United
States and picked up by a foreign vessel, did not apply. 22 C.F.R. § 126.6. The “official
use” exception is not interpreted in the ITAR. Section 126.4 states that the exemption
applies when all aspects of a transaction are effected by a government agency or when the
export is covered by a government bill of lading. Therefore, the Second Circuit had
serious doubt whether either exemption could ever apply to a private individual who had
not obtained a government bill of lading. Nevertheless, the district court had instructed
the jury on the “official use” exception. The Second Circuit held that the exception was
an affirmative defense, and not an element of the crime.
“[W]illfulness under the AECA requires only general knowledge of illegality.”
United States v. Bishop, 740 F.3d 927, 935 (4th Cir. 2014) (quoting Bryan v. United
States, 524 U.S. 184, 196 (1998)). That is, the government must prove that a defendant
“intended to violate the law,” United States v. Hsu, 364 F.3d 192, 197 (4th Cir. 2004).
“Willfulness” under the AECA does not include the more stringent requirements of
“willfulness” as required under Cheek v. United States, 498 U.S. 192 (1991), and Ratzlaf
v. United States, 510 U.S. 135 (1994). Both Cheek and Ratzlaf addressed “highly
technical statutes” involving taxes and currency transactions that “presented the danger of
ensnaring individuals engaged in apparently innocent conduct.” Bryan, 524 U.S. at 194.
Section 2778(b)(1)(A) requires that persons in the business of exporting arms
obtain a license. On the other hand, § 2778(b)(2), requires a license for each export of listed
firearms, regardless of whether the exporter is a licensed dealer. See United States v.
Mitchell, No. 92-5072, 1993 WL 136996 (4th Cir. Apr. 30, 1983).
Engaging in the business of exporting firearms is not an element of § 2778(b)(2).
Id.
In United States v. Durrani, 659 F. Supp. 1177, 1182 (D. Conn. 1987), aff’d, 835
F.2d 410 (2d Cir. 1987), the district court ruled that the alleged transportation of defense
articles in foreign commerce appeared to be a continuing offense.

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26 U.S.C. § 5861
NATIONAL FIREARMS ACT
Title 26, United States Code, Section 5861 makes it a crime to commit certain
acts concerning firearms covered by the National Firearms Act.
The term “firearm” means
1.
a shotgun having a barrel or barrels of less than 18 inches in
length
[§ 5845 (a)(1)];
2.
a weapon made from a shotgun if such weapon as modified has
an overall length of less than 26 inches or a barrel or barrels of
less than 18 inches in length [§ 5845 (a)(2)];
3.
a rifle having a barrel or barrels of less than 16 inches in length
[§ 5845 (a)(3)];
4.
a weapon made from a rifle if such weapon as modified has an

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overall length of less than 26 inches or a barrel or barrels of less
than 16 inches in length [§ 5845 (a)(4)];
5.
any other weapon [see § 5845(e)];
6.
a machine gun [see § 5845(b)];
7.
a silencer [18 U.S.C. § 921]; and
8.
a destructive device [see § 5845(f)].
“Unserviceable firearm” means a firearm which is incapable of discharging a shot
by means of an explosive and incapable of being readily restored to a firing condition.
[§ 5845(h)]
§ 5861(a)
§ 5861(a) makes it a crime to engage in business involving firearms without
having paid the required tax or having registered. 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 in business253 as a manufacturer of,
importer of, or dealer in, firearms;
P
Second, that the defendant did not pay the special occupational tax
required or did not register as required; and
P
Third, that the defendant did so knowingly.
“Manufacturer” means any person who is engaged in the business of
manufacturing firearms. [§ 5845(m)]
“Importer” means any person who is engaged in a business of importing or
bringing firearms into the United States. [§ 5845(l)]
“Dealer” means any person, not a manufacturer or importer, engaged in the
business of selling, renting, leasing, or loaning firearms and shall include pawnbrokers
who accept firearms as collateral for loans. [§ 5845(k)]
“Engaged in the business” means
(A)
As applied to a manufacturer of firearms, a person who devotes time,
attention, and labor to manufacturing firearms as a regular course of trade
or business with the principle objective of livelihood and profit through
the sale or distribution of the firearms manufactured; ....
(C)
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 business with the principle 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;
(D)
As applied to a dealer in firearms, a person who devotes time, attention,
and labor to engaging in such activity as a regular course of trade or
business with the principle objective of livelihood and profit, but such
term shall not include a person who makes occasional repairs of firearms,
or who occasionally fits special barrels, stocks, or trigger mechanisms to
firearms;
(E)
As applied to an importer of firearms, a person who devotes time,
attention, and labor to importing firearms as a regular course of

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trade or business with the principle objective of livelihood and
profit through the sale or distribution of the firearms imported.
[18 U.S.C. § 921(a)(21)]
“With the principal objective of livelihood and profit” means that the intent
underlying the sale or disposition of firearms is predominately one of obtaining livelihood
and pecuniary gain, as opposed to other intents, such as improving or liquidating a
personal firearms collection [but see proviso]. [18 U.S.C. § 921(a)(22)]
§ 5861(b)
§ 5861(b) makes it a crime to receive or possess a firearm transferred to the
defendant in violation of the National Firearms Act. 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 possessed a firearm;
P
Second, that the firearm was transferred to the defendant in violation of
the National Firearms Act [here, the provision of the Act violated must be
identified];254 and
P
Third, the defendant acted knowingly.
The government must prove that the defendant knew of the features, or
characteristics, of the firearm that brought it [within one of the definitions set forth
above].255
§ 5861(c)
§ 5861(c) makes it a crime to receive a possess a firearm made in violation of the
National Firearms Act. 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 possessed a firearm;
P
Second, that the firearm was made in violation of the National Firearms
Act [here, the provision of the Act violated must be identified]; and
P
Third, the defendant acted knowingly.
The government must prove that the defendant knew of the features, or
characteristics, of the firearm that brought it [within one of the definitions set forth
above].256
§ 5861(d)
Title 26, United States Code, Section 5861(d) makes it a crime to receive or
possess a firearm which is not registered. 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 possessed a firearm;
P
Second, that the firearm was not registered to the defendant in the
National Firearms Registration and Transfer Record; and
P
Third, that the defendant acted knowingly.
The government must prove that the defendant knew of the features, or

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254

In United States v. Daniels, 973 F.2d 272, 275 (4th Cir. 1992), the Fourth Circuit held that
because the transfer of a firearm must violate other provisions of Title 26, Chapter 53 in order to
violate § 5861(e) [and therefore, by analogy, § 5861(b)], this element is necessary to establish the very
illegality of the behavior and is, therefore, an essential element of the offense. (For example, § 5812
states that a firearm shall not be transferred unless the transferor has complied with the requirements
listed in the statute.)
255
Staples v. United States, 511 U.S. 600, 619 (1994).
256
Id.

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characteristics, of the firearm that brought it [within one of the definitions set forth
above].257
The government does not have to prove that the defendant knew the firearm was
not registered.258
§ 5861(e)
§ 5861(e) makes it a crime to transfer a firearm in violation of the National
Firearms Act. 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 firearm;
P
Second, in violation of the National Firearms Act [here, the provision of
the Act violated must be identified];259 and
P
Third, that the defendant acted knowingly.
The government must prove that the defendant knew of the features, or
characteristics, of the firearm that brought it [within one of the definitions set forth
above].260
§ 5861(f)
§ 5861(f) makes it a crime to make a firearm in violation of the National Firearms
Act. 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 firearm;
P
Second, in violation of the National Firearms Act [here, the provision of
the Act violated must be identified]; and
P
Third, that the defendant acted knowingly.
The government must prove that the defendant knew of the features, or
characteristics, of the firearm that brought it [within one of the definitions set forth
above].261
§ 5861(g)
§ 5861(g) makes it a crime to obliterate, remove, change, or alter the serial
number or other identification of a firearm required by the National Firearms Act. For you
to find the defendant guilty, the government must prove each of the following beyond a
reasonable doubt:
P
First, that the defendant obliterated, removed, changed, or altered;
P
Second, the serial number or other identification of a firearm required by
the National Firearms Act; and
P
Third, the defendant did so knowingly.
§ 5861(h)
Title 26, United States Code, Section 5861(h) makes it a crime to receive or
possess a firearm which has the required serial number obliterated, removed, changed, or

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Id.
United States v. Freed, 401 U.S. 601 (1971).
259
In United States v. Daniels, 973 F.2d 272, 275 (4th Cir. 1992), the Fourth Circuit held that
because the transfer of a firearm must violate other provisions of Title 26, Chapter 53 in order to
violate § 5861(e) [and therefore, by analogy, § 5861(b)], this element is necessary to establish the very
illegality of the behavior and is, therefore, an essential element of the offense. (For example, § 5812
states that a firearm shall not be transferred unless the transferor has complied with the requirements
listed in the statute.)
260
Staples v. United States, 511 U.S. 600, 619 (1994).
261
Id.
258

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altered. 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 possessed a firearm;
P
Second, that the serial number or other identification of the firearm
required by the National Firearms Act had been obliterated, removed,
changed, or altered; and
P
Third, that the defendant acted knowingly.
§ 5861(i)
Title 26, United States Code, Section 5861(i) makes it a crime to receive or
possess a firearm which is not identified by a 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 received or possessed a firearm;
P
Second, that the firearm was not identified by a serial number as required
by the National Firearms Act;262 and
P
Third, that the defendant acted knowingly.
§ 5861(j)
Title 26, United States Code, Section 5861(j) makes it a crime to transport,
deliver, or receive a firearm which is not registered. 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, delivered, or received in interstate
commerce;
P
Second, a firearm which had not been registered in the National Firearms
Registration and Transfer Record; and
P
Third, that the defendant acted knowingly.
The government must prove that the defendant knew of the features, or
characteristics, of the firearm that brought it [within one of the definitions set forth
above].263
The government does not have to prove that the defendant knew the firearm was
not registered.264
§ 5861(k)
Title 26, United States Code, Section 5861(k) makes it a crime to receive or
possess a firearm which had been illegally imported into 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 received or possessed a firearm;
P
Second, that the firearm had been imported or brought into the United
States in violation of [§ 5844]; and
P
Third, that the defendant acted knowingly.
The government must prove that the defendant knew of the features, or
characteristics, of the firearm that brought it [within one of the definitions set forth
above].265

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262

27 C.F.R. § 179.102 provides for an alternative identification, but the Ninth Circuit
construed that as an affirmative defense. United States v. Cantaloupi, No. 97-10382, 2001 W L
1507260 (9th Cir. Oct. 10, 2001).
263
Staples v. United States, 511 U.S. 600, 619 (1994).
264
See United States v. Freed, 401 U.S. 601 (1971).
265
Staples v. United States, 511 U.S. 600, 619 (1994).

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§ 5861(l)
Title 26, United States Code, Section 5861(l) makes it a crime to make a false
entry in any record required by the National Firearms Act. 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 caused the making of a false entry;
P
Second, on any application, return, or record required by the National
Firearms Act; and
P
Third, that the defendant did so knowing the entry was false.
The government must prove that the defendant knew of the features, or
characteristics, of the firearm that brought it [within one of the definitions set forth
above].266
Possession means to voluntarily and intentionally exercise dominion and control
over an item or property.
Possession may be either sole, by the defendant himself, or joint, that is, it may be
shared with other persons, as long as the defendant exercised dominion and control over
the item or property.
Possession may be either actual or constructive.
Actual possession is defined as physical control over property.
Constructive possession occurs when a person exercises or has the power and the
intention to exercise dominion and control over an item or property.267
Constructive possession can be established by evidence, either direct or
circumstantial, 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
a person exercises or has the power and intention to exercise dominion and control over
that item or property.268
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 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.269
However, the government does not have to prove that the defendant knew that his

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Staples v. United States, 511 U.S. 600, 619 (1994).
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).
268
Id. 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) (citing United States
v. Blue, 957 F.2d 106, 108 (4th Cir. 1992), and United States v. Burgos, 94 F.3d 849, 873 (4th Cir.
1996) (en banc)).
269
See Shorter, 328 F.3d 167 (contraband found in residence permitted inference of
constructive possession; bolstered by evidence that contraband in plain view or material associated
with contraband in closet where defendant’s personal papers located). See also United States v.
Rusher, 966 F.2d 868, 878 (4th Cir. 1992) (mere presence on premises or association with possessor
is insufficient to establish possession).
267

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possession was unlawful.270
____________________NOTE____________________
“Section 5861(d) does not establish a specific intent crime requiring the
defendant to know that it was unlawful to possess the weapon; but it is a strict liability
crime. Therefore, Wright’s lack of knowledge is inconsequential.” United States v.
Wright, 991 F.2d 1182, 1188 (4th Cir. 1993) (citation ommited). The defendant must,
however, know the features of the firearm that bring it within the scope of the National
Firearms Act. Staples v. United States, 511 U.S. 600, 619 (1994).
The Eighth Circuit has nevertheless indicated that a lesser mens rea showing is
sufficient if the firearm is of a “quasi-suspect” character, such as a sawed-off shotgun. In
United States v. Barr, 32 F.3d 1320 (8th Cir. 1994), the district court instructed that an
element was “knowingly possessed a firearm, as the term firearm is defined in these
instructions,” which included the statutory dimensions. The Eighth Circuit observed that
the Supreme Court’s holding in Staples “was a narrow one. Specifically, the Court stated,
‘[O]ur reasoning depends upon a common-sense evaluation of the nature of the particular
device or substance Congress has subjected to regulation and the expectations that
individuals may legitimately have in dealing with the regulated items.’” 32 F.3d at 132324. The Eighth Circuit concluded that
[w]here, as here, the characteristics of the weapon itself render it ‘quasisuspect,’ Staples does not require proof that the defendant knew of the
specific characteristics which made the weapon subject to the Act. The
government need only prove that the defendant possessed the ‘quasisuspect’ weapon and observed its characteristics. A defendant who
observes such a weapon cannot possess it with innocence.
Id. at 1324. The government would have to prove that the defendant actually observed the
firearm and the characteristics were clearly noticeable. Id.
In United States v. Otto, 64 F.3d 367 (8th Cir. 1995), the defendant requested an
instruction that the government had to prove that he knew the weapon he possessed was a
firearm of a type that required it to be registered to him. The district court, instead,
instructed that the government had to prove that the defendant knew that the firearm had
been modified to reduce its barrel length or its overall length. The Eighth Circuit held the
“instruction fairly and adequately set forth the mens rea requirement.” 64 F.3d at 370.
Based on this resolution, the court did not consider whether a sawed-off rifle is of such a
“quasi-suspect” character that a lesser mens rea showing would be sufficient. Id. at n.3.
In United States v. Summers, 268 F.3d 683 (9th Cir. 2001), the defendant
requested an instruction that the government must prove the defendant knew of the
specific features that subjected the firearm to regulation, namely that it had an overall
length of less than 26 inches or a barrel of less than 18 inches. The district court instead
instructed that the government must prove that the defendant knowingly possessed a
weapon made from a shotgun, modified to have an overall length of less than 26 inches or
a barrel of less than 18 inches. The Ninth Circuit said that the government was required to
prove beyond a reasonable doubt that the defendant knew the shotgun found in his car had
an overall length of less than 26 inches or a barrel length of less than 18 inches, and ruled
that the instruction was an accurate statement of the intent required for § 5861(d).
However, the district court “could have more artfully formulated the first instruction.”
268 F.3d at 688. The court referred to the Ninth Circuit Model Criminal Jury Instruction

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9.31, which reads, in part, “First, the defendant knowingly possessed [e.g., a shotgun
having a barrel or barrels of less than 18 inches in length.]” The court thought the
language proposed by the Model Instruction clearer and preferable. Summers, at 688 n.2.
In United States v. Wright, 991 F.2d 1182 (4th Cir. 1993), appellant argued that
the firearm must be operational. The Fourth Circuit affirmed because the record showed
the firearm was capable of “being readily restored to a firing condition.” See definition
for “unserviceable firearm,” 26 U.S.C. § 5845(h).
“Destructive device” is defined in § 5845(f). Subparagraph (1) includes any
explosive, incendiary, or poison gas bomb, grenade, rocket having a propellent charge of
more than four ounces, missile having an explosive or incendiary charge of more than
one-quarter ounce, mine, or other statutorily defined items “which have no business or
industrial utility. They are covered regardless of their intended use.” United States v.
Morningstar, 456 F.2d 278, 280 (4th Cir. 1972). If the device is fully assembled, “the
only question is whether it is, or is not, designed for use as a weapon ... the defendant’s
intent to use the fully assembled [device] as a weapon is not a necessary element.” United
States v. Ruiz, 73 F.3d 949, 951 (9th Cir. 1996). In Ruiz, the defendant was convicted of
transferring stun grenades, in violation of § 5861(e). The defendant argued that stun
grenades were not destructive devices because the government had not proved that he
intended to use them as weapons. The Ninth Circuit held that “the defendant’s intent to
use the fully assembled stun grenades as a weapon is not a necessary element.” Id. at 951.
Intent is a necessary element, absent proof of original design or redesign for use as a
weapon, when dealing with unassembled commercial explosive materials. If the materials
are assembled, the only question is whether the device was designed for use as a weapon.
Id.
Subparagraph (3) of § 5845(f) deals with two types of materials: any combination
of parts designed for use in converting any device into a destructive device, or any
combination of parts intended for use in converting any device into a destructive device.
The first group is proscribed because of their design, and therefore the possessor’s intent
is not relevant. Morningstar, 456 F.2d at 280. However, concerning the second group, the
government must prove that the defendant intended to convert the parts into an illegal
firearm. Id. at 281. See also United States v. Uzenski, 434 F.3d 690, 701 n.4 (4th Cir.
2006). In addition, the “combination of parts” must be designed for use in converting a
device into a destructive device and “readily assembled” into a destructive device and
designed for use as a weapon.
In Morningstar, 456 F.2d at 281-82, the court did not view § 5845(f)(3) as
creating an affirmative defense. The government must prove beyond a reasonable doubt
that: 1. the commercial materials mentioned in the indictment could have been readily
assembled into a bomb; 2. the defendant intended to convert the materials into a bomb;
and 3. the defendant dealt with materials in a manner prohibited by law.
If the firearm is a destructive device which consists of a combination of parts,
§ 5845(f)(3), the government might have to prove that the defendant intended to use the
parts as a weapon. Uzenski, 434 F.3d at 701 n.4.
The government is not required to establish that the destructive device operate as
intended. Id. at 703 (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 § 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

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exploding or be readily made to explode.”Langan, 263 F.3d at 625.
In United States v. Oba, 448 F.2d 892 (9th Cir. 1971), the Ninth Circuit held that
the exceptions to the definition of destructive device in § 5845(f) constitute an affirmative
defense which, if asserted, must be negated beyond a reasonable doubt by the
government.
In Ruiz, 73 F.3d 949, the Ninth Circuit approved using the dictionary definition of
“weapon” as “an instrument of offensive or defensive combat.” Id. at 953.
In United States v. Daniels, 973 F.2d 272 (4th Cir. 1992), the Fourth Circuit
emphasized that “in charging a violation of § 5861(e) the better practice is to track the
statutory language, reference the provisions of Title 26, Chapter 53 allegedly violated, and
set forth how the defendant’s actions violated these provisions.” 973 F.2d at 275 n.2.
26 U.S.C. § 6050I CASH TRANSACTION REPORTS
Title 26, United States Code, Section 6050I makes it a crime not to file or to
evade the reporting requirements concerning a business receiving more than $10,000 in
cash. For you to find the defendant guilty, the government must prove each of the
following beyond a reasonable doubt:
§ 6050I(a)
P
First, that the defendant was engaged in a trade or business;
P
Second, that in the course of that trade or business, the defendant
received more than $10,000 in cash in one transaction or two or more
related transactions;
P
Third, that the defendant failed to make the return prescribed by the
Secretary of the Treasury; and
P
Fourth, that the defendant did so willfully.
§ 6050I(f)
P
First, that the defendant knew of a trade or business’s duty to report
currency transactions in excess of $10,000;
P
Second, that the defendant caused or attempted to cause the trade or
business to fail to file the required return, OR to file the required report
that contained a material omission or misstatement of fact, OR that the
defendant structured or assisted in structuring, or attempted to structure or
assist in structuring, a cash transaction with one or more trades or
businesses;271 and
P
Third, that the defendant did so willfully and to evade the transaction
reporting requirement.272

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271

The defendant may either structure or cause a failure to file, both are not required. United
States v. McLamb, 985 F.2d 1284, 1289 (4th Cir. 1993).
272
See United States v. McGuire, 99 F.3d 671, 673 (5th Cir. 1996), where the elements were
set forth as follows:
First, that the defendant knew of a trade or business’s duty to report currency
transactions in excess of $10,000;
Second, that with such knowledge, the defendant knowingly and willfully caused
or attempted to cause a trade or business to file the required report that contained
a material omission or misstatement of fact; and
Third, that the purpose of the material omission or misstatement of fact was to
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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. A false
statement’s capacity to influence must be measured at the point in time that the statement
was made.273
“Engaged in the business” means devoting time, attention, and labor to ... a
regular course of trade or business with the principal objective of livelihood and profit
through the repetitive purchase and resale ..., but such term shall not include a person who
makes occasional sales, exchanges, or purchases ... for the enhancement of a personal
collection or for a hobby, or who sells all or part of his personal collection .... [18 U.S.C.
§ 921(a)(21)(C)]
Willfulness is defined as the voluntary intentional violation of a known legal
duty.274
The government must prove that the defendant was aware of the return
obligations of a trade or business and acted to evade them.275
____________________NOTE____________________
26 U.S.C. § 7203 fixes the punishment for a willful violation of 26 U.S.C.
§ 6050I.
The statute’s structuring prohibition is not limited to those on whom the duty to
file falls, and a person’s ability to structure a transaction for the purpose of evading the
reporting obligation does not turn on when that obligation arises. United States v.
McLamb, 985 F.2d 1284, 1288 (4th Cir. 1993).

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26 U.S.C. § 7201
TAX EVASION [L
U
:
6, v 7201 makes it7/14/14] to endeavor to evade
2
Title 26, United States Code, Section
a crime
-42
one’s taxes. For you to find the defendant guilty, the government must prove each of the
6
following beyondoreasonable doubt:
a. 1
N the existence of a substantial tax deficiency, that is, that the
P
First,
AST

PDATED

defendant owed taxes to the Internal Revenue Service;
Second, that the defendant committed an affirmative act constituting an
evasion or attempted evasion of the tax; and
P
Third, that the defendant did so willfully.276
Willfulness is defined as the voluntary intentional violation of a known legal
P

duty.277
The prosecution must prove beyond a reasonable doubt that the defendant
willfully attempted to evade or defeat a tax due the government. This involves the specific
intent to evade the tax and some willful commission or omission or affirmative action by
the defendant in furtherance of that intent. The attempt to evade or defeat the tax must be
a willful attempt, that is to say it must be an attempt made voluntarily and intentionally
273

United States v. Sarihifard, 155 F.3d 301, 307 (4th Cir. 1998).
Cheek v. United States, 498 U.S. 192, 201 (1991).
275
United States v. Rogers, 18 F.3d 265, at 267 n.4 (4th Cir. 1994).
276
United States v. Goodyear, 649 F.2d 226, 227-28 (4th Cir. 1981). In United States v.
Head, 697 F.2d 1200, 1208 (4th Cir. 1982), the jury was instructed that the amount evaded had to be
“substantial;” however; that jury instruction was not an issue on appeal. See also Sansone v. United
States, 380 U.S. 343, 351 (1965).
277
Cheek v. United States, 498 U.S. 192, 201 (1991).
274

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and with the specific intent to keep from the government a tax imposed by the income tax
laws which it was the legal duty of the defendant to pay to the government and which the
defendant knew it was his legal duty to pay. In other words, the attempt must be made
with the bad purpose of willfully seeking to defraud the government of some substantial
amount of income tax lawfully due from the defendant. *** Willfulness under the tax
laws requires an intentional rather than an inadvertent act or omission and that willfulness
must be characterized by a specific intent to conceal in contrast to a genuine
misunderstanding of the law’s requirements or a good faith belief that certain income is
not taxable.278
A willful attempt may be inferred from any conduct having the likely effect of
misleading or concealing.279
The defendant’s conduct would not be willful if you find that he acted in
accordance with a good faith misunderstanding of the law. The defendant’s views need
not be legally correct, just as long as he honestly and in good faith really and truly
believed and acted upon them. A good faith misunderstanding of the law, as distinct from
disagreement [with] the law, is a defense.280
The government must prove the existence of a tax deficiency. To show a tax
deficiency, the government must prove first that the taxpayer had unreported income, and
second, that the income was taxable. The government need not prove the precise amount
of the tax due and owing.281

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Failure to file a tax return, 26 U.S.C. § 7203, can be a lesser-included offense.
United States v. Snyder, 766 F.2d 167, 171 (4th Cir. 1985) (“Where one of the affirmative
acts of evasion relied upon by the government in proving attempted tax evasion under
Section 7201 is the failure to file an income tax return, failure to file is a lesser included
offense.”)
In United States v. Head, 641 F.2d 174, 180 (4th Cir. 1981), the defendant
submitted an instruction stating that he could not be found guilty of tax evasion if he
relied upon accountants to prepare tax returns and did nothing to obstruct the flow of
information necessary to prepare those returns. Such an instruction should have been
given.
In United States v. Habig, 390 U.S. 222, 223 (1968), the defendant was charged
with attempting to evade taxes by filing a false return. The Supreme Court held that the
offense was committed at the time the return was filed.
A formal assessment is not required to prove tax evasion. United States v.
Silkman, 156 F.3d 833, 835 (8th Cir. 1998).
In United States v. Poole, 640 F.3d 114, 122 (4th Cir. 2011), a § 7206
prosecution, the Fourth Circuit stated that in a criminal tax prosecution, when the

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District court’s instruction approved in United States v. Callahan, 588 F.2d 1078, 1081,
1083 (5th Cir. 1979).
279
Goodyear, 649 F.2d at 228 (“Accordingly, we hold that the Goodyears’ false statements
to I.R.S. agents in 1974 may constitute affirmative acts evidencing a willful attempt to evade taxes for
1971.”).
280
Instruction given in United States v. Snyder, 766 F.2d 167, 169-70 (4th Cir. 1985).
281
See Boulware v. United States, 552 U.S. 421, 424 (2008); United States v. Wilson, 118
F.3d 228, 236 (4th Cir. 1997). See also United States v. Abodeely, 801 F.2d 1020, 1023 (8th Cir.
1986); United States v. Citron, 783 F.2d 307, 314-15 (2d Cir. 1986).

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evidence supports an inference that a defendant was subjectively aware of a high
probability of the existence of a tax liability, and purposefully avoided learning the facts
pointing to such liability, the trier of fact may find that the defendant exhibited “willful
blindness,” satisfying the scienter requirement of knowledge.
26 U.S.C. § 7202
FAILURE TO COLLECT OR PAY TAX
Title 26, United States Code, Section 7202 makes it a crime to fail to collect,
account for, and pay any tax that is required. 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 required to collect, account for, and pay over
taxes imposed by federal law [the court should identify which tax is
imposed];
P
Second, that the defendant either failed to truthfully account for such tax
or failed to pay over such tax;282 and
P
Third, that the defendant did so willfully.
Willfulness is defined as the voluntary intentional violation of a known legal
duty.283
Willfulness does not require the government to prove that a defendant had the
ability to meet his tax obligations.284
The government must prove that the defendant did not have a good faith belief
that he was complying with the tax laws. A defendant’s belief can be in good faith even if
it is unreasonable.285
The defendant’s conduct would not be willful if you find that he acted in
accordance with a good faith misunderstanding of the law. The defendant’s views need
not be legally correct, just as long as he honestly and in good faith really and truly
believed and acted upon them. A good faith misunderstanding of the law, as distinct from
disagreement [with] the law, is a defense.286
The tax laws do not permit an employer to choose to use the monies held in trust
for the United States for other purposes, such as to pay business expenses.287

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____________________NOTE____________________
No additional instruction on good faith is necessary when the jury is instructed on
the elements of willfulness. See Cheek v. United States, 498 U.S. 192, 201 (1991).
“[W]illfulness does not require the government prove that a defendant had the
ability to meet his tax obligations.” Therefore, the district court did not abuse its
discretion in refusing to admit evidence to show how and why the defendant spent money
owed to the IRS. United States v. Easterday, 564 F.3d 1004, 1011 (9th Cir. 2009).

282

“[W ]e hold that the government satisfies the requirements for conviction under § 7202
when it proves beyond a reasonable doubt that the defendant willfully failed either to ‘truthfully
account for’ or to ‘pay over’ the required trust fund taxes.” United States v. Evangelista, 122 F.3d 112,
122 (2d Cir. 1997).
283
Cheek v. United States, 498 U.S. 192, 201 (1991).
284
United States v. Easterday, 564 F.3d 1004, 1011 (9th Cir. 2009).
285
Id.
286
Instruction given in United States v. Snyder, 766 F.2d 167, 169-70 (4th Cir. 1985) (tax
evasion prosecution; court found “the trial judge did give a very fair and complete charge as to the
defendant’s good faith misunderstanding of the law.”).
287
Easterday, 564 F.3d 1011.

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26 U.S.C. § 7203
FAILURE TO FILE RETURN
Title 26, United States Code, Section 7203 makes it a crime to fail to pay any tax
or to fail to file any return that is required. 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 required by law to do one of the following:
pay a tax, make a return, keep a record, or supply information [the court
must instruct on the legal requirement];
P
Second, that the defendant failed to do so at the time required by law; and
P
Third, that the defendant did so willfully.288
Willfulness is defined as the voluntary intentional violation of a known legal
289
duty.
The defendant’s conduct would not be willful if you find that he acted in
accordance with a good faith misunderstanding of the law. The defendant’s views need
not be legally correct, just as long as he honestly and in good faith really and truly
believed and acted upon them. A good faith misunderstanding of the law, as distinct from
disagreement [with] the law, is a defense.290
____________________NOTE____________________
See generally Sansone v. United States, 380 U.S. 343 (1965).
In United States v. Hawk, 497 F.2d 365, 366 n. 2 (9th Cir. 1974), the Ninth
Circuit approved the following charge:
There is no necessity that the government prove that the defendant had
the intention to defraud it or to evade the payment of any taxes for the
defendant’s failure to file to be willful under this provision of law. That
is, the intention to avoid the law or to pay the taxes constitutes the crime
charged as long as it is willful and knowing. On the other hand, the
defendant’s conduct is not willful if you find that he failed to file a return
because of negligence, inadvertence, accident, or due to his good faith
misunderstanding of the requirements of the law, if there was such
misunderstanding.

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26 U.S.C. § 7205
FRAUDULENT WITHHOLDING
Title 26, United States Code, Section 7205 makes it a crime to file a false
withholding certification. 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 required to supply information to his
employer under Title 26, United States Code, Section 3402;
P
Second, that the defendant supplied false or fraudulent information, or
failed to supply information which would require an increase in the tax to
be withheld; and
P
Third, that the defendant acted willfully.
Willfulness is defined as the voluntary intentional violation of a known legal

288

United States v. Ostendorff, 371 F.2d 729, 730 (4th Cir. 1967).
Cheek v. United States, 498 U.S. 192, 201 (1991).
290
Instruction given in United States v. Snyder, 766 F.2d 167, 169-70 (4th Cir. 1985) (tax
evasion prosecution; court found “the trial judge did give a very fair and complete charge as to the
defendant’s good faith misunderstanding of the law.”).
289

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duty.291
The government must prove that either (1) the information was supplied with an
intent to deceive, or (2) the information was false in the sense of deceptive – of such a
nature that it could reasonably affect withholding to the detriment of the government.
“False” means more than merely “untrue” or “incorrect.”292
The defendant’s conduct would not be willful if you find that he acted in
accordance with a good faith misunderstanding of the law. The defendant’s views need
not be legally correct, just as long as he honestly and in good faith really and truly
believed and acted upon them. A good faith misunderstanding of the law, as distinct from
disagreement [with] the law, is a defense.293
____________________NOTE____________________
See generally United States v. Aramony, 88 F.3d 1369, 1382 (4th Cir. 1996);
United States v. Bishop, 412 U.S. 346, 350, 359 (1973).
26 U.S.C. § 7206
FILING FALSE TAX RETURN [LAST UPDATED : 7/11/14]
§ 7206(1)
Title 26, United States Code, Section 7206(1) makes it a crime to file a false
federal income tax return. 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 caused to be made, and signed a tax
return for the year in question containing a written declaration;
P
Second, that the tax return was made under the penalties of perjury;
P
Third, that the defendant did not believe the return to be true and correct
as to every material matter; and
P
Fourth, that the defendant acted willfully.294
§ 7206(2)
Title 26, United States Code, Section 7206(2) makes it a crime to aid or assist in
the preparation of a false federal income tax return. For you to find the defendant guilty,
the government must prove each of the following beyond a reasonable doubt:
P
First, that the defendant aided, assisted, or otherwise caused the
preparation and presentation of a tax return for the year in question;
P
Second, that the tax return was fraudulent or false as to a material matter;
and
P
Third, that the defendant acted willfully.295
It is not enough for the government to prove simply that the tax return was
erroneous.296
A statement is material if it has a natural tendency to influence, or is capable of
influencing, the Internal Revenue Service. The test of materiality is whether a particular

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Cheek, 498 U.S. at 201.
United States v. Snider, 502 F.2d 645, 655 (4th Cir. 1974).
293
Instruction given in United States v. Snyder, 766 F.2d 167, 169-70 (4th Cir. 1985) (tax
evasion prosecution; court found “the trial judge did give a very fair and complete charge as to the
defendant’s good faith misunderstanding of the law.”).
294
United States v. Aramony, 88 F.3d 1369, 1382 (4th Cir. 1996); United States v. Nicolaou,
180 F.3d 565 (4th Cir. 1999).
295
Aramony, 88 F.3d at 1382.
296
See Nicolaou, 180 F.3d at 572.
292

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item must be reported in order that the taxpayer estimate and compute his tax correctly.
The purpose of this law is not simply to ensure that the taxpayer pay the proper amount of
taxes, but also to ensure that the taxpayer not make misstatements that could hinder the
Internal Revenue Service in carrying out such functions as the verification of the accuracy
of the return or of a related return. Thus, your determination of materiality does not
depend upon the amount of the unpaid tax. For example, any failure to report income is
material; the omission of information necessary to compute income is material; and false
statements relating to gross income, irrespective of the amount, constitute material
misstatements.297
Willfulness is defined as the voluntary intentional violation of a known
legal duty.298
A defendant’s conduct is not willful if it was due to negligence, inadvertence, or
mistake, or was the result of a good faith misunderstanding of the requirements of the
law.299
The defendant’s conduct would not be willful if you find that he acted in
accordance with a good faith misunderstanding of the law. The defendant’s views need
not be legally correct, just as long as he honestly and in good faith really and truly
believed and acted upon them. A good faith misunderstanding of the law, as distinct from
disagreement [with] the law, is a defense.300
____________________NOTE____________________
See generally United States v. Aramony, 88 F.3d 1369, 1382 (4th Cir. 1996);
United States v. Bishop, 412 U.S. 346, 350, 359 (1973).
In United States v. Poole, 640 F.3d 114, 122 (4th Cir. 2011), the Fourth Circuit
stated that “in a criminal tax prosecution, when the evidence supports an inference that a
defendant was subjectively aware of a high probability of the existence of a tax liability,
and purposefully avoided learning the facts pointing to such liability, the trier of fact may
find that the defendant exhibited ‘willful blindness,’ satisfying the scienter requirement of
knowledge.”

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26 U.S.C. § 7207
FILING A FALSE DOCUMENT
Title 26, United States Code, Section 7207 makes it a crime to file a false
document with the Internal Revenue Service. 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 disclosed to the Internal Revenue
Service any list, return, account, statement, or other document;
P
Second, that the list, return, account, statement, or other document was
known by the defendant to be false or fraudulent as to any material
matter; and
P
Third, that the defendant did so willfully.
Willfulness is defined as the voluntary intentional violation of a known legal

297

United States v. Aramony, 88 F.3d 1369, 1384-85 (4th Cir. 1996).
Cheek v. United States, 498 U.S. 192, 201 (1991).
299
See United States v. Nicolaou, 180 F.3d 565, 572 (4th Cir. 1999).
300
Instruction given in United States v. Snyder, 766 F.2d 167, 169-70 (4th Cir. 1985) (tax
evasion prosecution; court found “the trial judge did give a very fair and complete charge as to the
defendant’s good faith misunderstanding of the law.”).
298

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duty.301
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.302
The defendant’s conduct would not be willful if you find that he acted in
accordance with a good faith misunderstanding of the law. The defendant’s views need
not be legally correct, just as long as he honestly and in good faith really and truly
believed and acted upon them. A good faith misunderstanding of the law, as distinct from
disagreement [with] the law, is a defense.303
____________________NOTE____________________
See generally Sansone v. United States, 380 U.S. 343 (1965).
26 U.S.C. § 7212(a) INTERFERING WITH ADMINISTRATION OF TAX LAWS
Title 26, United States Code, Section 7212 makes it a crime to endeavor to
intimidate an IRS employee or obstruct the due administration of the tax code. 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 intimidate or impede any officer or
employee of the United States acting in an official capacity under the
Internal Revenue Code, and
P
Second, that the defendant did so corruptly, or by force, or by threats of
force, including a threatening communication.
Second, omnibus clause304
P
First, that the defendant obstructed, impeded, or endeavored to obstruct or
impede the due administration of the Internal Revenue Code; and
P
Second, that the defendant did so corruptly, or by force, or by threats of
force, including a threatening communication.305
“Threats of force” means threat of bodily harm to an employee of the United
States or to a member of his family.
The term “corruptly” forbids acts committed with the intent to secure an unlawful
benefit either for oneself or for another. The acts need not be illegal. Legal actions can
violate this statute if the defendant commits them to secure an unlawful benefit for
himself or others.306
The government does not have to prove that the defendant successfully impeded

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Cheek v. United States, 498 U.S. 192, 201 (1991).
United States v. Sarihifard, 155 F.3d 301, 307 (4th Cir. 1998).
303
Instruction given in United States v. Snyder, 766 F.2d 167, 169-70 (4th Cir. 1985) (tax
evasion prosecution; court found “the trial judge did give a very fair and complete charge as to the
defendant’s good faith misunderstanding of the law.”).
304
See United States v. Mitchell, 985 F.2d 1275 (4th Cir. 1993).
305
See United States v. Bostian, 59 F.3d 474, 477 (4th Cir. 1995); United States v. Wilson,
118 F.3d 228, 234 (4th Cir. 1997).
306
Wilson, 118 F.3d at 234.
302

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the administration of the tax laws.307
____________________NOTE____________________
There is a lesser included offense if the offense is committed only by threats of
force.
Title 26 U.S.C. § 7212 and 18 U.S.C. §§ 1503 and 1505 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).
“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.” Id. at 299.
In United States v. Mitchell, 985 F.2d 1275 (4th Cir. 1993), the court declined to
adopt the narrow interpretation of “corruptly” as only describing an element of actus reus.
Instead, the court held that § 7212(a) “should be given the full scope its broad language
commands” and therefore encompasses fraud. 985 F.2d at 1279. In Mitchell, the
defendant incorporated an organization and filed an application for tax-exempt status so
he could solicit contributions to promote research in ecology. In fact, he solicited
“contributions” from big-game hunters to arrange hunting privileges in Pakistan and
China, and then caused the hunters to file fraudulent tax returns claiming tax-deductible
contributions. The indictment alleged that the defendant’s activities comprised an artifice
and scheme to defraud the United States and a corrupt endeavor to impede and obstruct
the tax laws, and therefore a violation of § 7212(a). The district court dismissed the count
of the indictment, and the Fourth Circuit reversed.
In United States v. Grubb, 11 F.3d 426, 437 (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. 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.” 11 F.3d at 438.

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29 U.S.C. § 186
PAYMENTS TO UNION OFFICIALS (TAFT-HARTLEY
ACT)
Title 29, United States Code, Section 186 makes it a crime to pay money or other
thing of value to a labor union official. For you to find the defendant guilty, the
government must prove each of the following beyond a reasonable doubt:
§ 186(a)
P
First, that the defendant was an employer (or association of employers) or
a person who acted as a labor relations expert, adviser, or consultant to an
employer or who acted in the interest of an employer;
P
Second, that the defendant paid, lent, or delivered, or agreed to pay, lend,
or deliver, any money or other thing valued at $1,000 or more;
P
Third, to
1.
any representative of any of his employees who were employed in
an industry affecting commerce; or
2.
any labor organization, or any officer or employee of a labor
organization, which represented, sought to represent, or would

307

Bostian, 59 F.3d at 479.

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admit to membership, any of the employees of that employer who
were employed in an industry affecting commerce; or
3.
any employee or group or committee of employees of that
employer employed in an industry affecting commerce in excess
of their normal compensation for the purpose of causing that
employee or group or committee directly or indirectly to
influence any other employees in the exercise of the right to
organize and bargain collectively through representatives of their
own choosing; or
4.
any officer or employee of a labor organization engaged in an
industry affecting commerce with intent to influence him in
respect to any of his actions, decisions, or duties as a
representative of employees or as an officer or employee of a
labor organization; and
P
Fourth, that the defendant did so willfully.
§ 186(b)(1)
P
First, that the defendant requested, demanded, received, accepted, or
agreed to receive or accept, any payment, loan, or delivery of any money
or other thing valued at $1,000 or more;
P
Second, from
1.
any representative of any of his employees who were employed in
an industry affecting commerce; or
2.
any labor organization, or any officer or employee of a labor
organization, which represented, sought to represent, or would
admit to membership, any of the employees of that employer who
were employed in an industry affecting commerce; or
3.
any employee or group or committee of employees of that
employer employed in an industry affecting commerce in excess
of their normal compensation for the purpose of causing that
employee or group or committee directly or indirectly to
influence any other employees in the exercise of the right to
organize and bargain collectively through representatives of their
own choosing; or
4.
any officer or employee of a labor organization engaged in an
industry affecting commerce with intent to influence him in
respect to any of his actions, decisions, or duties as a
representative of employees or as an officer or employee of a
labor organization; and
P
Third, that the defendant did so willfully.
§ 186(b)(2)
P
First, that the defendant was a labor organization or person who acted as
an officer, agent, representative, or employee of a labor organization;
P
Second, that the defendant demanded or accepted from the operator of a
motor vehicle employed in the transportation of property in commerce, or
the employer of that motor vehicle operator, any money or other thing
valued at $1,000 or more payable to the labor organization or to an
officer, agent, representative or employee of that labor organization as a
fee or charge for the unloading, or in connection with the unloading, of
the cargo of the motor vehicle; and

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P
Third, that the defendant did so willfully.
L Section 186(d)(2) contains a lesser-included misdemeanor, if the value
does not exceed $1,000.

The word “willfully” means that the defendant knowingly and intentionally
committed acts which constitute the offense charged and that such acts were not
committed accidently or by some mistake. The government is not required to prove a
specific intent by the defendant to violate this Taft-Hartley statute or a particular part of it
in order to establish the federal criminal offense charged.308
“Industry affecting commerce” means any activity, business, or industry in
commerce or in which a labor dispute would hinder or obstruct commerce or the free flow
of commerce and includes any activity or industry “affecting commerce” within the
meaning of the Labor Management Relations Act [29 U.S.C. § 141 et seq.] or the Railway
Labor Act [45 U.S.C. § 151 et seq.]. [§ 402 (c)]
“Employee” means any individual employed by an employer, and includes any
individual whose work has ceased as a consequence of, or in connection with, any current
dispute or because of any unfair labor practice or because of exclusion or expulsion from
a labor organization in any manner or for any reason inconsistent with the requirements of
[federal law]. [§ 402(f)]
“Employer” means any employer or any group or association of employers
engaged in an industry affecting commerce (1) which is, with respect to employees
engaged in an industry affecting commerce, an employer within the meaning of any law of
the United States relating to the employment of any employees or (2) which may deal
with any labor organization concerning grievances, labor disputes, wages, rates of pay,
hours of employment, or conditions of work, and includes any person acting directly or
indirectly as an employer or as an agent of an employer in relation to an employee but
does not include the United States or any corporation wholly owned by the Government
of the United States or any State or political subdivision thereof. [§ 402(e)]
“Labor organization” means a labor organization engaged in an industry affecting
commerce and includes any organization of any kind, any agency, or employee
representation committee, group, association, or plan so engaged in which employees
participate and which exists for the purpose, in whole or in part, of dealing with
employers concerning grievances, labor disputes, wages, rates of pay, hours, or other
terms or conditions of employment, and any conference, general committee, joint or
system board, or joint counsel so engaged which is subordinate to a national or
international labor organization, other than a state or local central body. [§ 402(i)]
“Motor vehicle” means a vehicle, machine, tractor, trailer, or semitrailer
propelled or drawn by mechanical power and used on a highway in transportation, or a
combination determined by the Secretary [of Transportation], but does not include a
vehicle, locomotive, or car operated only on a rail, or a trolley bus operated by electric
power from a fixed overhead wire, and providing local passenger transportation similar to
street-railway service. [49 U.S.C. § 13102(16)]
GOOD FAITH DEFENSE [§ 186(c)]

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308

Charge approved in United States v. Phillips, 19 F.3d 1565,1577-82 (11th Cir. 1994)
(“willfully” in § 186(d)(2) requires a finding of only general intent, and not a specific intent to violate
the law, that is, acting with a bad purpose to disobey or disregard the law). See also United States v.
Georgopoulos, 149 F.3d 169, 172 (2d Cir. 1998) (“the ‘willfulness’ element of Section 186 requires
only a finding of general intent”).

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The above prohibitions do not apply in respect to any money payable by an
employer to any officer or employee of a labor organization, who is also an employee or
former employee of the employer in question, as compensation for, or by reason of, his
service as an employee of such employer.
Thus, this exception applies only to payments by an employer to former
employees for past services actually rendered by those former employees while they were
employees of the employer.309
____________________NOTE____________________
The Taft-Hartley Act is, in part, a conflict-of-interest statute designed to eliminate
practices that have the potential for corrupting the labor movement. To achieve this goal,
Congress prohibited all payments from employers to representatives of their employees
and union officials. Section 186(a) prohibits employers, in industries affecting interstate
commerce, from paying anything of value to representatives of their employees or union
officials. § 186(b) prohibits representatives and union officials from receiving such
payments. United States v. Phillips, 19 F.3d 1565, 1571 (11th Cir. 1994).
Section 186 has five basic components. Subsections (a) and (b) are outlined
above. Subsections (c)(1) through (c)(3) set forth certain categorical exceptions to the
prohibitions set forth in subsections (a) and (b). Subsections (c)(4) through (c)(9) identify
certain types of payments, particularly contributions to employee trust funds and pension
plans, that are permitted if specified requirements are met. Subsections (d)(1) and (2) set
forth the penalties. To be convicted of violating subsections (c)(4) through (c)(9), one
must have acted willfully and with intent to benefit himself or to benefit other persons he
knows are not permitted to receive a payment under those subsections. § 186(d)(1). See
United States v. Georgopoulos, 149 F.3d 169, 172 (2d Cir. 1998).
Regarding venue, in United States v. Billups, 692 F.2d 320 (4th Cir. 1982), the
court held that venue “lies either wherever commerce is affected or wherever the
proscribed act occurs.” 692 F.2d at 333. However, that holding may be in doubt if
robbery or extortion is deemed the essential conduct element. See United States v.
Bowens, 224 F.3d 302, 309 (4th Cir. 2000).
However, “[w]hen Congress defines the essential conduct elements in terms of
their particular effects [such as affecting interstate commerce], venue will be proper
where those proscribed effects are felt.” Id. at 313.

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29 U.S.C. § 501
EMBEZZLING UNION FUNDS
Title 29, United States Code, Section 501 makes it a crime to embezzle funds
from a labor union. 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 a labor
organization;
P
Second, that the labor organization was engaged in an industry affecting

309

United States v. Phillips, 19 F.3d 1565, 1571 (11th Cir. 1994). Congress intended to
remove from the statute’s prohibitions two general categories of payments to employees: wages, and
payments not made specifically for work performed that are occasioned by reason of the fact that the
employee has performed or will perform work for the employer. “[A]ll payments given by an employer
to a former employee must be for past service actually rendered by the former employee while
employed by the employer to qualify for an exception under section 186(c)(1).” Id. at 1576.

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commerce;310
P
Third, that the defendant embezzled, stole, or unlawfully and willfully
abstracted or converted to his own use or the use of another, moneys,
funds, or other assets of the labor organization; and
P
Fourth, that the defendant intended to deprive the organization of the use
of its funds.
“Industry affecting commerce” means any activity, business, or industry in
commerce or in which a labor dispute would hinder or obstruct commerce or the free flow
of commerce and includes any activity or industry “affecting commerce” within the
meaning of the Labor Management Relations Act [29 U.S.C. § 141 et seq.] or the Railway
Labor Act [45 U.S.C. § 151 et seq.]. [§ 402 (c)]
“Employee” means any individual employed by an employer, and includes any
individual whose work has ceased as a consequence of, or in connection with, any current
dispute or because of any unfair labor practice or because of exclusion or expulsion from
a labor organization in any manner or for any reason inconsistent with the requirements of
[federal law]. [§ 402(f)]
“Employer” means any employer or any group or association of employers
engaged in an industry affecting commerce (1) which is, with respect to employees
engaged in an industry affecting commerce, an employer within the meaning of any law of
the United States relating to the employment of any employees or (2) which may deal
with any labor organization concerning grievances, labor disputes, wages, rates of pay,
hours of employment, or conditions of work, and includes any person acting directly or
indirectly as an employer or as an agent of an employer in relation to an employee but
does not include the United States or any corporation wholly owned by the Government
of the United States or any State or political subdivision thereof. [§ 402(e)]
“Labor organization” means a labor organization engaged in an industry affecting
commerce and includes any organization of any kind, any agency, or employee
representation committee, group, association, or plan so engaged in which employees
participate and which exists for the purpose, in whole or in part, of dealing with
employers concerning grievances, labor disputes, wages, rates of pay, hours, or other
terms or conditions of employment, and any conference, general committee, joint or
system board, or joint counsel so engaged which is subordinate to a national or
international labor organization, other than a state or local central body. [§ 402(i)]
“Labor dispute” includes any controversy concerning terms, tenure, or conditions
of employment or concerning the association or representation of persons in negotiating,
fixing, maintaining, changing, or seeking to arrange terms or conditions of employment,
regardless of whether the disputants stand in the proximate relation of employer and
employee. [§ 402(g)]
Embezzle means to take or convert willfully the property of another which came
into the wrongdoer’s possession lawfully by virtue of his office, employment, or position
of trust.311
Embezzlement requires knowledge that the appropriation is contrary to the wishes
of the owner of the property. A defendant who exercises dominion over property in the
good-faith belief that the property is his own, or that the appropriation is otherwise
authorized, is not guilty of embezzlement. An appropriation or expenditure of union funds

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United States v. Silverman, 430 F.2d 106 (2d Cir. 1970).
United States v. Stockton, 788 F.2d 210, 218 (4th Cir. 1986).

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is unauthorized if it is done without the permision of the union, even if it is approved by a
superior union official.312
The defendant must occupy a fiduciary role with respect to the labor organization.
This encompasses a duty to hold the organization’s property solely for the benefit of the
organization and to expend those funds only in accordance with its constitution, by-laws
and resolutions. Thus, if you find either that the labor organization did not benefit from
the expenditure or that the expenditure was not properly authorized, you may conclude
that the funds were embezzled or converted. Moreover, when there is no possible benefit
to the labor organization from the use of the funds, it makes no difference whether the use
was authorized.313
Embezzlement is not excused by restitution of goods or services of equivalent
314
value.
To convert means to apply without authorization the moneys or properties of a
labor organization to the temporary or permanent use, benefit, or profit of a person not
legally entitled to them.315
The government must prove that the defendant intended to appropriate the
property in question.316
[See separate instruction on CONVERSION.]

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____________________NOTE____________________
In United States v. Silverman, 430 F.2d 106 (2d Cir. 1970), the defendant was
convicted of converting union funds paid to a printing company for the benefit of a
political campaign. The jury was charged that a political contribution per se by a union is
not unlawful. The issue is rather whether the contribution was properly authorized and
made for the benefit of the union. Id. at 113.

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4 REPORTING AND DISCLOSURE
29 U.S.C. §§ 1021, 1131 61 REQUIREMENTS UNDER ERISA
.
No
Title 29, United States Code, Section 1131 makes it a crime to violate the

reporting and disclosure requirements of the Employee Retirement Income Security Act
(ERISA). Part 1 of ERISA, § 1021, requires the administrator of a pension plan to notify
the Department of Labor and the plan’s participants and beneficiaries of any material
modifications in the terms of the pension plan, such as the creation of a new class of
pension beneficiaries. For you to find the defendant guilty, the government must prove
each of the following beyond a reasonable doubt:
§ 1021(a)
P
First, that the defendant was an administrator of an employee benefit
plan;
P
Second, that the defendant either failed to furnish, or furnished materially
false information to participants covered under the plan and/or to
beneficiaries receiving benefits under the plan; and
P
Third, that the defendant did so willfully.

312
313
314
315
316

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Id. at 217.
United States v. Silverman, 430 F.2d 106, 114 (2d Cir. 1970).
Stockton, 788 F.2d at 219.
Id. at 218.
United States v. Stockton, 788 F.2d 210, 216 (4th Cir. 1986).

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L

The plan administrator is required to furnish a summary plan
description, an annual report, and information about total benefits
accrued and nonforfeitable pension benefits.
§ 1021(b)
P
First, that the defendant was an administrator of an employee benefit
plan;
P
Second, that the defendant either failed to file an annual report and/or
supplemental reports, or filed an annual report and/or supplemental
reports with the Secretary of Labor which contained false material
statements or omissions of material fact; and
P
Third, that the defendant did so willfully.

The word “willfully” means that the defendant knowingly and intentionally
committed acts which constitute the offense charged and that such acts were not
committed accidently or by some mistake. The word “knowingly” means knowledge of
the existence of the facts in question. It does not require that there be any knowledge or
awareness that such act or omission is prohibited by law. The government is not required
to prove a specific intent by the defendant to violate this Taft-Hartley statute or a
particular part of it in order to establish the federal criminal offense charged.317
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.318
“Employee welfare benefit plan” and “welfare plan” mean any plan, fund, or
program which was heretofore or is hereafter established or maintained by an employer or
by an employee organization, or by both, to the extent that such plan, fund, or program
was established or is maintained for the purpose of providing for its participants or their
beneficiaries, through the purchase of insurance or otherwise, (A) medical, surgical, or
hospital care of benefits, or benefits in the event of sickness, accident, disability, death or
unemployment, or vacation benefits, apprenticeship or other training programs, or day
care centers, scholarship funds, or prepaid legal services, or (B) any benefit described in
§ 186(c) of this title (other than pensions on retirement or death, and insurance to provide
such pensions). [§1002(1)]
The terms “employee pension benefit plan” and “pension plan” mean any plan,
fund, or program which was heretofore or is hereafter established or maintained by an
employer or by an employee organization, or by both, to the extent that by its express
terms or as a result of surrounding circumstances such plan, fund, or program–
(i)
provides retirement income to employees, or
(ii)
results in a deferral of income by employees for periods extending to the
termination of covered employment or beyond,
regardless of the method of calculating the contributions made to the plan, the method of
calculating the benefits under the plan or the method of distributing benefits from the

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317

Charge approved in United States v. Phillips, 19 F.3d 1565, 1582-84 (11th Cir. 1994)
(“willfully” in § 1131 requires a finding of only general intent, and not a specific intent to violate the
law, that is, acting with a bad purpose to disobey or disregard the law).
318
United States v. Sarihifard, 155 F.3d 301, 307 (4th Cir. 1998).

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plan. A distribution from a plan, fund, or program shall not be treated as made in a form
other than retirement income or as a distribution prior to termination of covered
employment solely because such distribution is made to an employee who has attained
age 62 and who is not separated from employment at the time of such distribution.
[§ 1002(2)]
“Employee benefit plan” means an employee welfare benefit plan or an employee
pension benefit plan or a plan which is both an employee welfare benefit plan and an
employee pension benefit plan. [§ 1002(3)]
“Employee organization” means any labor union or any organization of any kind,
or any agency or employee representation committee, association, group, or plan in which
employees participate and which exists for the purpose, in whole or in part, of dealing
with employers concerning an employee benefit plan, or other matters incidental to
employment relationships; or any employees’ beneficiary association organized for the
purpose in whole or in part, of establishing such a plan. [§ 1002(4)]
“Employer” means any person acting directly as an employer or indirectly in the
interest of an employer, in relation to an employee benefit plan; and includes a group or
association of employers acting for an employer in such capacity. [§ 1002(5)]
“Employee” means any individual employed by an employer. [§ 1002(6)]
“Participant” means any employee or former employee of an employer, or any
member or former member of an employee organization, who is or may become eligible to
receive a benefit of any type from an employee benefit plan which covers employees of
such employer or members of such organization, or whose beneficiaries may be eligible to
receive any such benefit. [§ 1002(7)]
“Beneficiary” means a person designated by a participant, or by the terms of an
employee benefit plan, who is or may become entitled to a benefit thereunder. [§ 1002(8)]
“Person” means an individual, partnership, joint venture, corporation, mutual
company, joint-stock company, trust, estate, unincorporated organization, association, or
employee organization. [§ 1002(9)]
“Industry or activity affecting commerce” means any activity, business, or
industry in commerce or in which a labor dispute would hinder or obstruct commerce or
the free flow of commerce, and includes any activity or industry “affecting commerce”
within the meaning of the Labor Management Relations Act [29 U.S.C. § 141 et seq.] or
the Railway Labor Act [45 U.S.C. § 151 et seq.]. [§ 1002 (12)]
L
Fiduciary duties are set forth in § 1104, including the prudent man standard
of care.
L
A good faith defense is set forth in § 1108.

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____________________NOTE____________________
This statute is designed:
1.
to require the disclosure of significant information about employee
benefit plans and all transactions engaged in by those who control the
plans;
2.
to provide specific data to plan participants and beneficiaries about the
rights and benefits to which they are entitled and the circumstances that
may result in a loss of those rights and benefits; and
3.
to set forth the responsibilities and proscriptions applicable to persons
occupying a fiduciary relation to employee benefit plans.
United States v. Phillips, 19 F.3d 1565, 1583 (11th Cir. 1994). Congress codified a

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“prudent man” standard for evaluating the conduct of all fiduciaries. Id. at 1584.
31 U.S.C. § 5324
STRUCTURING CURRENCY TRANSACTIONS
Title 31, United States Code, Section 5324 makes it a crime to fail to file currency
transactions reports, file false currency transaction reports, or structure currency
transactions to evade the reporting requirements. For you to find the defendant guilty, the
government must prove each of the following beyond a reasonable doubt:
§ 5324(a)(1)
P
First, that the defendant engaged in a transaction in currency in excess of
$10,000 cash with a domestic financial institution as defined in the
statute;
P
Second, that the domestic financial institution involved was required to
file a currency transaction report;
P
Third, that the defendant knew that the domestic financial institution was
required to file a currency transaction report;
P
Fourth, that the defendant caused or attempted to cause the financial
institution to fail to file the required report;
P
Fifth, that the defendant did so for the purpose of evading the reporting
requirement; and
P
Sixth, the defendant knew that it was unlawful to cause the financial
institution to fail to file the required report.319
§ 5324(a)(2)
P
First, that the defendant engaged in a transaction in currency in excess of
$10,000 cash with a domestic financial institution as defined in the
statute;
P
Second, that the domestic financial institution involved was required to
file a currency transaction report;
P
Third, that the defendant knew that the domestic financial institution was
required to file a currency transaction report;
P
Fourth, that the defendant caused or attempted to cause the financial
institution to file the required report with a material omission or
misstatement of fact;
P
Fifth, that the defendant did so for the purpose of evading the reporting
requirement; and
P
Sixth, the defendant knew that it was unlawful to cause the financial
institution to fail to file the required report.
§ 5324(a)(3)
P
First, that the defendant structured, assisted in structuring, or attempted to
structure or assist in structuring, a currency transaction with one or more
domestic financial institutions;320
P
Second, that the domestic financial institution involved was required to
file a currency transaction report;

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319

See United States v. Rockson, No. 95-5116, 1996 W L 733945 (4th Cir. Oct. 30, 1996),
where the Fourth Circuit stated the “district court erred by failing clearly to instruct the jury that it was
required to determine whether [First African Forex Bureau, a money transmittal business] was a
financial institution.” 1996 W L 733945 at *4.
320
See id.

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P

Third, that the defendant knew that the domestic financial institution was
required to file a currency transaction report; and
P
Fourth, that the defendant did so for the purpose of evading the reporting
requirement.321
§ 5324(b)(1)
P
First, that the defendant engaged in a transaction in currency in excess of
$10,000 cash with a nonfinancial trade or business as defined in the
statute;
P
Second, that the nonfinancial trade or business involved was required to
file a currency transaction report;
P
Third, that the defendant knew that the nonfinancial trade or business was
required to file a currency transaction report;
P
Fourth, that the defendant caused or attempted to cause the nonfinancial
trade or business to fail to file the required report;
P
Fifth, that the defendant did so for the purpose of evading the reporting
requirement; and
P
Sixth, the defendant knew that it was unlawful to cause the nonfinancial
trade or business to fail to file the required report.
§ 5324(b)(2)
P
First, that the defendant engaged in a transaction in currency in excess of
$10,000 cash with a nonfinancial trade or business as defined in the
statute;
P
Second, that the nonfinancial trade or business involved was required to
file a currency transaction report;
P
Third, that the defendant knew that the nonfinancial trade or business was
required to file a currency transaction report;
P
Fourth, that the defendant caused or attempted to cause the nonfinancial
trade or business to file the required report with a material omission or
misstatement of fact;
P
Fifth, that the defendant did so for the purpose of evading the reporting
requirement; and
P
Sixth, the defendant knew that it was unlawful to cause the nonfinancial
trade or business to file the required report with a material omission or
misstatement of fact.
§ 5324(b)(3)
P
First, that the defendant structured, assisted in structuring, or attempted to
structure or assist in structuring, a currency transaction with one or more
nonfinancial trades or businesses;
P
Second, that the nonfinancial trades or businesses involved were required
to file a currency transaction report;
P
Third, that the defendant knew that the nonfinancial trades or businesses
were required to file a currency transaction report; and
P
Fourth, that the defendant did so for the purpose of evading the reporting
requirement.
§ 5324(c)(1)
P
First, that the defendant, or an agent of the defendant, transported, was

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about to transport, or had transported monetary instruments of more than
$10,000 from a place in the United States to or through a place outside
the United States, or to a place in the United States from or through a
place outside the United States;
OR
P

First, that the defendant, or an agent of the defendant, received monetary
instruments of more than $10,000 at one time transported into the United
States from or through a place outside the United States;
P
Second, that the defendant or his agent did so knowingly;
P
Third, that the defendant was required to file a currency transaction
report;
P
Fourth, that the defendant failed to file or caused or attempted to cause a
person to fail to file the required report; and
P
Fifth, that the defendant did so for the purpose of evading the reporting
requirement.
§ 5324(c)(2)
P
First, that the defendant, or an agent of the defendant, transported, was
about to transport, or had transported monetary instruments of more than
$10,000 from a place in the United States to or through a place outside
the United States, or to a place in the United States from or through a
place outside the United States;
OR
P
First, that the defendant, or an agent of the defendant, received monetary
instruments of more than $10,000 at one time transported into the United
States from or through a place outside the United States;
P
Second, that the defendant or his agent did so knowingly;
P
Third, that the defendant was required to file a currency transaction
report;
P
Fourth, that the defendant filed or caused or attempted to cause a person
to file the required report with a material omission or misstatement of
fact; and
P
Fifth, that the defendant did so for the purpose of evading the reporting
requirement.
§ 5324(c)(3)
P
First, that the defendant, or an agent of the defendant, transported, was
about to transport, or had transported monetary instruments of more than
$10,000 from a place in the United States to or through a place outside
the United States, or to a place in the United States from or through a
place outside the United States;
OR
P
First, that the defendant, or an agent of the defendant, received monetary
instruments of more than $10,000 at one time transported into the United
States from or through a place outside the United States;
P
Second, that the defendant or his agent did so knowingly;
P
Third, that the defendant was required to file a currency transaction
report;
P
Fourth, that the defendant structured, assisted in structuring, or attempted
to structure or assist in structuring, any importation or exportation of
monetary instruments; and

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P

Fifth, that the defendant did so for the purpose of evading the reporting
requirement.
AGGRAVATED PENALTY
1. Did the defendant commit this offense while violating another law of the
United States [which law and its elements must be identified] or as part of a
pattern of any illegal [identify the basis of the illegality] activity involving more
than $100,000 in a 12-month period?
“Financial institution” means an insured bank; a commercial bank or trust
company; a private banker; an agency or branch of a foreign bank in the United States;
any credit union; a thrift institution; a broker or dealer registered with the Securities and
Exchange Commission under the Securities Exchange Act of 1934; a broker or dealer in
securities or commodities; an investment banker or investment company; a currency
exchange; an issuer, redeemer, or cashier of travelers’ checks, checks, money orders, or
similar instruments; an operator of a credit card system; an insurance company; a dealer
in precious metals, stones, or jewels; a pawnbroker; a loan or finance company; a travel
agency; a licensed sender of money or any other person who engages as a business in the
transmission of funds, including any person who engages as a business in an informal
money transfer system or any network of people who engage as a business in facilitating
the transfer of money domestically or internationally outside of the conventional financial
institutions system; a telegraph company; a business engaged in vehicle sales, including
automobile, airplane, and boat sales; persons involved in real estate closings and
settlements; the United States Postal Service; an agency of the United States Government
or of a state or local government carrying out a duty or power of a business described in
this paragraph; a casino, gambling casino, or gaming establishment with an annual gaming
revenue of more than $1,000,000 which is licensed as a casino, gambling casino, or
gaming establishment under the laws of any state or any political subdivision of any State,
or is an Indian gaming operation conducted under or pursuant to the Indian Gaming
Regulatory Act other than an operation which is limited to class I gaming (as defined in
that Act); any business or agency which engages in any activity which the Secretary of the
Treasury determines, by regulation, to be an activity which is similar to, related to, or a
substitute for any activity in which any business described in this paragraph is authorized
to engage; or any other business designated by the Secretary of the Treasury whose cash
transactions have a high degree of usefulness in criminal, tax, or regulatory
matters.[§ 5312(a)(2)]

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A person structures a transaction if that person, acting alone, or in conjunction
with, or on behalf of, other persons, conducts or attempts to conduct one or more
transactions in currency, in any amount, at one or more financial institutions, on one or
more days, in any manner, for the purpose of evading the reporting requirements .... “In
any manner” includes, but is not limited to, the breaking down of a single sum of currency
exceeding $10,000 into smaller sums, including sums at or below $10,000, or the conduct
of a transaction, or series of currency transactions, including transactions at or below
$10,000. The transaction or transactions need not exceed the $10,000 reporting threshold
at any single financial institution on any single day in order to constitute structuring
within the meaning of this definition. [31 C.F.R. § 103.11(gg)]
“Nonfinancial trade or business” means any trade or business other than a
financial institution that is subject to the reporting requirements of this statute. [31 U.S.C.
§ 5312(a)(4)]
____________________NOTE____________________

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In 1994, Congress amended § 5322 to eliminate the willfulness requirement with
respect to structuring violations under § 5324 imposed by Ratzlaf v. United States, 510
U.S. 135 (1994). See United States v. Ahmad, 213 F.3d 805, 809 (4th Cir. 2000); United
States v. Ismail, 97 F.3d 50, 56 (4th Cir. 1996).
The statute does not forbid the making of deposits, but structuring of a
transaction. Therefore, the Seventh Circuit concluded “that the structuring itself, and not
the individual deposit, is the unit of crime.” United States v. Davenport, 929 F.2d 1169,
1172 (7th Cir. 1991). In that case, the defendant came into possession of $100,000 in
cash, and made ten separate cash deposits, each less than $10,000, which totaled $81,500.
The Seventh Circuit dismissed all but one of the substantive counts. In United States v.
Cassano, 372 F.3d 868 (7th Cir. 2004), vacated on other grounds, 543 U.S. 1109 (2005),
the Seventh Circuit distinguished Davenport, explaining that the defendant had structured
deposits of the proceeds from a single transaction. In Cassano, there were two separate
transactions that were structured on two separate dates. “Merely because the
misappropriated funds were derived from the same source does not mean they are part of
a single transaction” Cassano, 372 F.3d at 882.

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31 U.S.C. § 5332
BULK CASH SMUGGLING
Title 31, United States Code, Section 5332 makes it a crime to smuggle more than
$10,000 into or out 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 concealed more than $10,000 in currency or
other monetary instruments on a person, or in any conveyance, article of
luggage, merchandise, or other container;
P
Second, that the defendant transported or transferred, or attempted to
transport or transfer the currency or monetary instruments from a place
within the United States to a place outside of the United States, or from a
place outside the United States to a place within the United States;
P
Third, that the defendant did so knowingly, and
P
Fourth, that the defendant did so with the intent to evade the reporting
requirement.
Concealment includes concealment in any article of clothing being worn or in any
luggage, backpack, or other container worn or carried by a person. [See 31 U.S.C.
§ 5332(a)(2)]

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____________________NOTE____________________
Penalty includes forfeiture of any property, real or personal, involved in the
offense, and any property traceable to such property.
See United States v. Cuellar, 553 U.S. 550 (2008), where the defendant was
prosecuted for international money laundering, in violation of 18 U.S.C. § 1956(a)(2)(B).
The defendant had concealed $81,000 he was attempting to transport to Mexico. The
Supreme Court reversed because the government failed to prove why he was transporting
the money, i.e., that it was being transported to conceal or disguise the nature, location,
source, ownership, or control of the $81,000.
33 U.S.C. §§ 401, 403, 406
RIVERS and HARBORS ACT
Title 33, United States Code, Sections 401 and 403 [§ 406 is the penalty section]
make it a crime to obstruct the navigable waters of the United States. For you to find the

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defendant guilty, the government must prove each of the following beyond a reasonable
doubt:
§ 401
P
First, that the defendant constructed or commenced the construction of a
bridge, causeway, dam, or dike over or in any port, roadstead, haven,
harbor, canal, navigable river, or other navigable water of the United
States;
P
Second, that the defendant did not obtain the consent of Congress to the
building of the bridge, causeway, dam, or dike; and
P
Third, that the plans for the bridge or causeway had not been submitted to
and approved by the Secretary of Transportation, or the plans for the dam
or dike had not been submitted to and approved by the Chief of Engineers
and Secretary of the Army.
§ 403
P
First, that the defendant created an obstruction to the navigable capacity
of any waters of the United States; and
P
Second, that the obstruction was not affirmatively authorized by
Congress.
OR
P
First, that the defendant built or commenced the building of any wharf,
pier, dolphin, boom, weir, breakwater, bulkhead, jetty, or other structure
in any port, roadstead, haven, harbor, canal, navigable river, or other
water of the United States, outside established harbor lines, or where no
harbor lines had been established; and
P
Second, the defendant did so without authorization from the Secretary of
the Army.
OR
P
First, that the defendant excavated or filled, or in any manner altered or
modified the course, location, condition, or capacity of, any port,
roadstead, haven, harbor, canal, lake, harbor, or refuge, or inclosure
within the limits of any breakwater, or of the channel of any navigable
water of the United States; and
P
Second, the defendant did so without authorization from the Secretary of
the Army.
Whether a waterway is navigable is simply a question of whether the waterway in
its natural and ordinary condition affords a channel for useful commerce.322
Any filling of navigable waters that reduces the navigable capacity of the
waterway creates an obstruction within the meaning of § 403.323
“Structures” encompasses land fills.
The government is not required to prove that the defendant knew permits were
available or required.324

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33 U.S.C. § 1319
CLEAN WATER ACT
Title 33, United States Code, Section 1319 makes it a crime to discharge

322

United States v. Joseph G. Moretti, Inc., 478 F.2d 418, 428 (5th Cir. 1973) (civil action
for injunctive relief).
323
Id. at 429.
324
United States v. Wilson, 133 F.3d 251, 264 (4th Cir. 1997).

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pollutants into the navigable waters of the United States without a permit. For you to find
the defendant guilty, the government must prove each of the following beyond a
reasonable doubt:
§ 1319(c)(1)(A)
P
First, that the defendant discharged a pollutant;
P
Second, that the pollutant was discharged from a point source;
P
Third, that the pollutant was discharged into a navigable water of the
United States;
P
Fourth, that the defendant did so without, or in violation of, a National
Pollution Discharge Elimination System permit; and
P
Fifth, that the defendant did so negligently.325
§ 1319(c)(1)(B)
P
First, that the defendant introduced into a sewer system or into a publicly
owned treatment works a pollutant or hazardous substance;
P
Second, that the defendant knew or reasonably should have known that
the pollutant or hazardous substance could cause personal injury or
property damage, or which caused the treatment works to violate a permit
issued to the treatment works; and
P
Third, that the defendant did so negligently.
§ 1319(c)(2)(A)
P
First, that the defendant discharged a pollutant;
P
Second, that the pollutant was discharged from a point source;
P
Third, that the pollutant was discharged into a navigable water of the
United States;
P
Fourth, that the defendant did so without, or in violation of, a National
Pollution Discharge Elimination System permit; and
P
Fifth, that the defendant did so knowingly.326
§ 1319(c)(2)(B)
P
First, that the defendant introduced into a sewer system or into a publicly
owned treatment works a pollutant or hazardous substance;
P
Second, that the defendant knew or reasonably should have known that
the pollutant or hazardous substance could cause personal injury or
property damage, or which caused the treatment works to violate a permit
issued to the treatment works; and
P
Third, that the defendant did so knowingly.
AGGRAVATED PENALTY [§ 1319(c)(3)]
1. Did the defendant know at the time that he thereby placed another person in
imminent danger of death or serious bodily injury?
The term “navigable waters” means the waters of the United States, including the
territorial seas. [§ 1362(7)]
The phrase ‘the waters of the United States’ includes interstate waters and their
tributaries. [See lengthy definition at 40 C.F.R. § 122.2]
In other words, waters of the United States includes only those relatively
permanent, standing or continuously flowing bodies of water forming geographic features
that are described in ordinary parlance as streams, oceans, rivers, and lakes. It does not
include channels through which water flows intermittently or ephemerally, or channels

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325
326

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See id. at 260. See also United States v. Law, 979 F.2d 977, 978 (4th Cir. 1992).
See Wilson, 133 F.3d at 260l; Law, 979 F.2d at 978.

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that periodically provide drainage for rainfall.327
The term “pollutant” means dredged spoil, solid waste, incinerator residue,
sewage, garbage, sewage sludge, munitions, chemical wastes, biological materials,
radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt and
industrial, municipal, and agricultural waste discharged into water. [§ 1362(6)][See also
40 C.F.R. § 122.2]
The term “discharge of a pollutant” and the term “discharge of pollutants” each
means any addition of any pollutant to navigable waters from any point source, any
addition of any pollutant to the waters of the contiguous zone or the ocean from any point
source other than a vessel or other floating craft.. [§ 1362(12)][See also 40 C.F.R.
§ 122.2]
The term “toxic pollutant” means those pollutants, or combinations of pollutants,
including disease-causing agents, which after discharge and upon exposure, ingestion,
inhalation or assimilation into any organism, either directly from the environment or
indirectly by ingestion through food chains, will, on the basis of information available to
the Administrator, cause death, disease, behavioral abnormalities, cancer, genetic
mutations, physiological malfunctions (including malfunctions in reproduction) or
physical deformations, in such organisms or their offspring. [§ 1362(13)][See also 40
C.F.R. § 122.2]
The term “point source” means any discernible, confined and discrete
conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well,
discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel
or other floating craft, from which pollutants are or may be discharged. [§ 1362(14)][See
also 40 C.F.R. § 122.2]
“Permit” means an authorization, license, or equivalent control document issued
by EPA or “an approved State” to implement the requirements of [the CWA].
“Permit”includes an NPDES “general permit.” (40 C.F.R. § 122.28) Permit does not
include any permit which has not yet been the subject of final agency action, such as a
“draft permit” or a “proposed permit.” [40 C.F.R. § 122.2] Wetlands generally include
swamps, marshes, bogs and similar areas.328 [33 C.F.R. § 323.2 and 328.3][See also 40

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327

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Rapanos v. United States, 547 U.S. 715, 739 (2006) (civil enforcement proceeding under

the CW A).
328

In 1975, the Army Corps of Engineers construed the Act to cover all “freshwater
wetlands” that were adjacent to other covered waters. In 1977, the Corps defined “wetlands” as “those
areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient
to support, and that under normal circumstances do support, a prevalence of vegetation typically
adapted for life in saturated soil conditions. W etlands generally include swamps, marshes, bogs and
similar areas.” 33 C.F.R. § 323.2(c) (1978). In United States v. Riverside Bayview Homes, Inc., 474
U.S. 121 (1985), the defendant was prosecuted for discharging fill material into wetlands adjacent to
navigable bodies of water and their tributaries without a permit issued by the Corps. The Supreme
Court said that “the Act’s definition of ‘navigable waters’ as ‘the waters of the United States’ makes
it clear that the term ‘navigable’ as used in the Act is of limited import.” 474 U.S. at 133. The Court
held that Congress had obviously deferred to the Corps’ definition, and thus “waters” includes adjacent
wetlands. 474 U.S. at 138.
In SWANCC v. Corps of Engineers, 531 U.S. 159 (2001), the Supreme Court held that the
Corps’ jurisdiction does not extend to ponds that are not adjacent to open water. The Solid W aste
Agency of Northern Cook County contacted the Corps to determine if a permit was required to dispose
of baled nonhazardous waste in permanent and seasonal ponds including an abandoned sand and
gravel pit. The Corps denied a permit, citing the “Migratory Bird Rule,” which extended the Corps’

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C.F.R. § 122.2, included in definition of “waters of the United States”]
Wetlands are adjacent to “waters of the United States” only when they have a
continuous surface connection to bodies that are “waters of the United States” in their
own right, so that there is no clear demarcation between waters and wetlands.329
To establish that the wetlands in question are covered by the statute, the
government must prove first, that the adjacent channel contains a “water of the United
States,” that is, a relatively permanent body of water connected to traditional navigable
waters; and, second, that the wetland has a continuous surface connection with that water,
making it difficult to determine where the water ends and wetland begins.330
Wetlands with only an intermittent, physically remote hydrologic connection to
waters of the United States are not covered by the statute.331
The government must prove that the pollutant was discharged into a water of the
United States, but the government does not have to prove that the defendant knew the
body of water was a water of the United States.332
The government is not required to prove that the defendant knew permits were
available or required.333
____________________NOTE____________________

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Many CWA definitions are in 40 C.F.R. § 1122.2, including “contiguous zone,”
and “discharge of a pollutant.”

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The Supreme Court’s decision in Rapanos v. United States, 547 U.S. 715 (2006)
puts in question all previous cases dealing with navigable waters, as well as putting in
question the regulations of the Corps of Engineers defining and involving navigable
waters.

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In United States v. Law, 979 F.2d 977 (4th Cir. 1992), the defendant purchased a
water treatment system which was subject to an NPDES permit, but he never applied for
or obtained a permit. Pollutants were discharged into two creeks. Law argued that the
CWA imposes liability only upon generators of pollutants, not upon persons over whose
property preexisting pollutants are passed along. The district court instructed the jury that
it is not a defense that the water discharged from the point source came from some other
place or places before its discharge from the point source, or that some or all of the
pollutants discharged from a point source originated at places not on the defendant’s
property. The Fourth Circuit held the instruction to be without prejudicial error because
waste treatment systems are not waters of the United States and therefore the origin of
pollutants in the treatment and collection ponds was irrelevant. According to the Fourth
Circuit, the proper focus is upon the discharge.

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jurisdiction to intrastate waters which are or would be used as habitat by migratory birds, endangered
species, or used to irrigate crops sold in interstate commerce. The Supreme Court concluded that this
rule was not “fairly supported” by the Clean W ater Act. 531 U.S. at 167. The Court rejected the
request for administrative deference and held that the migratory bird rule exceeded the authority
granted to the Corps under the CW A.
329
Rapanos, 547 at 742.
330
Id.
331
Id.
332
See United States v. Cooper, 482 F.3d 658, 668 (4th Cir. 2007) (the status of the waterway
“as a ‘water of the United States’ is simply a jurisdictional fact, the objective truth of which the
government must establish but the defendant’s knowledge of which it need not prove”).
333
United States v. Wilson, 133 F.3d 251, 264 (4th Cir. 1997).

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In United States v. Wilson, 133 F.3d 251 (4th Cir. 1997), the Fourth Circuit held
that the government must prove the defendant’s knowledge of facts meeting each essential
element “but need not prove that the defendant knew his conduct to be illegal.” 133 F.3d
at 262. Thus, there is no mistake-of-law defense, but there is a mistake of fact defense.
The court listed what the government must prove:
1.

that the defendant knew that he was discharging a substance,
eliminating a prosecution for accidental discharges;

2.

that the defendant correctly identified the substance he was
discharging, not mistaking it for a different, unprohibited
substance;

3.

that the defendant knew the method or instrumentality used to
discharge the pollutants;
4.
that the defendant knew the physical characteristics of the
property into which the pollutant was discharged that identified it
as a wetland, such as the presence of water and water-loving
vegetation;
5.
that the defendant was aware of the facts establishing the required
link between the wetland and waters of the United States; and
6.
that the defendant knew he did not have a permit.
133 F.3d at 264. The government is not required to prove that the defendant knew permits
were available or required. Id.
In United States v. Cooper, 482 F.3d 658 (4th Cir. 2007), the court stated that
“[o]nly in that limited context [the defendant had a basis for not knowing that the parcels
of land into which they discharged material were, in fact, wetlands] ... [T]he government
bore the burden of proving, among other things, ‘that the defendant was aware of the facts
establishing the required link between the wetland [into which he discharged the fill
material] and waters of the United States.’” 482 F.3d at 667 (quoting United States v.
Wilson, 133 F.3d 251, 264 & n.* (4th Cir. 1997)).

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33 U.S.C. § 2602
VESSEL PERMITS
Title 33, United States Code, Sections 2602 and 2609 makes it a crime to
transport municipal or commercial waste in a vessel without a permit. 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 aided, abetted, authorized, or
instigated the transportation of] municipal or commercial waste in a
vessel in coastal waters of the United States;
P
Second, that the vessel did not have a permit from the Secretary of
Transportation and did not display a number or other marking prescribed
by the Secretary of Transportation; and
P
Third, that the defendant did so knowingly.
“Coastal waters” means the territorial sea of the United States, the Great Lakes
and their connecting waters, the marine and estuarine waters of the United States up to the
head of tidal influence, and the Exclusive Economic Zone as established by Presidential
Proclamation Number 5030. [§ 2601(2)]
“Municipal or commercial waste” means solid waste, that is, any garbage, refuse,
sludge from a waste treatment plant, water supply treatment plant, or air pollution control
facility and other discarded material, including solid, liquid, semisolid, or contained
gaseous material resulting from industrial, commercial, mining, and agricultural

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operations, and from community activities.[§ 2601(3), but see exceptions in that section
and 42 U.S.C. § 6903]
38 U.S.C. § 6101
VETERANS’ BENEFITS FRAUD (FIDUCIARY)
Title 38, United States Code, Section 6101 makes it a crime for a fiduciary to
embezzle veterans’ benefits. 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 fiduciary, that is, a guardian, curator,
conservator, committee, or person appointed in a representative capacity
to receive money for, or legally vested with the responsibility or care of a
minor, incompetent, or other beneficiary of veterans’ benefits;
P
Second, that money or property came into the defendant’s control in any
manner whatever in the execution of his fiduciary trust, or under color of
his fiduciary office or service as a fiduciary;
P
Third, that the defendant lent, borrowed, pledged, hypothecated, used, or
exchanged for other funds or property, embezzled, or misappropriated
that money or property in whole or in part; and
P
Fourth, that the defendant did so willfully and intentionally, and not by
inadvertence or by carelessness.334
You may consider the willful neglect or refusal to make and file proper
accountings or reports concerning the money or property as required by law to be
evidence of embezzlement or misappropriation. [§ 6101(b)]
Misuse of benefits by a fiduciary occurs when the fiduciary receives payment for
the use and benefit of a beneficiary and uses such payment, or any part thereof, for a use
other than for the use and benefit of the beneficiary or that beneficiary’s dependents.
[§ 6106(b)]
Embezzle means to fraudulently appropriate a thing to one’s own use and
beneficial enjoyment, or an unauthorized assumption and exercise of dominion or right of
ownership over it in defiance of, or exclusion of, the owner’s right.335
Embezzlement also means fraudulently withholding, converting, or applying
property that is lawfully in one’s possession to or for one’s own use and benefit, or to the
use and benefit of any person other than the one to whom the money or property
belongs.336
A fiduciary may not lend to himself.337
It is no defense that the defendant intended to return the money he embezzled, or
even that he did return it.338
____________________NOTE____________________
In United States v. Lewis, 161 F.2d 683 (2d Cir. 1947), the Second Circuit
determined that the statute
appears to have in mind two kinds of offenses: first, pledging the
property, second, converting it unconditionally. The words ‘lend, borrow,
pledge, hypothecate’ are apt for the first offense; ‘exchange . . . embezzle

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334

See United States v. Young, 955 F.2d 99, 103 (1st Cir. 1992) (language used by district

335

Id. at 102.
Id. at 102-03.
Id. at 103.
See United States v. Young, 955 F.2d 99, 103 (1st Cir. 1992).

court).
336
337
338

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. . . misappropriate’ for the second; ‘use’ is not a word of art in any case,
and may cover either. [P]ledging consists of encumbering the property so
as to make unavailable for the veteran’s support so much of it as must
answer the loan.
161 F.2d at 684.
Each verb is “an affirmative act of dominion” and is not a continuing offense for
purposes of statute of limitations. Id.
38 U.S.C. § 6102
VETERANS’ BENEFITS FRAUD
Title 38, United States Code, Section 6102 makes it a crime to fraudulently accept
veterans’ benefits. For you to find the defendant guilty, the government must prove each
of the following beyond a reasonable doubt:
§ 6102(a)
P
First, that the defendant was entitled to veterans’ monetary benefits;
P
Second, that the defendant’s right to those benefits ceased upon the
happening of any contingency;
P
Third, that after the happening of that contingency, the defendant
accepted payments; and
P
Fourth, that the defendant did so fraudulently.
§ 6102(b)
P
First, that the defendant obtained or received any veterans’ monetary
benefits;
P
Second, that the defendant was not entitled to those benefits; and
P
Third, that the defendant did so with intent to defraud the United States or
any beneficiary of the United States.

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6-4 BIOLOGICAL PRODUCTS

42 U.S.C. § 262
Title 42, United States Code, Section 262 makes it a crime to introduce into
interstate commerce biological products without a biologics license and without the
package being plainly marked as required. For you to find the defendant guilty, the
government must prove each of the following beyond a reasonable doubt:
P
First, that the defendant introduced or delivered for introduction into
interstate commerce biological products; and
P
Second, that the defendant did so without a biologics license in effect for
the biological products and without the package being plainly marked
with the following:
1.
the proper name of the biological product;
2.
the name, address, and license number of the manufacturer; and
3.
the expiration date of the biological product.
42 U.S.C. § 408
SOCIAL SECURITY FRAUD
Title 42, United States Code, Section 408 makes it a crime to make false
statements in connection with Social Security cards [etc]. For you to find the defendant
guilty, the government must prove each of the following beyond a reasonable doubt:
§ 408(a)(1)
P
First, that the defendant made or caused to be made a false statement or
representation;
P
Second, that the false statement or representation concerned whether
wages were paid or received for employment [as defined], or whether net
earnings from self-employment [as defined] were derived, or whether a

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person entitled to benefits had earnings in or for a particular period; and
Third, that the defendant did so for the purpose of causing an increase in
any [Social Security] payment, or for the purpose of causing any payment
to be made where no payment was authorized.
§ 408(a)(2)
P
First, that the defendant made a false statement or representation;
P
Second, that the defendant knew the statement or representation was
false;
P
Third, that the false statement or representation was material; and
P
Fourth, that the statement or representation related to an application for
any [Social Security] payment or for a disability determination.
§ 408(a)(3)
P
First, that the defendant made a false statement or representation;
P
Second, that the defendant knew the statement or representation was
false;
P
Third, that the false statement or representation was material; and
P
Fourth, that the statement or representation related to determining rights
to any [Social Security] payment.
§ 408(a)(4)
P
First, that the defendant had knowledge of the occurrence of an event;
P
Second, that the event affected the defendant’s initial or continued right
to any [Social Security] payment, or the initial or continued right to any
payment of any other individual in whose behalf the defendant had
applied for or was receiving a [Social Security] payment;
P
Third, that the defendant concealed or failed to disclose such event; and
P
Fourth, that the defendant did so with fraudulent intent to obtain payment
either in a greater amount than was due or when no payment was
authorized.
§ 408(a)(5)
P
First, that the defendant had applied to receive [Social Security] payments
for the use and benefit of another, and had received such payment[s];
P
Second, that the defendant converted those payments, or any portion of
those payments, to a use other than for the use and benefit of that other
person; and
P
Third, that the defendant did so knowingly and willfully.
§ 408(a)(6)
P
First, that the defendant furnished or caused to be furnished false
information to the Commissioner of Social Security;
P
Second, that the false information was furnished with respect to
information required by the Commissioner in connection with
establishing and maintaining records required by law; and
P
Third, that the defendant did so willfully, knowingly, and with intent to
deceive the Commissioner as to his true identity or the true identity of any
other person.
§ 408(a)(7)(A)
P
First, that the defendant used a social security number assigned by the
Commissioner of Social Security on the basis of false information
furnished to the Commissioner by the defendant or by any other person;
P
Second, that the defendant did so knowingly, willfully, and with the
intent to deceive; and
P

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P

Third, that the defendant did so for the purpose of causing an increase in
any [Social Security] payment, or for the purpose of causing a [Social
Security] payment when no payment was authorized, or for the purpose of
obtaining for himself or any other person any payment or benefit to which
the defendant or another person was not entitled, or for the purpose of
obtaining anything of value from any person, or for any other purpose.
§ 408(a)(7)(B)
P
First, that the defendant falsely represented a number to be the social
security number assigned by the Commissioner of Social Security to him
or to another person;
P
Second, that the defendant did so knowingly, willfully, and with the
intent to deceive; and
P
Third, that the defendant did so for the purpose of causing an increase in
any [Social Security] payment, or for the purpose of causing a [Social
Security] payment when no payment was authorized, or for the purpose of
obtaining for himself or any other person any payment or benefit to which
the defendant or another person was not entitled, or for the purpose of
obtaining anything of value from any person, or for any other purpose.339
§ 408(a)(7)(C)
P
First, that the defendant altered a social security card issued by the
Commissioner of Social Security, or bought or sold an altered social
security card, or counterfeited a social security card;
P
Second, that the defendant did so knowingly, willfully, and with the
intent to deceive; and
P
Third, that the defendant did so for the purpose of causing an increase in
any [Social Security] payment, or for the purpose of causing a [Social
Security] payment when no payment was authorized, or for the purpose of
obtaining for himself or any other person any payment or benefit to which
the defendant or another person was not entitled, or for the purpose of
obtaining anything of value from any person, or for any other purpose.
OR
P
First, that the defendant possessed a social security card issued by the
Commissioner of Social Security, or a counterfeit social security card;
P
Second, that the defendant did so with intent to sell or alter the social
security card;
P
Third, that the defendant did so knowingly, willfully, and with the intent
to deceive; and
P
Fourth, that the defendant did so for the purpose of causing an increase in
any [Social Security] payment, or for the purpose of causing a [Social
Security] payment when no payment was authorized, or for the purpose of
obtaining for himself or any other person any payment or benefit to which
the defendant or another person was not entitled, or for the purpose of
obtaining anything of value from any person, or for any other purpose.
§ 408(a)(8)
P
First, that the defendant disclosed, used, or compelled the disclosure of
the social security number of any person; and

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See United States v. Sparks, 67 F.3d 1145, 1152 (4th Cir. 1995); United States v. Bales,
813 F.2d 1289, 1297 (4th Cir. 1987).

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P

Second, that the defendant did so in violation of [a law of the United
States, which must be specified, identifying the elements].

42 U.S.C. § 1320a-7b ANTI-KICKBACK STATUTE
Title 42, United States Code, Section 1320a-7b makes it a crime to make false
statements in any application for benefits under a Federal health care program, or to ask
for or receive, or pay or offer to pay any remuneration in connection with referring
patients, or arranging for services for which payments may be made under a Federal
health care program. For you to find the defendant guilty, the government must prove
each of the following beyond a reasonable doubt:
§ 1320a-7b(a)(1)
P
First, that the defendant made or caused to be made a false statement or
representation in an application for any benefit or payment under a
Federal health care program;
P
Second, that the false statement or representation was material; and
P
Third, that the defendant did so knowingly and willfully.340
§ 1320a-7b(a)(2)
P
First, that the defendant made or caused to be made a false statement or
representation for use in determining rights to any benefit or payment
under a Federal health care program;
P
Second, that the false statement or representation was material; and
P
Third, that the defendant did so knowingly and willfully.
§ 1320a-7b(a)(3)
P
First, that the defendant knew of an event which affected his initial or
continued right to any benefit or payment under a Federal health care
program for himself or for any other individual in whose behalf he had
applied for or was receiving any benefit or payment under a Federal
health care program;
P
Second, that the defendant concealed or failed to disclose such event; and
P
Third, that the defendant did so with intent fraudulently to secure that
benefit or payment either in a greater amount or quantity than was due or
when no such benefit or payment was authorized.
§ 1320a-7b(a)(4)
P
First, that the defendant had made application for and received benefits or
payments under a Federal health care program for the use and benefit of
another;
P
Second, that the defendant converted such benefits and payments or any
part thereof to a use other than for the use and benefit of that person; and
P
Third, that the defendant did so knowingly and willfully.
§ 1320a-7b(a)(5)
P
First, that the defendant presented or caused to be presented a claim for a
physician’s service for which payment may be made under a Federal
health care program; and
P
Second, that the defendant knew that the individual who furnished the
service was not licensed as a physician.
§ 1320a-7b(a)(6)
P
First, that the defendant counseled or assisted an individual to dispose of

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assets (including by any transfer in trust) in order for the individual to
become eligible for medical assistance from a state plan under a Federal
health care program, if disposing of the assets resulted in the imposition
of a period of ineligibility for such assistance;
P
Second, that the defendant did so for a fee; and
P
Third, that the defendant did so knowingly and willfully.
AGGRAVATED PENALTY for § 1320a-7b(a)
1. Was the offense in connection with the furnishing by the defendant of items or
services for which payment was or may be made under a Federal health care
program?
§ 1320a-7b(b)(1)(A) and (B)
P
First, that the defendant asked for or received any remuneration
(including any kickback, bribe, or rebate) directly or indirectly, openly or
secretly, in cash or in kind;
P
Second, that the payment asked for or received was in return for one of
the following:
1.
referring an individual to a person for the furnishing or arranging
for the furnishing of an item or service that could be paid for, in
whole or in part, by a Federal health care program; or
2.
for purchasing, leasing, ordering, or arranging for or
recommending purchasing, leasing, or ordering, any good,
facility, service, or item that could be paid for, in whole or in
part, by a Federal health care program; and
P
Third, the defendant did so knowingly and willfully.341
§ 1320a-7b(b)(2)(A) and (B)
P
First, that the defendant offered or paid any remuneration (including any
kickback, bribe, or rebate) directly or indirectly, openly or secretly, in
cash or in kind;
P
Second, that the payment (or offer) was made to a person to induce that
person to do one of the following:
1.
to refer an individual to a person for the furnishing or arranging
for the furnishing of an item or service that could be paid for, in
whole or in part, by a Federal health care program; or
2.
to purchase, lease, order, or arrange for or recommend
purchasing, leasing, or ordering, any good, facility, service, or
item that could be paid for, in whole or in part, by a Federal
health care program; and
P
Third, the defendant did so knowingly and willfully.342
§ 1320a-7b(c)
P
First, that the defendant made or caused to be made, or induced or sought
to induce the making of, a false statement or representation with respect
to the conditions or operation of any institution, facility, or entity;
P
Second, that the false statement or representation was material;
P
Third, that the false statement or representation was made in order that
the institution, facility, or entity might qualify as a hospital, critical
access hospital, skilled nursing facility, nursing facility, intermediate care

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See United States v. Kats, 871 F.2d 105 (9th Cir. 1989).
See United States v. Miles, 360 F.3d 472, 479-80 (5th Cir. 2004).

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facility for the mentally retarded, home health agency, or other entity for
which certification is required, or with respect to information required to
be proved under § 1320a-3a; and
P
Fourth, that the defendant did so knowingly and willfully.
§ 1320a-7b(d)(1)
P
First, that the defendant charged, for any service provided to a patient
under an approved state plan, money or other consideration at a rate in
excess of the rates established by the state (or in excess of the rate
permitted under a contract for services provided to an individual enrolled
with a medicaid managed care organization under subchapter XIX); and
P
Second, that the defendant did so knowingly and willfully.
§ 1320a-7b(d)(2)
P
First, that the defendant charged, asked for, accepted, or received, in
addition to any amount otherwise required to be paid under an approved
state plan, any gift, money, donation, either as a precondition of admitting
a patient to a hospital, nursing facility, or intermediate care facility for the
mentally retarded, or as a requirement for the patient’s continued stay in a
hospital, nursing facility, or intermediate care facility for the mentally
retarded;
P
Second, when the cost of the services was paid for in whole or in part
under the state plan; and
P
Third, that the defendant did so knowingly and willfully.
§ 1320a-7b(e)
P
First, that the defendant accepted assignments or agreed to be a
participating physician or supplier;
P
Second, that the defendant repeatedly violated the terms of such
assignments or agreement; and
P
Third, that the defendant did so knowingly and willfully.
The government must show that the relevant decisionmaker’s judgment was
improperly influenced by the payments he received.343
The government must prove that a purpose of the remuneration was to induce the
referring of patients or ordering of services.344
The government must prove beyond a reasonable doubt that one of the purposes
of the remuneration [either the asking for or the payment of] was for the referral of
individuals, such as patients, or the ordering or services, such as laboratory services,
which may be paid in whole or in part by a federal health care program. It is not a defense
that there might have been other reasons for the remuneration, if you find beyond a
reasonable doubt that one of the material purposes for the remuneration was for the
referral of individuals or ordering of services to be paid for by a federal health care

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343

In United States v. Miles, 360 F.3d 472, 481 (5th Cir. 2004), the issue was whether the
defendants’ activities constituted referrals. The defendants paid a public relations firm to distribute
to doctors information regarding their home health services. After a doctor decided to send a patient
to the defendants, the doctor’s office contacted the public relations firm which supplied the necessary
billing information to the defendants and collected payment. There was no evidence that the public
relations firm had any authority to act on behalf of a physician in selecting the particular home health
care provider. Thus, the payments from the defendants to the public relations firm were not made to
the relevant decisionmaker as an inducement or kickback for sending patients to the defendants.
344
See United States v. Greber, 760 F.2d 68, 71 (3d Cir. 1985).

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program.345
The government must prove beyond a reasonable doubt that the defendant asked
for or received the remuneration with specific criminal intent that the remuneration be in
return for referrals. To ask for or receive remuneration in return for referrals means to ask
for or receive remuneration with intent to allow the remuneration to influence the reason
and judgment behind one’s [patient] referral decisions. The intent to be influenced must,
at least in part, have been the reason the remuneration was asked for or received.
On the other hand, the defendant cannot be convicted merely because he received
remuneration wholly in return for services and also decided to refer patients to the
hospital. Likewise, mere referral of patients because of oral encouragement or because of
a belief that the place to which the patients are to be referred is attractive does not violate
the law. There must be an asking for or receipt of remuneration in return for referrals.346
The government must prove beyond a reasonable doubt that the defendant offered
or paid remuneration with the specific criminal intent to induce referrals. To offer or pay
remuneration to induce referrals means to offer or pay remuneration with intent to gain
influence over the reason or judgment of a person making referral decisions. The intent to
gain such influence must, at least in part, have been the reason the remuneration was offered
or paid.

017 hoped or
On the other hand, the defendant cannot be convicted merely because he
72
2that/was designed
expected or believed that referrals may ensue from remuneration
07/to refer patients or the
wholly for other purposes. Likewise, mere oral encouragement
d
mere creation of an attractive place to which patients can be referred does not violate the
we to induce.
law. There must be an offer or payment ofvie
, remuneration
6means:
“Federal health care program”
22
1.
any plan or -4
program that provides health benefits, whether directly,
16
through insurance, or otherwise, which is funded directly, in whole or in
.by the United States Government (other than the health insurance
part,
No under Title 5, chapter 89); or
program
347

2.
any state health care program, as defined in section 1320a-7(h).
“Remuneration” includes not only sums for which no actual service was
performed but also those amounts for which some professional time was expended. Thus,
remuneration under this statute covers any payment, as long as one purpose of the
payment was to induce the physician to refer patients or use services, even if the payments
were also intended to compensate for professional services.348
The term “kickback” does not mean only the secret return of a sum of money
received. “Kickback” also includes a payment for granting assistance to one in a position
to control a source of income, unless such payment is wholly and not incidentally
attributable to the delivery of goods or services.349
“Knowingly” means the act was done voluntarily and intentionally, not because

345

See United States v. Kats, 871 F.2d 105, 108 n.1 (9th Cir. 1989). The “one purpose”
instruction has been repeatedly approved. See, e.g., United States v. McClatchey, 217 F.3d 823, 835
(10th Cir. 2000); United States v. Davis, 132 F.3d 1092, 1094 (5th Cir. 1998).
346
Instruction approved in United States v. LaHue, 261 F.3d 993, 1003 n.11 (10th Cir. 2001).
347
Id. at 1003 n.10.
348
Greber, 760 F.2d at 71-72.
349
Instruction approved in Kats, 871 F.2d at 108 n.2.

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of mistake or accident.350
An act is done willfully if it is done voluntarily and purposely and with the
specific intent to do something the law forbids, that is, with the bad purpose either to
disobey or disregard the law. A person acts willfully if he or she acts unjustifiably and
wrongly while knowing that his or her actions are unjustifiable and wrong. Thus, in order
to act willfully, a person must specifically intend to do something the law forbids,
purposely intending to violate the law.351
“Willfully” means unjustifiably and wrongfully, known to be such by the
defendant.352
A person need not have actual knowledge of this statute or specific intent to
commit a violation of this statute.353
____________________NOTE____________________
There are certain “safe harbors” to § 1320a-7b(b) enumerated in subsection
(b)(3). Good faith is a defense. United States v. Jain, 93 F.3d 436 (8th Cir. 1996).
Regarding § 1320a-7b(a), the defendant in United States v. Lipkis, 770 F.2d 1447
(9th Cr. 1985), argued that his conduct was an omission, covered by subsection (a)(3),
rather than a false statement, covered by subsection (a)(1). The Ninth Circuit rejected his
argument. “Filing a claim for payment is an affirmative act. The false statement is the
claim of entitlement to payment where the services have already been paid for.” 770 F.2d
at 1452.

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42 U.S.C. § 1973i
VOTING FRAUD
Title 42, United States Code, Section 1973i makes it a crime to commit certain
acts which adversely affect the integrity of the election process. For you to find the
defendant guilty, the government must prove each of the following beyond a reasonable
doubt:
§ 1973i(c) false information
P
First, that the defendant gave false information as to his name, address, or
period of residence in the voting district for the purpose of establishing
eligibility to register or vote;
OR
P
First, that the defendant conspired with another individual for the purpose
of encouraging his false registration to vote or illegal voting;
P
Second, that the defendant did so knowingly or willfully; and
P
Third, there must be a candidate for federal office on the ballot.

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350

United States v. Davis, 132 F.3d 1092, 1094 (5th Cir. 1998).
United States v. McClatchey, 217 F.3d 823, 829 (10th Cir. 2000) (“Neither party quarrels
with this instruction.”).
352
In United States v. Jain, 93 F.3d 436 (8th Cir. 1996), the district court adopted a middle
ground between the traditional definition in Cheek v. United States, 498 U.S. 192 (1991), and the
heightened mens rea in Ratzlaf v. United States, 510 U.S. 135 (1994). The Eighth Circuit agreed with
the district court that the government must meet a heightened mens rea burden. But that did not mean
“that the specific instruction adopted in Ratzlaf and the criminal tax cases is appropriate” either. Id.
at 441. But c.f. United States v. Davis, 132 F.3d 1092, 1094 (5th Cir. 1998) (“willfully means that the
act was committed voluntarily and purposely with the specific intent to do something the law forbids;
that is to say, with bad purpose either to disobey or disregard the law.”).
353
Section 1320a-7b(h) was added March 23, 2010.
351

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The government does not have to prove that false information actually affected a
federal contest.354
The government does not have to prove that the information was given without
the voter’s permission. To sign someone else’s name, with or without permission, is to
give false information.355
§ 1973i(c) vote-buying
P
First, that the defendant paid, offered to pay, or accepted payment, either
for registration to vote or for voting;
P
Second, the defendant must do so knowingly or willfully; and
P
Third, there must be a candidate for federal office on the ballot.
Payment is not limited to cash. The term includes items of monetary value offered
or given directly to an individual voter in exchange for his individual vote.356
The government does not have to prove that the payment was made on behalf of a
candidate for federal office, or that the voter was paid to vote for a candidate for federal
office, or that the voter in fact voted for the candidate on whose behalf he was paid. The
government must prove that a person was paid to vote in an election in which specified
candidates for federal office were listed on the ballot, but the government does not have to
prove a specific intent to corruptly influence the federal race.357
The government does not have to prove that the vote-buying activities actually
affected a federal election.358
A violation of § 1973i(c) is established when the evidence shows, beyond a
reasonable doubt, that the defendant bought or offered to buy a vote and that such activity
exposed the federal aspects of the election to the possibility of corruption, whether or not
the actual corruption took place and whether or not the persons participating in such
activity had a specific intent to expose the federal election to such corruption or
possibility of corruption.359
§ 1973i(e) voting more than once 360
P
First, that a federal candidate was on the ballot;
P
Second, that the defendant voted more than once for some candidate on
the ballot; and
P
Third, that the defendant did so knowingly and willfully for the specific
purpose of having his vote count more than once.361
“Vote” or “voting” includes all action necessary to make a vote effective in any
primary, special, or general election, including, but not limited to, registration or other
action required by law prerequisite to voting, casting a ballot, and having such ballot

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See United States v. Carmichael, 685 F.2d 903, 908 (4th Cir. 1982).
United States v. Smith, 231 F.3d 800, 814, 815 (11th Cir. 2000).
356
United States v. Garcia, 719 F.2d 99, 102 (5th Cir. 1983).
357
United States v. Bowman, 636 F.2d 1003, 1008, 1012 (5th Cir. 1981).
358
Carmichael, 685 F.2d at 908.
359
United States v. Carmichael, 685 F.2d 903, 908 (4th Cir. 1982).
360
The Sixth Circuit held § 1973i(e) unconstitutionally void for vagueness as applied to the
facts in United States v. Salisbury, 983 F.2d 1369 (6th Cir. 1993). The Seventh Circuit declined to
follow Salisbury. See United States v. Cole, 41 F.3d 303, 308 (7th Cir. 1995).
361
United States v. Hogue, 812 F.2d 1568, 1576 (11th Cir. 1987). In United States v. Smith,
231 F.3d 800, 817 n.20 (11th Cir. 2000), the Eleventh Circuit explained that “nothing in our Hogue
opinion says that lack of knowledge and consent of the voter is a necessary element of a § 1973i(e)
violation.”
355

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counted properly and included in the appropriate totals of votes cast with respect to
candidates for public or party office and propositions for which votes are received in an
election.362
Voting more than once does not include casting an additional ballot if all prior
ballots of that voter were invalidated. It does not include voting in two jurisdictions, to the
extent two ballots are not cast for an election to the same candidacy or office.
[§ 1973i(e)(3)]
The government does not have to prove that voting more than once actually
affected a federal contest.363
The government does not have to prove that the voters in whose names ballots
were submitted did not consent to the ballots being cast.364

____________________NOTE____________________
Section 1973i is designed to protect two aspects of the federal election: the actual
results of the election and the integrity of the process of electing federal officials. United
States v. Cole, 41 F.3d 303, 307 (7th Cir. 1995).
In Cole, the Seventh Circuit held that the district court had jurisdiction even
though the only two federal candidates on the ballot were running unopposed.
Section 1973i(c)’s prohibitions include absentee ballot applications. United States
v. Boards, 41 F.3d 303, 589 (8th Cir. 1993).
Section 1973i(c) does not require using false names. Using a real voter’s name on
a fraudulent ballot application violates § 1973i(c). Id.
Each document containing false information, such as an application for absentee
ballot and affidavit of absentee voter, would be a “unit of prosecution.” United States v.
Smith, 231 F.3d 800, 815 (11th Cir. 2000).
Only a single form of conspiracy is proscribed by the statute, i.e., “conspir[ing]
with another individual for the purpose of encouraging his false registration to vote or
illegal voting.” 42 U.S.C. § 1973i(c). Thus, a conspiracy with more than one other
individual would fall outside the scope of § 1973i(c). Likewise, an individual who is
encouraged to participate in false registration or voting and agrees to become part of such
a conspiracy would escape conviction for conspiracy under § 1973i(c). United States v.
Olinger, 759 F.2d 1293,1299 (7th Cir. 1985).

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42 U.S.C. § 6928

RESOURCE CONSERVATION AND RECOVERY
ACT (RCRA) – HAZARDOUS WASTE
Title 42, United States Code, Section 6928 makes it a crime to mishandle
hazardous waste, etc. For you to find the defendant guilty, the government must prove
each of the following beyond a reasonable doubt:
§ 6928(d)(1)
P
First, that the defendant transported or caused to be transported any
hazardous waste;
P
Second, to a facility which did not have a permit; and
P
Third, that the defendant did so knowingly.

362
363
364

42 U.S.C. § 1973l(c)(1). See also United States v. Cole, 41 F.3d 303, 308 (7th Cir. 1995).
See Carmichael, 685 F.2d at 908.
United States v. Smith, 231 F.3d 800, 817 (11th Cir. 2000).

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§ 6928(d)(2) 365
P
First, that the defendant knowingly treated, stored, or disposed of a
hazardous waste;
P
Second, that the defendant knew that the hazardous waste had the
potential to pose a substantial366 present or potential hazard to human
health or the environment; and
P
Third, that the defendant did so:
1.
without a permit, or
2.
in knowing violation of any material condition or requirement of
such permit, or
3.
in knowing violation of any material condition or requirement of
any applicable interim status regulations.367
§ 6928(d)(3)
P
First, that the defendant omitted information, or made a false statement or
representation;
P
Second, in any application, label, manifest, record, report, permit, or
other document filed, maintained, or used for purposes of compliance
with regulations promulgated by the Administrator;
P
Third, that the information omitted, or false statement made was material;
and
P
Fourth, that the defendant did so knowingly.
§ 6928(d)(4)
P
First, that the defendant generated, stored, treated, transported, disposed
of, exported, or otherwise handled any hazardous waste;
P
Second, that the defendant destroyed, altered, concealed, or failed to file
any record, application, manifest, report, or other document required to be
maintained or filed for purposes of compliance with regulations
promulgated by the Administrator; and
P
Third, that the defendant did so knowingly.
§ 6928(d)(5)
P
First, that the defendant transported, or caused to be transported a
hazardous waste without a manifest; and
P
Second, that the defendant did so knowingly.
§ 6928(d)(6)
P
First, that the defendant exported a hazardous waste;
P
Second, without the consent of the receiving country, or not in
conformance with an international agreement between the United States
and the government of the receiving country; and

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It might be necessary for the court to identify the elements of a particular regulation. See
United States v. Baytank (Houston), Inc., 934 F.2d 599 (5th Cir. 1991), where the defendant was
charged with violating safe storage conditions set forth in 40 C.F.R. § 262.34(a).
366
United States v. Laughlin, 10 F.3d 961, 967 (2d Cir. 1993).
367
See United States v. Freter, 31 F.3d 783, 787 n. 4 (9th Cir. 1994); United States v. Greer,
850 F.2d 1447 (11th Cir. 1988). In Greer, the district court instructed the jury that one of the elements
the government had to prove was that the substance in the chemical waste “was listed or identified ...
as a hazardous waste.”850 F2d at 1450. However, in United States v. Laughlin, 10 F.3d 961 (2d Cir.
1993), the district court told the jury that the substance involved was a hazardous waste as defined
under RCRA and the Second Circuit held that the district court did not err in declining to charge that
the statute required knowledge that the substance was identified or listed under RCRA. 10 F.3d at 965.

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P
Third, that the defendant did so knowingly.
§ 6928(d)(7)
P
First, that the defendant stored, treated, transported, or caused to be
transported, disposed of, or otherwise handled any hazardous waste;
P
Second, that the defendant did so:
1.
in knowing violation of any material condition or requirement of
the permit, or
2.
in knowing violation of any material condition or requirement of
any applicable regulations; and
P
Third, that the defendant did so knowingly.
AGGRAVATED PENALTY [§ 6928(e)]
1. Did the defendant knowingly place another person in imminent danger of death
or serious bodily injury [which is defined in § 6928(f)(6)]?
“Hazardous waste” means a solid waste, or combination of solid wastes, which
because of its quantity, concentration, or physical, chemical, or infectious characteristics
may:
(A) cause, or significantly contribute to an increase in mortality or an increase in
serious irreversible, or incapacitating reversible illness; or
(B) pose a substantial present or potential hazard to human health or the
environment when improperly treated, stored, transported, or disposed of, or otherwise
managed. [§ 6903(5)]
“Sludge” means any solid, semisolid or liquid waste generated from a municipal,
commercial, or industrial wastewater treatment plant, water supply treatment plant, or air
pollution control facility or any other such waste having similar characteristics and
effects. [§ 6903(26A)]
“Solid waste” means any garbage, refuse, sludge from a waste treatment plant,
water supply treatment plant, or air pollution control facility and other discarded material,
including solid, liquid, semisolid, or contained gaseous material resulting from industrial,
commercial, mining, and agricultural operations, and from community activities, but does
not include solid or dissolved material in domestic sewage, or solid or dissolved materials
in irrigation return flows or industrial discharges which are point sources subject to
permits [under 33 U.S.C. § 1342], or source, special nuclear, or byproduct material [as
defined in 42 U.S.C. § 2014(e)]. [§ 6903(27)]
“Manifest” means the form used for identifying the quantity, composition, and the
origin, routing, and destination of hazardous waste during its transportation from the point
of generation to the point of disposal, treatment, or storage. [§ 6903(12)]
The government does not have to prove that the defendant knew that violating the
Resource Conservation and Recovery Act was a crime, or that regulations existed listing
and identifying substances as hazardous wastes.368
However, the government must prove that the defendant knew that the substance
was hazardous, in other words, that it had the potential to pose a substantial present or
potential hazard to human health or the environment.369
AFFIRMATIVE DEFENSE [§ 6928(f)(3)]
The conduct charged was consented to by the person endangered and the danger

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368

United States v. Dee, 912 F.2d 741, 745 (4th Cir. 1990); United States v. Laughlin, 10
F.3d 961, 965-66 (2d Cir. 1993); United States v. Baytank (Houston), Inc., 934 F.2d 599, 613 (5th Cir.
1991).
369
See Dee, 912 F.2d at 745; Laughlin, 10 F.3d at 967; Baytank, 934 F.2d at 611.

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and conduct were reasonably foreseeable hazards of an occupation, business, profession,
or medical treatment, etc.
____________________NOTE____________________
See also United States v. Greer, 850 F.2d 1447, 1450 (11th Cir. 1988).
In United States v. Baytank (Houston), Inc., 934 F.2d 599 (5th Cir. 1991), the
Fifth Circuit concluded that “‘knowingly’ means no more than that the defendant knows
factually what he is doing–storing what is being stored, and that what is being stored
factually has the potential for harm to others or the environment, and that he has no
permit–and it is not required that he know that there is a regulation which says what he is
storing is hazardous under the RCRA.” 934 F2d at 613.
The district court may inform the jury that the substance involved is a hazardous
waste as defined under RCRA. United States v. Laughlin, 10 F.3d 961, 965 (2d Cir.
1993).
42 U.S.C. § 7413
CLEAN AIR ACT
Title 42, United States Code, Section 7413 makes it a crime to make false
statements in, or fail to file documents required by the Clean Air Act. For you to find the
defendant guilty, the government must prove each of the following beyond a reasonable
doubt:
§ 7413(c)(2)(A)
P
First, that the defendant made a false material statement, representation,
or certification in, or omitted material information from, any notice,
application, record, report, plan, or other document;
P
Second, that the notice, application, record, report, plan, or other
document was required pursuant to the Clean Air Act to be either filed or
maintained; and
P
Third, that the defendant did so knowingly.
OR
P
First, that the defendant altered, concealed, or failed to file or maintain
any notice, application, record, report, plan, or other document;
P
Second, that the notice, application, record, report, plan, or other
document was required pursuant to the Clean Air Act to be either filed or
maintained; and
P
Third, that the defendant did so knowingly.370
§ 7413(c)(2)(B)
P
First, that the defendant was required to notify or report under the Clean
Air Act; and
P
Second, that the defendant failed to do so.

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o. 1
N

226
6-4

§ 7413(c)(2)(C)
P

First, that the defendant falsified, tampered with, rendered inaccurate, or
failed to install a monitoring device or method; and

P

Second, that the monitoring device or method was required to be
maintained or followed under the Clean Air Act.

42 U.S.C. § 9603

370

588

CERCLA

See United States v. Ellis, No. 98-4150, 1999 W L 92568 (4th Cir. Feb. 22, 1999).

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Title 42, United States Code, Section 9603 makes it a crime to fail to notify the
government of the release of a hazardous substance. For you to find the defendant guilty,
the government must prove each of the following beyond a reasonable doubt:
§ 9603(b)
P

First, that the defendant was in charge of:
1.
2.

a vessel from which a hazardous substance was released which
may affect natural resources belonging to, appertaining to, or
under the exclusive management authority of the United States,
and was otherwise subject to the jurisdiction of the United States
at the time of the release; or

3.
P

a vessel from which a hazardous substance was released into or
upon navigable waters of the United States; or

a facility from which a hazardous substance was released, other
than a federally permitted release;

Second, that a reportable quantity of hazardous substance was released
into the environment [the court may want to specify the hazardous
substance];

017
P
Third, that the defendant knew of the release; and 7/2
/2
P
Fourth, that the defendant failed to notify07
immediately the appropriate
d
agency of the United States Government or submitted notification which
we
the defendant knew was false and misleading information.
vie
The government does not have , prove that the defendant knew of the regulatory
to
requirements.
226
4
AFFIRMATIVE DEFENSE (Permitted Release – 42 U.S.C. § 9601(10))
16.
The defendant has presented evidence that the release was federally permitted.
No
371

372

373

The government must prove, beyond a reasonable doubt, that the exception does not
apply.374
46 U.S.C. § 70503

MARITIME DRUG LAW ENFORCEMENT ACT
[Last Updated: 7/1/14]

Title 46, United States Code, Section 70503 makes it a crime to manufacture,
distribute or possess with intent to manufacture or distribute a controlled substance on
board a vessel. 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 one of the following:

371

See United States v. Freter, 31 F.3d 783, 787 n.4 (9th Cir. 1994); United States v.
Laughlin, 10 F.3d 961, 967 (2d Cir. 1993); United States v. Greer, 850 F.2d 1447, 1453 (11th Cir.
1988).
372
Laughlin, 10 F.3d at 967.
373
“Federally permitted release” is defined at 42 U.S.C. § 9601(10) and includes releases
authorized under ten separate federal statutory provisions or state laws. Freter, 31 F.3d at 788.
374
Id. at 789 n.6.

589

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1.

on board a vessel of the United States;

2.

on board a vessel subject to the jurisdiction of the United States;

3.

a citizen of the United States or a resident alien of the United
States
on board any vessel;

P

Second, that the defendant manufactured or distributed [or attempted or
conspired to manufacture or distribute] the amount of controlled
substance alleged in the indictment;

P

Third, that the defendant knew that the substance manufactured or
distributed was a controlled substance under the law at the time of the
manufacture or distribution; and

P

Fourth, that the defendant did so knowingly or intentionally.

OR
P

First, that the defendant was one of the following:

017
2
3.
a citizen of the United States or a resident7/ of the United
2 alien
States
07/
on board any vessel;
d
we [or attempted or conspired to
Second, that the defendant possessed
ie
possess] the amount of , v
controlled substance alleged in the indictment;
226
Third, that the defendant knew that the substance possessed was a
4
controlled substance under the law at the time of the possession; and
16.
Fourth,
No that the defendant did so with the intent to manufacture or
distribute the controlled substance.
1.
2.

P
P
P

on board a vessel of the United States;

on board a vessel subject to the jurisdiction of the United States;

375

AGGRAVATED PENALTY376
1.

Did death or serious bodily injury result from the use of the controlled
substance?

2.

[Specific threshold quantities].377

Distribute means to deliver a controlled substance. [§ 802(11)] [Definitions in 21
U.S.C. § 802 apply to this statute, § 1903(i).]
Deliver means the actual, constructive, or attempted transfer of a controlled
substance. [§ 802(8)]
Thus, distribution includes a range of conduct broader than selling controlled
substances and is not limited to just selling controlled substances.378
375

See United States v. Burgos, 94 F.3d 849, 873 (4th Cir. 1996) (en banc); United States
v. Collins, 412 F.3d 515, 519 (4th Cir. 2005).
376
See 21 U.S.C. § 960.
377
United States v. Promise, 255 F.3d 150 (4th Cir. 2001) (en banc).
378
United States v. Washington, 41 F.3d 917, 919 (4th Cir. 1994) (“Sharing drugs with
another constitutes ‘distribution.’”).

590

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Possession means to voluntarily and intentionally exercise dominion and control
over an item or property.
Possession may be either sole, by the defendant himself, or joint, that is, it may be
shared with other persons, as long as the defendant exercised dominion and control over
the item or property.
Possession may be either actual or constructive.
Actual possession is defined as physical control over property.
Constructive possession occurs when a person exercises or has the power and the
intention to exercise dominion and control over an item or property.379
Constructive possession can be established by evidence, either direct or
circumstantial, 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
a person exercises or has the power and intention to exercise dominion and control over
that item or property.380
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 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.381

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Multiple persons possessing a large quantity of drugs and working in concert
would be evidence of constructive possession.382

226
6-4

Intent to distribute may be inferred from a number of factors, including but not
limited to: (1) the quantity of the drugs is greater than would be used for personal
consumption; (2) the packaging; (3) where the drugs are hidden; and (4) the amount of
cash seized with the drugs.383

o. 1
N

The government must prove that the defendant possessed the controlled substance

379

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).
380
Id. 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. Burgos, 94 F.3d 849, 873 (4th Cir. 1996) (en banc); United
States v. Pearce, 65 F.3d 22, 26 (4th Cir. 1995) (citing United States v. Blue, 957 F.2d 106, 108 (4th
Cir. 1992)).
381
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).
382
Burgos, 94. F.3d at 873.
383
See Collins, 412 F.3d 515. See also Burgos, 94 F.3d 849.

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reasonably near the “on or about” date specified in the indictment.384
“Vessel of the United States” means
(1) a vessel documented under [§ 12103] or numbered as provided in [§ 12301];
(2) a vessel owned in any part by an individual who is a citizen of the United
States, the United States Government, the government of a State or political subdivision
of a State, or a corporation incorporated under the laws of the United States or of a State,
unless –
(A) the vessel has been granted the nationality of a foreign nation under
the 1958 Convention on the High Seas; and
(B) a claim of nationality or registry for the vessel is made by the master
or individual in charge at the time of the enforcement action by an officer or employee of
the United States who is authorized to enforce applicable provisions of United States law;
(3) a vessel that was once documented under the laws of the United States and, in
violation of the laws of the United States, was sold to a person not a citizen of the United
States, placed under foreign registry, or operated under the authority of a foreign nation,
whether or not the vessel has been granted the nationality of a foreign nation.
[§ 70502(b)]

017
2
“Vessel subject to the jurisdiction of the United States” includes
27/
(1) a vessel without nationality;
07/
d
(2) a vessel assimilated to a vessel without e
w nationality under the 1958 Convention
e
on the High Seas;
, vi if that nation has consented or waived
(3) a vessel registered in a26 nation
foreign
objection to the enforcement 42
of United States law by the United States;
6(4) a vessel in 1 customs waters of the United States;
the
.
Noin the territorial waters of a foreign nation if the nation consents to
(5) a vessel
the enforcement of United States law by the United States; and
(6) a vessel in the contiguous zone of the United States [as defined in Presidential
Proclamation 7219 of September 2, 1999] that is entering the United States, has departed
the United States, or is a hovering vessel [as defined in 19 U.S.C. § 1401]. [§ 70502(c)
“Vessel without nationality” includes
(1) a vessel aboard which the master or individual in charge makes a claim of
registry that is denied by the nation whose registry is claimed;
(2) a vessel aboard which the master or individual in charge fails, on request of an
officer of the United States authorized to enforce applicable provisions of United States
law, to make a claim of nationality or registry for that vessel; and
(3) a vessel aboard which the master or individual in charge makes a claim of
registry and for which the claimed nation of registry does not affirmatively and
unequivocally assert that the vessel is of its nationality. [§ 70502(d)]
The government does not have to prove any connection between the defendant’s

384

United States v. Smith, 441 F.3d 254, 261 (4th Cir. 2006) (“time is not an element of
possession with the intent to distribute”).

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alleged criminal conduct and the United States.385
“‘Custom waters’ means, in the case of a foreign vessel subject to a treaty or other
arrangement between a foreign government and the United States enabling or permitting
the authorities of the United States to board, examine, search, seize, or otherwise to
enforce upon such vessel upon the high seas the laws of the United States, the waters
within such distance of the coast of the United States as the said authorities are or may be
so enabled or permitted by such treaty or arrangement and, in the *1152 case of every
other vessel, the waters within four leagues of the coast of the United States [i.e. within
the twelve mile limit].”386
L For narcotics-laden vessels
The jury may consider any of the following factors in determining whether the
defendant violated this statute:
1.

the probable length of the voyage;

2.

the size of the contraband shipment;

3.

the relationship between the captain and the crew;

4.

the obviousness of the contraband;

5.

other factors, such as suspicious behavior or diversionary maneuvers
before apprehension, attempts to flee, inculpatory statements made after
apprehension, witnessed participation of the crew, absence of supplies or
equipment necessary to the vessel’s intended use.387

017
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iew
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226 F.3d 849 (4th Cir. 1996) (en banc); United States
See United States v.-4
Burgos, 94
16 Cir. 1999).
v. Randall, 171 F.3d.195 (4th
No
See United States v. Howard-Arias, 679 F.2d 363 (4th Cir. 1982), discussing
____________________NOTE____________________

predecessor statute, codified at 21 U.S.C. § 955a. Section 70503 now includes citizens
and resident aliens. The statute does not require proof of intent to distribute the illegal
drugs within the United States. 679 F.2d at 372.

Section 70504(a) states that “[j]urisdiction of the United States with respect to
vessels subject to this chapter is not an element of any offense.” The Eleventh Circuit
confirmed that the jurisdictional requirement is not an element of the offense. United
States v. Tinoco, 304 F.3d 1088, 1109 (11th Cir. 2002).
Drug quantity is a substantive element of the offense. United States v. Alvarado,
440 F.3d 191, 199 (4th Cir. 2006) (citing United States v. Promise, 255 F.3d 150, 156-57
(4th Cir. 2001) (en banc)).
If attempt or conspiracy are charged, § 70506(b), the jury should be instructed on
the elements of attempt and conspiracy.
Venue lies in the district where the defendant enters the United States, or the
District of Columbia. 46 U.S.C. § 70504(b)

385
386
387

United States v. Rendon, 354 F.3d 1320, 1325 (11th Cir. 2003).
United States v. Romero-Galue, 757 F.2d 1147, 1151-52 (11th Cir. 1989).
United States v. Tinoco, 304 F.3d 1088, 1123 (11th Cir. 2002).

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Possession is a lesser included offense of possession with intent to distribute,
“unless, as a matter of law, the evidence would rule out the possibility of a finding of
simple possession, because the quantity of drugs found was so huge as to require that the
case proceed on the theory that the quantity conclusively has demonstrated an intent to
distribute.” United States v. Baker, 985 F.2d 1248, 1259 (4th Cir. 1993) (quotations,
citations, and alternations in original omitted). See also United States v. Wright, 131 F.3d
1111 (4th Cir. 1997) (fact that defendant found in possession of 3.25 grams of crack
cocaine insufficient alone to require the lesser-included offense instruction requested).
In United States v. Swiderski, 548 F.2d 445 (2d Cir. 1977), the Second Circuit
held that where two individuals simultaneously and jointly acquire possession of a drug
for their own use, intending only to share it together, their only crime is personal drug
abuse–simple joint possession, without any intent to distribute the drug further. The
Fourth Circuit Court of Appeals has declined to reach whether Swiderski is good law in
the Fourth Circuit. United States v. Washington, 41 F.3d 917, 920 n. 2 (4th Cir. 1994).
See United States v. Ramos, 462 F.3d 329 (4th Cir. 2006), for the court’s
“contribut[ion] to the ongoing discussion among the circuits regarding the definition of
‘cocaine base’ under 21 U.S.C. § 841.” 462 F.3d at 331. The substance was referred to as
both cocaine base and crack in the indictment, trial, and jury instructions. “We are of
opinion that no further inquiry is necessary than a reference to the statutory text.” Id. at 333.
Congress did not use the term “crack.” The Fourth Circuit agrees with the Second Circuit
that while Congress probably contemplated that cocaine base would include crack, Congress
did not limit the term to that form. Congress used the chemical term cocaine base without
explanation or limitation. Id. at 333-34 (citing United States v. Jackson, 968 F.2d 158, 162
(2d Cir. 1992)).

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47 U.S.C. § 553

226
6-4 THEFT OF CABLE SERVICE

Title 47, United States Code, Section 553 makes it a crime to assist in the
intercepting or receiving of communications services offered over a cable system without
authorization. For you to find the defendant guilty, the government must prove each of the
following beyond a reasonable doubt:
§ 553(b)(1) and (2)
P

First, that the defendant did assist in the intercepting or receiving of
communications services offered over a cable system without
authorization;

P

Second, that the defendant did so willfully and knowingly; and

P

Third, that the defendant did so for purposes of commercial advantage or
private financial gain.388

To “assist in intercepting or receiving” includes the manufacture or distribution of
equipment intended by the manufacturer or distributor for unauthorized reception of any
communications service offered over a cable system. [§ 553(a)(2)]
Thus, if you find that it was the defendant’s intent to modify and distribute for
sale equipment intended by him for the unauthorized reception of communication services

388

See United States v. Gardner, 860 F.2d 1391 (7th Cir. 1988). The court instructed the jury
“commercial advantage and private financial gain” in the third element. 860 F.2d 1398.

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offered over a cable system, then the defendant would have assisted in the intercepting or
receiving of communication services without authorization.389
The government does not have to prove that the equipment involved was sold for
the sole and specific purpose of cable television theft, or that the equipment was actually
used illegally. The government must prove that the defendant intended the equipment
involved to be used for unauthorized reception of cable service, or that he acted with
specific knowledge that the equipment involved would be so used.390
____________________NOTE____________________
Proof of the third element concerning commercial advantage or private financial
gain elevates the crime to a felony under Section 553(b)(2).
In United States v. Gee, 226 F.3d 885, (7th Cir. 2000), the defendants were
charged with conspiracy and substantive counts. The Seventh Circuit reversed, because
the district court failed to give a buyer-seller instruction. (See instruction on “BuyerSeller defense” in 21 U.S.C. § 846.)

017
2 crime to
Title 49, United States Code, Sections 32703 through 32705 /
27 make it amust prove
tamper with odometers. For you to find the defendant guilty, the government
07/
each of the following beyond a reasonable doubt:
d
we
§ 32703(1)
vie
,advertised for sale, sold, used, installed, or had
P
First, that the defendant
226
installed;
4
1a6- that makes an odometer of a motor vehicle register a
P
Second, device
.
mileage different from
was driven, as registered
Nothe odometer withinthe mileage the vehicle of the manufacturer of the
by
the designed tolerance
49 U.S.C. §§ 32703 through 32705

ODOMETER FRAUD

odometer; and
P

Third, that the defendant did so knowingly and willfully.

§ 32703(2)
P

First, that the defendant disconnected, reset, or altered, or had
disconnected, reset, or altered, the odometer of any motor vehicle;

P

Second, that the defendant did so with intent to change the mileage
registered by the odometer; and

P

Third, that the defendant did so knowingly and willfully.391

§ 32703(3)
P

First, that the defendant operated a motor vehicle on a street, road, or

389

Instruction modified, based on Gardner, 860 F.2d at 1396.
Instruction approved in United States v. Gee, 226 F.3d 885, 897 (7th Cir. 2000).
391
See Schmuck v. United States, 489 U.S. 705, 721 (1989), a mail fraud prosecution, where
the Supreme Court stated that “[t]he offense of odometer tampering [§ 1984] includes the element of
knowingly and willfully causing an odometer to be altered.”
390

595

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highway;
P

Second, that the defendant knew the odometer of the vehicle was
disconnected or not operating; and

P

Third, the defendant did so with intent to defraud.

§ 32703(4)
L

A separate conspiracy provision which applies to all
of the above offenses.

§ 32704(b)
P

First, that the defendant removed or altered;

P

Second, a written notice attached to the left door frame of the vehicle
specifying the mileage before service, repair, or replacement of the
odometer, and the date of the service, repair, or replacement; and

P

Third, that the defendant did so with intent to defraud.

§ 32705(a)(2)
P
P

P

7
01one of the
Second, that when transferring ownership, the defendant did
2
following:
27/
07/ of the cumulative
1. failed to give the transferee a written disclosure
d
mileage registered on the odometer;
we
e
2. failed to give the transferee a written disclosure that the actual mileage
, vi knew that the odometer reading was
was unknown, if the 6
2
4the 2 defendant the vehicle had actually traveled; or
different from
6- number of miles
3. gave the transferee a false statement; and
o. 1
N
First, that the defendant transferred ownership of a motor vehicle;

Third, that the defendant did so knowingly and willfully.

____________________NOTE____________________
The criminal penalty is set forth in § 32709(b).
In United States v. Studna, 713 F.2d 416 (8th Cir. 1983), the Eighth Circuit
discussed 18 U.S.C. § 1984, the predecessor statute, and held that it did not require intent
to defraud, unlike the civil remedy in § 1989, which provided a private right of action and
specifically required intent to defraud. However, in recodifying § 1984, Congress has
obviously added intent to defraud as an element for some of the offenses.
49 U.S.C. § 46502

AIRCRAFT PIRACY

Title 49, United States Code, Section 46502 makes aircraft piracy a crime. For
you to find the defendant guilty, the government must prove each of the following beyond
a reasonable doubt:
§ 46502(a)
P

596

First, that the defendant seized or exercised control over an aircraft [or
attempted to or conspired to do so];

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P

Second, that the defendant did so by means of force, violence, threat of
force or violence, or any form of intimidation;

P

Third, that the defendant did so with wrongful intent; and

P

Fourth, that at the time the aircraft was within the special aircraft
jurisdiction of the United States.392

AGGRAVATED PENALTY
1. Did the death of another individual result from the defendant’s conduct [or
attempt]?
§ 46502(b)
P

First, that the defendant seized or exercised control over an aircraft [or
attempted to or conspired to do so];

P

Second, that the defendant did so by means of force, violence, threat of
force or violence, or any form of intimidation;

P

Third, that the defendant did so with wrongful intent; and

P

Fourth, that at the time, there was a national of the United States on the
aircraft, the defendant was a national of the United States, or afterwards,
the defendant was found in the United States.

AGGRAVATED PENALTY

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1. Did the death of another individual result from the defendant’s conduct [or
attempt]?

226
6-4

“Aircraft in flight” means an aircraft from the moment all external doors are
closed following boarding through the moment when one external door is opened to allow
passengers to leave the aircraft, or until, if a forced landing, competent authorities take
over responsibility for the aircraft and individuals and property on the aircraft.
[§ 46501(1)]

o. 1
N

“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;

(c)

another aircraft in the United States;

(d)

another aircraft outside the United States

(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;
(2) on which an individual commits an offense (as defined in the
Convention for the Suppression of Unlawful Seizure of Aircraft)393 if
the aircraft lands in the United States with the individual still on the
aircraft; or

392

United States v. Arias-Izquierdo, 449 F.3d 1168, 1176 (11th Cir. 2006).
That is, 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.
393

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(3) against which an individual commits an offense (as defined in
subsection (d) or (e) of article I, section I of the Convention for the
Suppression of Unlawful Acts Against the Safety of Civil Aviation)394
if the aircraft lands in the United States with the individual still on the
aircraft; and
(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. [§ 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)]
“Assault” means the willful attempt or threat to inflict injury upon the person of
another, when coupled with an apparent present ability to do so, and any intentional
display of force such as would give the victim reason to fear or expect immediate bodily
harm. An assault may be committed without actual touching, or striking, or doing bodily
harm, to the person of another.395

017
7/2

For intimidation to occur, the defendant’s conduct must be reasonably calculated
to produce fear. Intimidation occurs when an ordinary person in the victim’s position
reasonably could infer a threat of bodily harm from the defendant’s acts. Thus, the
subjective courageousness or timidity of the victim is not relevant; the acts of the
defendant must constitute intimidation to an ordinary, reasonable person.396 The
government does not have to prove that the defendant intended to intimidate.397

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226
6-4

The government does not have to prove that the victim was in fact frightened for
his own physical safety. It is sufficient that the conduct and words of the accused would
place an ordinary, reasonable person in fear of bodily harm.398

o. 1does not have to prove that the defendant intended to harm the
The government
N

victim personally.399

____________________NOTE____________________
On the authority of United States v. Compton, 5 F.3d 358 (9th Cir. 1993), it
appears that § 46504, interfering with flight crew, can be a lesser included offense of air
piracy, although Compton dealt with the predecessor statutes, §§ 1472(i) and (j).
49 U.S.C. § 46503

394

INTERFERING WITH SECURITY SCREENING

That is, 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.
395
United States v. Tabacca, 924 F.2d 906, 911 (9th Cir. 1991) (§ 1472(j)).
396
United States v. Wagstaff, 865 F.2d 626, 627-28 (4th Cir. 1989), an 18 U.S.C. § 2113
case.
397
United States Woodrup, 86 F.3d 359, 363-64 (4th Cir. 1996).
398
Tabacca, 924 F.2d at 911; United States v. Alsop, 479 F.2d 65, 67 n.4 (9th Cir. 1973)(
§ 2113(a) bank robbery prosecution).
399
Tabacca, 924 F.2d at 911 n.6.

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OTHER TITLES

PERSONNEL
Title 49, United States Code, Section 46503 makes it a crime to interfere with
security screening personnel. For you to find the defendant guilty, the government must
prove each of the following beyond a reasonable doubt:
P

First, that the defendant interfered with, or lessened the ability of a
Federal, airport, or air carrier employee who has security duties to
perform their respective duties within an airport;

P

Second, that the defendant did so by assaulting the employee; and

P

Third, that the assault occurred within a commercial service airport.

AGGRAVATED PENALTY
1. Did the defendant use a dangerous weapon in assaulting the employee?
“Assault” means the willful attempt or threat to inflict injury upon the person of
another, when coupled with an apparent present ability to do so, and any intentional
display of force such as would give the victim reason to fear or expect immediate bodily
harm. An assault may be committed without actual touching, or striking, or doing bodily
harm, to the person of another.400

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For intimidation to occur, the defendant’s conduct must be reasonably calculated
to produce fear. Intimidation occurs when an ordinary person in the victim’s position
reasonably could infer a threat of bodily harm from the defendant’s acts. Thus, the
subjective courageousness or timidity of the victim is not relevant; the acts of the
defendant must constitute intimidation to an ordinary, reasonable person.401 The
government does not have to prove that the defendant intended to intimidate.402

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The government does not have to prove that the victim was in fact frightened for
his own physical safety. It is sufficient that the conduct and words of the accused would
place an ordinary, reasonable person in fear of bodily harm.403

o. 1does not have to prove that the defendant intended to harm the
N
The government

victim personally.404

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
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. An object need not be inherently dangerous to be a dangerous weapon.
Innocuous objects or instruments may become capable of inflicting injury when put to
assaultive use. Tennis shoes can be dangerous weapons when used to stomp on a victim’s
head, and a stapler can be a dangerous weapon when used as a bludgeon. Teeth may also
be a dangerous weapon if they are employed as such.405

400

Id. at 911.
United States v. Wagstaff, 865 F.2d 626, 627-28 (4th Cir. 1989) (18 U.S.C. § 2113 case).
402
United States v. Woodrup, 86 F.3d 359, 363-64 (4th Cir. 1996)
403
Tabacca, 924 F.2d at 911; United States v. Alsop, 479 F.2d 65, 67 n.4 (9th Cir. 1973)
(§ 2213(a) bank robbery prosecution).
404
Tabacca, 924 F.2d at 911 n.6.
405
See United States v. Sturgis, 48 F.3d 784, 787-88 (4th Cir. 1995).
401

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49 U.S.C. § 46504

INTERFERING WITH FLIGHT CREW

Title 49, United States Code, Section 46504 makes it a crime to interfere with
flight crew members or flight attendants. 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 on an aircraft that was within the special
aircraft jurisdiction of the United States;

P

Second, that the defendant assaulted or intimidated a flight crew member
or flight attendant; and

P

Third, that in doing so, the defendant interfered with, or lessened the
ability of the flight crew members or flight attendants to perform their
respective duties on the flight.406 [or attempted or conspired to do so]

AGGRAVATED PENALTY
1. Was a dangerous weapon used in assaulting or intimidating the flight crew
member or flight attendant?
“Special aircraft jurisdiction of the United States” includes any of the following
aircraft in flight:

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(a)

a civil aircraft of the United States;

(b)

an aircraft of the armed forces of the United States;

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(c)
another aircraft in the United States; d
e
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(d)
another aircraft outside the United States
vie or last place of departure in the United
(1) that has its next scheduled,destination
226
States, if the aircraft next lands in the United States;
4
16(2) on which an individual commits an offense (as defined in the Convention for
.
the Suppression of Unlawful Seizure of Aircraft) if the aircraft lands in the
No States with the individual still on the aircraft; or
United
407

(3) against which an individual commits an offense (as defined in subsection (d)
or (e) of article I, section I of the Convention for the Suppression of
Unlawful Acts Against the Safety of Civil Aviation)408 if the aircraft lands in
the United States with the individual still on the aircraft; and
(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.
[§ 46501(2)]

“Aircraft in flight” means an aircraft from the moment all external doors are
closed following boarding through the moment when one external door is opened to allow
passengers to leave the aircraft, or until, if a forced landing, competent authorities take
over responsibility for the aircraft and individuals and property on the aircraft.

406

United States v. Naghani, 361 F.3d 1255, 1262 (9th Cir. 2004).
That is, 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.
408
That is, 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.
407

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[§ 46501(1)]
“Assault” means the willful attempt or threat to inflict injury upon the person of
another, when coupled with an apparent present ability to do so, and any intentional
display of force such as would give the victim reason to fear or expect immediate bodily
harm. An assault may be committed without actual touching, or striking, or doing bodily
harm, to the person of another.409
A defendant intimidates a flight attendant or flight crew member if the words and
conduct of the defendant would place an ordinary reasonable person in fear [of bodily
harm]. The government does not need to prove that the flight attendant or flight crew
member was in fact frightened for his or her own [physical] safety.410
This statute does not require a one-on-one type confrontation. One person in a
group can be intimidated by threats directed at the group in general.411
The government does not have to prove that the defendant intended to harm the
victim personally.412
The government does not have to prove that the defendant intended to interfere
with the performance of the flight crew or flight attendants.413

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The government does not have to prove that the defendant endangered the safety
of the aircraft.414

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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
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. An object need not be inherently dangerous to be a dangerous weapon.
Innocuous objects or instruments may become capable of inflicting injury when put to
assaultive use. Tennis shoes can be dangerous weapons when used to stomp on a victim’s
head, and a stapler can be a dangerous weapon when used as a bludgeon. Teeth may also
be a dangerous weapon if they are employed as such.415

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____________________NOTE____________________
Section 46504 does not require any showing of specific intent. It is a general
intent crime. United States v. Grossman, 131 F.3d 1449, 1452 (11th Cir. 1997).
Concerning venue, the First Circuit interpreted 49 U.S.C. § 1472, the predecessor
statute, to say that “the offense continues for at least as long as the crew are responding
directly, and in derogation of their ordinary duties, to the defendant’s behavior.” United

409

United States v. Tabacca, 924 F.2d 906, 911 (9th Cir. 1991)(§ 1472(j)).
District court instruction from United States v. Naghani, 361 F.3d 1255, 1260 n.3 (9th Cir.
2004). Bracketed inserts from Tabacca, 924 F.2d at 911. The test for intimidation is an objective one,
on the same footing as “force and violence” under 18 U.S.C. § 2113(a). The Ninth Circuit had “no
hesitancy in applying the test for intimidation under section 2113(a) when interpreting section
1472(j)[predecessor statute].” United States v. Meeker, 527 F.2d 12, 15 n.3 (9th Cir. 1975).
411
Naghani, 361 F.3d at 1262.
412
Tabacca, 924 F.2d at 911 n.6.
413
United States v. Meeker, 527 F.2d 12, 14 (9th Cir. 1975).
414
United States v. Tabacca, 924 F.2d 906, 912 (9th Cir. 1991).
415
See United States v. Sturgis, 48 F.3d 784, 787-88 (4th Cir. 1995).
410

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States v. Hall, 691 F.2d 48, 50 (1st Cir. 1982).
49 U.S.C. § 46505

CARRYING A WEAPON ON AN AIRCRAFT

Title 49, United States Code, Section 46505 makes it a crime to carry a weapon or
explosive on an aircraft. For you to find the defendant guilty, the government must prove
each of the following beyond a reasonable doubt:
§ 46505(b)(1)
P

First, that the defendant was on, or attempted to get on, an aircraft in, or
intended for operation in, air transportation or intrastate air
transportation;

P

Second, that the defendant had in his possession a concealed dangerous
weapon which would be accessible to him in flight; and

P

Third, that the defendant acted knowingly.

§ 46505(b)(2)

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P

First, that the defendant placed, attempted to place, or attempted to have
placed, a loaded firearm on an aircraft in, or intended for operation in, air
transportation or intrastate air transportation;

P

Second, that the loaded firearm was in property not accessible to
passengers during flight; and

P

Third, that the defendant did so knowingly.

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“Loaded firearm” means a starter gun or a weapon designed or converted to expel
a projectile through an explosive, that has a cartridge, a detonator, or powder in the
chamber, magazine, cylinder, or clip. [§ 46505(a)]

o. 1
§ 46505(b)(3)
N
P

First, that the defendant had in his possession, or had placed, attempted to
place, or attempted to have placed on an aircraft in, or intended for
operation in, air transportation or intrastate air transportation;

P

Second, an explosive or incendiary device; and

P

Third, that the defendant did so knowingly.

§ 46505(e)
P

First, that two or more persons agreed to [commit one of the above
violations, with or without the aggravated penalty];

P

Second, that the defendant knew of the conspiracy and willfully joined
the conspiracy; and

P

Third, at some time during the existence of the conspiracy or agreement,
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.

AGGRAVATED PENALTY [§ 46505(c)]
1.

602

Did the defendant act willfully and without regard for the safety of human
life, or with reckless disregard for the safety of human life?

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2.

Did death result to any person from the defendant’s conduct?
____________________NOTE____________________

See United States v. Arias-Izquierdo, 449 F.3d 1168, 1186 (11th Cir. 2006).
49 U.S.C. § 46507

FALSE INFORMATION AND THREATS

Title 49, United States Code, Section 46504 makes it a crime to give false
information about, or threaten to violate, certain federal laws concerning aircraft. For you
to find the defendant guilty, the government must prove each of the following beyond a
reasonable doubt:
§ 46507(1)
P

First, that the defendant gave or caused to be given false information
about an alleged attempt being made or to be made to [violate § 46502(a),
46504, 46505, or 46506, and the court should instruct on the elements of
the appropriate section];

P

Second, that the defendant did so under circumstances in which the
information reasonably might be believed;

P

Third, that the defendant knew the information was false; and

P

Fourth, that the defendant did so willfully and maliciously or with
reckless disregard for the safety of human life.

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226 threatened, or caused a threat, to [violate
First, that the4
16- defendant
§ 46502(a), 46504, 46505, or 46506 and the court should instruct on the
.
elements
No of the appropriate section]; and

§ 46507(2)
P

P

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Second, that the defendant had the apparent determination and will to
carry out the threat.

50 U.S.C. § 783(a)

COMMUNICATION OF CLASSIFIED INFORMATION [LAST
UPDATED : 9/30/11]

Title 50, United States Code, Section 783(a) makes it a crime for a federal
employee to communicate classified information to an agent of a foreign government
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 was an officer or employee of the United States
or some department or agency of the United States;

P

Second, that the defendant communicated, in any manner or by any
means, any information of a kind which had been classified as affecting
the security of the United States;

P

Third, that the defendant knew or had reason to know that the information
had been so classified;

P

Fourth, that the defendant communicated the information to an agent or
representative of any foreign government; and
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OTHER TITLES

P

Fifth, that the defendant knew or had reason to know that the person to
whom the information was communicated was an agent or representative
of a foreign government.416

The government does not have to prove that documents involved were properly
classified as “affecting the security of the United States.”417
“The term ‘agent or representative of a foreign government’ means an individual
who operates subject to the direction or control of a foreign government or official. There
is no requirement that the defendant know the identity of the particular foreign
government on whose behalf the agent or representative to whom the defendant
communicated classified information was acting. The government need only prove that
the defendant knew or had reason to believe that the person to whom he communicated
classified information was an agent or representative of any foreign government.”418

____________________NOTE____________________
Section 783(a) sets forth an exception for disclosure which is “specifically
authorized,” 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).

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416
417
418

604

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See United States v. Fondren, 417 F. App’x 327, 332 (4th Cir. 2011).
Scarbeck v. United States, 317 F.2d 546, 558 (D.C. Cir. 1962).
Fondren, 417 F. App’x at 332.

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V.

DEFINITIONS

“A trial court need not define specific statutory terms unless they are outside the
common understanding of a juror or are so technical or specific as to require a definition.”
United States v. Chenault, 844 F.2d 1124, 1131 (5th Cir. 1988).
A.

Agency

[As used in Title 18] the term “agency” includes any department, independent
establishment, commission, administration, authority, board or bureau of the United
States or any corporation in which the United States has a proprietary interest, unless the
context shows that such term was intended to be used in a more limited sense. [18 U.S.C.
§ 6]1
B.
Assault
“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.2

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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.3

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we
ielaw: attempt to commit a battery, and an
Assault had two meanings at common
6, v of bodily harm. Battery did not require
act putting another in reasonable apprehension
2
proof that the defendant intended to injure another or to threaten the person with harm.
-42
6
The slightest willful. 1
offensive touching of another constituted a battery regardless of
whether the defendant harbored an intent to do physical harm. United States v. Bayes, 210
No 2000).
F.3d 64, 68 (1st Cir.
____________________NOTE____________________

C.

Attempt

For you to find the defendant guilty of an attempt, the government must prove
each of the following beyond a reasonable doubt:

1

In United States v. Hamaker, 455 F.3d 1316 (11th Cir. 2006), the defendant was charged
with bank fraud, in violation of 18 U.S.C. § 1344, and requested the following instruction:
An agent is one who is authorized to act on behalf of or in the place of another. That
authority may be express or may be implied by circumstance. Third parties dealing
with an agent are entitled to rely on statements and representations to a third person
by written or spoken words or any other conduct of the principal which, reasonably
interpreted, causes the third person to believe that the principal consents to acts and
representations done on his behalf by the person purporting to act for him.
455 F.3d 1326. The district court gave a “good faith” instruction instead. The Eleventh Circuit held
that this instruction was an accurate statement of agency law as applied to civil contract disputes, but
it would have been misleading to a jury in a bank fraud case.
2
United States v. Williams, 197 F.3d 1091, 1096 (11th Cir. 1999).
3
United States v. Dupree, 544 F.2d 1050, 1051 (9th Cir. 1976) (citing United States v. Bell,
505 F.2d 539 (7th Cir. 1974)).

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DEFINITIONS

P

First, that the defendant intended to commit the crime alleged [this will
necessitate instructing the jury on the elements of the crime charged,
especially the requisite intent];

P

Second, that the defendant undertook a direct act in a course of conduct
planned to culminate in the commission of the crime;

P

Third, that the act was substantial, in that it was strongly corroborative of
the defendant’s criminal purpose; and

P

Fourth, that the act fell short of the commission of the intended crime due
to intervening circumstances.4

A substantial step is more than mere preparation, yet may be less than the last act
necessary before the actual commission of the substantive crime.5
A verbal agreement alone, without more, is insufficient to prove attempt.6
Examples of conduct which may constitute a substantial step include the
following: lying in wait, searching for or following the contemplated victim of the crime;
enticing or seeking to entice the contemplated victim of the crime to go to the place
contemplated for its commission; reconnoitering the place contemplated for the
commission of the crime; unlawful entry of a structure, vehicle or enclosure in which it is
contemplated that the crime will be committed; possession of materials to be used in the
commission of the crime, that are specially designed for such unlawful use or that can
serve no lawful purpose of the defendant under the circumstances; possession, collection,
or making of materials to be employed in the commission of the crime at or near the place
contemplated for its commission, if such possession, collection, or making serve no
lawful purpose under the circumstances; and soliciting an innocent agent to engage in
conduct constituting an element of the crime.7

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.
ouse1 the term ‘attempt’ in a criminal statute manifested a
N of
“Congress’
____________________NOTE____________________

requirement of specific intent to commit the crime attempted, even when the statute did
not contain an explicit intent requirement.” United States v. Gracidas-Ulibarry, 231 F.3d
1188, 1192 (9th Cir. 2000) (en banc). According to the Ninth Circuit, attempt requires
specific intent.
In Osborn v. United States, 385 U.S. 323, 333 (1966), the Supreme Court
questioned the “continuing validity [of] the doctrine of ‘impossibility,’ with all its
subtleties, ... in the law of criminal attempt.” Osborn was convicted of endeavoring to
obstruct justice, which, by its nature, is an attempt.

4

United States v. Pratt, 351 F.3d 131, 135 (4th Cir. 2003). “[A]n indictment alleging
attempted illegal reentry under § 1326(a) need not specifically allege a particular overt act or any other
‘component par[t]’ of the offense.” United States v. Resendiz-Ponce, 549 U.S. 102, 107 (2007).
5
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.
6
United States v. Neal, 78 F.3d 901, 906 (4th Cir. 1996) (quoting United States v.
Delvecchio, 816 F.2d 859, 862 (2d Cir. 1987)).
7
Pratt, 351 at 135-36; United States v. McFadden, 739 F.2d 149, 152 (4th Cir. 1984).

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“Factual impossibility refers to those situations in which a circumstance or
condition, unknown to the defendant, renders physically impossible the consummation of
his intended criminal conduct.” United States v. Frazier, 560 F.2d 884, 888 (8th Cir.
1977). An example of this is when someone tries to pick an empty pocket. “Legal
impossibility refers to those situations in which the intended acts, even if successfully
carried out, would not amount to a crime. Thus, attempt is not unlawful where success is
not a crime, and this is true even though the defendant believes his scheme to be
criminal.” Id.
“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). Factual
impossibility is not a defense to an attempt crime or conspiracy. Id.
D.

Battery

Battery is defined as inflicting injury upon the person of another.8
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.9

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In the case of an attempted battery, the victim need not have experienced
reasonable apprehension of immediate bodily harm.10

7/2
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For you to find the defendant guilty of conspiracy, the government must prove
ed
w
each of the following beyond a reasonable doubt:
vie between two, or more, persons, to [the
P
First, that there was an ,
26 agreement
court must identify the elements of the object of the conspiracy];
2
6-4 defendant knew of the conspiracy; and
P
Second, that the
o. 1 the defendant knowingly and voluntarily became a part of this
P
Third,
N that
conspiracy.
E.

Conspiracy

11

F.

Conversion

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.12
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

8

See United States v. Juvenile Male, 930 F.2d 727, 728 (9th Cir. 1991), for a full definition
of common law assault.
9
United States v. Williams, 197 F.3d 1091, 1096 (11th Cir. 1999) (“Intention to do bodily
harm is not a necessary element of battery.”).
10
United States v. Guilbert, 692 F.2d 1340, 1343 (11th Cir. 1982).
11
United States v. Yearwood, 518 F.3d 220, 225-26 (4th Cir. 2008).
12
See United States v. Stockton, 788 F.2d 210, 216 (4th Cir. 1986).

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DEFINITIONS

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.13
G.

Corruptly

“Corruptly” means to act knowingly and dishonestly, with the specific intent to
subvert or undermine the integrity of a proceeding.14
H.

Crime of Violence [LAST UPDATED : 7/18/14]

The term “crime of violence” means (a) an offense that has as an element the use,
attempted use, or threatened use of physical force against the person or property of
another, or (b) any other offense that is a felony and 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. [18 U.S.C. § 16]15
I.

Dangerous Weapon

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.16

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Department

The term “department” means one of the executive departments enumerated in [5
U.S.C. § 101], unless the context shows that such term was intended to describe the
executive, legislative, or judicial branches of the government. [18 U.S.C. § 6]

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o. 1 the deliberate taking or retaining of the property of another with
Embezzle means
N
K.

Embezzle

the intent to deprive the owner of its use or benefit by a person who has lawfully come
into the possession of the property.17
L.

13

False

Morissette v. United States, 342 U.S. 246, 271-72 (1952).
See Arthur Andersen LLP v. United States, 544 U.S. 696, 706 (2005).
15
Physical force has been defined as violent force, that is force capable of causing physical
pain or injury to another person. Johnson v. United States, 559 U.S. 133 (2010); United States v.
White, 606 F.3d 144, 153 (4th Cir. 2010).
16
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).
17
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.
14

608

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DEFINITIONS

“False” means more than merely untrue or incorrect.18
To establish that a statement was false, the government must negate any
reasonable interpretation that would make the defendant’s statement factually correct.19
M.

Financial Institution

[As used in Title 18], the term “financial institution” means
(1)

an insured depository institution [as defined in 12 U.S.C. § 1813];

(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 12 U.S.C. § 1422] of the
Federal home loan bank system;

(4)

a System institution of the Farm Credit System [as defined in 12 U.S.C.
§ 2271(3)];

(5)

a small business investment company [as defined in 15 U.S.C. § 622];

(6)

a depository institution holding company [as defined in 12 U.S.C. § 1813];

(7)

a Federal Reserve bank or a member bank of the Federal Reserve System
[Title 12, United States Code];

(8)

an organization operating under section 25 or section 25(a) of the Federal
Reserve Act [Title 12, United States Code];

(9)

a branch or agency of a foreign bank [as defined in 12 U.S.C. § 3101]; or

017
7/2

7/2
d0

we
ieperson or entity that makes in whole or in
(10) a mortgage lending business,or any
6 v loan [as defined in 12 U.S.C. §§ 2601 et
part a federally related 2
42 mortgage
seq.]. [18 U.S.C.- 20]
§
. 16
N.
Fraud Fraudulent
Nao orterm, which includes false representations, dishonesty, and
Fraud is broad
deceit. It may result from reckless and needless representations, even not made with a
deliberate intent to deceive.20
Fraud includes acts taken to conceal, create a false impression, mislead, or
otherwise deceive in order to prevent the other party from acquiring material
information.21

18

United States v. Snider, 502 F.2d 645, 655 (4th Cir. 1974). In Snider, the district court
instructed that a statement is false “if it were untrue when made, and was then known to be untrue by
the person making it, or causing it to be made.” 502 F.2d at 650. Snider was a 26 U.S.C. § 7205
prosecution, where the defendant claimed 3 billion exemptions. The Fourth Circuit held that “for a
taxpayer to be convicted of supplying ‘false or fraudulent’ information contrary to § 7205 the
information must either be (1) supplied with an intent to deceive, or (2) false in the sense of
deceptive–of such a nature that it could reasonably affect withholding to the detriment of the
government.” Id. at 655.
19
United States v. Race, 632 F.2d 1114 (4th Cir. 1980) (citing United States v. Anderson,
579 F.2d 455, 460 (8th Cir. 1978)).
20
United States v. Grainger, 701 F.2d 308, 311 (4th Cir. 1983).
21
United States v. Colton, 231 F.3d 890, 898 (4th Cir. 2000) (18 U.S.C. § 1344 case).

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DEFINITIONS

Susceptibility of the victim of the alleged fraud is not relevant. It makes no
difference whether the persons the defendant intended to defraud are gullible or skeptical,
dull or bright.22
____________________NOTE____________________
The common law distinguished between concealment and nondisclosure.
Concealment is “characterized by deceptive acts or contrivances intended to hide
information, mislead, avoid suspicion, or prevent further inquiry into a material matter.”
United States v. Colton, 231 F.3d 890, 899 (4th Cir. 2000). Nondisclolsure is
characterized by “mere silence.” Id. In Colton, the court concluded that fraud could be
proven by evidence of active concealment of material information, and rejected the
defendant’s arguments that to prove a fraudulent scheme, the government had to establish
one of the following: “(1) affirmative misrepresentations of existing fact, (2) false
promises as to the future, (3) the failure of a fiduciary to make disclosure, and (4) the
failure to make disclosure under an independent statutory duty.” Id. at 900 (quoting
United States v. Coyle, 943 F.2d 424, 426 (4th Cir. 1991)).
O.

Health Care Benefit Program

017
7/2

[As used in Title 18], the term “health care benefit program” means any public or
private plan or contract, affecting commerce, under which any medical benefit, item, or
service for which payment may be made under the plan or contract. [18 U.S.C. § 24(b)]
P.

7/2
d0

e
iew
,v

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.23

226
6-4

Q.

o. 1
Intentionally
N

To commit an act intentionally is to do so deliberately and not by accident.24
It is reasonable to infer that a person ordinarily intends the natural and probable
consequences of acts knowingly done or knowingly omitted. The jury may draw the
inference that the defendant intended all of the consequences which one standing in like
circumstances and possessing like knowledge should reasonably have expected to result
from any act knowingly done or knowingly omitted by the defendant.25 Any such
inference drawn is entitled to be considered by the jury in determining whether or not the
government has proved beyond a reasonable doubt that the defendant possessed the
required criminal intent.26
R.

Interstate or Foreign Commerce

“Interstate commerce” includes commerce between one State, Territory,
Possession, or the District of Columbia and another State, Territory, Possession, or the

22
23
24
25
26

610

See id. at 903.
United States v. Ellis, 326 F.3d 550, 556 (4th Cir. 2003).
United States v. Fuller, 162 F.3d 256, 260 (4th Cir. 1998).
See United States v. Silva, 745 F.2d 840, 850-51, 852 (4th Cir. 1984).
Approved in United States v. Arthur, 544 F.2d 730, 737 (4th Cir. 1976).

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DEFINITIONS

District of Columbia. [18 U.S.C. § 10]
“Foreign commerce” includes commerce with a foreign country. [18 U.S.C. § 10]
S.

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
[an enumerated person] for the purpose of improperly obtaining or rewarding favorable
treatment in connection with [an enumerated circumstance]. See 41 U.S.C. § 52(2).
T.

Knowingly

To act knowingly is to act with knowledge of the facts that constitute the offense
but not necessarily with knowledge that the facts amount to illegal conduct.27 Expressed
another way, an act is done knowingly if the defendant is aware of the act and does not act
through ignorance, mistake, or accident. The government is not required to prove that a
defendant knew that his acts or omissions were unlawful.28
A person acts knowingly as to the result of his conduct when he knows that the
result is practically certain to follow from his conduct.29

017
7/2

A person who causes a particular result is said to act knowingly if he is aware that
that result is practically certain to follow from his conduct, whatever his desire may be as
to that result.30

7/2 natural and probable
It is reasonable to infer that a person ordinarily intends the
0
consequences of acts knowingly done or knowingly omitted. The jury may draw the
ed
w
inference that the defendant intended all of the consequences which one standing in like
vie reasonably have expected to result
circumstances and possessing like knowledge should
6,
from any act knowingly done or22
knowingly omitted by the defendant. Any such
4
inference drawn is entitled to be considered by the jury in determining whether or not the
16- a reasonable doubt that the defendant possessed the
government has proved beyond
.
No
required criminal intent.
31

32

____________________NOTE____________________
See Bryan v. United States, 524 U.S. 184 (1998) for discussion of “knowing” and
“willful.”
A mistake of fact is a cognizable defense to an offense requiring knowledge.
United States v. Fuller, 162 F.3d 256, 262 (4th Cir. 1998).
“[T]he presumption in favor of a scienter requirement should apply to each of the
statutory elements that criminalize otherwise innocent conduct.” United States v. XCitement Video, Inc., 513 U.S. 64, 72 (1994). The Court cited Morissette v. United States,

27

Fuller, 162 F.3d at 260.
United States v. Evans, 272 F.3d 1069, 1086 (8th Cir. 2001).
29
United States v. Carr, 303 F.3d 539, 546 (4th Cir. 2002).
30
United States v. Bailey, 444 U.S. 394, 404 (1980) (citing United States v. United States
Gypsum Co., 438 U.S. 422, 445 (1978)).
31
See United States v. Silva, 745 F.2d 840, 850-51, 852 (4th Cir. 1984).
32
Approved in United States v. Arthur, 544 F.2d 730, 737 (4th Cir. 1976).
28

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DEFINITIONS

342 U.S. 246 (1952) (18 U.S.C. § 641, theft of government property); Liparota v. United
States, 471 U.S. 419 (1985) (7 U.S.C. § 2024, food stamps); and Staples v. United States,
511 U.S. 600 (1994) (26 U.S.C. § 5861, possession of unregistered machine gun). But see
United States v. Langley, 62 F.3d 602 (4th Cir. 1995) (en banc), where the Fourth Circuit
said that “the reasonable expectations of felons are wholly distinct from the reasonable
expectations of ordinary citizens.” 62 F.3d at 607. In X-Citement, the Supreme Court
pointed out that knowledge of “jurisdictional facts” is not generally required. “Criminal
intent serves to separate those who understand the wrongful nature of their act from those
who do not, but does not require knowledge of the precise consequences that may flow
from that act once aware that the act is wrongful.” X-Citement Video, Inc., 513 U.S. at 72
n.3.
U.

Materiality

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.33

017 which
[In Title 18], the term “mortgage lending business” means7/2
/2 an organization
finances or refinances any debt secured by an interest in real estate, including private
07
mortgage companies and any subsidiaries of such organizations, and whose activities
d
affect interstate or foreign commerce. [18 U.S.C. §e
w 27]
e
, vi
226
4
16.
No
V.

33

612

Mortgage Lending Business

United States v. Sarihifard, 155 F.3d 301, 306, 307 (4th Cir. 1998).

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DEFINITIONS

W.

Motive

Intent and motive should never be confused. Motive is what prompts a person to
act, or not to act. Intent refers to the state of mind with which an act is done or omitted.
Personal advancement and financial gain are two well-recognized motives for much of
human conduct. These motives may prompt one person to voluntary acts of good, and
another person to voluntary acts of crime.34
Good motive alone is never a defense where the act done or omitted is a crime. So
the motive of the defendant is immaterial, except insofar as evidence of motive may aid
you in your determination of state of mind or intent.35
X.

Obligation or Other Security of the United States

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]
Y.

017
7/2

Pass or Utter

7/2
d0

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.36

e
iew
,v

226
4
Possession means to exercise dominion and control over an item or property,
16voluntarily and intentionally.
.
No
Z.

Possession

Possession may be either sole, by the defendant himself, or joint, that is, it may be
shared with other persons, as long as the defendant exercised dominion and control over
the item or property.
Possession may be either actual or constructive.
Actual possession is defined as physical control over property.
Constructive possession occurs when a person exercises or has the power and the
intention to exercise dominion and control over an item of property.37
Constructive possession can be established by evidence, either direct or
34

See United States v. Perl, 584 F.2d 1316, 1322 n.6 (4th Cir. 1978) (so-called “Berrigan

charge”).
35

See United States v. Pomponio, 528 F.2d 247, 249 (4th Cir. 1975), reversed on other
grounds, 429 U.S. 10 (1976).
36
See United States v. Jenkins, 347 F.2d 345, 347 (4th Cir. 1965) (citing United States v.
Rader, 185 F.Supp. 224, 230 (W .D. Ark. 1960)).
37
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).

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DEFINITIONS

circumstantial, 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
a person exercises or has the power and intention to exercise dominion and control over
that item or property.38
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 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.39
____________________NOTE____________________
“When multiple items of contraband are seized on a single occasion ... [there is]
... only a single act of possession.” United States v. Leftenant, 341 F.3d 338, 348 (4th Cir.
2003).
Multiple persons possessing a large quantity of drugs and working in concert
sufficiently establish constructive possession. United States v. Burgos, 94 F.3d 849 (4th
Cir. 1996) (en banc).

017
7/2

7/2
d0

See also United States v. Chorman, 910 F.2d 102 (4th Cir. 1990).

we
ieif not satisfactorily explained, is ordinarily
Possession of recently stolen property,
6, v draw the inference and find, in the light
a circumstance from which you 22 reasonably
may
of the surrounding circumstances shown by the evidence in the case, that the person in
-4
16
possession [participated in some way in the theft of the property or] knew the property
. same inference may reasonably be drawn from a false explanation
had been stolen. [The
No However, you are never required to make this inference. It is the
of such possession.]
AA.

Possession of Recently Stolen Property

40

41

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

38

Id. 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) (citing United States
v. Blue, 957 F.2d 106, 108 (4th Cir. 1992), and United States v. Burgos, 94 F.3d 849, 873 (4th Cir.
1996) (en banc)).
39
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 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).
40
United States v. Long, 538 F.2d 580, 581 n.1 (4th Cir. 1976).
41
Id.

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DEFINITIONS

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
through other circumstances, other evidence, independent of any testimony of the
defendant.42
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.43
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.44
BB.

017
7/2

7/2
d0

Put in Jeopardy

“Putting in jeopardy” means putting the life of a person in an objective state of
danger.45 Therefore, “to put in jeopardy” means to expose a person to a risk of death.46
CC.

Reckless

e
iew
,v

226
6-4

A person acts recklessly when he consciously disregards a substantial and
unjustifiable risk of such a nature and degree that its disregard involves a gross deviation
from the standard of conduct that a law-abiding person would observe in that person’s
situation.47
DD.

o. 1
N

Special Maritime and Territorial Jurisdiction

“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. [See other definitions in
42

Instruction approved in Barnes v. United States, 412 U.S. 837, 840 n.3 (1973) (defendant
was convicted of possessing stolen mail, 18 USC § 1708).
43
United States v. Gallo, 543 F.2d 361, 368 n. 6 (D.C. Cir. 1976).
44
See United States v. Chorman, 910 F.2d 102, 108 (4th Cir. 1990).
45
In United States v. Newkirk, 481 F.2d 881 (4th Cir. 1973), the Fourth Circuit held the
following instruction did not constitute plain error: “To put in jeopardy the life of a person by the use
of a dangerous weapon or device means, then, to expose such person to a risk of death or to the fear
of death, by the use of such dangerous weapon or device.” 481 F.2d at 883 n.1. However, because
jeopardy “is commonly defined as referring to an objective state of danger, not to a subjective feeling
of fear,” United States v. Donovan, 242 F.2d 61, 63 (2d Cir. 1957), “fear of death” language is not
included.
46
Newkirk, 481 F.3d 881.
47
See United States v. Carr, 303 F.3d 539, 546 (4th Cir. 2002).

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DEFINITIONS

18 U.S.C. § 7.]48
____________________NOTE____________________
For cases discussing special jurisdiction, especially pertaining to Fort Jackson,
see the following: United States v. Lovely, 319 F.2d 673 (4th Cir. 1963); United States v.
Lavender, 602 F.2d 639 (4th Cir. 1979); United States v. Benson, 495 F.2d 475 (5th Cir.
1974); 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).
EE.

Steal

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.49
FF.

Willfulness – Specific Intent

A person acts willfully if he acts intentionally and purposely and with the intent
to do something the law forbids, that is, with the bad purpose to disobey or to disregard
the law. The person need not be aware of the specific law or rule that his conduct may be
violating. But he must act with the intent to do something that the law forbids.50

017
7/2

A willful act is one undertaken with a bad purpose. In other words, in order to
establish a willful violation of a statute, the government must prove that the defendant
acted with knowledge that his conduct was unlawful.51

7/2
d0

e
iew
,v

A person who causes a particular result is said to act purposefully if he
consciously desires that result, whatever the likelihood of that result happening from his

226
6-4

48

o. 17 (listing other definitions). In United States v. Passaro, 577 F.3d 207 (4th
See NU.S.C. §
18

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.
49
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).
50
This charge was tacitly approved in Bryan v. United States, 524 U.S. 184, 188 (1998),
where the defendant was convicted of willfully dealing in firearms without a federal license in
violation of 18 U.S.C. § 922(a)(1)(A). The Supreme Court discussed at length the difference between
“knowing” and “willful” and held that the government had to prove that the appellant knew his
conduct was unlawful, but did not have to prove that he knew of the federal licensing requirement. See
also United States v. Gilbert, 430 F.3d 215, 218-19 (4th Cir. 2005) (citing Bryan, 524 U.S. at 191,
193)).
51
Bryan, 524 U.S. at 191-92.

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DEFINITIONS

conduct.52
It is reasonable to infer that a person ordinarily intends the natural and probable
consequences of acts knowingly done or knowingly omitted. The jury may draw the
inference that the defendant intended all of the consequences which one standing in like
circumstances and possessing like knowledge should reasonably have expected to result
from any act knowingly done or knowingly omitted by the defendant.53 Any such
inference drawn is entitled to be considered by the jury in determining whether or not the
government has proved beyond a reasonable doubt that the defendant possessed the
required criminal intent.54
L For tax cases:
Willfulness requires the government to prove that the law imposed a duty on the
defendant, that the defendant knew of this duty, and that he voluntarily and intentionally
violated that duty.55
____________________NOTE____________________
In United States v. Morrison, 32 F. App’x 669 (4th Cir. 2002), the Fourth Circuit
said that “bad motive” and “evil motive” are not separate and distinct elements of
willfulness. According to Morrison, the evil motive referred to in United States v. Bishop,
412 U.S. 346, 360 (1973), is nothing more than the intentional violation of a known legal
duty, and the court cited Cheek v. United States, 498 U.S. 192 (1991).

017
7/2

7/2 specific intent,
“In the absence of an explicit statement that ad 0 requires
e crime
courts often hold that only general intent is needed.” United States v. Lewis, 780 F.2d
w
1140, 1142-43 (4th Cir. 1986).
vie
26,
Defenses such as diminished mental capacity and voluntary intoxication negate
2
specific intent. United States 4Darby, 37 F.3d 1059, 1064 (4th Cir. 1994). See also
v.
6-F.2d 1427, 1432 (9th Cir. 1987).
United States v. Kurka, 818
o. 1
N
Regarding the defendant’s entitlement to a charge on good faith, see Cheek v.

United States, 498 U.S. 192 (1991). Cheek was a tax protester, and the district court
charged that his good faith had to be objectively reasonable. After setting out the
definition of willfulness above, the Supreme Court said if the government proves actual
knowledge of the legal duty, the prosecution satisfies the knowledge component. But
carrying this burden requires negating a defendant’s claim of ignorance of the law or a
claim that because of a misunderstanding of the law, he had a good-faith belief that he
was not violating any of the provisions of the tax laws. One cannot be aware that the law
imposes a duty and yet be ignorant of it, misunderstand the law, or believe that the duty
does not exist. Cheek claimed that the Internal Revenue Code did not purport to treat
wages as income. Cheek was entitled to a good faith charge based on this belief, however
unreasonable the court might deem such a belief. Cheek also argued that the tax code was
unconstitutional. Cheek was not entitled to a good faith charge on this basis, because his
position revealed full knowledge of the tax provisions and a studied conclusion that they

52

United States v. Bailey, 444 U.S. 394, 404 (1980) (citing United States v. United States
Gypsum Co., 438 U.S. 422, 445 (1978)).
53
See United States v. Silva, 745 F.2d 840, 850-51, 852 (4th Cir. 1984).
54
Approved in United States v. Arthur, 544 F.2d 730, 737 (4th Cir. 1976).
55
Cheek v. United States, 498 U.S. 192, 201 (1991).

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DEFINITIONS

were invalid, but Cheek had refused to utilize the mechanisms provided by Congress to
present his claims of invalidity to the courts.
GG.

Willful Blindness

The element of knowledge may be satisfied by inferences drawn from proof that a
defendant deliberately closed his eyes to what would otherwise have been obvious to him.
A finding beyond a reasonable doubt of a conscious purpose to avoid enlightenment
would permit an inference of knowledge.
Stated another way, a defendant’s knowledge of a fact may be inferred from
willful blindness to the existence of a fact.
A showing of negligence or mistake is not sufficient to support a finding of
willfulness or knowledge.
It is entirely up to you as to whether you find any deliberate closing of the eyes
and inferences to be drawn from any such evidence.56
____________________NOTE____________________

017
7/2

United States v. Chorman, 910 F.2d 102 (4th Cir. 1990); United States v. Martin,
773 F.2d 579 (4th Cir. 1985); United States v. Callahan, 588 F.2d 1078, 1082 (5th Cir.
1979).

7/2 asserts a lack of
0
A willful blindness instruction is proper when the defendant
ed
guilty knowledge but the evidence supports an inference of deliberate ignorance. If the
w
evidence supports such an inference, then vie
the willful blindness instruction allows the jury
to impute the element of knowledge to the defendant. Furthermore, a willful blindness
26,presented in the case supports both actual
instruction is proper where the evidence
42
knowledge on the part of 6-defendant and deliberate ignorance. See United States v.
the
1
Ruhe, 191 F.3d 376,.
1999); United States v. Abbas, 74
o 384 (4th Cir. 939 F.2d 197, 203 (4th Cir. 1991). F.3d 506 (4th Cir.
1996); United N v. Schnabel,
States

56

See United States v. Cogdell, 844 F.2d 179, 181 (4th Cir. 1988), abrogated on other
grounds by Brogan v. United States, 522 U.S. 398 (1998) (“exculpatory no” doctrine).

618

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VI.

DEFENSES
A.

Abandonment or Renunciation 1

It is a complete defense that the defendant renounced or abandoned his effort to
commit the crime charged, or otherwise prevented its commission. Such abandonment or
renunciation must be complete and voluntary. Renunciation is not voluntary if it is
motivated, in whole or in part, by circumstances, not present or apparent at the inception
of the defendant’s course of conduct, that increase the probability of detection or
apprehension or that make more difficult the accomplishment of the criminal purpose.
Renunciation is not complete if it is motivated by a decision to postpone the criminal
conduct until a more advantageous time or to transfer the criminal effort to another but
similar objective or victim. The government has the burden to prove beyond a reasonable
doubt that the defendant’s renunciation or abandonment of the crime was not voluntary or
not complete. If you find that the defendant voluntarily and completely renounced or
abandoned an effort to commit the crime charged in the indictment then you must find the
defendant to be not guilty. If you find that his abandonment or renunciation was not
voluntary or complete and that the government has proven the elements of the offense as
they have been explained to you then you should find the defendant to be guilty.2

017
2
____________________NOTE____________________
27/ of the crime does
Police presence which causes a defendant to forego 7/
0 completion
not establish an abandonment of the attempt. United States v. Neal, 78 F.3d 901, 906 (4th
d
Cir. 1996).
we
e
, vi
Withdrawal from a conspiracy is an affirmative defense. United States v. Wooten,
226
4
16.
There is o
whether abandonment
to an attempt
N a conflict among the Circuits as to373, 377 (1st Cir. 2005) is a defensearguendo that
prosecution. See United States v. Buttrick, 432 F.3d
(assuming
1

the defense is available); United States v. Crowley, 318 F.3d 401, 410-11 (2d Cir. 2003) (unnecessary
to decide the question, although an excellent discussion of the issue); United States v. Shelton, 30 F.3d
702, 706 (6th Cir. 1994) (“[W ]ithdrawal, abandonment and renunciation, however characterized, do
not provide a defense to an attempt crime.”); United States v. Joyce, 693 F.2d 838, 841 (8th Cir.
1982); United States v. Bussey, 507 F.2d 1096, 1098 (9th Cir. 1974) (“A voluntary abandonment of
an attempt which has proceeded well beyond preparation, as here, will not bar a conviction for the
attempt.”); United States v. McDowell, 705 F.2d 426, 428 (11th Cir. 1983) (assuming renunciation
is a valid defense).
In United States v. Desena, 287 F.3d 170 (2d Cir. 2002), the defendant was charged with
violating 18 U.S.C. § 1959 by committing assault in violation of New York state law, under which
abandonment is an affirmative defense. However, under New York Penal Law § 40.13(3), “the
renunciation of criminal purpose must be ‘voluntary and complete,’ meaning it cannot be motivated
by ‘(a) a belief that circumstances exist which increase the probability of detection or apprehension
of the defendant or another participant in the criminal enterprise, or which render more difficult the
accomplishment of the criminal purpose, or (b) a decision to postpone the criminal conduct until
another time.’” 287 F.3d at 179 (quoting statute).
It does not appear that the Fourth Circuit has specifically addressed the issue of whether
abandonment is a defense to an attempt crime.
2
This instruction is based on Model Penal Code § 5.01(4). But see United States v. Buttrick,
432 F.3d 373 (1st Cir. 2005) (18 USC § 2423(b) prosecution; court held instruction misallocated
burden of proof in light of § 2423(g)).

619

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688 F.2d 941, 946 (4th Cir. 1982).
B.

Alibi

The defendant has offered evidence for the purpose of showing that he was not
present at the place where, and at the time when, the offense charged [in the indictment]
was committed. This defense is called an alibi. If after impartially considering, weighing
and comparing all the evidence, the jury or any member of the jury has a reasonable doubt
of the presence of the defendant at the place where and time when the alleged offense was
committed, you cannot find the defendant guilty.3
C.

Authorization

You have heard evidence that the defendant followed instructions from a superior.
You may consider that evidence in deciding whether the defendant acted willfully and
with knowledge.
If the defendant was directed by a superior to act contrary to the law, you may
weigh this authorization along with other facts in determining his specific intent.
However, authorization must be specific, not simply a general admonition or vague
expression of preference. A person’s general impression that a type of conduct was
expected, that it was proper because others were doing the same, or that the challenged act
would help someone or avoid political consequences, does not satisfy the defense of
authorization. Finally, if an authorization can be satisfied by two different courses of
action, and a person chooses the illegal or dubious course when other, legal action would
comply, then the authorization defense is not available to that person.4

017
7/2

7/2
d0

e
iew
Following orders, without more, cannot transform an illegal act into a legal act.
6, v
2
____________________NOTE____________________
-42
. 16
See United States v. Duggan, 743 F.2d 59, 84 (4th Cir. 1984).
No can negate subjective specific intent.
This defense

5

Authorization permits “the jury to acquit only if the jurors find that the defendant
did not know his conduct was illegal.” United States v. North, 910 F.2d 843, 888 (D.C.
Cir. 1990).
Authorization from one’s superiors cannot convert illegal activity into legal, yet it
surely can affect a defendant’s belief that his conduct was lawful. Id. at 885. Thus, even
an unreasonable belief that one’s conduct was not unlawful would seem properly to
preclude conviction for a crime requiring knowledge of unlawfulness (such as food stamp
fraud, certain tax violations, possession of a machine gun).
D.

Diminished Capacity

The defendant is charged with a crime which requires that the government prove,
beyond a reasonable doubt, that the defendant acted with a certain specific intent. You

3

4

See United States v. North, 910 F.2d 843, 885 (D.C. Cir. 1990).

5

620

Holdren v. Legursky, 16 F.3d 57, 63 n. 4 (4th Cir. 1994).

Id. at 881.

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DEFENSES

must take all of the evidence into consideration and determine if at the time when the
crime was allegedly committed, the defendant had the specific intent required, or whether
the defendant suffered from some abnormal mental or physical condition which prevented
him from forming the specific intent required.6
If you find that the defendant did not form the specific intent required, or, if you
have a reasonable doubt that the defendant formed the specific intent required, you should
find the defendant not guilty.
____________________NOTE____________________
The Insanity Defense Reform Act (18 U.S.C. § 17) “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.”
United States v. Worrell, 313 F.3d 867, 874 (4th Cir. 2002).
The defense of diminished capacity is not an excuse. It is directly concerned with
whether the defendant possessed the ability to attain the culpable state of mind which
defines the crime. It is generally only a defense when specific intent is at issue. United
States v. Twine, 853 F.2d 676, 678, 679 (9th Cir. 1988).

017
7/2

District courts should admit evidence of mental abnormality on the issue of mens
rea only when, if believed, it would support a legally acceptable theory of lack of mens
rea. In deciding such a question, courts should evaluate the testimony outside the
presence of the jury. United States v. Pohlot, 827 F.2d 889, 905-06 (3d Cir. 1987).

7/2
d0

e
iew
,v

The defense of diminished capacity is not recognized in South Carolina state
courts. Gill v. State, 552 S.E.2d 26, 32 (S.C. 2001).

226
4
The defendant is 6the defendant committed
1 excused from committing a crime if or coercion]. To establishthe
.
crime because of some justification [or duress or compulsion
No
this defense, the defendant must show by a preponderance of the evidence each of the
E.

Duress or Justification7

following:
P

First, that the defendant or someone else was under an unlawful and
present threat of death or serious bodily injury;8

6

See United States v. Bartlett, 856 F.2d 1071 (8th Cir. 1988), where a variation of the above
instruction, requested by the defendant, was not given. The Eighth Circuit concluded that a “detailed
instruction drawing attention to the issue of whether Bartlett’s mental condition rendered him
incapable of forming the requisite mental state would have been preferable,” 856 F.2d at 1079 n.10,
but the instructions, taken as a whole, adequately and correctly apprized the jury of the defendant’s
theory of the case, and therefore failing to give a separate and specific instruction on whether the
defendant’s mental condition rendered him incapable of forming the requisite specific intent was
harmless. Id. at 1082, 1083.
7

“At common law, self-defense was a type of duress defense, which, as a class of defenses,
was distinct from ‘necessity’ defenses. More recent cases have grouped the defenses of duress, selfdefense, and necessity ‘under a single, unitary rubric: justification.’” United States v. Gore, 592 F.3d
489, 491 n.1 (4th Cir. 2010) (citation omitted).
8

Generalized fears do not support the defense of justification. United States v. Crittendon,
(continued...)

621

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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.9

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.10
____________________NOTE____________________
In United States v. Crittendon, 883 F.2d 326 (4th Cir. 1989), the court set forth
the elements of the defense of justification, without ruling on its general availability in
firearms prosecutions. In United States v. Perrin, 45 F.3d 869 (4th Cir. 1995), the court
“continue[d] to construe the justification defense for possession of a firearm by a felon
very narrowly.” 45 F.3d at 875.

017
2
There is no federal statute defining the elements of the duress defense, and the
27/ 548 U.S. 1
Supreme Court has not specified the elements. In Dixon v. United States,
07/of the elements by the
(2006), the Supreme Court presumed the followinged
w description
District Court for the Northern District of Texas was accurate:
ie
, van unlawful and imminent threat of
First, that the defendant was 6
under
such a nature as to induce 2
2 a well-grounded apprehension of death or
4
serious bodily injury;
16.
Second, that the defendant had not recklessly or negligently placed
No
himself in a situation in which it was probable that he would be forced to
perform the criminal conduct;
Third, that the defendant had no reasonable, legal alternative to violating
the law, that is, a chance both to refuse to perform the criminal act and
also to avoid the threatened harm; and
Fourth, that a direct causal relationship may be reasonably anticipated
between the criminal act and the avoidance of the threatened harm.
548 U.S. at 4 n.2.

Duress normally does not controvert any of the elements of the offense itself. Id.
at 6.

8

(...continued)
883 F.2d 326, 330 (4th Cir. 1989).
9

10

United States v. Perrin, 45 F.3d 869, 873-74 (4th Cir. 1995).

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)).

622

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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.” Id. at 7.
The duress defense is limited to very narrow circumstances. Fear of reprisal does
not justify criminal conduct. United States v. King, 879 F.2d 137, 138, 139 (4th Cir.
1989).
“Under any definition of these defenses [duress and necessity] 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.” United States v. Bailey, 444 U.S. 394, 410 (1980).
Entrapment 11

F.

The defendant has raised the defense of entrapment. A defendant may not be
convicted of the crime charged if that person was entrapped by the government.
A person is entrapped when that person has no previous intent or disposition or
willingness to commit the crime charged and is induced or persuaded by law enforcement
officers to commit the offense.

017 was
2
Thus, the defense of entrapment has two elements: (1) whether the defendant
27/induced or
predisposed to commit the crime, and (2) whether the defendant was
07/
pursuaded by a law enforcement officer to commit the crime.
d
we
A person is not entrapped when that person has a previous disposition or
vie
willingness or intent to commit the crime charged and a law enforcement officer merely
,opportunity to commit the offense.
provides what appears to be a favorable
226
4
Predisposition refers to the defendant’s state of mind before government agents
16-commit a crime. The government does not entrap a
make any suggestion that he
.
No
defendant, even if he does not specifically contemplate the criminal conduct prior to this
12

suggestion, if the defendant’s decision to commit the crime is the product of his own
preference and not the product of government persuasion.13

It is not entrapment for the government merely to solicit a person to commit a
crime.
Inducement requires more than merely soliciting a person to commit a crime.
Mild forms of persuasion do not amount to inducement. However, pleas based on need,

11

See United States v. Squillacote, 221 F.3d 542, 565-73 (4th Cir. 2000). Before giving an
entrapment instruction, the district court must make a threshold inquiry as to whether sufficient
evidence exists for a reasonable jury to determine there was entrapment. Mere solicitation of a crime
is insufficient to merit an entrapment instruction, as solicitation alone would not persuade an otherwise
innocent person to commit a criminal act. “W hen government agents merely offer an opportunity to
commit the crime and the defendant promptly avails himself of that opportunity, an entrapment
instruction is not warranted.” United States v. Ramos, 462 F.3d 329, 334-35 (4th Cir. 2006).
12

An entrapment defense fails if the defendant was predisposed to commit the crime.
Squillacote, 221 F.3d at 569.
13

Id.

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DEFENSES

sympathy, or friendship may constitute inducement. Inducement necessitates government
overreaching and conduct sufficiently excessive to implant a criminal design in the mind
of an otherwise innocent party. 14
In determining the question of entrapment, you should consider all of the
evidence received in this case concerning the intentions and disposition of the defendant
before contact with law enforcement, as well as the nature and the degree of the
inducement provided by the law enforcement officer.
The burden is on the government to prove beyond a reasonable doubt that the
defendant had a previous disposition or willingness or intent to commit the crime charged
prior to first being contacted by law enforcement officers. If the government satisfies that
burden, there is no entrapment.15
____________________NOTE____________________
A defendant may deny committing the crime and still claim entrapment thereby
entitling him to an instruction on entrapment, as long as there exists evidence sufficient
for a reasonable jury to find in his favor. Mathews v. United States, 485 U.S. 58, 63
(1988).

017 1252,
Entrapment is an affirmative defense. United States v. Blevins, 960 F.2d
/2
1257 (4th Cir. 1992). The initial burden is on the defendant to /2forward with evidence
go 7
beyond a mere scintilla that the government induced him 07
to
an offense was not
d the commit determininghewhether
otherwise predisposed to commit. The district judge has
e duty of
or not the defendant has met this initial burden. w defendant must produce some
ie The
,
evidence of unreadiness on his part, or of actual persuasion by the government. United
6(4thvCir. 1991).
States v. Osborne, 935 F.2d 32, 22
38-39
4
“[T]o be entitled 6 an entrapment instruction, a defendant must produce ‘more
1 to -of ‘inducement,’ defined as solicitation plus some
.
than a scintilla’ of evidence
No

overreaching or improper conduct on the part of the government.” United States v. Hsu,
364 F.3d 192, 200 (4th Cir. 2004). In setting forth this standard, the court said it was not
announcing a new rule but disavowing some confusing dicta and adhering to the approach
it had followed for several decades.
Predisposition “focuses upon whether the defendant was an ‘unwary innocent’ or,
instead, an ‘unwary criminal’ who readily availed himself of the opportunity to perpetrate
the crime. Mathews, 485 U.S. at 63.
Even if the government did induce the defendant to commit a crime, the defense
of entrapment fails if the government can prove predisposition. United States v.
Squillacote, 221 F.3d 542, 569 (4th Cir. 2000).
Entrapment is generally for the jury because it raises the issue whether the
criminal intent originated with the defendant or with the government’s agents. Entrapment
centers inquiry on the issue of the defendant’s predisposition to commit the crime in
question. If the defendant’s predisposition is established, the defense of entrapment may
not be based on government misconduct. Predisposition refers to the defendant’s state of

14

15

624

See United States v. Hsu, 364 F.3d 192, 198 (4th Cir. 2004); Squillacote, 221 F.3d at 569.
See United States v. Jones, 976 F.2d 176, 179 (4th Cir. 1992).

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DEFENSES

mind before government agents make any suggestion that he commit a crime. Entrapment
can prevail only where the government’s deception actually implanted the criminal design
in the defendant’s mind. United States v. Osborne, 935 F.2d 32, 38-39 (4th Cir. 1991).
The defense of “derivative entrapment” is not available in the Fourth Circuit.
United States v. Squillacote, 221 F.3d at 573-74. Derivative entrapment is when a
government agent directs a private party to bring a specific person into a criminal scheme or
when a defendant is induced to commit a crime by an intermediary who had been induced by
a government agent, even if the government agent did not direct the intermediary to bring
the defendant into the scheme. “[A] defendant cannot claim an entrapment defense based
upon the purported inducement of a third party who is not a government agent if the third
party is not aware that he is dealing with a government agent.” Id. at 574.
In United States v. Al-Talib, 55 F.3d 923, 929 (4th Cir. 1995), the appellants
argued that venue was improper because the government manipulated events to create
venue in the Eastern District of Virginia. Even though the government is not allowed to
manipulate events to create federal jurisdiction, the Fourth Circuit said “[t]here is no such
thing as ‘manufactured venue’ or ‘venue entrapment.’”

017
7/2

Outrageous Government Conduct

“Cases may exist where the conduct of law enforcers is so outrageous that due
process principles would absolutely bar the government from invoking judicial process to
obtain a conviction, but they are rare indeed.” United States v. Daniel, 3 F.3d 775, 779
(4th Cir. 1993) (citing United States v. Russell, 411 U.S. 423, 431-32 (1973)). In order to
constitute a due process violation, the government’s conduct must be so outrageous as to
shock the conscience of the court. United States v. Osborne, 935 F.2d 32, 36 (4th Cir.
1991). See also United States v. Dyess, 478 F.3d 224, 234 (4th Cir. 2007); United States v.
Jones, 18 F.3d 1145, 1154 (4th Cir. 1994).

7/2
d0

e
iew
,v

226
6-4

1
o.the defense of entrapment by estoppel, the defendant must prove the
N
To establish
G.

Entrapment by Estoppel

following by a preponderance of the evidence:
#

First, that a government official told the defendant that certain criminal
conduct was legal;

#

Second, that the defendant actually relied on the government official’s
statements; and

#

Third, that a criminal prosecution based upon that conduct ensued.16

In other words, the defendant must demonstrate that there was active misleading
in the sense that the government actually told the defendant that the proscribed conduct
was permissible.17
The defendant’s reliance is reasonable and in good faith only where a person truly
desirous of obeying the law would have accepted the information as true, and would not

16

United States v. Aquino-Chacon, 109 F.3d 936, 938-39 (4th Cir. 1997). See also United
States v. Marshall, 332 F.3d 254, 262 (4th Cir. 2003); United States v. Clark, 986 F.2d 65, 69 (4th
Cir. 1993).
17

Aquino-Chacon, 109 F.3d at 939.

625

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DEFENSES

have been put on notice to make further inquiries.18
The government official must be acting with either actual or apparent authority.19
Statements made by a person who is not a federal government official cannot establish the
defense of entrapment by estoppel.20
____________________NOTE____________________
“Entrapment by estoppel is a defense applicable only to crimes that do not require
fraudulent intent, because the establishment of entrapment by estoppel would also negate
the intent requirement of such crimes.” United States v. George, 386 F.3d 383, 400 (2d
Cir. 2004).
In United States v. Hedges, 912 F.2d 1397, 1405 (11th Cir. 1990), the Eleventh
Circuit held that the defense of entrapment by estoppel “rests upon principles of fairness
rather than the defendant’s mental state and thus it may be raised even in strict liability
offense cases.”
H.

Factual Impossibility

The defendant has raised the defense of factual impossibility. Factual
impossibility can serve as a defense when circumstances unknown to the defendant
prevent his commission of the crime. Thus, for you to find the defendant not guilty
because of factual impossibility, you must find the following:

017
7/2

7/2
d0

#

First, that a factual circumstance prevented the defendant from
committing the crime with which he is charged; and

#

Second, that the defendant did not know about that particular factual
circumstance.21

e
iew
,v

226
6-4

o. 1 is not a defense to attempt or conspiracy crimes. See
N
Factual impossibility
____________________NOTE____________________

United States v. Hamrick, 43 F.3d 877, 885 (4th Cir. 1995) (en banc) (attempt); United
States v. Joiner, 418 F.3d 863, 869 (8th Cir. 2005) (conspiracy).
“Factual impossibility refers to those situations in which a circumstance or
condition, unknown to the defendant, renders physically impossible the consummation of
his intended criminal conduct.” United States v. Frazier, 560 F.2d 884, 888 (8th Cir.
1977). An example of this is when someone tries to pick an empty pocket. “Legal
impossibility refers to those situations in which the intended acts, even if successfully
carried out, would not amount to a crime. Thus, attempt is not unlawful where success is
not a crime, and this is true even though the defendant believes his scheme to be
criminal.” Id.
I.

First Amendment [LAST UPDATED : 7/2/14]

18

19

Aquino-Chacon, 109 F.3d at 939.

20

Clark, 986 F.2d at 69.

21

626

United States v. West Indies Transport, Inc., 127 F.3d 299, 313 (3d Cir. 1997).

See United States v. Hamrick, 43 F.3d 877, 885 (4th Cir. 1995) (en banc).

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The defendant has claimed that he engaged in an activity protected by the First
Amendment.
Expression is protected unless both the intent of the speaker and the tendency of
his words was to produce or incite an imminent lawless act, one likely to occur.22
Therefore, you must determine whether the defendant performed the alleged
offense with the intent to violate the law or merely for the purpose of engaging in an
activity protected by the First Amendment. In doing so, you must determine if the purpose
of the speaker or the tendency of his words were directed to ideas or consequences remote
from the commission of a criminal act. However, if the defendant’s actions move far
beyond advocacy to participation in the unlawful activity, the First Amendment is no
defense.23
____________________NOTE____________________
“[I]t is a violation of the First Amendment to punish an individual for mere
membership in an organization that has legal and illegal goals. Any statute prohibiting
association with such an organization must require a showing that the defendant
specifically intended to further the organization’s unlawful goals.” United States v.
Hammoud, 381 F.3d 316, 328 (4th Cir. 2004) (prosecution for providing material support
to designated foreign terrorist organization in violation of 18 U.S.C. § 2339B).

017
7/2

7/2
d0

e
iew
,v

“[C]onstitutional guarantees of free speech and free press do not permit a state to
forbid or proscribe advocacy of the use of force or of law violations except where such
advocacy is directed to inciting or producing imminent lawless action and is likely to
incite or produce such action.” Brandenburg v. Ohio, 395 U.S. 444, 447 (1969).

226
6-4

Thus, a speech which merely advocates law violation is protected, a speech which
incites imminent lawless activity is not protected. See United States v. Buttorff, 572 F.2d
619, 624 (8th Cir. 1978).

o. 1
N

“Speech is not protected by the First Amendment when it is the very vehicle of
the crime itself.” United States v. White, 670 F.3d 498, 514-15 (4th Cir. 2012) (citation
and quotation omitted).
“A First Amendment defense is warranted if there is evidence that the speaker’s
purpose or words are mere abstract teaching of the moral propriety of opposition to the
income tax law. ‘The cloak of the First Amendment envelops critical, but abstract,
discussions of existing laws, but lends no protection to speech which urges the listener to
commit violations of current law.’” United States v. Fleschner, 98 F.3d 155, 158 (4th Cir.
1996) (citation omitted).
“Where there is some evidence ... that the purpose of the speaker or the tendency
of his words are directed to ideas or consequences remote from the commission of the
criminal act, a defense based on the First Amendment is a legitimate matter for the jury’s
consideration.” United States v. Freeman, 761 F.2d 549, 551 (9th Cir. 1982).

22

United States v. Freeman, 761 F.2d 549, 552 (9th Cir. 1982).

23

See United States v. Aguilar, 883 F.2d 662, 684-85 (9th Cir. 1989), superceded by statute,
8 U.S.C. § 1324.

627

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“The first amendment does not provide a defense to a criminal charge simply
because the actor uses words to carry out his illegal purpose.” United States v. Barnett,
667 F.2d 835, 842 (9th Cir. 1982). The court listed aiding and abetting, a bank robbery
note, a forged check, and a false statement to a government official as examples of using
words to carry out an illegal purpose.
The First Amendment protects statements that constitute political hyperbole.
United States v. Bly, 510 F.3d 453, 458 (4th Cir. 2007).
True threats of violence, 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, are outside First Amendment protection. Id. at 458.
Offers to engage in illegal transactions are categorically excluded from First
Amendment protection. United States v. Williams, 553 U.S. 285, 297 (2008).
Moreover, offers to deal in illegal products or otherwise engage in illegal activity
do not acquire First Amendment protection when the offeror is mistaken about the factual
predicate of his offer. Id. at 298-300.

017
7/2

A statute is facially invalid if it prohibits a substantial amount of protected
speech, according to the First Amendment overbreadth doctrine. Id. at 292, 298.
J.

7/2
d0

Good Character

When a defendant has offered evidence of good general reputation [for truth and
veracity] [for honesty and integrity] [as a law-abiding citizen], you should consider such
evidence along with all the other evidence in the case. Evidence of a defendant’s
reputation, inconsistent with those traits of character ordinarily involved in the
commission of the crime charged may give rise to a reasonable doubt, since you may
think it improbable that a person of good character in respect to those traits would commit
such a crime.24

e
iew
,v

226
6-4

o. 1 bear in mind however, that the law never imposes upon a
N
You should always

defendant the burden or duty of calling any witnesses or producing any evidence.

Reputation of the defendant’s good character, when put in evidence, is a fact
which you should consider with the other facts in the case, and further, that reputation for
good character is a fact which, when considered in connection with all the other evidence
in the case, may, like other facts, generate a reasonable doubt.25
____________________NOTE____________________
See Michelson v. United States, 335 U.S. 469 (1948). See also Hoback v. United
States, 284 F. 529, 533 (4th Cir. 1922); United States v. Callahan, 588 F.2d 1078, 1086
n.1 (5th Cir. 1979).
In Mannix v. United States, 140 F.2d 250 (4th Cir. 1944), the Fourth Circuit
admitted it had not yet spoken definitely on the appropriate wording for this jury
instruction. The defendant requested “reputation for good character would alone create a
reasonable doubt.” 140 F.2d at 253. The Fourth Circuit rejected that language, as not a
24

25

628

See United States v. John, 309 F.3d 298, 302 (5th Cir. 2002).
Mannix v. United States, 140 F.2d 250, 254 (4th Cir. 1944).

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DEFENSES

correct statement of the rule, because it unduly stressed the evidence of good character,
when it should be considered in conjunction with other evidence.
In United States v. Foley, 598 F.2d 1323 (4th Cir. 1979), the appellant argued that
good character alone could create reasonable doubt. “We need not hold that an ‘alone’
instruction could in no circumstances be a matter of right to find it not required in this
case. Here defendants did not rely on character evidence alone for their defense.” 598
F.2d at 1336-37.
When considered with other evidence, good character evidence “may generate a
reasonable doubt. The circumstances may be such that an established reputation for good
character, if it is relevant to the issue, would alone create a reasonable doubt, although
without it the other evidence would be convincing.” Edgington v. United States, 164 U.S.
361, 366 (1896).
Evidence of good character is admissible whether or not the defendant testifies.
Id. at 364.
However, a character instruction is warranted only if the defendant first
introduces admissible character evidence. An accused may offer evidence of a pertinent
character trait to prove action in conformity with that trait. A pertinent character trait is
one that is relevant to the offense charged. Proof of character may be made by testimony
as to the defendant’s reputation or by testimony in the form of an opinion. United States v.
John, 309 F.3d 298, 303 (5th Cir. 2002).

017
7/2

7/2
0
In United States v. Moore, 27 F.3d 969, 974 (4th Cir. 1994), the court stated that
ed and dependability in
once the defendant introduced evidence of his trustworthiness
iew
business matters, his claim was open to, v
rebuttal by the government under Federal Rule of
6
Evidence 404(a)(1), either by direct testimony of reputation, or by inquiry on cross22of conduct. See Fed. R. Evid. Rule 405(a).
examination into relevant6-4
1 instances asked “Have you heard?” but not “Do you know?”
Charactero.
N witnesses may be
Michelson, 335 U.S. at 221.
A character witness may be cross-examined as to an arrest, whether or not it
culminated in a conviction. Id.

A witness to good character may be asked, on cross-examination, whether he has
heard particular and specific charges, or rumors, against an accused, of acts inconsistent
with the trait of character about which the witness has testified. The purpose of this crossexamination is not to establish such acts as facts, or to prove the truth of the rumors or
charges inquired about, but to test the credibility of the character witness, by ascertaining
his good faith, information and accuracy. Mannix, 140 F.2d at 252.
In United States v. Baytank (Houston), Inc., 934 F.2d 599, 614 n.26 (5th Cir.
1991), the Fifth Circuit observed that “we have not found or been cited to any authority
indicating that a corporate or institutional defendant ... is even entitled to consideration of
character evidence.”
A defendant’s own testimony can be considered character evidence. See John,
309 at 303 n.9.

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DEFENSES

K.

Good Faith26 [LAST UPDATED : 7/18/14]

The defendant has raised the defense of good faith.
L As to misunderstanding of the law
The defendant’s conduct would not be willful if you find that the defendant acted
in accordance with a good faith misunderstanding of the law. The defendant’s views need
not be legally correct, just as long as the defendant honestly and in good faith really and
truly believed and acted upon them. A good faith misunderstanding of the law, as distinct
from disagreement [with] the law, is a defense.27
L As to willfulness and intent to defraud
Good faith is a complete defense, because good faith on the part of the defendant
is inconsistent with [intent to defraud or willfulness] that is an essential element of the
charge in the indictment.28
While the term “good faith” has no precise definition, it means, among other
things, an honest belief, a lack of malice, and the intent to perform all lawful obligations.
A person who acts on a belief or on an opinion honestly held is not punishable under the
law merely because that honest belief turns out to be incorrect or wrong.29

017
7/2

The burden is on the government to prove [fraudulent intent and] the lack of good
faith beyond a reasonable doubt.30

7/2
____________________NOTE____________________
0
edfaith defense is not required if the
In fraud cases, a separate instruction ew
on a good
vi
court gives an adequate instruction on specific intent. United States v. Fowler, 932 F.2d
306, 317 (4th Cir. 1991).
26,
2
The intent to repay -4
6eventually is irrelevant towould eventuallyguilt for fraud.excuse
1that the corporate enterprise the question of succeed can No
amount of honest belief
.
No
the willful misrepresentations by which the investors’ funds were obtained. An investor
may be defrauded if his reliance is induced by deliberately false statements of fact, and
26

There is an issue as to whether the good faith is subjective or objective. The subjective
standard seems to apply in tax and fraud cases. See, e.g., United States v. Snyder, 766 F.2d 167, 16970 (4th Cir. 1985) (tax evasion); United States v. Hirschfeld, 964 F.2d 318, 322 (4th Cir. 1992) (tax
fraud); and Cheek v. United States, 498 U.S. 192 (1991) (tax evastion). However, in United States v.
Hurwitz, 459 F.3d 463 (4th Cir. 2006), the Fourth Circuit held that the objective standard must be
applied in determining whether a doctor acted outside the bounds of medical practice in prescribing
controlled substances.
27

Instruction given in United States v. Snyder, 766 F.2d 167, 169-70 (4th Cir. 1985) (quoting
instruction given by district court in tax evasion prosecution, noting“the trial judge did give a very fair
and complete charge as to the defendant’s good faith misunderstanding of the law.”).
28

“[T]he district court’s good faith instruction adequately and correctly charged the jury
regarding the key legal question with respect to Appellants’ theory of defense.” United States v.
Hamaker, 455 F.3d 1316, 1326 (4th Cir. 2006).
29

30

630

United States v. Hirschfeld, 964 F.2d 318, 322 (4th Cir. 1992).
United States v. Santoli, No. 97-4290, 1999 W L 102134 (4th Cir. Feb. 12, 1999).

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DEFENSES

the defendant’s optimism as to the future is no defense. Where a defendant deliberately
supplies false information to obtain a bank loan, but plans to pay back the loan and
therefore believes that no harm will ultimately accrue to the bank, the defendant’s goodfaith intention to pay back the loan is no defense because he intended to inflict a genuine
harm upon the bank. United States v. Curry, 461 F.3d 452, 458 (4th Cir. 2006).
Good faith reliance on the advice of counsel is not a complete defense to an
allegation of willful misconduct, but is merely one factor the jury may consider when
determining the defendant’s state of mind. United States v. United Medical and Surgical
Supply Corp., 989 F.2d 1390, 1403 (4th Cir. 1993).
L.

Insanity (See 18 U.S.C. § 17)

M.

Intoxication

The defendant is not guilty of a crime if the defendant lacked the intent necessary
to commit the crime. The defendant has introduced evidence that he was [under the
influence of an intoxicating substance] when he committed the crime alleged in the
indictment.

017
2
P
Second, that he was so intoxicated that he could not /
27 form the intent
required to commit the crime alleged. 07/
d
The government must prove the defendant’s guilt beyond a reasonable doubt. To
we doubt either one of the two
do so, the government must prove beyond a ie
reasonable
,v
following elements:
226 was not intoxicated when he committed the
P
First, that the4
- defendant
crime;16
or
.
P
Second,
No that he was still capable of having, and did have, the required
intent.
To establish this defense, the defendant must show each of the following:
P

First, that he was intoxicated when he committed the alleged crime; and

____________________NOTE____________________
Voluntary intoxication is not a defense to a general intent crime. United States v.
Lewis, 780 F.2d 1140, 1143 (4th Cir. 1986). See also Guthrie v. Warden, Md.
Penitentiary, 683 F.2d, 820, 822-23 (4th Cir. 1982).
Voluntary intoxication may be a defense to a specific intent crime. United States
v. Sneezer, 900 F.2d 177, 179 (9th Cir. 1990). Thus, voluntary intoxication may not be a
defense to the completed substantive offense, but it may be a defense to a charge of
attempting to commit the substantive offense, such as aggravated sexual abuse and
attempted aggravated sexual abuse, 18 U.S.C. § 2241, which requires a heightened mens
rea.
“It is well established that intoxication, whether voluntary or involuntary, may
preclude the formation of specific intent and thus serve to negate an essential element of
certain crimes.” United States v. Newman, 889 F.2d 88, 92 (6th Cir. 1989). See also
United States v. Johnston, 543 F.2d 55, 57 (8th Cir. 1976) (intoxication may be used to
prove lack of intent).
N.

Literally True [LAST UPDATED : 4/30/14]

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DEFENSES

The defendant has raised the defense that the alleged false statement was true.
This defense applies only where a defendant’s allegedly false statement was undisputably
literally true.31 Therefore, you must determine whether the defendant’s statement was
undisputably true. Remember, the burden is on the government to prove beyond a
reasonable doubt that the statement was false.
____________________NOTE____________________
The literal truth defense does not apply in cases in which the focus is on the
ambiguity of the question asked. Nor does it apply to an answer that would be true on one
construction of an arguably ambiguous question but false on another. United States v.
Sarwari, 669 F.3d 401 (4th Cir. 2012). In Sarwari, the court made clear that the defense
applies only if the defendant’s statement is literally true, thereby disavowing the dicta in
United States v. Race, 632 F.2d 1114, 1120 (4th Cir. 1980) (false statement conviction
could not stand if a defendant’s statement accords “with a reasonable construction” of the
information sought).
Nevertheless, “[t]he answer to a fundamentally ambiguous question may not, as a
matter of law, form the basis of a false statement.... A question is fundamentally
ambiguous only when it ‘is not a phrase with a meaning about which men of ordinary
intellect could agree, nor one which could be used with mutual understanding by a
questioner and answerer unless it were defined at the time it were sought and offered as
testimony.” Sarwari, 669 F.3d at 407 (quotation and citation omitted).

017
7/2

7/2
d0

e
iew
,v

When a question is merely “susceptible to multiple interpretations, and a
defendant’s answer is true under one understanding of the question but false under
another,” the jury must determine whether the defendant knew his statement was false. Id.

226 the question and gives a non-responsive answer,
“[I]f a party does6-4
1 not understand a charge of perjury be sustained by the device of
such an answer is not perjurious, nor can
.
lifting a statement of the accused out of its immediate context and thus giving it a
No
meaning wholly different than that which its context clearly shows.” United States v.
Paolicelli, 505 F.2d 971, 973 (4th Cir. 1974) (quotation and citation omitted).

See also United States v. Hairston, 46 F.3d 361, 376 (4th Cir. 1995) (Section
1623 conviction reversed because the term “prepare” was susceptible of several meanings,
and “the prosecutor did not use the requisite specificity in questioning, despite [the
defendant’s] apparent confusion or evasion[.]”); United States v. Good, 326 F.3d 589 (4th
Cir. 2003) (Section 1001 conviction reversed); United States v. Earp, 812 F.2d 917 (4th
Cir. 1987) (Section 1623 conviction reversed; defendant had not burned crosses at
residences of interracial couples given than defendant stood watch while others tried and
failed to light the cross).
O.
Mere Presence
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

31

632

United States v. Sarwari, 669 F.3d 401 (4th Cir. 2012).

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DEFENSES

is not sufficient to establish guilt.32
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.33
P.

Necessity 34

The defendant is excused from committing a crime if the defendant committed the
crime because of necessity. To establish this defense, the defendant must show by a
preponderance of the evidence35 each of the following:
#

First, that the defendant was faced with a choice of evils and chose the
lesser evil;

#

Second, that the defendant acted to prevent imminent harm;

#

Third, that the defendant reasonably anticipated a causal relation between
his conduct and the harm to be avoided; and

#

Fourth, that there were no other legal alternatives to violating the law.36

017
2
____________________NOTE____________________
27/
/
Defense of duress “does not negate a defendant’s07
criminal state of mind when the
applicable offense requires a defendant to have acted d
e knowingly or willfully; instead, it
allows the defendant to avoid liability because coercive conditions or necessity negates a
iew rea was present.” Dixon v. United
conclusion of guilt even though the necessary mens
6, v
States, 548 U.S. 1, 7 (2006). 22
4
16.
No
Imminent means ready to take place, near at hand, likely to occur at any moment,
impending.37

32

Instruction given by the district court in Moye v. United States, 422 F.3d 207, 217 (4th Cir.
2005), rev’d on other grounds, 454 F.3d 390 (4th Cir. 2006) (en banc).
33

See United States v. Gallardo-Trapero, 185 F.3d 307, 322 (5th Cir. 1999).

34

“At common law, self-defense was a type of duress defense, which, as a class of defenses,
was distinct from ‘necessity’ defenses. More recent cases have grouped the defenses of duress, selfdefense, and necessity ‘under a single, unitary rubric: justification.’” United States v. Gore, 592 F.3d
489, 491 n. 1 (4th Cir. 2010) (citation omitted).
35

This would appear to be a logical extension of the holding in Dixon v. United States, 548
U.S. 1 (2006), that the defendant bears the burden of proving the defense of duress by a preponderance
of the evidence because this defense does not negate any element of the offense. “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.” 548 U.S. 17.
36

United States v. Aguilar, 883 F.2d 662, 693 (9th Cir. 1989), superceded by statute, 8
U.S.C. § 1324..
37

United States v. Hua, No. 05-4947, 2006 W L 3456372 at *1 (4th Cir. Nov. 30, 2006)
(citing Buczek v. Continental Cas. Ins. Co., 378 F.3d 284, 291 (3d Cir. 2004)).

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DEFENSES

“Under any definition of these defenses [duress and necessity] 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.” United States v. Bailey, 444 U.S. 394, 410 (1980).
Q.

Public Authority

The defendant asserts that he was authorized to engage in criminal acts. To
establish this affirmative defense, the defendant must show the following:
#

First, that the defendant relied on a government official;

#

Second, that the government official had the actual authority to engage
the defendant in covert activity; and

#

Third, that the defendant’s reliance on that authority was objectively
reasonable.38
____________________NOTE____________________

Federal Rule of Criminal Procedure 12.3 does not in any way alter the substantive
legal standards with regard to the public authority defense. United States v. Fulcher, 250
F.3d 244, 254 n.5 (4th Cir. 2001).

7
01argued that
2
In United States v. Kelly, 718 F.2d 661 (4th Cir. 1983), the appellant
27/ had the requisite
he acted on a mistake of fact — his belief that Ray, a DEA informant,
07/
authority to enlist his assistance in apprehending a drug dealer. The Fourth Circuit stated
d
that “[i]f that were a mistake of fact, it possibly could have comprised a defense to the
we F.2d at 665. But, it was a mistake of
e
charge against Kelly” of conspiring to distribute. 718
, vi at most an informant, “not an agent or
law. The court found that Kelly knew Ray was
6
government employee. His alleged2
2 state of mind, ... resulted from a misconception of the
4
legal prerogatives attached to that status. As a mistake of law, Kelly’s alleged belief is no
16-Id.
defense to his criminal act.”
o.
NReliance/Advice of Counsel or Other Expert
R.

You have heard evidence that the defendant relied on advice from an expert [such
as a lawyer]. You may consider that evidence in deciding whether the defendant acted
willfully and with knowledge.
The mere fact that the defendant may have received expert advice does not
necessarily constitute a complete defense.
The reliance defense has two essential elements:
#

First, the defendant must fully disclose all pertinent facts to an expert;
and

#

Second, the defendant must rely in good faith on the advice of the
expert.39

In short, you should consider whether, in seeking and obtaining advice from an
expert, the defendant intended that his acts would be lawful. If he did so, the defendant

38

39

634

See United States v. Fulcher, 250 F.3d 244, 252-54 (4th Cir. 2001).
United States v. Butler, 211 F.3d 826, 833 (4th Cir. 2000).

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DEFENSES

cannot be convicted of a crime which involves willful and unlawful intent, even if the
expert’s advice was inaccurate. On the other hand, no man can willfully and knowingly
violate the law and excuse himself from the consequences of his conduct by pleading that
he followed the advice of an expert.40
Whether or not the defendant fully disclosed all pertinent facts to the expert and
whether or not the defendant relied in good faith on the expert’s advice is for you to
determine.41
____________________NOTE____________________
To establish the defense of reliance, the Fourth Circuit requires (1) full disclosure
of all pertinent facts to an expert, and (2) good faith reliance on the expert’s advice. See
United States v. Butler, 211 F.3d 826, 833 (4th Cir. 2000)(citing United States v. Miller,
658 F.2d 235, 237 (4th Cir. 1981)).
In United States v. Urfer, 287 F.3d 663 (7th Cir. 2002), the district court
“instructed the jury that it could not convict the defendants if they ‘honestly believed their
attorney’s advice and acted in honest ignorance of their legal duties.’” 287 F.3d at 664.
The Seventh Circuit stated that “the reasonableness of a lawyer’s advice is indeed
relevant to a determination of willfulness.” Id.

017
The advice must pertain to “the lawfulness of his possible future conduct.”
/2
United States v. Polytarides, 584 F.2d 1350, 1352 (4th Cir. 1978) 7
2(emphasis in original).
0a7/ defense to an
Good faith reliance on the advice of counsel is not complete
d
allegation of willful misconduct, but is merely one e
factor the jury
wStates v. Unitedmay consider when
determining the defendant’s state of mind.vie
United
Medical and Surgical
6
Supply Corp., 989 F.2d 1390, 1403 (4th,Cir. 1993).
2
S.
Self-Defense
-42
. 16
The defendant has asserted that he acted in self-defense.
No was not the aggressor, and had reasonable grounds to believe and
If the defendant
42

actually did believe that he was in imminent danger of death or serious bodily harm from
which he could save himself only by using [such force as was necessary] against his
assailant, he had the right to employ [that] force in order to defend himself.
In order for the defendant to have been justified in the use of force in selfdefense, he must not have provoked the assault on him or have been the aggressor. Mere
words, without more, do not constitute provocation or aggression.
The circumstances under which he acted must have been such as to produce in the
mind of a reasonably prudent person, similarly situated the reasonable belief that the other

40

See Williamson v. United States, 207 U.S. 425, 453 (1908); United States v. Nordbrock,
38 F.3d 440, 446 (9th Cir. 1994).
41

See United States v. Traitz, 871 F.2d 368, 382 (3d Cir. 1989).

42

“At common law, self-defense was a type of duress defense, which, as a class of defenses,
was distinct from ‘necessity’ defenses. More recent cases have grouped the defenses of duress, selfdefense, and necessity ‘under a single, unitary rubric: justification.’” United States v. Gore, 592 F.3d
489, 491 n. 1 (4th Cir. 2010) (citation omitted).

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DEFENSES

person was then about to kill him or to do him [serious] bodily harm. In addition, the
defendant must have actually believed that he was in imminent danger of death or
[serious] bodily harm.
If evidence of self-defense is present, the government must prove beyond a
reasonable doubt that the defendant did not act in self defense. If you find that the
government has failed to prove beyond a reasonable doubt that the defendant did not act
in self-defense, you must find the defendant not guilty. In other words, if you have a
reasonable doubt whether or not the defendant acted in self-defense, your verdict must be
not guilty.
If the defendant had reasonable grounds to believe and actually did believe that he
was in imminent danger of death or [serious] bodily harm, and that [force] was necessary
to repel such danger, he would be justified in using force in self-defense, even though it
may afterwards have turned out that the appearances were false. If these requirements are
met, he could use force even though there was, in fact, neither purpose on the part of the
person to kill him or to do him [serious] bodily harm, nor imminent danger that it would
be done, nor actual necessity that force be used in self-defense.

017
7/2

If the defendant had reasonable grounds to believe and actually did believe that he
was in imminent danger of death or [serious] bodily harm, and that force was necessary to
repel such danger, he was not required to retreat or to consider whether he could safely
retreat. He was entitled to stand his ground and use such force as reasonably necessary
under the circumstances to save his life or protect himself from [serious] bodily harm.

7/2
d0

e
iew
,v

However, if the defendant could have safely retreated but did not do so, his
failure to retreat is a circumstance which you may consider, together with all other
circumstances, in determining whether he went farther in repelling the danger, real or
apparent, than he was justified in doing so under the circumstances.43

226
6-4

o. 1
N____________________NOTE____________________

In Brown v. United States, 256 U.S. 335, 342 (1921), the district court gave the
following instruction: “The person assaulted is always under the obligation to retreat so
long as retreat is open to him, provided that he can do so without subjecting himself to the
danger of death or great bodily harm.” The Supreme Court reversed, because the district
court included “unless ‘retreat would have appeared to a man of reasonable prudence, in
the position of the defendant, as involving danger of death or serious bodily harm’ the
defendant was not entitled to stand his ground.” Id. The Court wrote that “it is not a
condition of immunity that one in that situation should pause to consider whether a
43

District court instruction from United States v. Black, 692 F.2d 314, 317 n. 7 (4th Cir.
1982). The instruction has been modified to eliminate references to using “deadly force,” as the Fourth
Circuit ruled that including such language was “inappropriate in a case involving no more than a threat
to use force.” Id. at 318. “The quantum of force which one may use in self-defense is proportional to
the threat which he reasonably apprehends. *** [T]he amount of force which he may justifiably use
must be reasonably related to the threatened harm which he seeks to avoid. One may justifiably use
nondeadly force against another in self-defense if he reasonably believes that the other is about to
inflict unlawful bodily harm upon him ....*** He may justifiably use deadly force against the other in
self-defense, however, only if he reasonably believes that the other is about to inflict unlawful death
or serious bodily harm upon him and also that it is necessary to use deadly force to prevent it.” Id. at
318. Thus, the Fourth Circuit adopted the rule of proportionality.

636

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DEFENSES

reasonable man might not think it possible to fly with safety or to disable his assailant
rather than to kill him.” Id. at 343.
In United States v. Deon, 656 F.2d 354 (8th Cir. 1981), the Eighth Circuit
approved the following instruction:
A person who has a reasonable ground for believing, and does believe,
that another person is about to inflict bodily injury upon him, need not
retreat, but may stand his ground and defend the integrity of his person;
and where in such self-defense of his person he injures his assailant, the
law holds there is legal justification, provided he used no more or greater
force or means than he in fact believed to be reasonably necessary, and
would appear to a reasonable person, under like circumstances, to be
necessary in order to prevent bodily injury to himself.
656 F.2d at 356.
One who is attacked may repel the attack with whatever force he reasonably
believes is necessary under the circumstances, but only if he has not provoked the fight.
One cannot provoke a fight and then rely on a claim of self-defense when that provocation
results in a counterattack, unless he has previously withdrawn from the fray and
communicated this withdrawal. Harris v. United States, 364 F.2d 701, 702 (D.C. Cir.
1966).

017
7/2

7/2
d0

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 at 495. In that case, the district
court had properly 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:

e
iew
,v

o. 1
N

226
6-4

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, resist, 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.
Id.
In South Carolina,
There are four elements required by law to establish a case of
self-defense:
First, the defendant must be without fault in bringing on the difficulty.
Second, the defendant must have actually believed he was in imminent
danger of losing his life or sustaining serious bodily injury, or he actually
was in such imminent danger. Third, if his defense is based upon his
belief of imminent danger, a reasonably prudent man of ordinary firmness
and courage would have entertained the same belief. If the defendant

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actually was in imminent danger, the circumstances were such as would
warrant a man of ordinary prudence, firmness and courage to strike the
fatal blow in order to save himself from serious bodily harm or losing his
own life. Fourth, the defendant had no other probable means of avoiding
the danger of losing his own life or sustaining serious bodily injury than
to act as he did in this particular instance.
State v. Curry, 752 S.E.2d 263, 266 n.4 (S.C. 2013).
T.

Statute of Limitations (18 U.S.C. § 3282)

For you to find the defendant guilty, the government must prove beyond a
reasonable doubt that the offense charged was committed reasonably near the date
alleged.
____________________NOTE____________________
The statute of limitations is not jurisdictional. It is an affirmative defense that
may be waived if not raised by the defendant. See United States v. Williams, 684 F.2d
296, 299 (4th Cir. 1982).

017
7/2

“Where the defenses of time-bar or improper venue are squarely interposed, they
must be submitted to a properly instructed jury for adjudication.” United States v.
Grammatikos, 633 F.2d 1013, 1022 (2d Cir. 1980).

7/2
d0

The statute of limitations begins to run when the crime is complete. Congress has
declared that the statute of limitations should not be extended except as otherwise
expressly provided by law. Therefore, the doctrine of continuing offenses, which has the
effect of extending the statute of limitations, should be applied in only limited
circumstances, where the explicit language of the substantive criminal statute compels
such a conclusion, or the nature of the crime involved is such that Congress must
assuredly have intended that it be treated as a continuing offense. Toussie v. United
States, 397 U.S. 112, 115 (1970).

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A crime is complete as soon as every element in the crime occurs. United States v.
Vebeliunas, 76 F.3d 1283, 1293 (2d Cir. 1996).
Occasionally the date is an essential element of the offense, as in a failure to file,
in violation of 26 U.S.C. § 7203. United States v. Bourque, 541 F.2d 290, 293 (1st Cir.
1976).
U.

Statutory Exceptions
____________________NOTE____________________

“It is a general guide to the interpretation of criminal statutes that when an
exception is incorporated in the enacting clause of a statute, the burden is on the
prosecution to plead and prove that the defendant is not within the exception.” United
States v. Vuitch, 402 U.S. 62, 70 (1971).
However, an exception set forth in a distinct clause or provision should be
construed as an affirmative defense and not as an essential element of the crime. United
States v. Szantos-Riviera, 183 F.3d 367, 370-71 (5th Cir. 1999).

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V.

Withdrawal 44

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 coconspirators.45
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.46
Withdrawal requires that a defendant completely abandon the conspiracy and that he do
so in good faith.47

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.48 The government must prove beyond a reasonable doubt that the
defendant did not withdraw from the conspiracy.49

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44

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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.
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).
45

United States v. Walker, 796 F.2d 43, 49 (4th Cir. 1986).

46

“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.” United
States v. Read, 658 F.2d 1225, 1231 (7th Cir. 1981).
47

Read, 658 F.2d at 1231.

48

United States v. United States Gypsum Co., 438 U.S. 422, 464-65 (1978); Hyde
v. United States, 225 U.S. 347, 369 (1912); United States v. Cardwell, 433 F.3d 378 (4th
Cir. 2005); United States v. Walker, 796 F.2d 43, 49 (4th Cir. 1986).
49

United States v. West, 877 F.2d 281, 289 (4th Cir. 1989). The Seventh Circuit expressed
the defendant’s burden in terms of “going forward.” “[O]nce he advances sufficient evidence, the
burden of persuasion is on the prosecution to disprove the defense of withdrawal beyond a reasonable

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____________________NOTE____________________
See generally United States v. United States Gypsum Co., 438 U.S. 422, 464-65
(1978); Hyde v. United States, 225 U.S. 347, 369 (1912); United States v. Cardwell, 433
F.3d 378 (4th Cir. 2005); United States v. Walker, 796 F.2d 43, 49 (4th Cir. 1986).
“Good faith may also be required to withdraw. The defendant must put forth some
evidence of good faith.” United States v. Read, 658 F.2d 1225, 1239 (7th Cir. 1981).
Withdrawal is not a defense to mail fraud [or any “scheme to defraud” offense],
because membership in the scheme is not an element of the offense. Id. at 1240.

017
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doubt.” Read, 658 F.2d at 1236.

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VII. FINAL INSTRUCTIONS
A.

Admissions by Defendant/Credibility

Where a defendant, by his earlier statement or other conduct, admits some fact
against his interest, then such statement or other conduct, if any there be and if knowingly
made or done, may be considered as evidence of the truth of the facts so admitted. Any
such statement or conduct, if any there be, may also be considered for purposes of judging
the credibility of a defendant as a witness.1
If you find that the defendant made statements regarding the matters under inquiry
and pertinent to the matters under inquiry, and that those statements were contrary to the
proven facts, and that the defendant did so willingly and with knowledge of the falsity,
you are at liberty to consider that circumstance as evidence of the defendant’s guilty
conscience regarding the matter under inquiry. Now what is pertinent and whether it was
contrary to proven facts or done willingly and with knowledge, or whether you consider it
or not, is for you as triers of the facts to determine from all the evidence before you.2

017
2
You have a duty to consult with one another and to deliberate with a view to
27/ judgment of
reaching an agreement, if it can be done without violence07/ individual
to the
each juror.
d
weonly after an impartial consideration
Each juror must decide the case for himself, but
vie
of the evidence with his fellow jurors. ,
226 should not hesitate to reexamine his own views
In the course of deliberations, a juror
-4
and change his opinion16
if convinced it was erroneous.
.
Each juror who finds himself in the minority should reconsider his views in light of
Nomajority, and each juror who finds himself in the majority should give
the opinions of the
“Allen” Charge 3

B.

In order to return a verdict, each juror must agree to it.

equal consideration to the views of the minority.
No juror should surrender his honest conviction as to the weight or effect of the
evidence solely because of the opinion of his fellow jurors, or for the mere purpose of
returning a verdict.
____________________NOTE____________________

1

United States v. Gullett, 75 F.3d 941, 946 (4th Cir. 1996). The appellant did not object at
trial. The Fourth Circuit did not resolve whether the district court committed error, because Gullett
did not satisfy the third requirement that the error affected his substantial rights.
2

Instruction approved in Rizzo v. United States, 304 F.2d 810, 830 (8th Cir. 1962) (“It has
long been settled that the fact that a defendant has made false statements in explanation of the conduct
which is the subject of a criminal charge against him is admissible as tending to indicate his guilt.”).
3

Allen v. United States, 164 U.S. 492 (1896). This instruction should be given before the
jury retires. United States v. Sawyers, 423 F.2d 1335, 1342 n.7 (4th Cir. 1970). See also United States
v. Hudgins, No. 97-4276, 1997 W L 759271 (4th Cir. Dec. 10, 1997).

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It is coercive to inform the jury “you have got to reach a decision in this case.”
Jenkins v. United States, 380 U.S. 445, 446 (1965).
C.

Chain of Custody

The government [and/or the defendant] has the burden of proving that the evidence
offered is what the government [and/or the defendant] claims it is.4
____________________NOTE____________________
The “chain of custody” rule is a variation of the principle that evidence must be
authenticated prior to its admission into evidence. See Fed.R.Evid. 901. “[S]o long as
there is sufficient proof that the evidence is what it purports to be and has not been altered
in any material aspect,” it may be admitted. Resolution of this question rests with the
sound discretion of the trial judge ....” United States v. Howard-Arias, 679 F.2d 363, 366
(4th Cir. 1982) (citation omitted). See also United States v. Ricco, 52 F.3d 58, 61-62 (4th
Cir. 1995).
D.

Communications with Court

017
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7/2
d0

Any communications from you, the jury, to the court should be in writing or made in
open court.

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____________________NOTE____________________

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6-4

United States v. Polowichak, 783 F.2d 410, 413 (4th Cir. 1986). The district court
should preserve written questions as part of the record.

o. 1
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Confession5 [LAST UPDATED : 8/12/14]

E.

You have heard that the defendant made a statement to law enforcement officials.
Whether such a statement was voluntarily given and, if so, what weight to give it is
entirely up to you. In other words, these are questions of fact which are up to a jury to
decide.
In determining whether the statement was voluntary and what weight to give it, if
any, you should consider what we call “the totality of the circumstances.”
You may consider, for example, whether the statement was induced by any promise
or threat. You may also consider any other factor which your common sense tells you is

4

5

See United States v. Vidacak, 553 F.3d 344, 349 (4th Cir. 2009).

“[T]he final appraisal of the confession [must] be left to the jury.” United States v. Inman,
352 F.2d 954, 956 (4th Cir. 1965), overruled on other grounds by United States v. Johnson, 495 F.2d
378 (4th Cir. 1974). Additionally, if evidence of the confession is admitted before the jury, the district
court should instruct the jury specifically on the law governing the use of a confession, whether or not
the defendant requests the court to do so. United States v. Sauls, 520 F.2d 568, 570 (4th Cir. 1975);
Inman, 352 F.2d at 956.

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relevant to the issue of voluntariness.6
____________________NOTE____________________
Miranda v. Arizona, 384 U.S. 436 (1966), governs the admissibility of statements
made during custodial interrogation. Moreover, Miranda is a constitutional rule that
Congress may not supersede with 18 U.S.C. § 3501. Dickerson v. United States, 530 U.S.
428, 432, 444 (2000). Nevertheless, once the trial judge has decided to admit the
evidence, § 3501 unequivocally requires a specific charge on the issue of voluntariness.
The prosecution bears the burden of proving voluntariness by a preponderance of the
evidence. United States v. Johnson, 495 F.2d 378, 383 (4th Cir. 1974). See also United
States v. Braxton, 112 F.3d 777, 781 (4th Cir. 1997) (en banc).
Failure to instruct the jury on the law governing the use of a confession is clear error.
United States v. Sauls, 520 F.2d 568, 570 (4th Cir. 1975); United States v. Inman, 352
F.2d 954, 956 (4th Cir. 1965), overruled on other grounds by United States v. Johnson,
495 F.2d 378 (4th Cir. 1974). However, failure to instruct jury specifically on “an issue
upon which there was no evidence before them” is reviewed under the harmless error
standard. See Sauls, 520 F.2d at 570 (quoting United States v. Goss, 484 F.2d 434, 438
(6th Cir. 1973)).

017
7/2

7/2
d0

Even though the court admits a confession, the defendant is free to argue to the jury
that it was involuntary. Crane v. Kentucky, 476 U.S. 683, 691 (1986).

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The district court’s ruling on voluntariness “should not be disclosed to the jury by
the court or by counsel.” Inman, 352 F.2d at 956.

226
6-4

See United States v. Yousef, 327 F.3d 56, 130 (2d Cir. 2003) (quoting district court’s
instruction to jury) (statements can only be used against the defendant who made the
statements and not as proof against any other defendant).

o. 1
N

F.

Consciousness of Guilt

You may consider evidence that the defendant did, or attempted to, fabricate or
suppress evidence, as showing consciousness of guilt. This evidence alone is not sufficient
to establish guilt, and the significance to be attached is a matter for you, the jury, to
determine.7
You may consider, as evidence of consciousness of guilt, a specific statement made
by the defendant denying guilt or involvement, if you find that the statement was not

6

“To determine whether a statement or confession was obtained involuntarily, in violation
of the Fifth Amendment, the proper inquiry is whether the defendant’s will has been overborne or his
capacity for self-determination critically impaired. To make this determination, [a court] consider[s]
the totality of the circumstances, including the characteristics of the defendant, the setting of the
interview, and the details of the interrogation.” United States v. Umana, 750 F.3d 320, 344 (4th Cir.
2014) (internal citations and quotation marks omitted).
7

See United States v. Billups, 692 F.2d 320, 329-30 (4th Cir. 1982).

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true.8
Conduct of a defendant, including statements knowingly made and acts knowingly
done, upon being informed of the crime that has been committed or upon being
confronted with criminal charges may be considered by the jury in light of all the
evidence in the case in determining the guilt or innocence of the defendant. When a
defendant voluntarily and intentionally offers an explanation and makes some statement
tending to show his innocence and the explanation of the statement later is shown to be
false, the jury may consider whether this circumstantial evidence points to a
consciousness of guilt.
Ordinarily, it is reasonable to infer that an innocent person does not usually find it
necessary to invent or fabricate an explanation or a statement tending to establish his
innocence. Whether or not evidence as to a defendant’s voluntary explanation or
statement points to a consciousness of guilt and the significance to be attached to any
such evidence are matters exclusively within the province of the jury.
A statement or an act is knowingly made or done if made voluntarily and
intentionally and not because of mistake or accident or other innocent reason.9

017
7/2

____________________NOTE____________________

7/2
d0

A defendant’s pattern of false explanations and fabrication of evidence may be
considered by a jury in determining guilt. United States v. Young, 248 F.3d 260, 273 (4th
Cir. 2001) (citing United States v. Hughes, 716 F.2d 234 (4th Cir. 1983)).

e
iew of an alibi is itself some affirmative
Testimony concerning an attempted fabrication
v
evidence of guilt. United States v. 26, 508 F.2d 1285, 1286 (4th Cir. 1975).
Abney,
False exculpatory statements are not admissible as evidence of guilt, but rather as
- 2
6of 4 United States v. Nusraty, 867 F.2d 759, 765 (2d Cir.
evidence of consciousness guilt.
o. 1
1989).
N

In Rizzo v. United States, 304 F.2d 810, 830 (8th Cir. 1962), the Eighth Circuit
approved the following instruction:
If you find that the defendant [ ] made statements to investigating officers
regarding the matters under inquiry and pertinent thereto which were
contrary to the proven facts and did so willingly and with knowledge of the
falsity, you are at liberty to consider that circumstance as evidence of the
defendant’s guilty conscience regarding the matter under inquiry. Now
what is pertinent and whether [it] was contrary to proven facts or done
willingly and with knowledge, or whether you consider [it] or not, is for
you as triers of the facts to determine from all the evidence before you.
G.

Corporation Liability

8

See United States v. McDougald, 650 F.2d 532, 533 (4th Cir. 1981). However, general
denials of guilt later contradicted are not considered exculpatory statements. Id.
9

United States v. Cogdell, 844 F.2d 179, 181 (4th Cir. 1988), abrogated on other grounds
by Brogan v. United States, 522 U.S. 398 (1998) (“exculpatory no” doctrine) (instruction taken from
Devitt, Blackmar & W olff, Federal Jury Practice and Instructions § 15.12 (3d ed. 1987).

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A corporation may be held criminally responsible for criminal conduct committed by
its employee or agent if the employee or agent was acting within the scope of his
authority, or apparent authority, and for the benefit of the corporation, even if such
conduct was against corporate policy or express instructions.10
For you to find the defendant corporation guilty, the government must prove each of
the following beyond a reasonable doubt:
P

First, that the crime charged [here, the court must identify the elements of the
crime charged] was committed by an employee or agent of the corporation;

P

Second, that, in committing the crime charged, the employee or agent was
acting within the scope of his employment and within his apparent authority;
and

P

Third, that, in committing the crime charged, the employee or agent was acting
on behalf of or for the benefit of the corporation.11

The term “scope of employment” is defined to include all those acts falling within
the employee’s or agent’s general line of work, when they are motivated, at least in part,
by an intent to benefit the corporation.12

017
7/2

When the act of an employee or agent is within the scope of his employment or
within the scope of his apparent authority, the corporation is held legally responsible for
it. This is true even though the actions of the employee or agent may be unlawful, and
contrary to the corporation’s actual instruction.

7/2
d0

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A corporation may be responsible for the action of its agents done or made within
the scope of their authority, even though the conduct of the agents may be contrary to the
corporation’s actual instruction, or contrary to the corporation’s stated position.

226
4
However, the existence of such instruction and policies, if any be shown, may be
16- whether the agents, in fact, were acting to benefit the
considered by you in determining
o.
corporation. N
13

An agent may act for his own benefit while also acting for the benefit of the
corporation.14
The fact that the act was unlawful and contrary to corporate policy does not absolve
the corporation of legal responsibility for the act.
It is not necessary for the government to prove that the action of the agent or
employee actually benefitted the corporation. You must determine whether the agent or
employee acted with the intent to benefit the corporation.
If, however, you determine that the act of the employee or agent was contrary to the
interests of the corporation, or that the act was undertaken solely to advance the interests
10

See United States v. Basic Const. Co., 711 F.2d 570, 573 (4th Cir. 1983).

11

Federal Criminal Jury Instructions of the Seventh Circuit § 5.03 (1999).

12

See United States v. Singh, 518 F.3d 236, 249 (4th Cir. 2008).

13

Basic Const., 711 F.2d at 572.

14

United States v. Automated Med. Labs., Inc., 770 F.2d 399, 407 (4th Cir. 1985).

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of the employee or agent, then the corporation is not responsible, because the employee or
agent would be acting outside the scope of his employment.15
L

Where there is an individual, possibly a co-defendant, who may be considered
the “alter ego” of the entity:

A corporation may also be found guilty of a criminal offense if the individual
actually performing the act is the alter ego of the corporation. Taken literally alter ego
means “second self;” it is the legal theory whereby the separate legal personalities of an
individual and a corporation are disregarded, because they are considered to be merged as
a matter of law. Before you could find that the individual was the alter ego of the
corporation and the acts of one are the acts of the other, you would have to find beyond a
reasonable doubt that the individual was a controlling stockholder of the corporation, that
he disregarded its separate corporate entity, that he utilized the corporation as a conduit
for his personal business, and that the separate personality of the individual and the
corporation ceased to exist when the crimes charged in the indictment allegedly occurred.
If you determine beyond a reasonable doubt that the individual was the alter ego of the
corporation as a question of fact, then you may attribute the acts and knowledge of the
individual to the corporation.16

017
2
“[T]he only way in which a corporation can act is through the individuals who act on
27/
its behalf.” United States v. Dotterweich, 320 U.S. 277, 2817/
0 (1943).
d
In United States v. Singh, 518 F.3d 236, 251 n.20 (4th Cir. 2008), the Fourth Circuit
wea legal standpoint, there is no
did not reach the government’s contention that, from
e
, vi
independent contractor exception to corporate criminal liability, although the government
made “a compelling argument” that “a court may be unconcerned with technical
226 contractors.”
distinctions between agents -4 independent
16 and corporate entity when the controlling shareholder uses
.
The jury may disregard the
No
____________________NOTE____________________

the corporation purely as a conduit for personal business. This is the so-called “alter ego.”
United States v. Thevis, 665 F.2d 616, 645-46 ( 5th Cir. 1982).
H.

Credibility17

You are the sole judges of the believability of each witness, and of the importance
the testimony of each witness deserves. You should carefully scrutinize all of the
testimony of each witness, the circumstances under which the witness testified, and every
matter in evidence which tends to indicate whether a witness is worthy of belief.18

15

See id.

16

This charge did not constitute plain error, and it has been modified to correct the district
court’s failure to specifically pinpoint the crucial time at which the alter ego relationship had to exist.
United States v. Thevis, 665 F.2d 616, 645-46 (5th Cir. 1982).
17

“This court has long held that the instruction that a witness is presumed or assumed to tell
the truth is improper.” United States v. Love, 767 F.2d 1052, 1060 (4th Cir. 1985).
18

646

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Consider each witness’ intelligence, motive to testify falsely, state of mind, and
appearance and manner while on the witness stand.19
Consider the witness’ ability to observe the matters about which the witness has
testified and consider whether the witness impresses you as having an accurate memory of
the matters about which the witness testified.20
Inconsistencies or discrepancies in the testimony of a witness or between the
testimony of different witnesses may or may not cause you to disbelieve or discredit such
testimony. Two or more persons witnessing an incident or a transaction may simply see or
hear it differently. Innocent misrecollection, like failure of recollection, is not an
uncommon human experience. In weighing the effect of a discrepancy, however, always
consider whether the discrepancy pertains to a matter of importance or to an insignificant
detail and consider whether the discrepancy results from innocent error or from
intentional falsehood.21
Consider also any relation each witness might have to or be affected by the verdict
and the extent to which, if at all, each witness is either supported or contradicted by other
evidence in the case. Credibility is not merely choosing between one witness or another.
As to each witness you are free to reject all that testimony, accept all that testimony, or as
a third alternative reject some part and accept some other part of his or her testimony.22

017 of
2
The weight of the evidence is not necessarily to be determined by the number
27/may find that the
witnesses testifying to the existence or nonexistence of any 7/ You
fact.
testimony of a smaller number of witnesses as to a fact is 0 persuasive than that of a
more
d
greater number of witnesses, or you may find that they are not persuasive at all.
we
e
1. Law Enforcement
, vi
226
In considering the testimony of a witness who is a police officer or agent of the
4
government, you may not6- more weight to the testimony of a police officer or agent of
give
1 give to the testimony of other witnesses for the mere reason that
the government than.you
No
the witness is a police officer or an agent of the government.
23

24

.

2. Other Witnesses
a. Accomplice

You have heard testimony from an accomplice, someone who said he or she
participated in the commission of a crime.

19

See United States v. Lancaster, 78 F.3d 888, 895 (4th Cir. 1996), vacated on other
grounds, 96 F.3d 734 (4th Cir. 1996) (en banc).
20

See Lancaster, 78 F.3d at 895.

21

See id.

22

See Dorsey, 45 F.3d 809.

23

United States v. Moss, 756 F.2d 329, 334 (4th Cir. 1985). However, district courts should
refrain from giving a number of witnesses instruction when the defendant has no witnesses. Id. at 335.
24

Instruction given in United States v. N-Jie, No. 06-4908, 2008 W L 2001316, n.2 (4th Cir.
May 9, 2008).

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The testimony of an accomplice should be received with great care and caution.25
You should consider whether the particular accomplice is testifying truthfully or
falsely in order to obtain a favorable recommendation by the government in the
sentencing in his own case.26
You should not convict the defendant on the uncorroborated testimony of an
accomplice, unless you believe that testimony beyond a reasonable doubt.27
b. Addict 28
You have heard testimony from an addict.
There is nothing improper about calling, as a witness, a person who was using or
addicted to [any substance] at the time the witness observed the events at issue [or] who is
now using drugs. However, that witness’ testimony must be examined with greater [care
and caution] than the testimony of an ordinary witness. The testimony of a witness who
was using addictive substances at the time of the events about which he is testifying, or
who is presently using addictive substances, may be less believable because of the effect
the substances may have on his ability to perceive or to relate the events in question.29

017
7/2

In addition, an addict may have a special interest or motive to lie.30

Consider any matter in evidence which tends to indicate whether the witness is
worthy of belief.31

25

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d0

e
iew
,v

See United States v. Safley, 408 F.2d 603, 605 (4th Cir. 1969).

26

226
6-4

Cautionary instruction given by the district court in United States v. Howard, 590 F.2d 564,
570 (4th Cir. 1979).
27

o. 1
N

Safley, 408 F.2d at 605. “The settled law of this circuit recognizes that the testimony of a
defendant’s accomplices, standing alone and uncorroborated, can provide an adequate basis for
conviction.” United States v. Burns, 990 F.2d 1426, 1439 (4th Cir. 1993). “[I]t [is] the better practice
for courts to caution juries against too much reliance upon the testimony of accomplices, and to require
corroborating testimony before giving credence to such evidence. W hile this is so, there is no absolute
rule of law preventing convictions on the testimony of accomplices if juries believe them.” Caminetti
v. United States, 242 U.S. 470, 495 (1917).
28

The leading case in the Fourth Circuit is United States v. Gregorio, 497 F.2d 1253 (4th Cir.
1974), overruled on other grounds by United States v. Rhodes, 32 F.3d 867 (4th Cir. 1994).
In United States v. Kinnard, 465 F.2d 566 (D.C. Cir. 1972), the D.C. Circuit was concerned
about narcotics addicts who are paid informants with criminal charges pending against them. The court
observed that several courts had commented that the pressure on an addict-informer to produce results
made his testimony inherently unreliable. Judges on the panel disagreed about when a charge should
be given regarding the reliability of such a witness’s testimony. Regardless, extrinsic evidence must
be admitted to refute a denial of addiction.
29

See United States v. McCarty, No. 89-5065, 1989 W L 153159 (6th Cir. Dec. 18, 1989).

30

See Kinnard, 465 F.2d at 571-72, where the court was concerned about the pressure on
addict-informers to produce results.
31

648

In United States v. Howard, 590 F.2d 564, 569 (4th Cir. 1979), the defendant requested
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c. Co-Defendant or Immunized Witness
The government has presented testimony from a witness who has [entered into a plea
agreement with the government or received immunity]. The testimony of such a witness
must be considered by you and weighed with greater care and caution, more so than the
testimony of an ordinary witness.32
You should not concern yourself with why the government made such an agreement
with the witness. Your concern is whether the witness has given truthful testimony.
You must determine if the witness’ testimony has been affected by [the plea
agreement or immunity]. Such a witness has a motive to testify falsely.33
You should not convict the defendant upon the unsupported testimony of such a
witness unless you believe that testimony beyond a reasonable doubt.34
You should not draw any conclusion or inference of any kind about the guilt of the
defendant on trial from the fact that a witness [pled guilty to/received immunity for] a
similar crime. It may not be used by you in any way as evidence against the defendant on
trial here.35

017
7/2

d. Informant

The testimony of an informant, someone who provides evidence against someone
else for money or for other personal reason or advantage, must be examined and weighed
by you with greater care than the testimony of a witness who is not so motivated. You
must determine whether the informant’s testimony has been affected by self-interest, or by
the agreement he has with the government, or his own interest in the outcome of this case,
or by prejudice against the defendant.36

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iew
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6-4

The testimony of a paid informant must be subjected to a higher degree of scrutiny as
to both weight and credibility. This is true because you, the jury, must decide if such a
witness has a greater motive to testify truthfully or falsely. If you conclude that the

o. 1
N

31

(...continued)
an instruction that addicts are of questionable reliability because of their fear of being deprived of the
substance they crave and therefore their testimony should be considered with caution. Instead, the
district court gave the instruction quoted above. The Fourth Circuit found the instruction given was
sufficient, because there was no evidence that the witnesses were still addicted to narcotics at the time
of the trial.
32

United States v. Pupo, 841 F.2d 1235, 1240 (4th Cir. 1988) (en banc).

33

United States v. Sullivan, 455 F.3d 248, 258-59 (4th Cir. 2006) (W idener, J., concurring
and dissenting). See also United States v. Herrera, 832 F.2d 833, 836 (4th Cir. 1987).
34

Pupo, 841 F.2d at 1240.

35

See United States v. Prawl, 168 F.3d 622, 625 (2d Cir. 1999) (“A limiting instruction is
justified when evidence — such as the guilty plea of a testifying co-defendant — is admissible for a
limited purpose but might also be considered for a purpose that is impermissible.”). See also United
States v. Pitt, 193 F.3d 751, 763 n.16 (3d Cir. 1999).
36

United States v. Anty, 203 F.3d 305, 307, 310 (4th Cir. 2000) (court rejected the argument
that paying informants violated 18 U.S.C. § 201(c)).

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payment to the informant was fully or partially contingent upon the content of his
testimony at trial or upon a finding of guilt, then you should subject his testimony to an
even higher degree of scrutiny.37
e. Perjurer
The testimony of an admitted perjurer should always be considered with caution and
weighed with great care.38
____________________NOTE____________________
In United States v. Allemand, 34 F.3d 923 (10th Cir. 1994), the Tenth Circuit held it
was not error to allow testimony about the details of a witness’s guilty plea, but the trial
judge “should specially instruct the jury about the permissible purposes of such evidence
and that the plea cannot form the basis of any inference of the guilt of the defendant.” Id.
at 929.
See also United States v. Jones, 542 F.2d 186, 214 n. 60 (4th Cir. 1976).
A prosecutor may neither vouch for nor bolster the testimony of a government
witness in arguments to the jury. Vouching occurs when the prosecutor indicates a
personal belief in the credibility or honesty of a witness; bolstering is an implication by
the government that the testimony of a witness is corroborated by evidence known to the
government but not known to the jury. United States v. Sullivan, 455 F.3d 248, 259 (4th
Cir. 2006).

017
7/2

7/2
0
Evidence of a plea agreement containing a provision that the government’s witness
ed constitutes impermissible
has agreed to take a polygraph test to verify iew
v trial testimony
bolstering of the witness’s credibility. United States v. Porter, 821 F.2d 968, 974 (4th Cir.
26,
1987).
2
6-4
o. 1
I. Defendant’s Testimony
N
L If the defendant does not testify:

18 U.S.C. § 3481
The defendant has a right not to testify, and the fact that the defendant did not testify
must not be considered by you in any way, or even discussed, in arriving at your verdict.39

37

United States v. Levenite, 277 F.3d 454, 463 (4th Cir. 2002).

38

In United States v. Wong, 886 F.2d 252, 257 (9th Cir. 1989), the Ninth Circuit held the
failure to give this requested instruction was not reversible where other instructions adequately
cautioned the jury that the credibility of the perjurer is open to question.
39

In Bruno v. United States, 308 U.S. 287 (1939), the Supreme Court held that the district
court erred in refusing to give the substance of the following requested instruction:
The failure of any defendant to take the witness stand and testify in his own behalf, does
not create any presumption against him; the jury is charged that it must not permit that fact
to weigh in the slightest degree against any such defendant, nor should this fact enter into
the discussions or deliberations of the jury in any manner.
308 U.S. at 292. The Supreme Court also addressed the concern of not drawing the jury’s attention
to the fact that the defendant did not testify. The Court cited § 3481 as the will of Congress and that
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The defendant does not have to prove any evidence whatever.40
L If the defendant testifies:
If a defendant elects to take the witness stand and testify in his own defense, as the
defendant has done in this case, then he becomes as any other witness, and you the jury
must determine his credibility and give his testimony such credence and belief as you may
think it deserves. You should judge and determine the defendant’s believability as you
would any other witness in this case.41
When an accused voluntarily takes the stand, and fails to explain incriminating
circumstances, you may consider that with all the other circumstances in reaching your
conclusion as to guilt or innocence. A fabricated explanation naturally and properly gives
rise to an inference of guilty knowledge.42
L If the defendant has a criminal record:
You may consider the defendant’s criminal past when you evaluate his believability,
but you cannot consider it as evidence of his guilt in this case.43

017
7/2

____________________NOTE____________________
See United States v. Sahadi, 292 F.2d 565, 568 (2d Cir. 1961).

39

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iew
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(...continued)
jurors would follow the court’s instructions that not testifying would “create any presumption against
him.”

226 trial judge must give a ‘no-adverse-inference’ jury
4
“[T]he Fifth Amendment 61 requires that a criminalso.” Carter v. Kentucky, 450 U.S. 288, 300 (1981)
instruction when requested by a defendant to do
.
(emphasis added). o
N

Giving such an instruction over the defendant’s objection does not violate the Fifth Amendment.
Lakeside v. Oregon, 435 U.S. 333, 341 (1978).
However, the instruction should not be given if opposed by the defendant. United States v. Smith,
392 F.2d 302 (4th Cir. 1968).
40

United States v. Safley, 408 F.2d 603, 605 (4th Cir. 1969).

41

United States v. Varner, 748 F.2d 925, 927 n.1 (4th Cir. 1984).

42

W hen a defendant voluntarily and intentionally offers an explanation and makes some
statement tending to show his innocence and his explanation later is shown to be false, the jury may
consider whether this circumstantial evidence points to a consciousness of guilt. United States v.
Cogdell, 844 F.2d 179, 181 (4th Cir. 1988). When a defendant voluntarily testifies, “he may not stop
short in his testimony by omitting and failing to explain incriminating circumstances and events
already in evidence, in which he participated and concerning which he is fully informed, without
subjecting his silence to the inferences to be naturally drawn from it.” Caminetti v. United States, 242
U.S. 470, 494 (1917).
A defendant’s pattern of false explanations and fabrication of evidence may be considered
by the jury. See United States v. Young, 248 F.3d 260, 273 (4th Cir. 2001).
43

United States v. Williams, 461 F.3d 441 (4th Cir. 2006); United States v. Weil, 561 F.2d
1109, 1111 (4th Cir. 1977).

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“[A] physical demonstration performed before the jury [“if it does not fit, you must
acquit”] is not, without more, ‘testimony’ that subjects the demonstrator to crossexamination under Rule 611(b).” United States v. Williams, 461 F.3d 441, 448 (4th Cir.
2006).
“Firmly rooted in our judicial history is the principle that a defendant ... cannot
prescribe and impose limitations upon his waiver of his privilege against selfincrimination when he voluntarily takes the witness stand.” Carpenter v. United States,
264 F.2d 565, 569 (4th Cir. 1959). In Carpenter, the defendant refused to answer
questions about occurrences inside a tavern in the District of Columbia, because he was
then under indictment for homicides committed in the tavern. “So long as the inquiry was
relevant to the issue in the case then being tried and the answers were within his
knowledge, the inquiry was within the compass of the waiver of his privilege when he
voluntarily became a witness, and his refusal to answer became a proper subject of
comment and consideration.” Id. at 569-70.
J.

Deliberations

17
0view to
You have a duty to consult with one another and to deliberate with a
/2
reaching an agreement, if it can be done without violence to the27
individual judgment of
each juror.
07/
d
Each juror must decide the case for himself, but only after an impartial consideration
we
e
of the evidence with his fellow jurors.
, vi not hesitate to reexamine his own views
In the course of deliberations, a 6 should
juror
422
and change his opinion if convinced it was erroneous.
16himself in the minority should reconsider his views in light of
Each juror who.finds
No
the opinions of the majority, and each juror who finds himself in the majority should give
In order to return a verdict, each juror must agree to it.

equal consideration to the views of the minority.

No juror should surrender his honest conviction as to the weight or effect of the
evidence solely because of the opinion of his fellow jurors, or for the mere purpose of
returning a verdict. 44
Your deliberations will be secret; you will never have to explain your verdict to
anyone.
____________________NOTE____________________
See Rizzo v. United States, 204 F.2d 810, 814-15 (8th Cir. 1962).
It is coercive to inform the jury “you have got to reach a decision in this case.”
Jenkins v. United States, 380 U.S. 445, 446 (1965).
In United States v. D’Anjou, 16 F.3d 604 (4th Cir. 1994), the Fourth Circuit set out
the procedure for the district court to follow if the jury, or an individual juror, is exposed
to prejudicial material. The court directed that
the [district] court should inquire of the jury whether any jurors have read or heard the
prejudicial material, and if any has, that juror should be examined individually and
44

652

United States v. Sawyers, 423 F.2d 1335, 1342 n.7 (4th Cir. 1970).

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outside the presence of the other jurors. However, if no juror indicates, upon inquiry made
to the jury collectively, that he has read or heard any of the publicity in question, the
judge is not required to proceed further.
16 F.3d at 611. See also United States v. Jones, 542 F.2d 186 (4th Cir. 1976); United
States v. Hankish, 502 F.2d 71 (4th Cir. 1974).
“[W]henever a claim of in-trial prejudicial publicity arises, the threshold question ...
is whether the publicity rises to the level of substantial prejudicial material.” Jones, 542
F.2d at 104. Absent such a level, which is determined by the court, the trial court has no
duty to question the jury. The scope of this judicial discretion includes “the responsibility
of determining the extent and type of investigation requisite to a ruling on the motion.” Id.
The Jones case gives examples of substantially prejudicial material. “[A]bsent consent of
all counsel, in camera examinations of jurors should not be conducted by a trial judge
without the presence of counsel.” Id. at 214.
The decision to provide a set of written instructions to the jury is within the sound
discretion of the trial court. United States v. Moncrieffe, 319 F. App’x 249 (4th Cir.
2009); Garst v. United States, 180 F. 339, 345 (4th Cir. 1910).

017
7/2

When a jury makes explicit its difficulties a trial judge should clear them away with
concrete accuracy. Yet, by the same token, the court must be careful not to invade the
jury’s province as fact finder. The court’s obligation is not open-ended, but is limited to
clarifying questions of law. United States v. Ellis, 121 F.3d 908, 925 (4th Cir. 1997).

7/2
d0

e
ew
i12/15/14]
, v:

226
-4
The law permits expert testimony if it concerns (1) scientific, technical, or other
16(2) will aid you, the jury, to understand or resolve a fact at
specialized knowledge that
.
No
issue.
K.

Expert Witness [LAST UPDATED

A witness has testified as an expert.

An expert witness is allowed to give his opinion about a certain matter.
You should evaluate this testimony as you do the testimony of any other witness.
In addition, you should consider whether the expert’s opinion is based on adequate
education or experience or that his professed [field of expertise] is sufficiently reliable,
accurate, and dependable. You need not accept the opinion of the witness if you believe
the reasons supporting the opinion are unsound or if contradictory evidence casts doubt
on it.45
____________________NOTE____________________
Expert testimony is admissible under Federal Rule of Evidence 702 if it concerns (1)
scientific, technical, or other specialized knowledge that (2) will aid the trier of fact to
understand or resolve a fact at issue. The first prong of this inquiry necessitates an
examination of whether the reasoning or methodology underlying the expert’s proffered
opinion is reliable — that is, whether it is supported by adequate validation to render it

45

See United States v. Baller, 519 F.2d 463, 467 (4th Cir. 1975) (dealing with voiceprint
identification).

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trustworthy. The second prong of the inquiry requires an analysis of whether the opinion
is relevant to the facts at issue. A district court considering the admissibility of expert
testimony exercises a gatekeeping function to assess whether the proffered evidence is
sufficiently reliable and relevant. The inquiry to be undertaken by the district court is a
flexible one focusing on the principles and methodology employed by the expert, not on
the conclusions reached. In evaluating the admissibility of the testimony, the court should
consider a variety of factors, including whether the method used is generally accepted in
the scientific community; the rate of error, if known; the existence and maintenance of
standards; and whether the expert’s work has been subjected to peer review. The court
need not determine that the proffered expert testimony is irrefutable or certainly correct.
As with all other admissible evidence, expert testimony is subject to testing by vigorous
cross-examination, presentation of contrary evidence, and careful instruction on the
burden or proof. United States v. Moreland, 437 F.3d 424, 431 (4th Cir. 2006) (citations
omitted), overruled on other grounds by Gall v. United States, 552 U.S. 38 (2007)).
The testimony must be based on sufficient facts or data and must be the product of
reliable principles and methods applied reliably to the facts of the case. Fed. R. Evid. 702.
See United States v. Crisp, 324 F.3d 261 (4th Cir. 2003) for an excellent discussion
of admissibility post-Daubert v. Merrell Dow Pharmaceuticals Inc., 509 U.S. 579 (1993).

017 a manner
Experts who also testify as fact witnesses present a difficult issue. “[S]uch
/2
of proceeding is only acceptable where the district court [takes]27
adequate steps to make
/
certain that [the witness’s] dual role [does] not prejudice 07
or confuse the jury.” United
States v. Garcia, 752 F.3d 382, 392 (4th Cir. 2014)ed
(internal quotation marks and ellipses
omitted). Safeguards
iew
6, v
might include requiring the witness to testify at different times, in each
capacity; giving a cautionary instruction to the jury regarding the basis of the
422
-cross-examination by defense counsel; establishing a
testimony; allowing 6
for
proper foundation for the expertise; or having counsel ground the question in
o. 1
N
either fact or expertise while asking the question.

Id.
Additionally, “[a]llowing a witness simply to parrot out-of-court testimonial
statements of cooperating witnesses and confidential informants directly to the jury in the
guise of expert opinion would provide an end run around Crawford [v. Washington, 541
U.S. 36 (2004)].” United States v. Johnson, 587 F.3d 625, 635 (4th Cir. 2009). In
Crawford, the Supreme Court held that the Confrontation Clause of the Sixth Amendment
bars the “admission of testimonial statements of a witness who did not appear at trial
unless he was unavailable to testify, and the defendant had a prior opportunity for
cross-examination.” Crawford v. Washington, 541 U.S. 36, 53-54 (2004). “An expert
witness’s reliance on evidence that Crawford would bar if offered directly only becomes a
problem where the witness is used as little more than a conduit or transmitter for
testimonial hearsay, rather than as a true expert whose considered opinion sheds light on
some specialized factual situation.” Johnson, 587 F.3d at 635.
In Johnson, the Fourth Circuit determined that the police officer expert’s decoding of
telephone conversations based, in part, on “informant information” did not present a
Crawford problem. Id. at 636. The experts “never made direct reference to the content of
those interviews or stated with any particularity what they learned from those interviews.”
Id. at 635.

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In Garcia, however, the Fourth Circuit determined that the Government’s expert
witness was not exercising her reasoned, independent judgment when she “used her
personal knowledge of the investigation to form (not simply to ‘confirm’) her ‘expert’
interpretations....” Garcia, 752 F.3d at 393. The Fourth Circuit found that the expert
“simply substituted information gleaned from her participation in the investigation
(including post-indictment debriefings of participants in the conspiracy) for ostensible
expertise.” Id.
L.

Felony Conviction

The fact that a witness has been convicted of a felony offense, or a crime involving
dishonesty or false statement, is a factor you may consider in deciding whether you
believe his testimony.46
M. Flight
The flight of the defendant after he knows he is to be accused of a crime may tend to
prove that the defendant believed that he was guilty. It may be weighed by you in this
connection, together with all other evidence.

017
However, flight may not always reflect feelings of guilt. Feelings of guilt which are
7/2
2guilt. You are
present in many innocent people do not necessarily reflect actual
07/ may not be used by you as
specifically cautioned that evidence of the flight of a defendant
ed
a substitute for proof of guilt. Flight does notew a presumption of guilt. Whether or
create
not evidence of flight does show that the defendant believed that he was guilty and the
, vi feelings on this matter are for you to
significance, if any, to be given to 26
the defendant’s
42
determine.
16o.
N____________________NOTE____________________
47

The jury’s consideration of evidence of flight requires that it be able, from the
evidence, to link flight to consciousness of guilt of the crime for which the defendant is
charged. This requires evidence supporting all the inferences in the causative chain
between flight and guilt. To establish this causal chain, there must be evidence that the
defendant fled or attempted to flee and that supports inferences that (1) the defendant’s
flight was the product of consciousness of guilt, and (2) his consciousness of guilt was in
relation to the crime with which he was ultimately charged and on which the evidence is
offered. In the absence of evidence to support any single link in the causative chain, it is
error to give a flight instruction. United States v. Obi, 239 F.3d 662, 665-66 (4th Cir.
2001). See also United States v. Beahm, 664 F.2d 414, 419-20 (4th Cir. 1981)(inference of
consciousness of guilt unfounded where defendant flees after commencement of an
investigation unrelated to the crime charged, or of which the defendant was unaware).
The following instruction was given by the district court in United States v. Hawkes,
753 F.2d 355, 359 (4th Cir. 1985), but the conviction was reversed because the instruction
was not supported by the evidence:

46

See United States v. Reynolds, 185 F. App’x 315 (4th Cir. 2006).

47

Charge given by district court in United States v. Obi, 239 F.3d 662, 665 (4th Cir. 2001).

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The intentional flight of a defendant immediately after the commission of a
crime, or at the time criminal conduct is discovered, is not sufficient in itself to
establish that defendant’s guilt, but is a fact which, if proved, may be
considered by the jury in the light of all other evidence in the case, in
determining guilt or innocence. Whether or not evidence of flight or
concealment shows a consciousness of guilt, and the significance to be attached
to any such evidence, are matters exclusively within the province of the jury. In
your consideration of the evidence of flight, you should consider that there may
be reasons for that which are fully consistent with innocence. Those may
include fear of being apprehended, unwillingness to confront the police, or
reluctance to appear as a witness. Let me suggest also that a feeling of guilt
does not necessarily reflect actual guilt.
Rather than a charge, it may be preferable to allow the government to argue in
closing that flight was evidence of consciousness of guilt. See United States v. Moye, 454
F.3d 390, 396, n.7 (4th Cir. 2006)(en banc).

017
/2
When the court declares it will take judicial notice of some fact or event, you may
27fact or event which
accept the court’s declaration as evidence, and regard as proved the
07/ you are the sole judge
d
has been judicially noticed, but you are not required to do so since
we
of the facts.
e
, vi
226
4
____________________NOTE____________________
16- time during the trial proceeding judicially notice a fact
A district court.
No may at any
that is generally known or capable of accurate and ready determination by resort to
N.

Judicial Notice [LAST UP DATED : 7/18/14]

The court has taken judicial notice of the following fact: ________________

48

sources whose accuracy cannot reasonably be questioned. Fed. R. Evid. 201(b).
However, in a criminal case, when the trial court takes notice of an adjudicative fact
the court shall instruct the jury that it may, but is not required to, accept as conclusive any
fact judicially noticed. Fed. R. Evid. 201(g).
Thus, Rule 201(f), authorizing judicial notice at the appellate level, has no effect in
criminal cases. United States v. Jones, 580 F.2d 219, 224 (6th Cir. 1978).
Judicial notice does not apply to the trial judge’s personal knowledge of a particular
fact. Gov’t of Virgin Islands v. Gereau, 523 F.2d 140, 147 (3d Cir. 1975).
O.

Identification49 [LAST UPDATED : 12/10/14]

An issue in this case is the identification of the defendant as the perpetrator of the
crime. The government has the burden of proving identity beyond a reasonable doubt. It is
not essential that the witness himself be free from doubt as to the correctness of his

48

49

656

United States v. Deckard, 816 F.2d 426, 428 (8th Cir. 1987).
Verbatim from United States v. Holley, 502 F.2d 273, 277-78 (4th Cir. 1974).

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statement. However, you, the jury, must be satisfied beyond a reasonable doubt of the
accuracy of the identification of the defendant before you may convict him. If you are not
convinced beyond a reasonable doubt that the defendant was the person who committed
the crime, you must find the defendant not guilty.
Identification testimony is an expression of belief or impression by the witness. Its
value depends on the opportunity the witness had to observe the offender at the time of
the offense and to make a reliable identification later.
In appraising the identification testimony of a witness, you should consider the
following:
(1) Are you convinced that the witness had the capacity and an adequate
opportunity to observe the offender?
Whether the witness had an adequate opportunity to observe the offender at the time
of the offense will be affected by such matters as how long or short a time was available,
how far or close the witness was, how good were lighting conditions, whether the witness
had occasion to see or know the person in the past.

017
7/2

(In general, a witness bases any identification he makes on his perception through
the use of his senses. Usually the witness identifies an offender by the sense of sight —
but this is not necessarily so, and he may use other senses.)50

7/2
d0

(2) Are you satisfied that the identification made by the witness subsequent to
the offense was the product of his own recollection? You may take into account both the
strength of the identification, and the circumstances under which the identification was
made.

e
iew
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226
6-4

If the identification by the witness may have been influenced by the circumstances
under which the defendant was presented to him for identification, you should scrutinize
the identification with great care. You may also consider the length of time that lapsed
between the occurrence of the crime and the next opportunity of the witness to see the
defendant, as a factor bearing on the reliability of the identification.

o. 1
N

(You may also take into account that an identification made by picking the defendant
out of a group of similar individuals is generally more reliable than one which results
from the presentation of the defendant alone to the witness.)
(3) You may take into account any occasions in which the witness failed to
make an identification of the defendant, or made an identification that was inconsistent
with his identification at trial.)
(4) Finally, you must consider the credibility of each identification witness in
the same way as any other witness, consider whether he is truthful, and consider whether
he had the capacity and opportunity to make a reliable observation on the matter covered
in his testimony.
I again emphasize that the burden of proof on the prosecutor extends to every
element of the crime charged, and this specifically includes the burden of proving beyond
a reasonable doubt the identity of the defendant as the perpetrator of the crime with which
he stands charged. If after examining the testimony, you have a reasonable doubt as to the

50

Sentences in brackets (( )) to be used only if appropriate. Instructions to be inserted or
modified as appropriate to the proof and contentions.

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accuracy of the identification, you must find the defendant not guilty.
____________________NOTE____________________
The so-called Holley - Telfaire (United States v. Telfaire, 469 F.2d 552 (D.C. Cir.
1972)) cautionary instruction should be given in cases where the only evidence of the
defendant’s culpability is eyewitness identification testimony. United States v. Holley,
502 F.2d 273, 275 (4th Cir. 1974). The Holley - Telfaire rule “is a flexible one and not a
rigid requirement on trial courts.” United States v. Greene, 704 F.3d 298, 313 (4th Cir.
2013) (citation omitted). This instruction “is not required to be given, sua sponte, in a
case where other independent evidence, whether direct or circumstantial, or both, is
presented to the trier of fact which is corroborative of the guilt of the accused.” Id.
(quoting United States v. Revels, 575 F.2d 74, 76 (4th Cir. 1978)).
The cautionary instruction should be given under the following circumstances: (1)
there is a strong likelihood of misidentification, (2) there was uncertainty or qualification
in the identification testimony, or (3) there were any special difficulties in the
identification testimony. See United States v. Brooks, 928 F.2d 1403, 1409 (4th Cir.
1991).

017 a twoIn Manson v. Brathwaite, 432 U.S. 98 (1977), the Supreme Court endorsed
2
step process to determine the admissibility of identification testimony. “First, the court
27/
must consider whether the identification procedure was unnecessarily suggestive. Second,
07/
if the procedure was unnecessarily suggestive, a courtd
e must look at several factors to
determine if the identification testimony is nevertheless reliable under the totality of the
iew marks and citation omitted). The
v
circumstances.” Greene, 704 F.3d at 6, (quotation
305
factors include the following: 22
4
(1) the witness’ opportunity to view the perpetrator at the time of the crime;
16.
(2) the witness’ degree of attention at the time of the offense;
No
(3) the accuracy of the witness’ prior description of the perpetrator;
(4) the witness’ level of certainty when identifying the defendant as the perpetrator at
the time of the confrontation; and
(5) the length of time between the crime and the confrontation.
Id. at 308 (quotation marks and citations omitted). In Greene, the Fourth Circuit examined
the background of so-called “resemblance evidence” as opposed to identification
testimony. The court held it was error to admit the testimony of the bank robbery victim
for two reasons: first, the procedure used to obtain her testimony was suggestive and
unnecessarily so, because the prosecutor asked the victim to describe how the defendant
was similar to the bank robber when the witness testified that she “intentionally declined
to look at Greene during her entire time on the witness stand,” and second, the
identification was unreliable under the five factors set out above. Id. at 310.
P.

Inconsistency

In determining whether to believe a witness, you may consider whether a witness
said or did something that is inconsistent with what the witness said while testifying in the

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courtroom.51
Q.

Investigative Techniques [LAST UPDATED : 7/3/14]

There is no legal requirement that the government use any specific investigative
technique to prove its case. You should consider all the evidence, or lack of evidence, in
deciding whether the government has proven its case. Your concern is whether the
evidence which was admitted proves, beyond a reasonable doubt, that the defendant is
guilty.52
____________________NOTE____________________
“When the government rests its case solely on the approximations and circumstantial
inferences of a net worth computation, the cogency of its proof depends upon its effective
negation of reasonable explanations by the taxpayer inconsistent with guilt. Such
refutation might fail when the government does not track down relevant leads furnished
by the taxpayer — leads reasonably susceptible of being checked, which, if true, would
establish the taxpayer’s innocence. When the government fails to show an investigation
into the validity of such leads, the trial judge may consider them as true and the
government’s case insufficient to go to the jury.” Holland v. United States, 348 U.S. 121,
135-36 (1954).

017
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R.

Multiple Counts

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iew
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226
6-4

A separate crime or offense is charged in each count of the indictment. Each charge,
and the evidence pertaining to it, should be considered separately.53

o. 1
N

You must consider each count and the evidence relating to it separate and apart from
every other count. You should return a separate verdict as to each count. Your verdict on
any count should not control your verdict on any other count.54
S.

Multiple Defendants

It is your duty to give separate, personal consideration to the case of each individual
defendant. When you do so, you should analyze what the evidence in the case shows with
respect to that individual, leaving out of consideration entirely any evidence admitted

51

See United States v. Ricketts, 317 F.3d 540 (6th Cir. 2003).

52

See United States v. Mason, 954 F.2d 219, 222 (4th Cir. 1992) (approvingly quoting
district court jury instruction).
53

This instruction was approved in United States v. Cardwell, 433 F.3d 378, 388 (4th Cir.
2005), where a solicitation to commit murder, 18 U.S.C. § 373 , was joined with a felon in possession
charge, 18 U.S.C. § 922(g), even though the firearm was not linked to the solicitation. W hat saved the
joinder was the defendant’s post-Miranda statement to the arresting officer about using the firearm
rather than go to jail.
54

See United States v. Mims, 92 F.3d 461, 467 (7th Cir. 1996); United States v. Fernandez,
388 F.3d 1199, 1243 (9th Cir. 2004).

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solely against some other defendant or defendants.55
____________________NOTE____________________
When evidence which is admissible as to one party ... but not admissible as to
another party ... is admitted, the court, upon request, shall restrict the evidence to its
proper scope and instruct the jury accordingly. F. R. Evid. 105.
See also United States v. Fernandez, 388 F.3d 1199, 1243 (9th Cir. 2004), where the
following instruction was approved:
A separate crime is charged against each defendant in each count. The charges
have been joined for trial. You must decide the case on each crime charged
against each defendant separately. Your verdict on any count as to any
defendant should not control your verdict on any other count.
T.

Number of Witnesses

The weight of the evidence is not necessarily to be determined by the number of
witnesses testifying to the existence or nonexistence of any fact. You may find that the
testimony of a smaller number of witnesses as to a fact is more persuasive than that of a
greater number of witnesses, or you may find that they are not persuasive at all.56

017
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U.

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On or About

e
iew
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The indictment alleges that certain illegal activity happened on or about a certain
date, dates, or time frame.

226
6-4

The government need not prove with certainty the exact date of the alleged offense.
It is sufficient if the illegal activity happened during a period of time reasonably near the
date alleged in the indictment.57

o. 1
N____________________NOTE____________________

“Where a particular date is not a substantive element of the crime charged, strict
chronological specificity or accuracy is not required.” United States v. Smith, 441 F.3d
254, 261 (4th Cir. 2006) (internal citation and quotation omitted).

55

United States v. Beasley, 495 F.3d 142 (4th Cir. 2007).

56

United States v. Moss, 756 F.2d 329, 334 (4th Cir. 1985). However, district courts should
refrain from giving a number of witnesses instruction when the defendant has no witnesses. Id. at 335.
57

See United States v. Queen, 132 F.3d 991, 999 n. 5 (4th Cir. 1997). See also United States
v. Smith, 441 F.3d 254, 261 (4th Cir. 2006) (noting that if date not element of offense, specificity or
accuracy not required).

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V.

“Pinkerton” — Liability for Acts of Co-Defendants58

L

If the defendant has been charged with substantive offenses in
connection with the alleged conspiracy, then a Pinkerton charge is
appropriate.

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 the statements
knowingly made thereafter and acts knowingly done thereafter by any person likewise
found to be a member may be considered by the jury as evidence in the case as to the
defendant found to have been a member, 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.59
Therefore, in order for you to find the defendant guilty, the government must prove
each of the following beyond a reasonable doubt:
# First, that a conspiracy existed as charged in the indictment;

017
7/2

# Second, that the defendant was a member of the conspiracy;

# Third, that the criminal offense [instruct on the elements of the offense, or
reference them elsewhere in the instructions] was knowingly committed by a
member of the conspiracy;

7/2
0
Fourth, that the criminal offense was committed in furtherance of the
ed
conspiracy;
ew
vithe scope of the unlawful project; and
Fifth, that the offense fell6,
2 within foreseeable as a necessary or natural
Sixth, that the offense was reasonably
-42
6the unlawful agreement.
consequence of
o. 1
N____________________NOTE____________________

#
#
#

60

In Pinkerton v. United States, 328 U.S. 640, 647-48 (1946), the Supreme Court
stated the following:

58

Pinkerton v. United States, 328 U.S. 640 (1946)

59

This Pinkerton charge was approved in United States v. Chorman, 910 F.2d 102 (4th Cir.
1990). W hile other circuits have approved instructions that state clearly that the defendant can be
convicted of a substantive crime committed by his co-conspirator in furtherance of the conspiracy, the
Fourth Circuit has specifically approved this charge holding the defendant responsible for statements
and acts of co-conspirators, without referring to substantive crimes. Id. 110-11. The substantive
offense need not be a charged object of the conspiracy. Id. at 112.
United States v. Aramony, 88 F.3d 1369 (4th Cir. 1996), cited Chorman and held that the
district court did not abuse its discretion in omitting “reasonably foreseeable” language from the
Pinkerton instruction. Id. at 1381.
60

See Pinkerton v. United States, 328 U.S. 640, 647-48 (1946).

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A different case would arise if the substantive offense committed by one of
the conspirators was not in fact done in furtherance of the conspiracy, did not
fall within the scope of the unlawful project, or was merely a part of the
ramifications of the plan which could not be reasonably foreseen as a necessary
or natural consequence of the unlawful agreement.
W. Punishment
The question of possible punishment should not concern you. If the defendant is
found guilty, it then becomes my responsibility, as the judge, to impose an appropriate
sentence. Your function is to weigh the evidence and determine if the government has
proved that the defendant is guilty beyond a reasonable doubt. You cannot allow a
consideration of possible punishment to influence your verdict in any way.61
____________________NOTE____________________
In United States v. Muse, 83 F.3d 672 (4th Cir. 1996), the district court also
instructed the jury not to consider the “lack of punishment as to others.” The Fourth
Circuit said that the instruction might have been error, had it not been provoked by
defense counsel’s closing argument that it was unfair for Muse to stand trial while others
were given a free ride. Id. at 676-77.

017
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7/2
d0

e
iew of the witnesses who testified. You
During the trial, I asked questions of v or more
one
should not infer anything whatsoever6, any questions that I asked any of the witnesses
from
2
in this case. Do not assume that 2
hold any
-4inI this case. opinion regarding any part of this case. You
are the sole judges of the 6
facts
o. 1
N____________________NOTE____________________
X.

Questioning by the Judge

Federal Rule of Evidence 614(b) provides that “[t]he court may interrogate
witnesses, whether called by itself or by a party.”
In a federal court the judge has the right, and often an obligation, to interrupt the
presentations of counsel in order to clarify misunderstandings or otherwise insure that the
trial proceeds efficiently and fairly. United States v. Morrow, 925 F.2d 779, 781 (4th Cir.
1991).
It is within the province of the trial court to assist the jury in arriving at a just
conclusion by explaining and commenting upon the evidence. United States v. Lozano,
839 F.2d 1020, 1024 (4th Cir. 1988).
The role of a federal trial judge is not that of an umpire or of a moderator at a town
meeting. He sits to see that justice is done in the cases before him; and it is his duty to see
that a case on trial is presented in such way as to be understood by the jury, as well as by
61

See United State v. Muse, 83 F.3d 672, 676 (4th Cir. 1996); United States v. Payne, 954
F.2d 199, 204 (4th Cir. 1992).

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himself. A federal trial judge should not hesitate to ask questions for the purpose of
developing the facts; and it is no ground of complaint that the facts so developed may hurt
or help one side or the other. He has no more important duty than to see that the facts are
properly developed and that their bearing upon the question at issue are clearly
understood by the jury. He should take particular care that his participation during trial —
whether it takes the form of interrogating witnesses, addressing counsel, or some other
conduct — never reaches the point at which it appears clear to the jury that the court
believes the accused is guilty or partakes of the heat and partisanship of the advocate, or
gives the appearance of bias or partiality in any way or becomes so pervasive in his
interruptions and interrogations that he may appear to usurp the role of either the
prosecutor or the defendant’s counsel. United States v. Parodi, 703 F.2d 768, 775-76 (4th
Cir. 1983).
The trial judge may express his opinion upon the facts, provided he maintains his
judicial demeanor and makes it clear to the jury that all matters of fact are submitted to
their determination. United States v. Fuller, 162 F.3d 256, 260 (4th Cir. 1998)(specifically
disapproving giving an opinion on the guilt or innocence of the defendant).
See also United States v. Smith, 452 F.3d 323, 333 (4th Cir. 2006); United States v.
Villarini, 238 F.3d 530, 536-37 (4th Cir. 2001); and United States v. Martin, 189 F.3d
547, 555 (7th Cir. 1999).

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Y.

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iew
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Reasonable Doubt

The government must prove the defendant’s guilt beyond a reasonable doubt and this
burden remains with the government throughout the trial.62

226
6-4

Thus, while the government’s burden of proof is a strict or heavy burden, it is not
necessary that a defendant’s guilt be proved beyond all possible doubt. It is only required
that the government’s proof exclude any reasonable doubt concerning the defendant’s
guilt.63

o. 1
N

A reasonable doubt may arise not only from the evidence produced, but also from the
lack of evidence.64
____________________NOTE____________________
The Fourth Circuit has consistently and vigorously condemned the attempts of trial
courts to define reasonable doubt unless requested to do so by the jury. United States v.
Quinn, 359 F.3d 666, 676 (4th Cir. 2004).
In United States v. Walton, 207 F.3d 694 (4th Cir. 2000), the jury specifically
requested a definition of reasonable doubt. The Fourth Circuit “remain[s] convinced that
attempting to explain the words ‘beyond a reasonable doubt’ is more dangerous than
leaving a jury to wrestle with only the words themselves.” Id. at 698. The court decided to

62

United States v. Headspeth, 852 F.2d 753, 755 (4th Cir. 1988).

63

Instruction approved in United States v. Adkins, 937 F.2d 947, 949-50 (4th Cir. 1991).

64

United States v. Higginbotham, 451 F.2d 1283, 1286 n.2 (8th Cir. 1971).

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“continue to leave the final decision of whether to acquiesce to a jury’s request and define
reasonable doubt to the district court’s discretion. Given the inherent risks, however, we
refuse to require such a practice.” Id. at 699 (citation omitted).
The court may restrict counsel from defining reasonable doubt. United States v.
Smith, 441 F.3d 254, 270 (4th Cir. 2006). In United States v. Headspeth, 852 F.2d 753,
755 (4th Cir. 1988), the court said it was not an abuse of discretion to refuse to allow
counsel to define reasonable doubt in the closing argument.
Z.

Rebuttal

Once the government has presented sufficient evidence of the crime to support a
finding of guilty, it has no duty to present further evidence after the defense rests.65
AA. Responsible Corporate Officer
The defendant is liable for the corporation’s violations if he is a responsible
corporate officer. To be a responsible corporate officer, the government must prove that
the defendant had, by reason of his position in the corporation, responsibility and
authority either to prevent in the first instance, or promptly to correct, the violation
alleged, and that he failed to do so. The government does not have to prove that the
defendant brought about the alleged violation through some wrongful action. The question
is not whether the defendant had a particular title, but whether he bore such a relationship
to the corporation that it is appropriate to hold him criminally liable for failing to prevent
the violation alleged.66

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iew
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226 Bad Acts [L U
BB. Rule 404(b) Evidence of Other
: 7/18/14]
6-4
1hear [have heard] evidence that the defendant committed certain
You are about to
.
No
acts which may be similar to acts charged in the indictment. You may not consider this
AST

PDATED

evidence in deciding if the defendant committed the acts charged in the indictment.
However, you may consider this evidence for other, very limited purposes, such as the
following:
# to prove that the defendant had a motive or the opportunity to commit the
crime charged in the indictment;
# to prove that the defendant had the state of mind or the intent necessary to
commit the crime charged in the indictment;
# to prove that the defendant acted according to a plan or in preparation to
commit the crime charged in the indictment;

# to prove that the defendant knew what he was doing when he committed the
crime charged in the indictment;

65

66

Id.

United States v. Hong, 242 F.3d 528, 531 (4th Cir. 2001) (defendant responsible for Clean
W ater Act violations, 33 U.S.C. § 1319).

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# to prove the defendant’s identity;
# to prove that the defendant did not commit the crime charged in the indictment
by mistake or accident.
Do not conclude from this evidence that the defendant has bad character in general
or that because the defendant may have committed other similar acts that it is more likely
that he committed the crime with which he is currently charged.67
____________________NOTE____________________
The Fourth Circuit subscribes to the view that Rule 404(b) is “an ‘inclusionary
rule’ which ‘admits all evidence of other crimes relevant to an issue in a trial except that
which tends to prove only criminal disposition.’” United States v. Mark, 943 F.2d 444,
447 (4th Cir. 1991) (quoting United States v. Masters, 622 F.2d 83, 85 (4th Cir. 1981)). In
United States v. Queen, 132 F.3d 991, 997 (4th Cir. 1997), the Fourth Circuit held the
following:
[T]hat evidence of prior acts becomes admissible under Rules 404(b) and
403 if it meets the following criteria: (1) The evidence must be relevant to
an issue, such as an element of an offense, and must not be offered to
establish the general character of the defendant. In this regard, the more
similar the prior act is (in terms of physical similarity or mental state) to the
act being proved, the more relevant it becomes. (2) The act must be
necessary in the sense that it is probative of an essential claim or an element
of the offense. (3) The evidence must be reliable. And (4) the evidence's
probative value must not be substantially outweighed by confusion or unfair
prejudice in the sense that it tends to subordinate reason to emotion in the
factfinding process. Also, additional protection against pitfalls the rule
protects against may be provided by (1) a limiting jury instruction, when
requested by a party, explaining the purpose for admitting evidence of prior
acts, and (2) the requirement in a criminal case of advance notice, when so
requested, of the intent to introduce prior act evidence.

017
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iew
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o. 1
N

226
6-4

“[A]cts intrinsic to the crimes charged do not fall under Rule 404(b)'s limitations
on admissible evidence.” United States v. Chin, 83 F.3d 83, 87-88 (4th Cir. 1996). Other
criminal acts are intrinsic when they are “inextricably intertwined” or both acts are part of
a single criminal episode or the other acts were “necessary preliminaries” to the crime
charged. Id. at 88.
“For evidence to be relevant, it must be sufficiently related to the charged offense.
The more closely that the prior act is related to the charged conduct in time, pattern, or
state of mind, the greater the potential relevance of the prior act.... [T]he fact that a
defendant may have been involved in drug activity in the past does not in and of itself
provide a sufficient nexus to the charged conduct where the prior activity is not related in
time, manner, place, or pattern of conduct.” United States v. McBride, 676 F.3d 385, 397
(4th Cir. 2012) (quotations and citations omitted). In McBride, the defendant was charged

67

See United States v. Bradshaw, No. 282 F. App’x 264 (4th Cir. 2008).

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with possession of cocaine with intent to distribute and two firearms charges (§§ 922(g)
and 924(c)) based upon evidence seized from a vehicle on August 12, 2009. With a
limiting instruction, the district court allowed an informant to testify about attempting to
procure crack cocaine from the defendant at his house on January 14, 2008. The Fourth
Circuit found the 404(b) evidence “was unrelated in time, place, pattern, or manner to the
conduct for which McBride was indicted” and therefore its admission was error. Id. at
397.
See also United States v. Rawle, 845 F.2d 1244 (4th Cir. 1988).
In United States v. King, 225 F. App’x 125 (4th Cir. 2007), the district judge
admitted a certified copy of the defendant’s prior conviction, and instructed the jury as
follows:
Ladies and gentlemen of the jury, the government just offered evidence
tending to show that on different occasions the defendant engaged in
conduct similar to that charged in the indictment. In that connection, I want
to remind you that the defendant is not on trial for committing any crime
not alleged in the indictment. Accordingly, you may not consider this
evidence of a similar act as a substitute for proof that the defendant
committed the crimes he is charged with.

017
/ furtherance
... If you determine the defendant committed the acts alleged in2
/27 such
of the conspiracy charge, you may, but you need not,7
0 consider
evidence in determining whether or not the government has proved the
d
conspiracy alleged in the indictment andwe
the defendant’s participation in it
e
beyond a reasonable doubt.
, vi
Specifically, you may not use this evidence to conclude that because the
226 alleged, he must also have committed the
4
defendant committed the other act
16acts alleged in the indictment.
.
No The Fourth Circuit concluded that the district court Norton did not
225 F. App’x at 226.
abuse its discretion in admitting the evidence. Given the curative instruction and the
substantial testimony concerning the defendant’s role in the conspiracy, the evidence was
not unduly prejudicial. Id.
Rule 404(b) evidence should be offered during the government’s case in chief,
rather than being held for rebuttal under Rule 608(b). United States v. Smith Grading and
Paving, Inc., 760 F.2d 527, 531 (4th Cir. 1985).
CC. Stipulations
The parties have agreed to certain facts that have been stated to you. You should
therefore treat these facts as having been proved.68

68

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____________________NOTE____________________
By stipulating, a defendant waives the requirement that the government produce
evidence (other than the stipulation itself) to establish the facts stipulated to beyond a
reasonable doubt. But the defendant may not argue that the stipulation is insufficient to
prove beyond a reasonable doubt the facts or elements to which he has stipulated. United
States v. Muse, 83 F.3d 672, 678-79 (4th Cir. 1996).
A stipulation does not render evidence tending to prove the underlying stipulation
irrelevant under Federal 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).
The stipulation does not render evidence inadmissible as irrelevant. Exclusion must rest
on F.R.E. 403. In Old Chief, at 185, 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.
DD. Summary Charts (Rule 1006)
A summary chart has been [introduced in evidence].

017
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This chart is merely to aid you in understanding the underlying documents and
records.69

7/2
d0

What is important is the evidence and not what is on the chart. The chart is being
offered merely to assist you in organizing some of the evidence.70

e
iew
,v

You should keep in mind that the summary chart presents only the view of the
party which introduced it.71

226
6-4

A summary chart is not evidence and has no significance if you do not believe the
evidence which it purports to summarize.72

o. 1
N

You are free to exercise your untrammeled judgment upon the worth and weight of
the [information] given in the chart.73
EE. Sympathy
You are not to be swayed by sympathy. You are to be guided solely by the
evidence in this case. The question you must ask yourselves is: Has the government
proved the guilt of the defendant beyond a reasonable doubt?74

69

United States v. Lawhon, 499 F.2d 352, 357 (5th Cir. 1974).

70

See United States v. Downen, 496 F.2d 314, 319 (10th Cir. 1974).

71

Lawhon, 499 F.2d at 357.

72

See United States v. Bartone, 400 F.2d 459, 461 (6th Cir. 1969).

73

See Epstein v. United States, 246 F.2d 563, 570 (6th Cir. 1957).

74

See United States v. Shamsideen, 511 F.3d 340, 343 (2d Cir. 2008).

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FF.

Tapes and Transcripts

A tape recording of [a/certain] conversation[s] has/have been admitted into
evidence. A transcript of the conversation[s] has/have been prepared. The tape and not the
transcript is the evidence, and therefore the transcript is not in evidence. The transcript is
to be used only as a guide in following the tape. Your understanding of the tape, rather
than the transcript, is to govern your deliberations.75
The transcripts are not evidence but merely aids to follow the voices on the tape
and you are bound by your own recollection of what [you heard on the tape, and not what
you read in the transcript.]76 If you detect any discrepancy between the transcript and the
tape, you are to consider as evidence only what you hear on the tape.77
You are free to strike out on your copy of the transcript any statements you
personally do not hear when the tape is played. [The transcript might be inaccurate and
you are not to rely heavily upon its accuracy.]78
____________________NOTE____________________

017
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The best procedure is for the judge to play the tape out of the presence of the
jury so that objections can be ruled on before the jury hears the recording. United States v.
Bryant, 480 F.2d 785, 789 (2d Cir. 1973).

7/2
0
Your verdict must be unanimous and representd considered judgment of each
the
e case it is necessary that each juror
w
juror. In order to return a verdict on any aspect of this
vie
agree to the verdict.
26, on the act of the defendant which constitutes
[You must be unanimous2 agreeing
in
the violation of law.]
6-4
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o. multiple false statements
L Regarding
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GG.

Unanimity

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.79

75

United States v. Meredith, 824 F.2d 1418, 1428 (4th Cir. 1987); United States v. Collazo,
732 F.2d 1200, 1203 (4th Cir. 1984).
76

Collazo, 732 F.2d at 1203. This repeated cautionary instruction cured any prejudice that
might have resulted from discrepancies between the tape and the transcript.
77

78

United States v. Bryant, 480 F.2d 785, 791 (2d Cir. 1973).

79

668

United States v. Long, 651 F.2d 239, 243 (4th Cir. 1981).

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____________________NOTE____________________
In a routine case, a general unanimity instruction is sufficient. However, where
“there exists a genuine risk that the jury is confused or that a conviction may occur as the
result of different jurors concluding that a defendant committed different acts,” the court
should instruct the jury that they must be unanimous in agreeing on what act the
defendant committed, or what statement was false, etc. United States v. Tucker, 345 F.3d
320 (5th Cir. 2003).
In United States v. Tipton, 90 F.3d 861, 885 (4th Cir. 1996), the Fourth Circuit said
a special unanimity instruction should be given when multiple false statements are
charged in a single count.
See United States v. Holley, 942 F.2d 916, 925-29 (5th Cir. 1991), where 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:

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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.

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335 F. App’x at 347.
N

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In United States v. Sarihifard, 155 F.3d 301, 310 (4th Cir. 1998), a §§ 1001 and
1623 prosecution, the trial judge did instruct the jury that each member had to agree
unanimously on one of the instances of conduct. In affirming, the Fourth Circuit reiterated
that often a trial judge will have to provide a special unanimity instruction in order to
prevent confusion.
In a fraud case, there is no requirement that the jury be instructed to agree
unanimously on the intended victim. United States v. Aubin, 87 F.3d 141, 148 (5th Cir.
1996).
In United States v. Smith, 44 F.3d 1259, 1270 (4th Cir. 1995), the district court
gave the following instruction concerning the identity and extent of the scheme to
defraud:
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

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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.
In a multi-object conspiracy case, the court may also consider submitting to the
jury a special verdict form which would require the jury to identify which object of the
conspiracy the jury found. This would be especially helpful, in light of U.S.S.G.
§ 1B1.2(d) (“A conviction on a count charging a conspiracy to commit more than one
offense shall be treated as if the defendant had been convicted on a separate count of
conspiracy for each offense that the defendant conspired to commit.”). See Griffin v.
United States, 502 U.S. 46 (1991), where the appellant had requested special
interrogatories asking the jury to identify the object or objects of the conspiracy of which
she had knowledge. The Supreme Court reiterated the prevailing rule that when a jury
returns a guilty verdict on an indictment charging several acts in the conjunctive, the
verdict stands if the evidence is sufficient with respect to any one of the acts charged.
Justice Blackmun, concurring, recommended using special interrogatories in complex
conspiracy prosecutions.

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Unavailable Witness [LAST UPDATED

If a party has it peculiarly within its power to produce a witness whose testimony
would shed light on the transaction, the fact that the party does not do it creates an
[inference] that the testimony, if produced, would be unfavorable.80

226
4
To qualify for such a “missing witness” instruction,
16.
two requirements must be met. First, it must be shown that the party failing
No has it peculiarly within its power to produce the witness.
to call the witness
This requirement can be satisfied by showing either (1) that the witness is
physically available only to the other party, or (2) that, because of the
witness’s relationship with the other party, the witness “pragmatically” is
only available to that party. Second, the witness’s testimony must elucidate
issues important to the trial, as opposed to being irrelevant or cumulative.81

No unfavorable inference arises from the government’s failure to call a witness
who is equally available to the defendant.83
____________________NOTE____________________

80

United States v. Brooks, 928 F.2d 1403, 1412 (4th Cir. 1991) (citing United States v.
Rollins, 862 F.2d 1282, 1297 (7th Cir. 1988)).
81

United States v. Graves, 545 F. App’x 230, 241 (4th Cir. 2013) (citations

omitted).
83

670

United States v. Chase, 372 F.2d 453, 467 (4th Cir. 1967).

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See also United States v. Fisher, 484 F.2d 868, 870 (4th Cir. 1973).
II. Venue [LAST UPDATED 4/30/14]
The defendant has a right to be tried in the district where the offense was
committed. The government bears the burden of proving venue by a preponderance of the
evidence as to each individual count.84
____________________NOTE____________________
Submitting the venue question to the jury is an appropriate procedure for resolving
a factual dispute relating to venue. United States v. Ebersole, 411 F.3d 517, 526 n.10 (4th
Cir. 2005).
In Ebersole, the Fourth Circuit expressly reserved the question of whether there
was a foreseeability requirement for establishing venue. 411 F.3d at 528. In United States
v. Johnson, 510 F.3d 521, 527 (4th Cir. 2007), the court declined to engraft a mens rea
requirement onto a venue provision, 15 U.S.C. § 78aa, which does not have one,
especially in light of the fact that it is well settled that mens rea requirements typically do
not extend to the jurisdictional elements of a crime.

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“Where the defenses of time-bar or improper venue are squarely interposed, they
must be submitted to a properly instructed jury for adjudication.” United States v.
Grammatikos, 633 F.2d 1013, 1022 (2d Cir. 1980).

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For episodic crimes, venue is proper in the district where an essential element of
the crime occurred. In continuing crimes, such as conspiracy, venue is proper in the
location of any of the acts. United States v. Rodriguez-Moreno, 526 U.S. 275, 279, 282
(1999). Further, in continuing offenses that are based upon some underlying criminal
offense, venue for the continuing offense is proper in any district where venue lies for the
underlying offense. United States v. Robinson, 275 F.3d 371, 379 (4th Cir. 2001).

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However, when Congress defines the essential conduct elements in terms of their
particular effects (such as affecting interstate commerce), venue will be proper where
those proscribed effects are felt. United States v. Bowens, 224 F.3d 302, 313 (4th Cir.
2000).
The government must present some evidence and may not rely on presumptions.
See United States v. Evans, 318 F.3d 1011 (10th Cir. 2003), where the record was void of
any evidence that the methamphetamine lab was located in the District of Kansas. The
government was not allowed to rely on a presumption that police of a certain jurisdiction
only investigate crimes within their jurisdiction, and the court cited its own case of
Jenkins v. United States, 392 F.2d 303 (10th Cir. 1968), that a defendant’s possession in
Oklahoma of property recently stolen in Kansas did not support venue in Kansas.
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

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United States v. Robinson, 275 F.3d 371, 378 (4th Cir. 2001).

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is not charged as an aider and abettor. See United States v. Cabrales, 524 U.S. 1, 7 (1998).
Venue may be proven by mere preponderance of the evidence. United States v.
Burns, 990 F.2d 1426, 1436 (4th Cir. 1993).
“[W]hether an offense occurred within particular geographical boundaries is an
appropriate subject for judicial notice.” United States v. Wilkerson, 444 F. App’x 708,
709 (4th Cir. 2011) (citing United States v. Kelly, 535 F.3d 1229, 1235-36 (10th Cir.
2008)).
JJ.

Judicial Notice [LAST UPDATED : 7/18/14]
The court has taken judicial notice of the following fact: ________________

When the court declares it will take judicial notice of some fact or event, you may
accept the court’s declaration as evidence, and regard as proved the fact or event which
has been judicially noticed, but you are not required to do so since you are the sole judge
of the facts.85

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A district court may at any time during the trial proceeding7
2 judicially notice a fact
that is generally known or capable of accurate and ready determination by resort to
07/R. Evid. 201(b).
sources whose accuracy cannot reasonably be questioned. Fed.
ed
wcourt takes notice of an adjudicative
However, in a criminal case, when vie
the trial
fact the court shall instruct the jury that,it may, but is not required to, accept as conclusive
6 201(g).
2
any fact judicially noticed. Fed.2 Evid.
-4 R. judicial notice at the appellate level, has no effect in
Thus, Rule 201(f),6
o. 1 authorizing 580 F.2d 219, 224 (6th Cir. 1978).
criminal cases. United States v. Jones,
N
____________________NOTE____________________

Judicial notice does not apply to the trial judge’s personal knowledge of a
particular fact. Gov’t of Virgin Islands v. Gereau, 523 F.2d 140, 147 (3d Cir. 1975).

Nor does judicial notice apply to matters falling within the common fund of
information supposed to be possessed by jurors. However, this doctrine is strictly limited
to a few matters of elemental experience in human nature, commercial affairs, and
everyday life. Jones, 580 F.2d at 222. In Jones, the Sixth Circuit held that whether South
Central Bell Telephone Company was a common carrier providing or operating facilities
for the transmission of interstate or foreign communications was not such a matter of
elemental experience, and because that fact had been neither proved nor judicially noticed
during the trial, the judgment of acquittal was affirmed.
A court may take judicial notice of court records, including an indictment, and a
guilty plea. See United States v. Kane, 434 F. App’x 175 (4th Cir. 2011) (citing cases).

85

672

United States v. Deckard, 816 F.2d 426, 428 (8th Cir. 1987).

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VIII. PRACTICE NOTES
A. 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.
The leading case on aggregation is United States v. Billingslea, 603 F.2d 515 (5th
Cir. 1979), cited by the Fourth Circuit in United States v. Smith, 373 F.3d 561, 564 (4th
Cir. 2004) (a § 641 prosecution where the defendant “embezzled” his dead mother’s
Social Security checks). See discussion under 18 U.S.C. § 641. In Billingslea, the court
found that
[o]f critical importance is the state of mind or intent of the actor prior to and
simultaneously with the first taking. Closely related, and of equal importance,
is evidence of acts done by the accused, either in preparation for the several
takings or as integral part of the first taking, which facilitate the subsequent
takings or in some way aid the defendant in accomplishing them. Under this
approach, therefore, the formulation of a plan or scheme or the setting up of a
mechanism which, when put into operation, will result in the taking or
diversion of sums of money on a recurring basis, will produce but one crime.
Conversely, if all that can be attributed to the accused is an original intent to
purloin and the evidence merely shows that this intent was acted on from time
to time, the nature of the acts must be measured by the separate takings.

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Billingslea, 603 F.2d at 520.

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B. Bolstering
Bolstering is an implication that the testimony of a witness is corroborated by
evidence known to the party but not known to the jury. Bolstering is always inappropriate.
United States v. Sanchez, 118 F.3d 192, 197 (4th Cir. 1997).
C.

o. 1Request [L
N
Defendant’s

AST

UPDATED : 8/18/14]

The defendant is entitled to have the jury instructed on a theory of defense if the
requested instruction is accurate as a statement of law and there was a foundation in the
evidence for the instruction. The district court should include the substance of the
requested instruction in language sufficiently precise to instruct the jury on the
defendant’s theory of defense. United States v. Mitchell, 495 F.2d 285, 288 (4th Cir.
1974).
The Eleventh Circuit would have the jury instructed even though the evidence
supporting the defendant’s theory is weak, insufficient, inconsistent, or of doubtful
credibility. United States v. Hedges, 912 F.2d 1397, 1406 (11th Cir. 1990).
“A district court’s refusal to provide an instruction requested by a defendant
constitutes reversible error only if the instruction (1) was correct, (2) was not substantially
covered by the court’s charge to the jury, and (3) seriously impaired the defendant’s
ability to conduct his defense.” United States v. Queen, 132 F.3d 991, 1000 (4th Cir.
1997). However, as a threshold for applying this test, a defendant must present an
adequate evidentiary foundation supporting the instruction. United States v. Lewis, 53
F.3d 29, 33 n.8 (4th Cir. 1995).

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“If ... an affirmative defense consists of several elements and testimony supporting
one element is insufficient to sustain it even if believed, the trial court and jury need not
be burdened with testimony supporting other elements of the defense.” United States v.
Bailey, 444 U.S. 394, 416 (1980); United States v. Sarno, 24 F.3d 618, 621 (4th Cir.
1994) (quoting Bailey).
Disjunctive [LAST UPDATED : 4/7/14]

D.

“Where a statute is worded in the disjunctive, federal pleading requires the
government to charge in the conjunctive. The district court, however, can instruct the jury
in the disjunctive.” United States v. Rhynes, 206 F.3d 349, 384 (4th Cir. 1999), overruled
on other grounds, 218 F.3d 310 (4th Cir. 2000) (en banc).
E.

Dual-Role Witness

A dual witness, one who testifies as both a fact and expert witness, can confuse the
jury. United States v. Wilson, 484 F.3d 267, 278 n.5 (4th Cir. 2007).

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The Fourth Circuit has set out safeguards to prevent confusion. In Wilson, “the
district court took adequate steps — including having [the witness] testify first as a fact
witness85 and issuing a cautionary instruction86 to the jury — to make certain that [the
witness’s] dual role did not prejudice or confuse the jury.” 484 F.3d at 278 n.5.

7/2
0
In United States v. Baptiste, 596 F.3d 214 (4th Cir. 2010), the district court had
ed
w
permitted the lay and expert witness testimony simultaneously. The Fourth Circuit looked
vie 2008), which set out the safeguards
to United States v. Farmer, 543 F.3d 363 (7th Cir.
26,
implemented by the district court in that case. First, the district court gave the appropriate
-42
cautionary instruction regarding expert testimony, reminding the jury that it could give the
6the jury thought it deserved. Second, defense counsel crosstestimony whatever . 1
oweight
examined the witness about his expert opinion, which further clarified the testimonial
N
capacities for the jury. Third, the district court required the government to establish a
proper foundation for the witness’s expertise. Fourth, the government prefaced the
witness’s expert testimony by asking him to testify based on his expertise. Baptiste, 596
F.3d at 224.
F.

Duplicitous

Duplicity is joining in a single count two or more distinct and separate offenses.
United States v. Burns, 990 F.2d 1426, 1438 (4th Cir. 1993).
Fifth Amendment [LAST UPDATED : 9/11/13]

G.

If a defense witness refuses to testify on the basis of Fifth Amendment privilege, the

85

That is, have the witness take two separate trips to the witness stand.

86

That is, the standard cautionary instruction regarding expert testimony.

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district court “must make a proper and particularized inquiry into the legitimacy and
scope of the witness’s assertion of the privilege.” United States v. Allen, 491 F.3d 178,
191 (4th Cir. 2007) (quotation and citation omitted). The privilege operates on a questionby-question basis, but “a witness may be totally excused if the court finds that he could
legitimately refuse to answer any and all relevant questions.” Id. See also United States v.
Castro, 129 F.3d 226, 229 (1st Cir. 1997) (court must make particularized inquiry).
H.

Improper Prosecutorial Remarks [LAST UPDATED : 4/7/14]

It is improper for a prosecutor to express his or her opinion on the veracity of a
witness. When a prosecutor comments on the truthfulness of a witness, comments present
“two discrete risks: (1) of improperly suggesting to the jury that the prosecutor’s personal
opinion has evidentiary weight; and (2) of improperly inviting the jury to infer that the
prosecutor had access to extra-judicial information not available to the jury.” United
States v. Woods, 710 F.3d 195, 203 (4th Cir. 2013) (quotation and citation omitted).
It is plain error for a prosecutor to state that a defendant has lied under oath. See
United States v. Moore, 710 F.2d 157, 159 (4th Cir. 1983). An appellate court will review
whether the improper remarks so prejudiced the defendant’s substantial rights that he or
she was denied a fair trial. In assessing prejudice, the reviewing court will consider: (1)
the degree to which the prosecutor’s remark had a tendency to mislead the jury and to
prejudice the accused; (2) whether the remarks were isolated or extensive; (3) absent the
remarks, the strength of competent proof introduced to establish the guilt of the accused;
(4) whether the comments were deliberately placed before the jury to divert attention to
extraneous matters; (5) whether the prosecutor’s remarks were invited by improper
conduct of defense counsel; and (6) whether curative instructions were given to the jury.
See United States v. Wilson, 624 F.3d 640, 656-57 (4th Cir. 2010).

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I.

1
o.Rule
N
Mailbox

Proof that a letter properly directed was placed in a post office creates a
presumption that it reached its destination in usual time and was actually received by the
person to whom it was addressed. Hagner v. United States, 285 U.S. 427, 429 (1932).
J.

Marital Privilege

There are two types of marital privilege: the privilege against adverse spousal
testimony and the privilege protecting confidential marital communications.
The adverse spousal privilege is vested in the witness-spouse, who may neither be
compelled to testify nor foreclosed from testifying.
The “marital communication privilege” is with the defendant and prevents a spouse
from testifying against the defendant regarding confidential communications between the
spouses.
The party asserting the marital communications privilege bears the burden of
establishing all of the essential elements involved. The first element is a valid marriage.
United States v. Acker, 52 F.3d 509, 514-15 (4th Cir. 1995). In United States v. Byrd, 759

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F.2d 585 (7th Cir. 1984), the Seventh Circuit referred to the three conditions of the
communications privilege, as a communication made in confidence in a valid marriage.
The Court then held that communications made during a permanent separation are not
privileged. Id. at 594.
The marital privilege generally extends only to utterances and not to acts. If the
conduct was not intended to convey a confidential message then it is not covered by the
privilege. Nor does the mere fact that an act has been performed in the presence of a
spouse make it a communication. When dealing with a verbal communication, the
presence of a third party negatives the presumption of privacy. Finally, the marital
privilege does not apply when communications have to do with the commission of a crime
in which both spouses are participants. United States v. Parker, 834 F.2d 408, 411(4th
Cir. 1987).
K.

Merger [LAST UPDATED : 9/30/11]

Merger occurs when the facts or transactions alleged to support one offense are also
the same used to support another. Merger has double jeopardy implications. See United
States v. Halstead, 634 F.3d 260 (4th Cir. 2011); United States v. Cioni, 649 F.3d 276 (4th
Cir. 2011).

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In Cioni, the defendant was convicted of violating § 1030(a)(2)(C), in furtherance
2from a misdemeanor to a
/
of a violation of 18 U.S.C. § 2701(a), which elevated the 07
offense
felony. The Fourth Circuit held that the offense was improperly elevated, and vacated the
ed
felony convictions, because of “merger.” iew
6, v
22
L. Multiplicitous -4
6
Multiplicityo.charging a single offense in several counts. United States v. Burns,
is 1
N
990 F.2d 1426, 1438 (4th Cir. 1993).
An indictment is multiplicitous when it charges a single offense multiple times, in
separate counts, when, in law and fact, only one crime has been committed. To determine
whether separate counts charge the same offense more than once, apply the test set out by
the Supreme Court in Blockburger v. United States, 284 U.S. 299 (1932), whether one
offense requires proof of a fact which the other offense does not. United States v. Finley,
245 F.3d 199, 205 (2d Cir. 2001).
M. Nullification
The district court should not instruct the jury that it may disregard the law as
declared by the judge.
Although a jury is entitled to acquit on any ground, a defendant is not entitled to
inform the jury that it can acquit him on grounds other than the facts in evidence, i.e. a
jury has the power of nullification but defense counsel is not entitled to urge the jury to
exercise this power. United States v. Muse, 83 F.3d 672, 677 (4th Cir. 1996). In Muse,
defense counsel argued that it was unfair for Muse to be standing trial when others
received a free ride.

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In United States v. Moylan, 417 F.2d 1002 (4th Cir. 1969), a Vietnam war protest
case, the Fourth Circuit acknowledged
the undisputed power of the jury to acquit, even if its verdict is contrary to the
law as given by the judge and contrary to the evidence. This is a power that
must exist as long as we adhere to the general verdict in criminal cases, for
the courts cannot search the minds of the jurors to find the basis upon which
they judge.
417 F.2d at 1006. However, the jury should not be encouraged in its lawlessness.
“A defendant is not entitled to a jury nullification instruction.” United States v.
Buttorff, 572 F.2d 619, 627 (8th Cir. 1978).
N.

Polling the Jury, Fed. R. Crim. Proc. 31(d) [LAST UPDATED : 9/30/11]

It is plain error for a trial judge to inquire as to the numerical division of a jury.
Brasfield v. United States, 272 U.S. 448, 450 (1926).
In United States v. Penniegraft, 641 F.3d 566 (4th Cir. 2011), the Fourth Circuit
held that in conducting a poll of the jury at the defendant’s request, after a lack of
unanimity is revealed, “absent an objection by the defendant, ‘reversible error occurs only
when it is apparent that the judge coerced the jurors into prematurely rendering a
decision, and not merely because the judge continued to poll the jury.’” 641 F.3d at 57980 (quoting United States v. Gambino, 951 F.2d 498, 501 (2d Cir. 1991)).

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226 that polygraph examination results, or even the
The Fourth Circuit 6-4 se rule
has a per
reference to the fact . 1a witness has taken a polygraph examination, are not admissible.
that
United States v. Prince-Oyibo, 320 F.3d 494, 501 (4th Cir. 2003). “The rule of this circuit
No
O.

Polygraph

is that polygraph evidence is never admissible to impeach the credibility of a witness.
This is so whether the government or the defendant is seeking to introduce the evidence.”
United States v. Sanchez, 118 F.3d 192, 197 (4th Cir. 1997).

However, testimony concerning a polygraph examination is admissible where it is
not offered to prove the truth of the polygraph result, but instead is offered for a limited
purpose such as rebutting a defendant’s assertion that his confession was coerced. United
States v. Blake, 571 F.3d 331, 346 (4th Cir. 2009) (citing United States v. Allard, 464 F.3d
529, 534 (5th Cir. 2006)).
In United States v. Nelson, 207 F. App’x 291 (4th Cir. 2006), the Fourth Circuit
upheld the exercise of discretion the district court limiting the scope of cross-examination
as to the polygraph provision of a witness’ plea agreement, citing the per se rule.
P.

Rule 31(c) Lesser-Included Offense [LAST UPDATED : 4/7/14]

Federal Rule of Criminal Procedure 31(c) provides that a defendant may be found
guilty of “an offense necessarily included in the offense charged.”
“A defendant is not entitled to a lesser-included offense instruction as a matter of

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course. See United States v. Walker, 75 F.3d 178, 179 (4th Cir. 1996), abrogated by
Carter v. United States, 530 U.S. 255 (2000). In order to receive a lesser-included offense
instruction, ‘the proof of the element that differentiates the two offenses must be
sufficiently in dispute that the jury could rationally find the defendant guilty of the lesser
offense, but not guilty of the greater offense.’ Id. at 180. For an element to be placed
‘sufficiently in dispute’ so as to warrant a lesser-included offense instruction, one of two
conditions must be satisfied. Either ‘the testimony on the distinguishing element must be
sharply conflicting, or the conclusion as to the lesser offense must be fairly inferable from
the evidence presented.’ Id.” United States v. Wright, 131 F.3d 1111, 1112 (4th Cir.
1997).
In Walker, the Fourth Circuit indicated that
a defendant may present evidence that is weak in the sense that it is
implausible or uncorroborated, but yet he still may be entitled to a lesser
included jury instruction because the evidence either sharply conflicts with
the Government’s evidence on an element of the offense, or because the
lesser included offense is fairly inferable if the defendant’s ‘weak’ evidence
is believed.

017 if
2
The district court has no discretion to refuse to give a lesser-included instruction
27/ States v. Baker,
the evidence warrants the instruction and the defendant requests it. United
07/ does not suggest “that
985 F.2d 1248, 1258-59 (4th Cir. 1993). On the other d
e hand, Baker
the defendant is entitled to veto the prosecution’s request for a proper instruction on a
w
lesser-included offense.” United States v. vie 725 F.3d 437, 450 (4th Cir. 2013). Rule
Lespier,
31 can be invoked by either the prosecution or defense. Keeble v. United States, 412 U.S.
26,
2
205, 208 (1973).
6-4 489 U.S. 705 (1989), the Supreme Court rejected the
In Schmuck v. . 1 States,
o United
“inherent relationship” approach, i.e., the greater and lesser offenses must relate to the
N
protection of the same interests, and must be so related that in the general nature of these
75 F.3d at 181 n.1.

crimes, though not necessarily, invariably proof of the lesser offense is necessarily
presented as part of the showing of the commission of the greater offense. Instead, the
court adopted the “elements” test. “Under this test, one offense is not ‘necessarily
included’ in another unless the elements of the lesser offense are a subset of the elements
of the charged offense. Where the lesser offense requires an element not required for the
greater offense, no instruction is to be given under Rule 31(c).” Id. at 716.
“To be necessarily included in the greater offense the lesser must be such that it is
impossible to commit the greater without first having committed the lesser.” Id. at 719.
Regardless of the test, “the evidence at trial must be such that a jury could rationally
find the defendant guilty of the lesser offense, yet acquit him of the greater.” Id. at 716
n. 8.
“A lesser-included offense instruction is only proper where the charged greater
offense requires the jury to find a disputed factual element which is not required for
conviction of the lesser-included offense.” Sansone v. United States, 380 U.S. 343, 349-50
(1965).
A court may submit an uncharged lesser-included offense to the jury. United States

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PRACTICE NOTES

v. Walkingeagle, 974 F.2d 551, 553 (4th Cir. 1992). Walkingeagle was charged with
assault with a dangerous weapon, an enumerated offense under 18 U.S.C. § 1153. The
district court acquitted on the felony charge, but instructed the jury on the lesser-included
offense of assault by striking, now 18 U.S.C. § 113(a)(4), a petty offense, of which he was
convicted. On appeal, Walkingeagle argued that the court lost jurisdiction, because assault
by striking is not an enumerated offense in § 1153. The Fourth Circuit, in a 2-1 decision,
rejected his argument. See United States v. Goodwin, No. 92-5828, 1993 WL 168933 (4th
Cir. May 20, 1993), where the district court dismissed the felony assault charge and then,
on the government’s motion, discharged the jury before finding Goodwin guilty of the
lesser-included petty offense. Goodwin appealed, arguing that the court erred in
discharging the jury. The Fourth Circuit affirmed, as Goodwin had no right to a jury trial
on the petty offense charge.
Q.

Special Verdict

There is no provision in the Federal Rules of Criminal Procedure authorizing
special verdicts, or special interrogatories. Regardless of nomenclature, they resemble
what Federal Rules of Civil Procedure 49(b) describes as “general verdict with answers to
written questions.”

017 that a
2
In Black v. United States, 561 U.S. 465, 468 (2010), the Supreme Court held
27/ he acquiesce in the
criminal defendant “need not request special interrogatories, nor need
07/ to preserve in full a
Government’s request for discrete findings by the jury, in order
d
timely raised objection to jury instructions on an alternative theory of guilt.”
we
e
As a general matter, there has been a presumption against special verdicts in
, vi
criminal cases. However, whether 2 use a special verdict form is a matter of discretion
2 to 6 Udeozor, 515 F.3d 260 (4th Cir. 2008), the court
for the district court. In United States v.
-4
16was justified because in the uncertainty between Blakely and
said a special verdict form
.
Booker, it wasNo
reasonable to assume that sentencing enhancements had to be pled in the

indictment and the facts supporting those enhancements found by the jury beyond a
reasonable doubt. See also United States v. Robinson, 213 F. App’x 221 (4th Cir. 2007).
“[I]t is a better practice to submit the general verdict and special verdict forms
separately.” Udeozor, 515 F.3d at 268.

A special verdict is the exception; however, “there may be cases in which it is
appropriate. It is counsel’s duty, though, to request a special verdict in order to record the
jury’s thinking for purposes of appeal. Failure to make a request to the trial court waives
any error (except plain error) premised on the lack of a special verdict.” United States v.
Aguilar, 883 F.2d 662, 690-91 (9th Cir. 1989), superceded by statute, 8 U.S.C. § 1324.
R.

Supplementary Instructions

When a jury has retired to consider its verdict, and supplementary instructions are
required, either because asked for by the jury or for other reasons, they ought to be given
either in the presence of counsel or after notice and an opportunity to be present; and
written instructions ought not to be sent to the jury without notice to counsel and an
opportunity to object. See Shields v. United States, 273 U.S. 583 (1927); Rice v. United

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PRACTICE NOTES

States, 356 F.2d 709, 716 (8th Cir. 1966).
S.

Unlawfully

“Unlawfully” may or may not be an element of the crime. Nevertheless, it is often
included in the charging language of an indictment.
In United States v. King, 270 F. App’x 261 (4th Cir. 2008), the indictment alleged
that the defendants had “unlawfully” violated 18 U.S.C. §§ 924(c) and (o), although
“unlawfully” is not an element of either statute. The district court did not instruct the jury
on “unlawfully.” The Fourth Circuit said the term “unlawfully” in the indictment “was a
descriptive term characterizing the actions of King and Murray as ‘unlawful’ in
possessing firearms in furtherance of the (unlawful) crimes charged in the indictment.”
270 F. App’x at 267. Therefore, the term was “mere surplusage ... and the subsequent
failure to instruct the jury about this term, did not impermissibly broaden the charges ....”
Id. at 267-68.
T.

017
7/2

Variance

“When the government, through its presentation of evidence and/or its argument, or
the district court, through its instructions to the jury, or both, broadens the bases for
conviction beyond those charged in the indictment, a constructive amendment —
sometimes referred to as a fatal variance — occurs.” United States v. Randall, 171 F.3d
195, 203 (4th Cir. 1999). “A constructive amendment is a fatal variance because the
indictment is altered ‘to change the elements of the offense charged, such that the
defendant is actually convicted of a crime other than that charged in the indictment.’” Id.
(quoting United States v. Scnabel, 939 F.2d 197, 203 (4th Cir. 1991)). “Thus, a
constructive amendment violates the Fifth Amendment right to be indicted by a grand
jury, is error per se, and must be corrected on appeal even when the defendant did not
preserve the issue by objection.” Id.

7/2
d0

e
iew
,v

o. 1
N

226
6-4

“However, not all differences between an indictment and the proof offered at trial,
rise to the ‘fatal’ level of a constructive amendment.” Id. “As long as the proof at trial
does not add anything new or constitute a broadening of the charges, then minor
discrepancies between the government’s charges and the facts proved at trial generally are
permissible.” United States v. Fletcher, 74 F.3d 49, 53 (4th Cir. 1996).
U.

Vouching

Vouching is indicating a personal belief in the credibility or honesty of a witness.
Vouching is always inappropriate. United States v. Sanchez, 118 F.3d 192, 197 (4th Cir.
1997). See also United States v. Johnson, 587 F.3d 625, 632 (4th Cir. 2009); United States
v. Jones, 471 F.3d 535, 543 (4th Cir. 2006).

681