US v. David Diaz

Filing

OPINION ATTACHMENTS. [16-4226]

Download PDF
Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 1 of 677 ELEVENTH CIRCUIT 017 7/2 7/2 0 PATTERN JURY INSTRUCTIONS ed w e , vi 226 4 16. No (CRIMINAL CASES) 2010 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 d we e , vi 226 4 16. No Pg: 2 of 677 II 0 017 7/2 7/2 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 d we e , vi 226 -4 . 16 No Pg: 3 of 677 7/2 0 7 017 /2 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 4 of 677 d we e , vi 226 4 16. No IV 0 017 7/2 7/2 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 5 of 677 Preface These Pattern Jury Instructions, Criminal Cases, Eleventh Circuit (2010 revision), update and extend the 2003 edition published by a predecessor committee of this Circuit whose work, in turn, built upon the Pattern Jury Instructions (Criminal Cases) first published in the former Fifth Circuit in 1978. Two changes deserve special mention. First, there has been an 017 7/2 2 plain English, and the removal of complexity and legal terminology 07/ d we editor of Black’s Law Dictionary, e where possible. Bryan A. Garner, the , vi 226 in this work. Second, because of the 4 has assisted the Committee 16. No developing Supreme Court and Eleventh Circuit case law concerning effort to improve clarity and juror comprehension through the use of the definition of the mens rea required for particular crimes, including the movement away from the traditional dichotomy of general and specific intent crimes and the variety of meanings attributed to “willfully” depending upon the context of a statute, the Committee recommends the elimination of “willfully” from instructions where that term is not employed in the statute. V Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 6 of 677 Additionally, the instructions employ two formulations of a willfulness instruction, a general instruction which can be used in most cases, and a heightened “intentional violation of a legal duty” approach that can be used for statutes, such as tax and currency structuring, which require a particularized knowledge of the law being violated. See, e.g., Dixon v. United States, 548 U.S. 1, 126 S. Ct. 2437, 165 L. Ed. 2d 165 (2006); Bryan v. United States, 524 U.S. 184, 118 S.Ct. 1939, 141 L. Ed. 2d 197 (1998); Ratzlaf v. United States, 510 U.S. 135, 017 7/2 2 U.S. 192, 111 S.Ct. 604, 112 L. Ed. 2d07/ (1991); United States v. 617 d we 62 L. Ed. 2d 575 (1980). Bailey, 444 U.S. 394, 100 S. vie624, , Ct. 226 remained constant: first, to simplify and to 4 The objectives have 16. No of common usage and understanding, a body of brief, provide in words 114 S. Ct. 655, 126 L. Ed. 2d 615 (1994); Cheek v. United States, 498 uniform jury instructions, fully and accurately stating the law without needless repetition; second, to organize the instructions in a sequential format designed to facilitate rapid assembly and reproduction of a complete jury charge in each case, suitable for submission to the jury in written form. As in the 2003 Edition, the instructions have been arranged in four groups: VI Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 7 of 677 A. Preliminary Instructions B. Basic Instructions C. Special Instructions D. Offense Instructions E. Trial Instructions. A. Preliminary Instructions explain basic principles of a criminal trial and the duties of the jury. They are designed to be given after jury selection. They include instruction on juror use of electronic 017 7/2 2 Conference Committee on Court 07/ Administration and Case d weis also included that may be given e Management. An optional instruction , vi 226 rare instance of an anonymous jury. 4 before jury selection in the 16. No Basic Instructions cover in a logical sequence those B. The communications technologies as recommended by the Judicial subjects that should normally be included in the Court's instructions in every case. When necessary, alternate versions of each instruction are provided for selection depending upon the variable circumstances of the individual case, i.e., the election of a defendant to testify or not to testify; the various forms of impeachment frequently consummated during the trial; whether there was expert opinion evidence under FRE 702; whether willfulness is an essential element of any offense charged; VII Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 8 of 677 and whether the case involves single or multiple defendants, and single or multiple counts. C. The Special Instructions cover a number of subjects frequently included in the charge to the jury but may not be necessary in every case. They fall into three groups: (1) Instructions dealing with specific issues concerning the jury's consideration of the evidence such as the testimony of accomplices or informers, and those testifying with grants of immunity or some form of plea agreement; the evaluation of 017 7/2 2 evidence admitted under Fed. R. Evid. 07/ 404(b); and the evaluation of d we frequently given in tandem with e identification testimony. (2) Instructions , vi 226 4 the pertinent Offense Instruction(s) such as the definition of 16. No the concept of criminal agency or aiding and abetting (18 "possession;" confessions or incriminating statements; the evaluation of similar acts U.S.C. § 2); special state of mind instructions such as deliberate ignorance (as proof of knowledge), and intentional violation of a known legal duty (as proof of willfulness). (3) Instructions on theories of defense such as character evidence; entrapment; alibi; insanity; coercion and intimidation; good faith defense to a charge of intent to defraud; and good faith reliance upon advice of counsel. VIII Appeal: 16-4226 Doc: 48-2 D. Filed: 07/27/2017 Pg: 9 of 677 The Offense Instructions cover over 100 of the most frequently prosecuted federal offenses. They are arranged sequentially according to section number in Title 18, United States Code, beginning with 18 USC § 111, Assaulting a Federal Officer. Federal crimes in other titles are arranged sequentially by Title and section number following the instructions under Title 18. These include, primarily, immigration offenses under Title 8; controlled substances offenses under Title 21; and tax offenses under Title 26. 017 7/2 2 a generic description of the nature of 7/ crime followed by an 0 the d we of the offense and the definitions e enumeration of the essential elements , vi 226 employed in the statement of the elements. of the key words or -4 phrases 16 . No Each instruction, when combined with the appropriate Special A separate instruction is provided for each offense beginning with Instruction applicable to the case, is designed to be a complete charge concerning the offense to which it relates. Several instructions have been added to this volume to take into account an increase in federal prosecutions in certain areas. One such area is the prosecution of offenses classified as "Sex Offenses" by the Administrative Office of the U.S. Courts. In fiscal year 2002, immediately prior to the issuance of the last edition of these IX Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 10 of 677 Instructions, the Administrative Office calculated that 1,181 Sex Offense cases were filed in United States District Courts. In fiscal year 2009, that number had grown to 2,808. Of the 6,106 criminal cases filed in the District Courts of the Eleventh Circuit in fiscal year 2009, 294 were classified as Sex Offenses, compared to 159 such cases in 2005. The instructions contained herein are based upon those versions of the Sex Offense statutes in effect on the date of publication. Statutes in this area have been modified several times since the issuance of the last 017 7/2 7/2 to consult advised edition of these Instructions and future modifications are likely. 0 ed Accordingly, courts and counsel are w e , vi 6 these Instructions in conjunction with the version of the statute in effect on the 2 -42 16 date(s) charged in the indictment. . No Trial Instructions include a collection of explanatory E. The instructions frequently stated to the jury during the trial itself and a modified "Allen" charge for use in appropriate circumstances during deliberations when the jury reports an impasse. With respect and appreciation, we acknowledge the leadership and creative skill of Wm. Terrell Hodges who previously chaired this Committee. From its inception as a Committee of the District Judges Association of the Fifth Circuit, Terry, Jimmie Hancock, Avant Edenfied X Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 11 of 677 and others, with the assistance of Barbara Wood, led the nation in developing comprehensive jury instructions for the most frequently prosecuted criminal offenses. We also thank Sylvia Wenger and James Gerstenlauer for their help in preparing this revision. Judge Donald M. Middlebrooks , Chair Judge Inge Johnson , * . Alabama Judge Mark Fuller 17 0Florida 7/2 7/2 , Georgia , Judge Roger Vinson Judge Clay Land e , vi 6 Judge Beverly B. Martin . No 2 -42 16 d we XI 0 , 11th Circuit Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 12 of 677 Directions For Use In preparing a complete jury charge, one should first refer to the Index of the Basic Instructions and, proceeding sequentially from one instruction to the next beginning with Basic Instruction 1, select the instruction or alternative version of each instruction that fits the case. At the appropriate point in the assembly of the charge, directions are 017 7/2 incorporation of 2 the Offense Instructions, respectively, for selection and 07/ ed wsources. the applicable charges from those e , vi 226 After the complete package of instructions has been assembled 4 16. in that manner, the Offense Instructions included in the charge should No given in the Index to refer to the indices of the Special Instructions and be carefully reviewed to determine whether editing will be required to tailor the particular instruction to the case. Many of the Offense Instructions contain bracketed material consisting of examples or alternative statements that may or may not apply in a particular case. Such material must be edited and tailored to fit the case, and the brackets must be removed. XII Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 13 of 677 SUMMARY OF CONTENTS PRELIMINARY INSTRUCTIONS New Inst. # Old Inst. # Page 1 -- Preliminary Instructions - Criminal Cases 2 2 -- Preliminary Instructions - Anonymous Jury 11 Basic Instructions 1 1 Face Page- Introduction ------------------------------------------------------ 17 2.1 2.1 Duty to Follow Instructions and the Presumption of Innocence ---- 18 2.2 2.2 Duty to Follow Instructions and the Presumption of Innocence When a Defendant does not Testify --------------------------------------- 19 3 3 4 4.1 & 4.2 5 5 6.1 6.1 6.2 6.2 017 Definition of Reasonable Doubt -------------------------------------------7/2 2 Consideration of Direct and Circumstantial Evidence; Argument 07/ d of Counsel; Comments by Court ------------------------------------------we e , vi Credibility of Witnesses ------------------------------------------------------226 4 16Impeachment of Witnesses Because of Inconsistent Statements . No Impeachment of Witnesses Because of Inconsistent Statements 20 21 23 24 or Felony Conviction ----------------------------------------------------------6.3 6.4 6.5 6.6 6.3 6.4 6.5 6.6 25 Impeachment of Witnesses Because of Inconsistent Statements (Defendant with no Felony Conviction Testifies) ----------------------- 26 Impeachment of Witnesses Because of Inconsistent Statements (Defendant with Felony Conviction Testifies) --------------------------- 27 Impeachment of Witnesses Because of Inconsistent Statements or Felony Conviction (Defendant with no Felony Conviction Testifies) -------------------------------------------------------------------------- 29 Impeachment of Witnesses Because of Inconsistent Statements or Felony Conviction (Defendant with Felony Conviction Testifies) -------------------------------------------------------------------------- 30 XIII Appeal: 16-4226 New Inst.# 6.7 Doc: 48-2 Filed: 07/27/2017 Pg: 14 of 677 Old Inst.# 6.7 Page Impeachment of Witness Because of Bad Reputation for (or Opinion about) Truthfulness ------------------------------------------------- 32 7 7 Expert Witnesses --------------------------------------------------------------- 33 8 8 Introduction to Offense Instructions --------------------------------------- 34 9.1 A 9.1 On or About; Knowingly; Willfully - Generally --------------------------- 35 9.1 B -- On or About; Knowingly; Willfully - Intentional Violation of a Known Legal Duty--------------------------------------------------------------- 38 9.2 9.2 On or About a Particular Date; Knowingly-------------------------------- 39 10.1 10.1 Caution: Punishment (Single Defendant, Single Count) ------------- 40 10.2 10.2 Caution: Punishment (Single Defendant, Multiple Counts) --------- 41 10.3 10.3 10.4 10.4 11 11 12 12 Caution: Punishment (Multiple Defendants, Single Count) --------017 7/2 counts) ------2 Caution: Punishment (Multiple Defendants,/Multiple 07 d Duty to Deliberate -------------------------------------------------------------we e Verdict ----------------------------------------------------------------------------, vi 226 4 16- S . I No 42 43 44 45 PECIAL NSTRUCTIONS 1.1 1.1 Testimony of Accomplice, Informer, or Witness with Immunity ---- 51 1.2 1.2 Testimony of Accomplice or Codefendant with Plea Agreement -- 52 1.3 1.3 Testimony of Accomplice, Witness Using Addictive Drugs, or Witness with Immunity -------------------------------------------------------- 53 2.1 2.1 Confession or Statement of a Single Defendant ----------------------- 54 2.2 2.2 Confession or Statement (Multiple Defendants) ----------------------- 55 3 3 Identification Testimony ------------------------------------------------------- 56 4 4 Similar Acts Evidence (Rule 404(b), Fed. R. Evid.) ------------------- 58 5 5 Note-taking ----------------------------------------------------------------------- 60 XIV Appeal: 16-4226 New Inst.# Doc: 48-2 Filed: 07/27/2017 Pg: 15 of 677 Old Inst.# Page SPECIAL INSTRUCTIONS 6 - 11 SHOULD BE USED, AS APPROPRIATE, AFTER THE OFFENSE INSTRUCTIONS 6 6 Possession ----------------------------------------------------------------------- 61 7 7 Aiding and Abetting (Agency) (18 U.S.C. § 2) -------------------------- 62 8 8 Deliberate Ignorance as Proof of Knowledge --------------------------- 64 9 9 Good-Faith Defense to Willfulness (as Under the Internal Revenue Code) ----------------------------------------------------------------- 66 10.1 10 Lesser Included Offense (Single) ------------------------------------------ 68 10.2 -- Lesser Included Offense (Multiple) ---------------------------------------- 70 11 11 Attempt(s) ------------------------------------------------------------------------- 72 017 7/2 7/2 SPECIAL INSTRUCTIONS 12 THROUGH 18 OR OTHER THEORY OF DEFENSE INSTRUCTIONS SHOULD BE USED AS APPROPRIATE AFTER THE OFFENSE INSTRUCTIONS 0 ed Character Evidence -----------------------------------------------------------w vie Entrapment ----------------------------------------------------------------------26, -42 Entrapment; Evaluating Conduct of Government Agents ----------. 16 Alibi -------------------------------------------------------------------------------No 74 12 12 73 13.1 13.1 13.2 13.2 14 14 15 15 Insanity ---------------------------------------------------------------------------- 79 16 16 Duress and Coercion (Justification or Necessity) ---------------------- 81 17 17 Good-Faith Defense to Charge of Intent to Defraud ------------------ 84 18 18 Good-Faith Reliance upon Advice of Counsel -------------------------- 85 76 78 OFFENSE INSTRUCTIONS 1.1 1.2 1.1 1.2 Forcibly Assualting a Federal Officer: Without Use of a Deadly Weapon – Felony Offense 18 USC § 111(a)(1) ---------------------Forcibly Assualting a Federal Officer: With Use of a Deadly Weapon or Inflicting Bodily Injury 18 USC § 111(b) ----------------XV 106 108 Appeal: 16-4226 Doc: 48-2 New Inst.# 2 Pg: 16 of 677 Old Inst.# 2 Filed: 07/27/2017 Page Concealment of Property Belonging to the Estate of a Bankruptcy Debtor 18 USC § 152(1) ------------------------------------- 111 3 3 Presenting or Using a False Claim in a Bankruptcy Proceeding 18 USC § 152(4) --------------------------------------------------------------- 115 4 4 Embezzlement of a Bankruptcy Estate 18 USC § 153 -------------- 117 5.1 5.1 Bribery of Public Official or Juror 18 USC § 201(b)(1) -------------- 119 5.2 5.2 Receipt of a Bribe by a Public Official or Juror 18 USC § 201(b)(2) ------------------------------------------------------------------------- 121 6.1 6.1 Bribery of a Bank Officer 18 USC § 215(a)(1) ------------------------- 123 6.2 6.2 Receipt of a Bribe or Reward by a Bank Officer 18 USC §215(a)(2)------------------------------------------------------------------------ 125 Failure to Pay Child Support 18 USC § 228(a)(3) -------------------- 127 7 7 8 8 9 9 10.1 10.1 10.2 11.1 10.2 11.1 017 Deprivation of Rights (Without Bodily Injury, Kidnapping, Sexual 7/2 2 Assault, or Death) 18 USC § 242 ------------------------------07/ d Damage to Religious Property 18 USC § 247 (a)(1) & (d)(2) we vie ,Reproductive Health Services: Freedom of Access to 6 Intimidation or422 of a Person 18 USC § 248(a)(1) -------------Injury 61of Access to Reproductive Health Services: Damage Freedom . to a Facility 18 USC § 248(a)(3) ------------------------------------------No 129 132 135 137 Conspiracy to Defraud the Government with Respect to Claims 18 USC § 286 ------------------------------------------------------------------ 139 11.2 11.2 False Claims Against the Government 18 USC § 287 -------------- 142 12 12 Presenting False Declaration or Certification 18 USC § 289 ------ 145 13.1 13.1 General Conspiracy Charge 18 USC § 371 ---------------------------- 147 13.2 13.2 Multiple Objects of a Conspiracy – for use with General Conspiracy Charge 18 USC § 371 --------------------------------------- 150 Multiple Conspiracies – for use with General Conspiracy Charge 18 USC § 371 ------------------------------------------------------------------ 151 Withdrawal from a Conspiracy – for use with General Conspiracy Charge 18 USC 371 ------------------------------------------ 152 13.3 13.4 13.3 13.4 XVI Appeal: 16-4226 New Inst.# Doc: 48-2 Filed: 07/27/2017 Pg: 17 of 677 Old Inst.# Page 13.5 13.5 Pinkerton Instruction, [Pinkerton v. U.S., 328 U.S. 640 (1946) ] - 154 13.6 13.6 Conspiracy to Defraud the United States 18 USC § 371 (Second Clause) --------------------------------------------------------------------------- 155 14 14 Counterfeiting 18 USC § 471 ---------------------------------------------- 158 15.1 15.1 Possession of Counterfeit Notes 18 USC 472 ------------------------ 160 15.2 15.2 Counterfeit Notes: Passing or Uttering 18 USC § 472 -------------- 161 16 16 Counterfeit Notes: Dealing 18 USC § 473 ------------------------------ 163 17 17 Counterfeit Notes: Possession of Notes Made after the Similitude of Genuine Notes 18 USC § 474(a) ------------------------ 165 18.1 18.1 Forgery: Endorsement of a Government Check 18 USC § 495 or 510(a)(1) --------------------------------------------------------------------- 18.2 18.2 Forgery: Uttering a Forged Endorsement 18 USC § 495 or 510(a)(2) ------------------------------------------------------------------------- d we 017 7/2 7/2 0 168 18.3 --- 19 19 20 20 21 21 22 22 Theft or Embezzlement by Bank Employee 18 USC § 656 -------- 180 23.1 23.1 Theft from Interstate Shipment 18 USC § 659 ------------------------ 182 23.2 23.2 Buying or Receiving Goods Stolen from an Interstate Shipment 18 USC § 659 ------------------------------------------------------------------ 184 24.1 24 Bribery Concerning a (Non-Governmental) Program Receiving Federal Funds 18 USC § 666(a)(1)(B) ---------------------------------- 187 Bribery Concerning a (Governmental) Program Receiving Federal Funds 18 USC § 666(a)(1)(B) ---------------------------------- 189 24.2 --- Counterfeit or Forged Securities 18 USC § 513(a) ------------------------ 166 ie ,18vUSC § 521 -----------------------------------Criminal Street Gangs 22§6545 --------------------------------------------------Smuggling6-4 1 18 USC . Theft of Government Money or Property 18 USC § 641 -----------No 170 173 175 177 25 25 Escape 18 USC § 751(a) ---------------------------------------------------- 192 26 26 Instigating or Assisting an Escape 18 USC § 752(a) ---------------- 194 XVII Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 18 of 677 New Inst.# Old Inst.# 27 27 Making Threats by Mail or Telephone 18 USC 844(e) -------------- 196 28 28 Federal Arson Statute 18 USC § 844(i) --------------------------------- 198 29 29 Threats Against the President 18 USC § 871 ------------------------- 200 30.1 30.1 Interstate Transmission of a Demand for Ransom for Return of Kidnapped Person 18 USC § 875(a) ------------------------------------- 202 Interstate Transmission of an Extortionate Communication 18 USC § 875(b) ------------------------------------------------------------------- 204 Interstate Transmission of Threat to Kidnap or Injure 18 USC § 875(c) ---------------------------------------------------------------------------- 207 Interstate Transmission of an Extortionate Communication 18 USC § 875(d) ------------------------------------------------------------------- 209 Mailing Threatening Communications (First Paragraph) 18 USC § 876 ------------------------------------------------------------------------------ 212 30.2 30.3 30.4 31.1 31.2 31.3 31.4 30.2 30.3 30.4 31.1 31.2 31.3 31.4 32 32 33 33 Page 017 7/2 2 Mailing Threatening Communications (Second Paragraph) 18 07/ USC § 876 ----------------------------------------------------------------------d we (Third Paragraph) 18 USC e Mailing Threatening Communications , vi § 876 -----------------------------------------------------------------------------226 4 Mailing Threatening Communications (Fourth Paragraph) 18 16USC §.876 ----------------------------------------------------------------------No 214 217 219 False Impersonation of a Citizen 18 USC § 911 ---------------------- 222 False Impersonation of an Officer of the United States 18 USC § 912 ----------------------------------------------------------------------------- 224 34.1 34.1 Dealing in Firearms without a License 18 USC § 922(a)(1)(A) --- 226 34.2 34.2 Transfer of Firearm to Nonresident 18 USC § 922(a)(5) ----------- 228 34.3 34.3 False Statement to Firearms Dealer 18 USC § 922(a)(6) ---------- 230 34.4 34.4 Failure of Firearms Dealer to Keep Proper Record of Sale 18 USC § 922(b)(5) --------------------------------------------------------------- 232 34.5 34.5 Sale of Firearm to Convicted Felon 18 USC § 922(d)(1) ----------- 234 34.6 34.6 Possession of Firearm by a Convicted Felon 18 USC §922(g)(1) 236 XVIII Appeal: 16-4226 New Inst.# Doc: 48-2 Filed: 07/27/2017 Pg: 19 of 677 Old Inst.# Page 34.7 34.7 False Entry in a Record by a Firearms Dealer 18 USC § 922(m)- 239 34.8 34.8 Possession of a Machine Gun 18 USC § 922(o)(1) ------------------ 240 35.1 35.1 False Statement with Respect to Information Required to be Kept by a Firearms Dealer 18 USC § 924(a)(1)(A) ------------------- 241 Carrying/Possessing a Firearm During or in Furtherance of a Drug Trafficking Offense or Crime of Violence 18 USC § 924(c)(1)(A) --------------------------------------------------------------------- 243 35.2 35.2 36 36 False Statement to a Federal Agency 18 USC § 1001 -------------- 247 37 37 False Entry in Bank Records 18 USC § 1005 ------------------------- 250 38 38 False Statements in Department of Housing and Urban Development and Federal Housing Administration Transactions 18 USC § 1010 ---------------------------------------------------------------- 252 39 39 40.1 40.1 40.2 40.2 40.3 --- 41.1 41.1 41.2 42.1 42.2 42.3 42.4 43 41.2 42.1 42.2 42.3 42.4 43 017 False Statement to a Federally Insured Institution 18 USC 7/2 § 1014 ---------------------------------------------------------------------------2 07/ False Identification Documents 18 d e USC § 1028(a)(3) --------------w18 USC § 1028(a)(4) --------------e False Identification Documents , vi Aggravated Identity Theft 18 USC § 1028A(a)(1) -------------------226 4 16- of Counterfeit Credit Card or Other Access Fraudulent Use . Devices 18 USC § 1029(a)(1) ---------------------------------------------No 263 Fraudulent Use of Unauthorized Credit Card or Other Access Devices 18 USC § 1029(a)(2) ---------------------------------------------- 266 Computer Fraud: Injury to the United States 18 USC § 1030(a)(1) ----------------------------------------------------------------------- 270 Computer Fraud: Obtaining Financial Information 18 USC § 1030(a)(2) & (c)(2)(B) -------------------------------------------------------- 273 Computer Fraud: Causing Damage to Computer or Program 18 USC § 1030(a)(5) (A) & (B) ------------------------------------------------- 276 Computer Fraud: Trafficking in Passwords 18 USC § 1030(a)(6) (A) & (B) -------------------------------------------------------------------------- 279 Major Fraud Against the United States 18 USC § 1031 ------------ 282 XIX 254 256 259 261 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 20 of 677 New Inst.# Old Inst.# 44 44 Transmission of Wagering Information 18 USC § 1084 ------------ 285 45.1 45.1 First Degree Murder: Premeditated Murder 18 USC § 1111 ------ 287 45.2 45.2 First Degree Murder (Felony Murder) 18 USC § 1111 -------------- 289 45.3 45.3 Second Degree Murder 18 USC § 1111 -------------------------------- 291 46.1 46.1 Voluntary Manslaughter 18 USC § 1112 -------------------------------- 295 46.2 46.2 Involuntary Manslaughter 18 USC 1112 -------------------------------- 298 47 47 Attempted Murder 18 USC § 1113 --------------------------------------- 301 48 48 Killing or Attempting to Kill a Federal Officer or Employee 18 USC § 1114 --------------------------------------------------------------------- 303 Kidnapping 18 USC § 1201(a)(1) ----------------------------------------- 304 Mail Fraud 18 USC § 1341 ------------------------------------------------- 307 49 49 50.1 50.1 50.2 50.2 Page 017 /2 Mail Fraud: Depriving Another of Intangible27 of Honest Right Services 18 USC § 1341 & 1346 -----------------------------------------07/ ed Wire Fraud 18 USC §1343 ew ------------------------------------------------vi ,1344 -----------------------------------------------Bank Fraud 18 USC 6 22 § 4 Health Care 16Fraud 18 USC § 1347 --------------------------------------. Conspiracy to Commit [Mail] Fraud 18 USC § 1349 ----------------No 312 51 51 52 52 53 --- 54 --- 55 53 Mailing Obscene Material 18 USC § 1461 ----------------------------- 330 56 54 Interstate Transportation of Obscene Materials by Common Carrier 18 USC § 1462 ------------------------------------------------------ 336 Interstate Transportation of Obscene Materials for Purposes of Sale or Distribtuion 18 USC § 1465 -------------------------------------- 341 57 55 317 322 325 328 58.1 56.1 Obstruction of Justice: Omnibus Clause 18 USC § 1503 ---------- 347 58.2 56.2 Corruptly Influencing a Juror 18 USC § 1503 -------------------------- 349 58.3 56.3 Threatening a Juror 18 USC § 1503 ------------------------------------- 351 59.1 57.1 Killing a Witness 18 USC § 1512(a)(1)(A) ------------------------------ 353 59.2 57.2 Tampering with a Witness 18 USC § 1512(b)(1) --------------------- 354 XX Appeal: 16-4226 Doc: 48-2 New Inst.# --- Pg: 21 of 677 Old Inst.# 60 Filed: 07/27/2017 Page False Statement in Application and Use of Passport 18 USC § 1542 ------------------------------------------------------------------------------- 356 61 58 Possession or Use of a False Visa 18 USC § 1546(a) -------------- 358 62 59 Involuntary Servitude and Peonage 18 USC § 1581 & 1584 ------ 360 63 --- Sex Trafficking of Children by Force, Fraud, or Coercion 18 USC §1591(a) ------------------------------------------------------------------ 363 64 60 False Declaration Before a Grand Jury 18 USC § 1623(a) -------- 367 65 61 Obstruction of Correspondence – Taking of Mail 18 USC § 1702 369 66.1 62.1 Theft of Mail 18 USC § 1708 ----------------------------------------------- 371 66.2 62.2 Possession of Stolen Mail 18 USC § 1708 ----------------------------- 373 67 63 Theft of Mail Matter by Postal Service Employee 18 USC § 1709 375 68.1 64.1 Providing Contraband to a Federal Prisoner 18 USC § 1791(a)(1) ----------------------------------------------------------------------- 377 Possession of Contraband by a Federal Prisoner 18 USC § 1791(a)(2) ----------------------------------------------------------------------- 379 68.2 69 70.1 70.2 70.3 64.2 65 66.1 66.2 66.3 d e ew i / /27 07 017 2 6, v Federal Workers’ Compensation False Statement22 Regarding Benefits 18 USC § 1920 -----------------------------------------------------4 . 16with Commerce by Extortion - Hobbs Act: Interference No Racketeering (Force or Threats of Force) 18 USC § 1951(a) ----- 382 384 Interference with Commerce by Extortion - Hobbs Act: Racketeering (Color of Official Right) 18 USC § 1951(a) ---------- 387 Interference with Commerce by Extortion - Hobbs Act: Racketeering (Robbery) 18 USC § 1951(a) ---------------------------- 390 71 67 Interstate Travel in Aid of Racketeering 18 USC § 1952(a)(3) ---- 392 72 68 Interstate Transportation of Wagering Paraphernalia 18 USC § 1953 ---------------------------------------------------------------------------- 395 73 69 Illegal Gambling Business 18 USC § 1955 ----------------------------- 397 74.1 70.1 Money Laundering: Promoting Unlawful Activity 18 USC § 1956 (a)(1)(A)(i) ----------------------------------------------------------------------- 400 XXI Appeal: 16-4226 New Inst.# 74.2 74.3 74.4 Doc: 48-2 Filed: 07/27/2017 Pg: 22 of 677 Old Inst.# 70.2 70.3 70.4 Page Money Laundering: Concealing Proceeds of Specified Unlawful Activity or Avoiding Transaction Reporting Requirement 18 USC § 1956(a)(1)(B)(i)&(ii) --------------------------------------------------------- 404 Money Laundering: International Transportation of Monetary Instruments 18 USC § 1956(a)(2)(A) ------------------------------------ 409 Money Laundering Sting 18 USC § 1956(a)(3)(A) or (a)(3)(b) or (a)(3)(c) -------------------------------------------------------------------------- 412 74.5 70.5 Money Laundering Conspiracy 18 USC § 1956(h) ------------------- 416 74.6 70.6 Money Laundering 18 USC § 1957 --------------------------------------- 419 75.1 71.1 RICO - Substantive Offense 18 USC § 1962(c) ---------------------- 422 75.2 71.2 RICO - Conspiracy Offense 18 USC § 1962(d) ----------------------- 426 76.1 72.1 Bank Robbery (Subsection (a) Only) 18 USC § 2113(a) ----------- 429 76.2 72.2 76.3 72.3 76.4 72.4 77 --- 78 73 79.1 74 79.2 79.3 79.4 ------- 017 Bank Robbery (Subsections (a) and (d) Alleged/in Separate 72 2 Counts) 18 USC § 2113(a) & (d) -----------------------------------------07/ ed Bank Robbery (Subsections (a) and (d) Alleged in the same w------------------------------------------Count) 18 USC § 2113(a) &e , vi (d) 6 Bank Robbery422 (Subsection (e) Only ) 18 USC § 2113(e) ---------16- Property Robbery 18 USC § 2114(a) ---------Armed.Postal/U.S. No Vehicles: “Carjacking” 18 USC § 2119 -------------------------Motor 432 435 439 441 444 Aggravated Sexual Abuse: by Force or Threat 18 USC § 2241(a) ------------------------------------------------------------------------ 447 Aggravated Sexual Abuse: Crossing a State Line with the Intent to Engage in a Sexual Act with Child Under 12 18 USC §2241(c) 449 Aggravated Sexual Abuse: Sexual Act with a Child Under 12 18 USC § 2241(c) ----------------------------------------------------------------- 452 Aggravated Sexual Abuse: Sexual Act with Child Between 12 and 16 18 USC § 2241(c) --------------------------------------------------- 454 80 --- Sexual Abuse of a Minor 18 USC § 2241(c) --------------------------- 457 81.1 --- Abusive Sexual Contact 18 USC § 2244(a)(3) ------------------------ 460 XXII Appeal: 16-4226 New Inst.# 81.2 Doc: 48-2 Filed: 07/27/2017 Pg: 23 of 677 Old Inst.# 83.1 83.2 --75.1 75.2 83.3 A 75.3 83.3 B --- 83.4 A 83.4 B 84 75.4 --- --- Abusive Sexual Contact: Sexual Contact with Child Under 12 18 USC § 2244(a)(3) ------------------------------------------------------------- 463 Sexual Exploitation of Children Producing Child Pornography 18 USC § 2251(a) ----------------------------------------------------------------- 466 Transporting or Shipping Material Involving Sexual Exploitation of Minors 18 USC § 2252(a)(1) -------------------------------------------- 471 Receiving and Distributing Material Involving Sexual Exploitation of Minors 18 USC § 2252(a)(2) -------------------------------------------- 475 Child Pornography: Transporting or Shipping (Visual Depiction of Actual Minor) 18 USC § 2252A(a)(1) -------------------------------- 479 Child Pornography: Transporting or Shipping (Computer or Digital Image that Appears Indistinguishable from Actual Minor but may not be of an Actual Person) 18 USC § 2252A(a)(1) ------ 484 Child Pornography: Receiving, Possessing and Distributing (Visual Depiction of Actual Minor) 18 USC § 2252A(a)(2)(A) & (5)(B) ------------------------------------------------------------------------------ 489 Child Pornography: Receiving, Possessing and Distributing (Computer or Digital Image that Appears Indistinguishable from Actual Minor but may not be of an Actual Person) 18 USC § 2252A(a)(2)(A) & (5)(B) ------------------------------------------------------ 495 or Nuclear Materials 18 USC § 2283(a) --------------------------------- 82 --- Page 501 d we e , vi 226 / /27 07 017 2 4 16. No Transportation of Explosive, Biological, Chemical or Radioactive 85 --- Transportation of Terrorists 18 USC § 2284(a) ----------------------- 504 86 76 Interstate Transportation of a Stolen Motor Vehicle 18 USC § 2312 ---------------------------------------------------------------------------- 506 87 77 Sale or Receipt of a Stolen Motor Vehicle 18 USC § 2313 -------- 508 88.1 78.1 Interstate Transportation of a Stolen Motor Vehicle 18 USC § 2314 ---------------------------------------------------------------------------- 511 Causing Interstate Travel in Execution of a Scheme to Defraud 18 USC § 2314 ----------------------------------------------------------------- 513 Sale or Receipt of Stolen Property (First Paragraph) 18 USC § 2315----------------------------------------------------------------------------- 515 88.2 89 78.2 79 XXIII Appeal: 16-4226 Doc: 48-2 New Inst.# --- Pg: 24 of 677 Old Inst.# 90 Filed: 07/27/2017 Page Use of Weapons of Mass Destruction Against Person or Property in the United States 18 USC § 2332a(a)(2) ---------------- 517 91.1 --- Providing Material Support to Terrorists 18 USC § 2339A --------- 520 91.2 --- Providing Material Support or Resources to Designated Foreign Terrorist Organizations 18 USC § 2339B ------------------------------- 522 Inducement of Juvenile to Travel to Engage in Criminal Sexual Activity 18 USC § 2422(a) -------------------------------------------------- 525 Coercion and Enticement of a Minor to Engage in Sexual Activity 18 USC § 2422(b) -------------------------------------------------- 528 Transportation with Intent to Engage in Criminal Sexual Activity 18 USC § 2423(a) ------------------------------------------------------------- 531 92.1 92.2 93.1 93.2 93.3 93.4 --80 --------- 94 81 95 82 96.1 83.1 96.2 017 7/2 Engaging in Illicit Sexual Conduct in a Foreign Place 18 USC 2 §2423(c) ------------------------------------------------------------------------07/ d we Facilitating Travel of Another to Engage in Illicit Sexual Conduct e 18 USC § 2423(d) ------------------------------------------------------------, vi 226 Failure to Appear (Bail Jumping) -----------------------------------------4 16. Unlawful Possession of Food Stamps 7 USC § 2024(b) ----------No Travel with Intent to Engage in Illicit Sexual Conduct 18 USC § 2423(a) --------------------------------------------------------------------------- 534 538 542 547 549 Bringing Aliens into the United States 8 USC § 1324(a)(1)(A)(i) - 551 83.2 Unlawfully Transporting Aliens 8 USC § 1324(a)(1)(A)(ii) ---------- 553 96.3 83.3 Concealing or Harboring Aliens 8 USC § 1324(a)(1)(A)(iii) -------- 556 97 84 Illegal Entry by Deported Alien 8 USC § 1326 ------------------------- 558 98 85 Controlled Substances: Possession with Intent to Distribute 21 USC § 841(a)(1) --------------------------------------------------------------- 561 Controlled Substances: Unlawful Use of Communications Facility 21 USC § 843(b) ---------------------------------------------------- 564 Controlled Substances: Conspiracy 21 USC § 846, 955c and/or 963 -------------------------------------------------------------------------------- 566 Withdrawal as a Defense to Conspiracy - Quantity of Drugs ------ 570 99 100 101.1 86 87 --- XXIV Appeal: 16-4226 New Inst.# 101.2 102.1 102.2 103 Doc: 48-2 Filed: 07/27/2017 Pg: 25 of 677 Old Inst.# --88.1 88.2 89 Page Withdrawal as a Defense to Conspiracy Based on the Statute of Limitations ----------------------------------------------------------------------- 573 Controlled Substances: Continuing Criminal Enterprise 21 USC § 848 ------------------------------------------------------------------------------ 575 Controlled Substances: Continuing Criminal Enterprise - Murder 21 USC § 848(e) --------------------------------------------------------------- 579 Possession of Controlled Substances Near Schools or Public Housing 21 USC § 860 ----------------------------------------------------- 581 104 90 Controlled Substances: Importation 21 USC § 952(a) -------------- 583 105 91 Possession or Transfer of Non-Tax-Paid Distilled Spirits 26 USC § 5604(a)(1) & 5301(d) ------------------------------------------------------ 585 107.1 93.1 107.2 93.2 107.3 93.3 17 0Serial Possession of Firearm having Altered or Obliterated 7/2 Number 26 USC § 5861(h) ------------------------------------------------2 07/ by a Serial Possession or Receipt of Firearm not Identified d we Number 26 USC § 5861(i) -------------------------------------------------e , vi 26 USC § 7201 -----------------------Tax Evasion: General Charge 226 4 Net Worth 61 Method ------------------------------------------------------------. Bank Deposits Method ------------------------------------------------------No 107.4 93.4 Cash Expenditures Method ------------------------------------------------- 599 108 94 Failure to File a Tax Return 26 USC § 7203 --------------------------- 602 109.1 95 Filing a False Tax-Related Document 26 USC § 7206(a) ---------- 605 109.2 --- Aiding or Assisting in Preparation of False Documents Under Internal Revenue Laws 26 USC § 7206(c) ----------------------------- 607 106.1 92.1 106.2 92.2 106.3 --- Possession of Unregistered Firearm 26 USC § 5861(d) ------------ 587 589 590 591 594 597 110 96 False Tax Return 26 USC § 7207 ---------------------------------------- 609 111 97 Impeding Internal Revenue Service 26 USC § 7212(a) ------------- 611 112 98 Evading Currency-Transaction Reporting Requirement (While Violating Another Law by Structuring Transaction) 31 USC §§ 5322(b) & 5324(3) ------------------------------------------------------------- 613 XXV Appeal: 16-4226 New Inst.# 113 Doc: 48-2 Filed: 07/27/2017 Pg: 26 of 677 Old Inst.# --- Page Knowing Discharge of a Pollutant in Violation of the Clean Water Act 33 USC §§ 1311(a) & 1319(c)(2)(A) --------------------- 615 114 99 Fraudulent Receipt of V.A. Benefits 38 USC § 6102(b) ------------ 618 115 100 Falsely Representing a Social Security Number 42 USC § 408(a)(7)(B) ------------------------------------------------------------------ 619 Forceful Intimidation Because of Race: Occupancy of Dwelling (No Bodily Injury) 42 USC § 3631 ----------------------------------------- 620 Controlled Substances: Possession on United States Vessel 46 USC § 1903(a) ---------------------------------------------------------------- 622 Assaulting or Intimidating a Flight Crew of an Aircraft in United States without Dangerous Weapon 49 USC § 46504 --------------- 627 116 117 118 119 101 102 103 104 017 7/2 7/2 Attempting to Board Air Craft with Concealed Weapon or Explosive Device 49 USC § 46505(b) ----------------------------------- d we e , vi 226 4 16. No XXVI 0 629 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 27 of 677 PATTERN JURY INSTRUCTIONS (CRIMINAL CASES) _______________________ 017 /2 PRELIMINARY INSTRUCTIONS7 2 07/ d we e , vi 226 6-4 o. 1 N 1 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 28 of 677 1 Preliminary Instructions Members of the Jury: Now that you have been sworn, I need to explain some basic principles about a criminal trial and your duty as jurors. These are preliminary instructions. At the end of the trial I will give you more detailed instructions. Duty of jury: It will be your duty to decide what happened so you can determine 017 7/2 2 indictment. At the end of the trial, I will explain 7/ law that you must follow 0the d we as I explain it to you even if you to reach your verdict. You must followe law , vi the 226 4 do not agree with the law. 16. No What is evidence: whether the defendant is guilty or not guilty of the crime charged in the You must decide the case solely on the evidence presented here in the courtroom. Evidence can come in many forms. It can be testimony about what someone saw or heard or smelled. It can be an exhibit admitted into evidence. It can be someone’s opinion. Some evidence proves a fact indirectly, such as a witness who saw wet grass outside and people walking into the courthouse carrying wet umbrellas. Indirect evidence, sometimes 2 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 29 of 677 called circumstantial evidence, is simply a chain of circumstances that proves a fact. As far as the law is concerned, it makes no difference whether evidence is direct or indirect. You may choose to believe or disbelieve either kind and should give every piece of evidence whatever weight you think it deserves. What is not evidence: Certain things are not evidence and must not be considered. I will list them for you now: • • 017 7/2 7/2 Statements and arguments of the lawyers. In their opening statements and closing arguments, the lawyers will discuss the case, but their remarks are not evidence; d we e , vi 226 0 Questions and objections of the lawyers. The lawyers’ questions are not evidence. Only the witnesses’ answers are evidence. You should not think that something is true just because a lawyer’s question suggests that it is. For instance, if a lawyer asks a witness, “you saw the defendant hit his sister, didn’t you?” – that question is no evidence whatsoever of what the witness saw or what the defendant did, unless the witness agrees with it. 4 16. No There are rules of evidence that control what can be received into evidence. When a lawyer asks a question or offers an exhibit and a lawyer on the other side thinks that it is not permitted by the rules of evidence, that lawyer may object. If I overrule the objection, then the question may be answered or the exhibit received. If I sustain the objection, then the question 3 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 30 of 677 cannot be answered, and the exhibit cannot be received. Whenever I sustain an objection to a question, you must ignore the question and not try to guess what the answer would have been. Sometimes I may order that evidence be stricken and that you disregard or ignore the evidence. That means that when you are deciding the case, you must not consider that evidence. Some evidence is admitted only for a limited purpose. When I instruct you that an item of evidence has been admitted for a limited purpose, you 017 7/2 7/2 must consider it only for that limited purpose and no other. Credibility of witnesses: d we e , vi 226 0 In reaching your verdict, you may have to decide what testimony to 4 16. No of it, or none of it. witness says, or part believe and what testimony not to believe. You may believe everything a In considering the testimony of any witness, you may take into account: • The opportunity and ability of the witness to see or hear or know the things testified to; • The witness’s memory; • The witness’s manner while testifying; • The witness’s interest in the outcome of the case and any bias or prejudice; 4 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 31 of 677 • Whether other evidence contradicted the witness’s testimony; • The reasonableness of the witness’s testimony in light of all the evidence; and • Any other factors that bear on believability. I will give you additional guidelines for determining credibility of witnesses at the end of the case. Rules for criminal cases: As you know, this is a criminal case. There are three basic rules about a 017 guilty. The / First, the defendant is presumed innocent until 2 /27 proven 07 dby the government is only an indictment against the defendant brought e ew ,noti proof of guilt or anything else. The 6 v accusation, nothing more. It2is -42 defendant therefore starts out with a clean slate. . 16 No criminal case that you must keep in mind. Second, the burden of proof is on the government until the very end of the case. The defendant has no burden to prove [his] [her] innocence or to present any evidence, or to testify. Since the defendant has the right to remain silent and may choose whether to testify, you cannot legally put any weight on a defendant’s choice not to testify. It is not evidence. Third, the government must prove the defendant’s guilt beyond a reasonable doubt. I will give you further instructions on this point later, but 5 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 32 of 677 bear in mind that the level of proof required is high. Conduct of the jury: Our law requires jurors to follow certain instructions regarding their personal conduct in order to help assure a just and fair trial. I will now give you those instructions: 1. 2. 3. Do not talk, either among yourselves or with anyone else, about anything related to the case. You may tell the people with whom you live and your employer that you are a juror and give them information about when you will be required to be in court, but you may not discuss with them or anyone else anything related to the case. 017 agree to Do not, at any time during the trial, request, accept, 7/2 2 accept, or discuss with any person,/ any type of payment or 07 benefit in return for supplying ed information about the trial. any ew ,telli me about any incident you know of 6 v You must promptly 2 involving an attempt by any person to improperly influence you or -42 any member of the jury. . 16 No 4. Do not visit or view the premises or place where the charged crime was allegedly committed, or any other premises or place involved in the case. And you must not use Internet maps or Google Earth or any other program or device to search for a view of any location discussed in the testimony. 5. Do not read, watch, or listen to any accounts or discussions related to the case which may be reported by newspapers, television, radio, the Internet, or any other news media. 6. Do not attempt to research any fact, issue, or law related to this case, whether by discussions with others, by library or Internet research, or by any other means or source. 6 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 33 of 677 In this age of instant electronic communication and research, I want to emphasize that in addition to not talking face to face with anyone about the case, you must not communicate with anyone about the case by any other means, including by telephone, text messages, email, Internet chat, chat rooms, blogs, or social-networking websites such as Facebook, My Space, or Twitter. You must not provide any information about the case to anyone by any means whatsoever, and that includes posting information about the case, or 017 7/2 2 chat rooms, social websites, or any other means. / 07 d we e You also must not use Googleior otherwise search for any information ,v 226 4 about the case, or the law that applies to the case, or the people involved in 16. No the defendant, the witnesses, the lawyers, or the judge. the case, including what you are doing in the case, on any device or Internet site, including blogs, It is important that you understand why these rules exist and why they are so important: Our law does not permit jurors to talk with anyone else about the case, or to permit anyone to talk to them about the case, because only jurors are authorized to render a verdict. Only you have been found to be fair and only you have promised to be fair – no one else is so qualified. 7 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 34 of 677 Our law also does not permit jurors to talk among themselves about the case until the court tells them to begin deliberations, because premature discussions can lead to a premature final decision. Our law also does not permit you to visit a place discussed in the testimony. First, you can’t be sure that the place is in the same condition as it was on the day in question. Second, even if it were in the same condition, once you go to a place discussed in the testimony to evaluate the evidence in light of what you see, you become a witness, not a juror. As a witness, you 017 7/2 7/2 may now have a mistaken view of the scene that neither party may have a chance to correct. That is not fair. d we e , vi 226 0 Finally, our law requires that you not read or listen to any news accounts 4 16. No Your decision must be based solely on the testimony and related to the case. of the case, and that you not attempt to research any fact, issue, or law other evidence presented in this courtroom. Also, the law often uses words and phrases in special ways, so it’s important that any definitions you hear come only from me, and not from any other source. It wouldn’t be fair to the parties for you to base your decision on some reporter’s view or opinion, or upon other information you acquire outside the courtroom. These rules are designed to help guarantee a fair trial, and our law 8 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 35 of 677 accordingly sets forth serious consequences if the rules are not followed. I trust that you understand and appreciate the importance of following these rules, and in accord with your oath and promise, I know you will do so. Taking notes: Moving on now, if you wish, you may take notes to help you remember what witnesses said. If you do take notes, please keep them to yourself until you and your fellow jurors go to the jury room to decide the case. Do not let note-taking distract you so that you do not hear other answers by witnesses. 017 7/2 2 Whether or not you take notes, you should rely on/your own memory of what 07 d weonly. They are not entitled to any e was said. Notes are to assist your memory , vi 226 or impression about the testimony. 4 greater weight than your-memory 16 . No for each defendant: Separate consideration When you leave the courtroom, your notes should be left in the jury room. Although the defendants are being tried together, you must give separate consideration to each defendant. In doing so, you must determine which evidence in the case applies to a particular defendant and disregard any evidence admitted solely against some other defendant[s]. The fact that you may find one of the defendants guilty or not guilty should not control your verdict as to any other defendant[s]. 9 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 36 of 677 Course of the trial: The trial will now begin. First, the government will make an opening statement, which is simply an outline to help you understand the evidence as it comes in. Next, the defendant’s attorney may, but does not have to, make an opening statement. Opening statements are neither evidence nor argument. The government will then present its witnesses, and counsel for the defendant may cross-examine them. Following the government’s case, the 017 7/2 2 may cross-examine. After all the evidence is07/the attorneys will present in, d we their closing arguments to summarizee interpret the evidence for you, and , vi and 26 2After that, you will go to the jury room to decide 4 I will instruct you on the law. 16. No your verdict. defendant may, if [he] [she] wishes, present witnesses whom the government 10 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 37 of 677 2 Preliminary and Explanatory Instructions to Innominate (Anonymous) Jury Before selecting jury members, I’ll tell you about something that affects how a jury is selected and how a trial is conducted. Sometimes criminal trials attract the attention of the media and the public. The level of interest is unpredictable and not within my control. This case involves several defendants and may continue for some time. It may 017 participants – the lawyers, witnesses, defendants, 27/2 and perhaps even / judge, 7 d0 the jurors. e ew , vi more about the case. Even though People may ask questions to learn 226 -4 16well-intentioned, they may still distract you from your these questions may be . No attract an unusual amount of attention, so there may be curiosity about the duties as a juror. These questions can be awkward or inconvenient for you, your family, and your friends. They can be part of unwanted and improper approaches toward you from outside the courtroom. During your service as a juror, you must not discuss this case with anyone. And even after the case is finished, you will never be required to explain your verdict or jury service to anyone. Your names and personal information will be known only to court 11 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 38 of 677 personnel and will not be disclosed. To discourage unwanted publicity, telephone calls, letters, and questions, you will be referred to only by your juror number. ANNOTATIONS AND COMMENTS The term “innominate” jury (in preference to anonymous jury) is taken from United States v. Ippolito, 10 F.Supp. 1305, 1307 n.1 (M.D. Fla. 1998), as approved in United States v. Carpa, 271 F.3d 962 (11th Cir. 2001) (reversing in part on other grounds). The selection of an innominate jury is a “drastic measure” but is an approved technique in this Circuit when circumstances warrant. United States v. Ross, 33 F.3d 1507, 1419-1522 (11th Cir. 1994). See also, United States v. Salvatore, 110 F.3d 1131, 1143-1144 (5th Cir. 1997). d we e , vi 226 4 16. No 12 0 017 7/2 7/2 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 39 of 677 PATTERN JURY INSTRUCTIONS (CRIMINAL CASES) _______________________ BASIC INSTRUCTIONS d we e , vi 226 4 16. No 13 0 017 7/2 7/2 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 40 of 677 INDEX TO BASIC INSTRUCTIONS Instruction Number 1 2 Face Page - Introduction .1 .2 17 Duty to Follow Instructions and the Presumption of Innocence 18 Duty to Follow Instructions and the Presumption of Innocence When a Defendant Does Not Testify 19 017 2 3 Definition of “Reasonable Doubt” / /27 7 Consideration of Direct and d 0 Argument of Counsel e Circumstantial Evidence; ew , vi 226 4 Credibility of Witnesses 16. 4 5 No 6 .1 .2 .3 20 21 23 Impeachment of Witnesses due to Inconsistent Statements 24 Impeachment of Witnesses due to Inconsistent Statements or Felony Conviction 25 Impeachment of Witnesses due to Inconsistent Statements; Defendant Testifies 26 14 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 41 of 677 INDEX TO BASIC INSTRUCTIONS (Continued) Instruction Number 6 .4 .5 .6 .7 7 Impeachment of Witnesses due to Inconsistent Statement; Defendant With Felony Conviction Testifies 27 Impeachment of Witnesses due to Inconsistent Statement or Felony Conviction; Defendant Testifies 29 Impeachment of Witnesses due to Inconsistent Statement or Felony Conviction; Defendant With Felony Conviction Testifies 30 017 7/2 7/2 Impeachment of Witnesses due to Bad Reputation or Opinion About Truthfulness (May Be Used With 6.1 - 6.6) 26, 42 d0 e w vie Expert Witnesses 16. No [INSERT HERE SPECIAL INSTRUCTIONS 32 33 1 - 5, IF APPLICABLE] 8 Introduction to Offense Instructions [INSERT HERE THE APPROPRIATE OFFENSE INSTRUCTIONS AND ADDITIONAL SPECIAL INSTRUCTIONS, IF ANY, PERTAINING TO CASE] 15 34 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 42 of 677 INDEX TO BASIC INSTRUCTIONS (Continued) Instruction Number 9 .1A On or About; Knowingly; Willfully(Generally) 35 9 .1B On or About; Knowingly; Willfully (Intentional Violation of a Known Legal Duty 38 On or about; Knowingly Only; When Willfulness or Specific Intent is Not an Element 39 Caution and Punishment; Single Defendant; Single Count 40 .2 10 .1 .2 .3 017 7/2 7/2 Caution and Punishment; Single Defendant; Multiple Counts d we 0 Caution and Punishment; Multiple Defendants; Single Count e , viPunishment; Multiple .4 Caution6 22 and Defendants; Multiple Counts 4 16. No 41 42 43 11 Duty To Deliberate 44 12 Verdict 45 16 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 43 of 677 1 Face Page - Introduction UNITED STATES DISTRICT COURT DISTRICT OF DIVISION UNITED STATES OF AMERICA -vs- CASE NO. 017 7/2 7/2 COURT'S INSTRUCTIONS TO THE JURY d we 0 vie , you on the rules of law that you must use It’s my duty to instruct 226 -4 in deciding this 16 After I’ve completed these instructions you will go case. . Noroom and begin your discussions – what we call your to the jury Members of the Jury: deliberations. You must decide whether the Government has proved the specific facts necessary to find the Defendant guilty beyond a reasonable doubt. 17 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 44 of 677 2.1 The Duty to Follow Instructions And the Presumption of Innocence Your decision must be based only on the evidence presented here. You must not be influenced in any way by either sympathy for or prejudice against the Defendant or the Government. You must follow the law as I explain it – even if you do not agree with the law – and you must follow all of my instructions as a whole. You must not single out or disregard any of the Court's instructions on the law. 017 evidence of guilt. The law presumes every defendant is innocent. The 7/2 2 07/ Defendant does not have to prove [his] [her] innocence or produce any d we prove guilt beyond a reasonable e evidence at all. The Government must , vi 26 doubt. If it fails to -42 you must find the Defendant not guilty. do so, . 16 No The indictment or formal charge against a defendant isn’t ANNOTATIONS AND COMMENTS In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 1073, 25 L. Ed. 2d 368 (1970) (The due process clause protects all criminal defendants "against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged."); see also Harvell v. Nagle, 58 F. 3d 1541, 1542 (11th Cir. 1995), reh'g denied, 70 F.3d 1287 (11th Cir. 1995). 18 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 45 of 677 2.2 The Duty to Follow Instructions and the Presumption Of Innocence When a Defendant Does Not Testify Your decision must be based only on the evidence presented during the trial. You must not be influenced in any way by either sympathy for or prejudice against the Defendant or the Government. You must follow the law as I explain it – even if you do not agree with the law – and you must follow all of my instructions as a whole. You must not single out or disregard any of the Court's instructions on 017 7/2 2 The indictment or formal charge 7/ 0 against a Defendant isn’t d weevery Defendant is innocent. The evidence of guilt. The law presumes e , vi Defendant does not have to prove [his] [her] innocence or produce any 226 -4 16A Defendant does not have to testify, and if the evidence at . No all. the law. Defendant chose not to testify, you cannot consider that in any way while making your decision. The Government must prove guilt beyond a reasonable doubt. If it fails to do so, you must find the Defendant not guilty. ANNOTATIONS AND COMMENTS United States v. Teague, 953 F. 2d1525, 1539 (11th Cir. 1992), cert. denied, 506 U.S. 842, 113 S. Ct. 127, 121 L. Ed. 2d 82 (1992), Defendant who does not testify is entitled to instruction that no inference may be drawn from that election; see also United States v. Veltman, 6 F.3d 1483, 1493 (11th Cir. 1993) (Court was "troubled" by "absence of instruction on the presumption of innocence at the beginning of the trial . . . . Although the court charged the jury on the presumption before they retired to deliberate, we believe it extraordinary for a trial to progress to that stage with nary a mention of this jurisprudential bedrock.") 19 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 46 of 677 3 Definition of “Reasonable Doubt” The Government's burden of proof is heavy, but it doesn’t have to prove a Defendant's guilt beyond all possible doubt. The Government's proof only has to exclude any "reasonable doubt" concerning the Defendant's guilt. A "reasonable doubt" is a real doubt, based on your reason and common sense after you’ve carefully and impartially considered all the evidence in the case. “Proof beyond a reasonable doubt” is proof so convincing that you 017 Defendant important of your own affairs. If you are convinced that the 7/2 2 07/ has been proved guilty beyond a reasonable doubt, say so. If you are d we e not convinced, say so. , vi 226 4 16. ANNOTATIONS AND COMMENTS No would be willing to rely and act on it without hesitation in the most United States v. Daniels, 986 F.2d451 (11th Cir. 1993), opinion readopted on rehearing, 5 F.3d 495 (11th Cir. 1993), cert. denied, 511 U.S. 1054, 114 S. Ct. 1615, 128 L. Ed. 2d 342 (1994) approves this definition and instruction concerning reasonable doubt; see also United States v. Morris, 647 F.2d568 (5th Cir. 1981); Victor v. Nebraska, 511 U.S. 1, 114 S. Ct. 1239, 127 L. Ed. 2d 583 (1994) (discussing "reasonable doubt" definition and instruction). 20 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 47 of 677 4 Consideration of Direct and Circumstantial Evidence; Argument of Counsel; Comments by the Court As I said before, you must consider only the evidence that I have admitted in the case. Evidence includes the testimony of witnesses and the exhibits admitted. But, anything the lawyers say is not evidence and isn’t binding on you. You shouldn’t assume from anything I’ve said that I have any opinion about any factual issue in this case. Except for my instructions to you on the law, you should disregard anything I may have said during 17 0evidence is what Your own recollection and interpretation of/the 72 2 07/ matters. d we may use reasoning and common e In considering the evidence you , vi 226 sense to make deductions and reach conclusions. You shouldn’t be 4 16. concerned o N about whether the evidence is direct or circumstantial. the trial in arriving at your own decision about the facts. "Direct evidence" is the testimony of a person who asserts that he or she has actual knowledge of a fact, such as an eyewitness. "Circumstantial evidence" is proof of a chain of facts and circumstances that tend to prove or disprove a fact. There’s no legal difference in the weight you may give to either direct or circumstantial evidence. 21 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 48 of 677 ANNOTATIONS AND COMMENTS United States v. Clark, 506 F.2d416 (5th Cir. 1975), cert. denied, 421 U.S. 967, 95 S. Ct. 1957, 44 L. Ed. 2d 454 (1975) approves the substance of this instruction concerning the lack of distinction between direct and circumstantial evidence; see also United States v. Barnette, 800 F.2d1558, 1566 (11th Cir. 1986), reh'g denied, 807 F.2d999 (11th Cir. 1986), cert. denied, 480 U.S. 935, 107 S. Ct. 1578, 94 L. Ed. 2d 769 (1987) (noting that the "test for evaluating circumstantial evidence is the same as in evaluating direct evidence") (citing United States v. Henderson, 693 F.2d1028, 1030 (11th Cir. 1982)). United States v. Hope, 714 F.2d1084, 1087 (11th Cir. 1983) ("A trial judge may comment upon the evidence as long as he instructs the jury that it is the sole judge of the facts and that it is not bound by his comments and as long as the comments are not so highly prejudicial that an instruction to that effect cannot cure the error.") (citing United States v. Buchanan, 585 F.2d100, 102 (5th Cir. 1978)). See also United States v. Jenkins, 901 F.2d1075 (11th Cir. 1990). United States v. Granville, 716 F.2d819, 822 (11th Cir. 1983) notes that the jury was correctly instructed that the arguments of counsel should not be considered as evidence (citing United States v. Phillips, 664 F.2d971, 1031 (5th Cir. 1981)); see also United States v. Siegel, 587 F.2d721, 727 (5th Cir. 1979). 017 7/2 Instruction, “what is 2 For an alternative description of evidence, see Preliminary evidence.” 07/ d we e , vi 226 4 16. No 22 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 49 of 677 5 Credibility of Witnesses When I say you must consider all the evidence, I don’t mean that you must accept all the evidence as true or accurate. You should decide whether you believe what each witness had to say, and how important that testimony was. In making that decision you may believe or disbelieve any witness, in whole or in part. The number of witnesses testifying concerning a particular point doesn’t necessarily matter. To decide whether you believe any witness I suggest that you ask yourself a few questions: • 017 7/2 7/2 Did the witness impress you as one who was telling the 0 edparticular reason not to tell the Did the witness havew any ie 6, v truth? 422 -witness have a personal interest in the outcome of Did16 the o. N the case? truth? • • • Did the witness seem to have a good memory? • Did the witness have the opportunity and ability to accurately observe the things he or she testified about? • Did the witness appear to understand the questions clearly and answer them directly? • Did the witness's testimony differ from other testimony or other evidence? 23 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 50 of 677 6.1 Impeachment of Witnesses Because of Inconsistent Statements You should also ask yourself whether there was evidence that a witness testified falsely about an important fact. And ask whether there was evidence that at some other time a witness said or did something, or didn’t say or do something, that was different from the testimony the witness gave during this trial. But keep in mind that a simple mistake doesn’t mean a witness wasn’t telling the truth as he or she remembers it. People naturally tend 017 misstated something, you must decide whether /it was because of an 72 /2 0 deception. The significance innocent lapse in memory or an intentional7 d we the misstatement is about an of your decision may dependvie , on whether 226 important fact or about an unimportant detail. 4 16. No to forget some things or remember them inaccurately. So, if a witness ANNOTATIONS AND COMMENTS See United States v. D'Antignac, 628 F.2d428, 435-36 n.10 (5th Cir. 1980), cert. denied, 450 U.S. 967, 101 S. Ct. 1485, 67 L. Ed. 2d 617 (1981)(approving a previous version of this instruction used in conjunction with Basic Instruction 5 and Special Instruction 2.1 as befitted the facts of that case). See also United States v. McDonald, 620 F.2d559, 565 (5th Cir. 1980), and United States v. Soloman, 856 F.2d1572, 1578 (11th Cir. 1988), reh'g denied, 863 F.2d890 (1988), cert. denied, 489 U.S. 1070, 109 S. Ct. 1352, 103 L. Ed. 2d 820 (1989). 24 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 51 of 677 6.2 Impeachment of Witnesses Because of Inconsistent Statements or Felony Conviction You should also ask yourself whether there was evidence that a witness testified falsely about an important fact. And ask whether there was evidence that at some other time a witness said or did something, or didn’t say or do something, that was different from the testimony the witness gave during this trial. To decide whether you believe a witness, you may consider the fact that the witness has been convicted of a felony or a crime involving 017 a witness But keep in mind that a simple mistake doesn’t mean 7/2 2 07/ wasn’t telling the truth as he or she remembers it. People naturally tend ed wthem inaccurately. So, if a witness e to forget some things or remember , vi 26 misstated something,2 you must decide whether it was because of an 4 16. innocent No in memory or an intentional deception. The significance lapse dishonesty or a false statement. of your decision may depend on whether the misstatement is about an important fact or about an unimportant detail. ANNOTATIONS AND COMMENTS See United States v. Solomon, 856 F.2d1572, 1578 (11th Cir. 1988), reh'g denied, 863 F.2d890 (1988), cert. denied, 489 U.S. 1070, 109 S. Ct. 1352, 103 L. Ed. 2d 820 (1989). 25 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 52 of 677 6.3 Impeachment of Witnesses Because of Inconsistent Statements (Defendant with No Felony Conviction Testifies) You should also ask yourself whether there was evidence that a witness testified falsely about an important fact. And ask whether there was evidence that at some other time a witness said or did something, or didn’t say or do something, that was different from the testimony the witness gave during this trial. But keep in mind that a simple mistake doesn’t mean a witness wasn’t telling the truth as he or she remembers it. People naturally tend 017 misstated something, you must decide whether /it was because of an 72 /2 0 deception. The significance innocent lapse in memory or an intentional7 d we the misstatement is about an of your decision may dependvie , on whether 226 important fact or about an unimportant detail. 4 16. A defendant has a right not to testify. But since the Defendant did No to forget some things or remember them inaccurately. So, if a witness testify, you should decide whether you believe the Defendant’s testimony in the same way as that of any other witness. 26 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 53 of 677 6.4 Impeachment of Witnesses Because of Inconsistent Statements (Defendant with Felony Conviction Testifies) You should also ask yourself whether there was evidence that a witness testified falsely about an important fact. And ask whether there was evidence that at some other time a witness said or did something, or didn’t say or do something, that was different from the testimony the witness gave during this trial. But keep in mind that a simple mistake doesn’t mean a witness wasn’t telling the truth as he or she remembers it. People naturally tend 017 misstated something, you must decide whether /it was because of an 72 /2 0 deception. The significance innocent lapse in memory or an intentional7 d we the misstatement is about an of your decision may dependvie , on whether 226 important fact or about an unimportant detail. 4 16. A defendant has a right not to testify. But since the Defendant did No to forget some things or remember them inaccurately. So, if a witness testify, you should decide whether you believe the Defendant’s testimony in the same way as that of any other witness. [Evidence that a defendant was previously convicted of a crime is not evidence of guilt of the crime(s) in this trial. But you may use the evidence to decide whether you believe the Defendant’s testimony.] ANNOTATIONS AND COMMENTS United States v. Lippner, 676 F.2d456, 462 n.11 (11th Cir. 1982), it is plain error not to give a limiting instruction (such as the last sentence of this instruction) when a defendant is impeached as a witness under Rule 609, Fed. R. Evid., by cross examination concerning a prior conviction) (citing United States v. Diaz, 585 F.2d116 (5th Cir. 1978)). 27 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 54 of 677 If, however, evidence of a Defendant's prior conviction is admitted for other purposes under Rule 404(b), Fed. R. Evid.., the last sentence of this instruction should not be given. See, instead, Trial Instruction 3 and Special Instruction 4. Similarly, the last sentence of this instruction should not be given if evidence of a defendant's prior conviction is admitted because the existence of such a conviction is an essential element of the crime charged. See, for example, Offense Instruction 30.6, 18 USC 922(g), and the Annotations and Comments following that instruction. d we e , vi 226 4 16. No 28 0 017 7/2 7/2 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 55 of 677 6.5 Impeachment of Witnesses Because of Inconsistent Statements or Felony Conviction (Defendant with No Felony Conviction Testifies) You should also ask yourself whether there was evidence that a witness testified falsely about an important fact. And ask whether there was evidence that at some other time a witness said or did something, or didn’t say or do something, that was different from the testimony the witness gave during this trial. To decide whether you believe a witness, you may consider the fact that the witness has been convicted of a felony or a crime involving 017 7/2 mean a witness But keep in mind that a simple mistake2 doesn’t 07/ d wasn’t telling the truth as he or she remembers it. People naturally tend we e , vi them inaccurately. So, if a witness to forget some things or remember 226 4 misstated something, you must decide whether it was because of an 16. No in memory or an intentional deception. The significance innocent lapse dishonesty or a false statement. of your decision may depend on whether the misstatement is about an important fact or about an unimportant detail. A defendant has a right not to testify. But since the Defendant did testify, you should decide whether you believe the Defendant’s testimony in the same way as that of any other witness. 29 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 56 of 677 6.6 Impeachment of Witnesses Because of Inconsistent Statement or Felony Conviction (Defendant with Felony Conviction Testifies) You should also ask yourself whether there was evidence that a witness testified falsely about an important fact. And ask whether there was evidence that at some other time a witness said or did something, or didn’t say or do something, that was different from the testimony the witness gave during this trial. To decide whether you believe a witness, you may consider the fact that the witness has been convicted of a felony or a crime involving 017 7/2 mean a witness But keep in mind that a simple mistake2 doesn’t 07/ d wasn’t telling the truth as he or she remembers it. People naturally tend we e , vi them inaccurately. So, if a witness to forget some things or remember 226 4 misstated something, you must decide whether it was because of an 16. No in memory or an intentional deception. The significance innocent lapse dishonesty or a false statement. of your decision may depend on whether the misstatement is about an important fact or about an unimportant detail. A defendant has a right not to testify. But since the Defendant did testify, you should decide whether you believe the Defendant’s testimony in the same way as that of any other witness. [Evidence that a Defendant was previously convicted of a crime is not evidence of guilt of the crime(s) in this trial. But you may use the evidence to decide whether you believe the Defendant’s testimony.] 30 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 57 of 677 ANNOTATIONS AND COMMENTS United States v. Lippner, 676 F.2d456, 462 n.11 (11th Cir. 1982), it is plain error not to give a limiting instruction (such as the last sentence of this instruction) when a Defendant is impeached as a witness under Rule 609, Fed. R. Evid., by cross examination concerning a prior conviction) (citing United States v. Diaz, 585 F.2d116 (5th Cir. 1978)). If, however, evidence of a Defendant's prior conviction is admitted for other purposes under Rule 404(b), Fed. R. Evid., the last sentence of this instruction should not be given. See, instead, Trial Instruction 3 and Special Instruction 4. Similarly, the last sentence of this instruction should not be given if evidence of a Defendant's prior conviction is admitted because the existence of such a conviction is an essential element of the crime charged. See, for example, Offense Instruction 30.6, 18 U.S.C. § 922(g), and the Annotations and Comments following that instruction. d we e , vi 226 4 16. No 31 0 017 7/2 7/2 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 58 of 677 6.7 Impeachment of Witness Because of Bad Reputation for (or Opinion about) Truthfulness (May Be Used With 6.1 - 6.6) There may also be evidence tending to show that a witness has a bad reputation for truthfulness in the community where the witness resides, or has recently resided; or that others have a bad opinion about the witness’s truthfulness. You may consider reputation and community opinion in deciding whether to believe or disbelieve a witness. 017 7/2 7/2 0 ed Character and Conduct of w Rule 608. [Fed. R. Evid.] Evidence of vie Witness (a) Opinion and reputation evidence of character. - - The 26, be attacked or supported by evidence in credibility of a witness may -42 reputation, but subject to these limitations: (1) the form of16 . opinion or the evidence may refer only to character for truthfulness or No untruthfulness, and (2) evidence of truthful character is admissible ANNOTATIONS AND COMMENTS only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise. See United States v. Watson, 669 F.2d1374, 1381-1383 (11th Cir. 1982) distinguishing between reputation witnesses and personal opinion witnesses, and finding error in the exclusion of opinion testimony. See also, Special Instruction 11, Character Evidence (relating to evidence of the character of the accused offered under Rule 404(a)(1), Fed. R. Evid.), and the Annotations and Comments following that instruction. 32 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 59 of 677 7 Expert Witness When scientific, technical or other specialized knowledge might be helpful, a person who has special training or experience in that field is allowed to state an opinion about the matter. But that doesn’t mean you must accept the witness’s opinion. As with any other witness’s testimony, you must decide for yourself whether to rely upon the opinion. 017 7/2 2 United States v. Johnson, 575 F.2d1347, 1361 (5th Cir. 1978), cert. denied, 440 07/ U.S. 907, 99 S. Ct. 1214, 59 L. Ed. 2d 454 (1979). d we e , vi 226 4 16. No ANNOTATIONS AND COMMENTS 33 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 60 of 677 8 Introduction to Offense Instructions The indictment charges ___ separate crimes, called “counts,” against the Defendant. Each count has a number. You’ll be given a copy of the indictment to refer to during your deliberations. [Count [count number] charges that the Defendants knowingly and willfully conspired to [describe alleged object(s) of the conspiracy].] [Counts [count numbers] charge that Defendants committed what are called “substantive offenses,” specifically [describe alleged substantive offenses). I will explain the law governing those substantive 017 /2 7not charged in Count 2 [But first note that the Defendants are 07/ d [conspiracy count number] with committing a substantive offense – they we ve , toicommit that offense.] are charged with conspiring 226 4 [I will also give you specific instructions on conspiracy.] 16. No offenses in a moment.] 34 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 61 of 677 9.1A On or About; Knowingly; Willfully - Generally You’ll see that the indictment charges that a crime was committed "on or about" a certain date. The Government doesn’t have to prove that the crime occurred on an exact date. The Government only has to prove beyond a reasonable doubt that the crime was committed on a date reasonably close to the date alleged. The word “knowingly” means that an act was done voluntarily and intentionally and not because of a mistake or by accident. [The word “willfully” means that the act was committed voluntarily and purposely, with the intent to do something the law forbids; that is, with the bad purpose to disobey or disregard the law. While a person 017 7/2 you can find that the person acted “willfully,” the person need not be 7/2 0[his] [her] conduct may be aware of the specific law or ruleed that ew violating.] , vi 226 4 16. No must have acted with the intent to do something the law forbids before ANNOTATIONS AND COMMENTS The Definition of willfulness in this instruction can be used in most cases where willfulness is an element. For crimes requiring a particularized knowledge of the law being violated, such as tax and currency-structuring cases, use 9.1 B’s definition of willfulness. The committee in its most recent revisions to the pattern instructions has changed the approach to how “willfully” should be charged in the substantive offenses which include it as an essential element of the offense. The previous editions of the pattern instructions included the following definition that historically has been used in most cases: The word “willfully,” as that term has been used from time to time in these instructions, 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. Although this definition has been useful as a general definition that encompasses many different aspects of the legal concept of “willfulness” in a concise and 35 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 62 of 677 straightforward manner, the Committee has concluded, along with every other Circuit Pattern Instruction Committee that has considered the issue, that the definition is not accurate in every situation. A review of the case law reveals how the courts have struggled with the meaning of “willfulness” as a mens rea requirement for substantive criminal offenses. See Bryan v. United States, 524. U.S. 184, 189-92, 114 S. Ct. 1939, 1944-45 (1998)(“The word ‘willfully’ is sometimes said to be ‘a word of many meanings’ whose construction is often dependent on the context in which it appears.” (citing Spies v. United States, 317 U.S. 492, 497, 63 S. Ct. 364, 367 (1943))); see also Ratzlaf v. United States, 510 U.S. 135, 140-41, 114 S. Ct. 655, 659 (1994); United States v. Phillips, 19 F.3d 1565, 1576 - 84 (11th Cir. 1994) (noting the difficulty in defining “willfully” and discussing the term in various contexts), amended to correct clerical errors, 59 F.3d 1095 (11th Cir. 1995); United States v. Granda, 565 F.2d922, 924 (5th Cir. 1978) (noting, inter alia, that “willfully” has defied any consistent interpretation by the courts”); see generally United States v. Bailey, 444 U.S. 394, 403, 100 S. Ct. 624, 631 (1980) (“Few areas of criminal law pose more difficulty that the proper definition of the mens rea requirement for any particular crime.”). Based on the case law, the Committee has concluded that the criminal offenses that expressly include “willfulness” as an essential element can be divided into two broad categories. For the first category (Instruction 9.1A, which encompasses most offenses) “willfully” is defined to require that the offense be committed voluntarily and purposely with the intent to do something unlawful. However, the person need not be aware of the specific law or rule that his or her conduct may be violating. This definition is narrower than the traditional definition that has been used in our pattern charges in the past, but the Committee believes that this narrower definition is required under the law. See, e.g. Bryan v. United States, 524 U.S. 184, 118 S. Ct. 1939 (1998) (holding that the term “willfully” in 18 U.S.C. §§ 922(a)(1)(A) and 924(a)(1)(D) requires proof that the defendant knew that his conduct was generally unlawful, but does not require that the defendant knew of the specific licensing requirement that he was violating). d we e , vi 226 017 7/2 7/2 0 4 16-of criminal offenses that have “willfulness” as an essential . The second category No a heightened mens rea requirement. For this limited class of element have offenses, the Government must prove more than the defendant knew that his conduct was done with a bad purpose to disobey the law in general. The Government must prove that the defendant had an intent to violate a known legal duty, that is with the specific intent to do something the law forbids. For these offenses, the Committee recommends that the definition of “willfully” in Instruction 9.1B be given to the jury. These offenses include currency structuring statutes and certain tax laws, which tend to involve “highly technical statues that present[] the danger of ensnaring individuals engaged in apparently innocent conduct.” Bryan, 118 S. Ct. at 1946 - 47. For example, see Ratzlaf v. United States, 114 S. Ct. 655 (1994) (holding that with respect to 31 U.S.C. § 5322(a) and the monetary transaction provisions that it controls, the Government must prove that the defendant acted willfully, i.e., with specific knowledge that the structing of currency transactions in which he was engaged was unlawful); see also Cheek v. United States, 111 S. Ct. 604, 609-10 (1991) (explaining that due to the complexity of tax laws, there is an exception to the general rule that “ignorance of the law or a mistake of law is no defense to criminal prosecution,” and “[t]he term ‘willfully’ [as used in certain federal criminal tax offenses] connot[es] a ‘voluntary, intentional violation of a known legal duty’” (citing United States v. Pomponio, 429 U.S. 10, 12, 97 S. Ct. 22, 23 (1976) and United States v. Bishop, 412, U.S. 346, 360-61, 93 S. Ct. 2008, 2017 (1973))). In Cheek, the Supreme Court found error in the trial 36 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 63 of 677 court’s instruction to the jury that in order for the defendant’s belief that he was not violating the law to be a defense, his good-faith belief must have been objectively reasonable. The Court further explained, however, that “a defendant’s views about the validity of the tax statutes are irrelevant to the issue of willfulness and need not be heard by the jury, and, if they are, an instruction to disregard them would be proper.” Cheek, 498 U.S. at 206, 111S. Ct. at 613. The Committee observes that the required mental state may be different even for different elements of the same crime. This possibility should be considered when determining what definition of mens rea should be charged. See Liparota v. United States, 471 U.S. 419, 423, 105 S. Ct. 2084, 2087 n.5 (1985). Note: If the Defendant raises a good faith defense, it may be appropriate to give Special instruction 9 [Good Faith Defense to Willfulness (as under the Internal Revenue Code)], Special Instruction 18 [Good Faith Reliance Upon Advice of Counsel]. d we e , vi 226 4 16. No 37 0 017 7/2 7/2 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 64 of 677 9.1 B On or About; Knowingly; Willfully - Intentional Violation of a Known Legal Duty You’ll see that the indictment charges that a crime was committed "on or about" a certain date. The Government doesn’t have to prove that the crime occurred on an exact date. The Government only has to prove beyond a reasonable doubt that the crime was committed on a date reasonably close to the date alleged. The word “knowingly means that an act was done voluntarily and 017 2 The word “willfully” means that the act 27/ done voluntarily and was / 07a known legal duty, that is, purposely with the specific intent toed w violate e , vi with the intent to do something the law forbids. Disagreement with the 226 4 law or a belief that-the law is wrong does not excuse willful conduct. 16 . No intentionally and not because of a mistake or by accident. ANNOTATIONS AND COMMENTS For crimes requiring a particularized knowledge of the law being violated, such as tax and currency-structuring cases, use this definition of willfulness. Note: Please refer to the Annotations and Comments following Instruction 9.1A for a detailed commentary regarding the selection of the applicable “willfully” definition. Additionally, there may be instances where a case presents one substantive offense charging a crime subject to the general willfulness mens rea requirement and a separate offense charging a crime subject to the more rigorous mens rea standard set forth above. In such a situation, the Committee recommends providing the applicable definition within the offense instruction itself. 38 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 65 of 677 9.2 On or About a Particular Date; Knowingly You’ll see that the indictment charges that a crime was committed "on or about" a certain date. The Government doesn’t have to prove that the offense occurred on an exact date. The Government only has to prove beyond a reasonable doubt that the crime was committed on a date reasonably close to the date alleged. The word “knowingly” means that an act was done voluntarily and intentionally and not because of a mistake or by accident. 017 7/2 7/2 0 ed (11th Cir. 1983), "on or about" w United States v. Creamer, 721 F.2d342, 343 vie language upheld in case in which alibi defense was used by the defendant; the court "rejected the contention that time becomes a material element of a criminal 26, of alibi is advanced." See also United States 2 offense merely because the defense -4(11th Cir. 1989), reh'g denied, 891 F.2d907 (1989), cert. v. Reed, 887 F.2d1398 . 16 denied, 493 U.S. 1080, 110 S. Ct. 1136, 107 L. Ed. 2d 1041 (1990). No ANNOTATIONS AND COMMENTS 39 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 66 of 677 10.1 Caution: Punishment (Single Defendant, Single Count) I caution you that the Defendant is on trial only for the specific crime charged in the indictment. You’re here to determine from the evidence in this case whether the Defendant is guilty or not guilty of that specific crime. You must never consider punishment in any way to decide whether the Defendant is guilty or not guilty. If you find the Defendant guilty, the punishment is for the Judge alone to decide later. d we ANNOTATIONS AND COMMENTS e , vi 226 017 7/2 7/2 0 See United States v. McDonald, 935 F.2d1212, 1222 (11th Cir. 1991). 4 16. No 40 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 67 of 677 10.2 Caution: Punishment (Single Defendant, Multiple Counts) Each count of the indictment charges a separate crime. You must consider each crime and the evidence relating to it separately. If you find the Defendant guilty or not guilty of one crime, that must not affect your verdict for any other crime. I caution you that the Defendant is on trial only for the specific crimes charged in the indictment. You’re here to determine from the evidence in this case whether the Defendant is guilty or not guilty of 017 to decide You must never consider punishment in 2 7/ any way /2 whether the Defendant is guilty. If you 07 the Defendant guilty, the find ed wto decide later. e punishment is for the Judge alone , vi 226 4 16. No those specific crimes. ANNOTATIONS AND COMMENTS There may be cases in which the last sentence of the first paragraph of this instruction is inappropriate and should be deleted. This may occur, for example, in prosecutions under 18 U.S.C. § 1962 (RICO offenses) or 21 U.S.C. § 848 (Continuing Criminal Enterprise offenses) where the indictment is structured so that a conviction of one count or counts (sometimes called "predicate offenses") is necessary to a conviction of another count or counts. 41 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 68 of 677 10.3 Caution: Punishment (Multiple Defendants, Single Count) You must consider the case of each defendant and the evidence relating to it separately and individually. If you find one Defendant guilty, that must not affect your verdict for any other Defendant. I caution you that each Defendant is on trial only for the specific crime alleged in the indictment. You’re here to determine from the evidence in this case whether each Defendant is guilty or not guilty. You must never consider punishment in any way to decide 017 punishment is for the Judge alone to decide later. 7/2 2 07/ d we e , vi 226 ANNOTATIONS AND COMMENTS 4 16. No Gonzalez, 940 F.2d1413, 1428 (11th Cir. 1991), cert. denied, United States v. whether a Defendant is guilty. If you find a Defendant guilty, the 502 U.S. 1047, 112 S. Ct. 910 (1992), and cert. denied, 502 U.S. 1103, 112 S. Ct. 1194, 117 L. Ed. 2d 435 (1992) states that "cautionary instructions to the jury to consider the evidence as to each defendant separately are presumed to guard adequately against prejudice." See also United States v. Adams, 1 F.3d 1566 (11th Cir. 1993), reh'g denied, 9 F.3d 1561 (1993), cert. denied, 510 U.S. 1198, 114 S. Ct. 1310, 127 L. Ed. 2d 660 (1994), and cert. denied, 510 U.S. 1206, 114 S. Ct. 1330, 127 L. Ed. 2d 677 (1994). United States v. Watson, 669 F.2d1374, 1389 (11th Cir. 1982) allowed use of single verdict form for multiple defendants when the form listed each defendant separately and jury was instructed that each defendant "should be considered separately and individually." See also United States v. Russo, 796 F.2d1443, 1450 (11th Cir. 1986). 42 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 69 of 677 10.4 Caution: Punishment (Multiple Defendants, Multiple Counts) Each count of the indictment charges a separate crime against one or more of the Defendants. You must consider each crime and the evidence relating to it separately. And you must consider the case of each Defendant separately and individually. If you find a Defendant guilty of one crime, that must not affect your verdict for any other crime or any other Defendant. I caution you that each Defendant is on trial only for the specific 017 not guilty of evidence in this case whether each Defendant is 2 7/ guilty or 2 07/ those specific crimes. d we e You must never consider punishment in any way to decide , vi 226 whether a Defendant is guilty. If you find a Defendant guilty, the 4 16. punishment is for the Judge alone to decide later. No crimes charged in the indictment. You’re here to determine from the ANNOTATIONS AND COMMENTS See United States v. Morales, 868 F.2d1562, 1572 (11th Cir. 1989). There may be cases in which the last sentence of the first paragraph of this instruction is inappropriate and should be deleted. This may occur, for example, in prosecutions under 18 U.S.C. § 1962 (RICO offenses) or 21 U.S.C. § 848 (Continuing Criminal Enterprise offenses) where the indictment is structured so that a conviction of one count or counts (sometimes called "predicate offenses") is necessary to a conviction of another count or counts. 43 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 70 of 677 11 Duty to Deliberate Your verdict, whether guilty or not guilty, must be unanimous – in other words, you must all agree. Your deliberations are secret, and you’ll never have to explain your verdict to anyone. Each of you must decide the case for yourself, but only after fully considering the evidence with the other jurors. So you must discuss the case with one another and try to reach an agreement. While you’re discussing the case, don’t hesitate to reexamine your own opinion and change your mind if you become convinced that you were wrong. But 017 7/2 2 because you simply want to get the case over with. 07/ d Remember that, in a very reale w way, you’re judges – judges of the ve ,to iseek the truth from the evidence in the facts. Your only interest 6 22 is 4 case. 16. No don’t give up your honest beliefs just because others think differently or ANNOTATIONS AND COMMENTS See United States v. Brokemond, 959 F.2d206, 209 (11th Cir. 1992). See also United States v. Cook, 586 F.2d572 (5th Cir. 1978), reh'g denied, 589 F.2d1114 (1979), cert. denied, 442 U.S. 909, 99 S. Ct. 2821, 61 L. Ed. 2d 274 (1979); United States v. Dunbar, 590 F.2d1340 (5th Cir. 1979). 44 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 71 of 677 12 Verdict When you get to the jury room, choose one of your members to act as foreperson. The foreperson will direct your deliberations and will speak for you in court. A verdict form has been prepared for your convenience. [Explain verdict] 017 7/2 2 agreed on the verdict, your foreperson must / in the form, sign it, date 07 fill d we the courtroom. it, and carry it. Then you’ll return it to e , vi If you wish to communicate with me at any time, please write 226 4 16- or question and give it to the marshal. The down your o. N message Take the verdict form with you to the jury room. When you’ve all marshal will bring it to me and I’ll respond as promptly as possible – either in writing or by talking to you in the courtroom. But I caution you not to tell me how many jurors have voted one way or the other at that time. ANNOTATIONS AND COMMENTS United States v. Norton, 867 F.2d1354, 1365-66 (11th Cir. 1989), cert. denied, 491 U.S. 907, 109 S. Ct. 3192, 105 L. Ed. 2d 701 (1989) and 493 U.S. 871, 110 S. Ct. 200, 107 L. Ed. 2d 154 (1989) notes that the Court should not inquire about, or disclose, numerical division of the jury during deliberations but states that "[r]eversal may not be necessary even where the trial judge undertakes the inquiry and thereafter follows it with an Allen charge, absent a showing that either incident or 45 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 72 of 677 a combination of the two was inherently coercive." See United States v. Brokemond, 959 F.2d206, 209 (11th Cir. 1992). See also United States v. Cook, 586 F.2d572 (5th Cir. 1978), reh'g denied, 589 F.2d1114 (1979), cert. denied, 442 U.S. 909, 99 S. Ct. 2821, 61 L. Ed. 2d 274 (1979). d we e , vi 226 4 16. No 46 0 017 7/2 7/2 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 73 of 677 d we e , vi 226 017 7/2 7/2 0 SPECIAL INSTRUCTIONS 4 16. No 47 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 74 of 677 INDEX TO SPECIAL INSTRUCTIONS Instruction Number SPECIAL INSTRUCTIONS 1 THROUGH 5 SHOULD BE USED, AS APPROPRIATE, AFTER BASIC INSTRUCTION 7 1 .1 .2 .3 2 3 4 5 Testimony of Accomplice, Informer, or Witness with Immunity 51 Testimony of Accomplice or Codefendant with Plea Agreement 52 Testimony of Accomplice, Witness Using Addictive Drugs or Witness with Immunity 53 017 .1 Confession or Statement of a /2 Single Defendant /27 7 d0 e .2 Confession or Statement ew (Multiple Defendants) , vi 226 4 Identification Testimony 16. No 54 55 56 Similar Acts Evidence (Rule 404(b), Fed. R. Evid.) 58 Note-taking 60 SPECIAL INSTRUCTIONS 6 THROUGH 11 SHOULD BE USED, AS APPROPRIATE, AFTER THE OFFENSE INSTRUCTIONS 6 Possession 61 7 Aiding and Abetting (Agency) (18 U.S.C. § 2) 62 48 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 75 of 677 INDEX TO SPECIAL INSTRUCTIONS Continued Instruction Number 8 Deliberate Ignorance as Proof of Knowledge 64 Good-Faith Defense to Willfulness (as Under the Internal Revenue Code) 66 .1 Lesser Included Offense (Single) 68 .2 Lesser Included Offense (Multiple) 70 9 10 11 017 7/2 7/2 Attempt(s) d we 72 0 SPECIAL INSTRUCTIONS 12 THROUGH 18 OR OTHER THEORY OF DEFENSE INSTRUCTIONS, SHOULD BE USED AS APPROPRIATE AFTER THE OFFENSE INSTRUCTIONS e , vi 226 4 16. Character Evidence 12 No 13 73 .1 Entrapment 74 .2 Entrapment; Evaluating Conduct of Government Agents 76 14 Alibi 78 15 Insanity 79 16 Duress and Coercion (Justification or Necessity) 81 49 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 76 of 677 INDEX TO SPECIAL INSTRUCTIONS Continued Instruction Number 17 18 Note: Good-Faith Defense to Charge of Intent to Defraud 84 Good-Faith Reliance upon Advice of Counsel 85 There can be cases in which the evidence arguably supports, and the Defendant may rely upon, some specific theory of defense other than the traditional defenses covered by Special Instructions 13.1 through 17. In such cases, upon appropriate request, theory of defense instructions relating to material factual issues arising from the evidence must be given. United States v. Conroy, 589 F.2d1258, 1273 (5th Cir. 1979); United States v. Lewis, 592 F.2d1282 (5th Cir. 1979); United States v. Sirang, 70 F.3d 588 (11th Cir. 1995) (A defendant is entitled to a specific instruction on his theory of defense, not an abstract or general one). It is error to not give a requested instruction if the requested instruction’s subject matter: is a correct statement of the law; is not covered by a separate pattern instruction; and goes to an important issue in the case. See United States v. Woddard, 531 F.3d 1352, 1364 (11th Cir. 2008). However, the court is not required to give a theory of defense instruction that merely recites a defendant's "not guilty" position and discusses the sufficiency or insufficiency of the evidence or argumentative inferences that might or might not be drawn from the evidence. United States v. Malatesta, 583 F.2d748 (5th Cir. 1978), cert. denied, 444 U.S. 846, 100 S. Ct. 91, 62 L. Ed. 2d 59 (1978); United States v. Barham, 595 F.2d231 (5th Cir. 1979), cert. denied, 450 U.S. 1002, 101 S. Ct. 1711, 68 L. Ed. 2d 205 (1981). See also United States v. Williams, 728 F.2d1402 (11th Cir. 1984) (citing Malatesta for the same proposition) and United States v. Paradies, 98 F.3d 1266 (11th Cir. 1996) (citing Barham for the same proposition). d we e , vi 226 4 16. No 50 0 017 7/2 7/2 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 77 of 677 1.1 Testimony of Accomplice, Informer, or Witness with Immunity You must consider some witnesses’ testimony with more caution than others. For example, paid informants, witnesses who have been promised immunity from prosecution, or witnesses who hope to gain more favorable treatment in their own cases, may have a reason to make a false statement in order to strike a good bargain with the Government. So while a witness of that kind may be entirely truthful when testifying, you should consider that testimony with more caution than the 017 7/2 7/2 testimony of other witnesses. d we 0 e , vi ANNOTATIONS AND COMMENTS 226 4 16-Shearer, 794 F.2d1545, 1551 (11th Cir. 1986). See also . See United States v. Nov. Solomon, 856 F.2d1572 (11th Cir. 1988), cert. denied, 489 U.S. United States 1070, 109 S. Ct. 1352, 103 L. Ed. 2d 820 (1989) (holding that, as a general rule, a cautionary instruction regarding the credibility of accomplices should be given). 51 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 78 of 677 1.2 Testimony of Accomplice or Codefendant with Plea Agreement You must consider some witnesses’ testimony with more caution than others. In this case, the Government has made a plea agreement with a Codefendant in exchange for [his] [her] testimony. Such “plea bargaining,” as it’s called, provides for the possibility of a lesser sentence than the Codefendant would normally face. Plea bargaining is lawful and proper, and the rules of this court expressly provide for it. 017strike a good have a reason to make a false statement in order to 7/2 2 07/ bargain with the Government. d we may be entirely truthful when So while a witness of vie kind , that 226 testifying, you should consider that testimony with more caution than the 4 16. testimony of other witnesses. No But a witness who hopes to gain more favorable treatment may And the fact that a witness has pleaded guilty to an offense isn’t evidence of the guilt of any other person. ANNOTATIONS AND COMMENTS United States v. Solomon, 856 F.2d1572, 1578-79 (11th Cir. 1988), cert. denied, 489 U.S. 1070, 109 S. Ct. 1352, 103 L. Ed. 2d 820 (1989). 52 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 79 of 677 1.3 Testimony of Accomplice, Witness Using Addictive Drugs, or Witness With Immunity You must consider some witnesses’ testimony with more caution than others. For example, a witness may testify about events that occurred during a time when the witness was using addictive drugs, and so the witness may have an impaired memory of those events. And a witness who has been promised immunity from prosecution or witnesses who hope to gain more favorable treatment in [his] [or] [her] own case may 017 7/2 7/2 have a reason to make a false statement in order to strike a good 0 ed may be entirely truthful when So while a witness of thatw kind ie 6, v testifying, you should consider that testimony with more caution than the 2 -42 testimony of other witnesses. . 16 No bargain with the Government. ANNOTATIONS AND COMMENTS See United States v. Fajardo, 787 F.2d1523, 1527 (11th Cir. 1986). See also United States v. Solomon, 856 F.2d1572 (11th Cir. 1988), cert. denied, 489 U.S. 1070, 109 S. Ct. 1352, 103 L. Ed. 2d 820 (1989) (holding that, as a general rule, a cautionary instruction regarding the credibility of accomplices should be given). 53 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 80 of 677 2.1 Confession or Statement of a Single Defendant If the Government offers evidence that a Defendant made a statement or admission to someone after being arrested or detained, you must consider that evidence with caution and great care. You must decide for yourself (1) whether the Defendant made the statement, and (2) if so, how much weight to give to it. To make these decisions, you must consider all the evidence about the statement – including the circumstances under which it was made. ANNOTATIONS AND COMMENTS 017 7/2 7/2 d we 0 See United States v. Clemons, 32 F.3d 1504, 1510 (11th Cir. 1994), cert. denied, 115 S. Ct. 1801, 131 L. Ed. 2d 728 (1995). e , vi 226 4 16. No 54 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 81 of 677 2.2 Confession or Statement of Multiple Defendants If the Government offers evidence that a Defendant made a statement or admission to someone after being arrested or detained, you must consider that evidence with caution and great care. You must decide for yourself (1) whether the Defendant made the statement, and (2) if so, how much weight to give to it. To make these decisions, you must consider all the evidence about the statement – including the circumstances under which it was made. 017 7/2 7/2 Any such statement is not evidence about any other Defendant. d we e , vi 226 4 16. No 55 0 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 82 of 677 3 Identification Testimony The Government must prove beyond a reasonable doubt that the Defendant was the person who committed the crime. If a witness identifies a Defendant as the person who committed the crime, you must decide whether the witness is telling the truth. But even if you believe the witness is telling the truth, you must still decide how accurate the identification is. I suggest that you ask yourself questions: ! Did the witness have an adequate opportunity to observe 7 01to observe the How much time did the witness have 7/2 2 07/ person? d we How close was theie , v witness? 226 Did anything affect the witness’s ability to see? 4 16. Did No the witness know or see the person at an earlier time? the person at the time the crime was committed? ! ! ! ! You may also consider the circumstances of the identification of the Defendant, such as the way the Defendant was presented to the witness for identification and the length of time between the crime and the identification of the Defendant. After examining all the evidence, if you have a reasonable doubt that the Defendant was the person who committed the crime, you must find the Defendant not guilty. 56 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 83 of 677 ANNOTATIONS AND COMMENTS See United States v. Martinez, 763 F.2d1297, 1304 (11th Cir. 1985). d we e , vi 226 4 16. No 57 0 017 7/2 7/2 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 84 of 677 4 Similar Acts Evidence (Rule 404(b), Fed. R. Evid.) During the trial, you heard evidence of acts done by the Defendant on other occasions that may be similar to acts the Defendant is currently charged with. You must not consider any of this evidence to decide whether the Defendant committed the acts charged now. But you may consider this evidence for other very limited purposes. If other evidence leads you to decide beyond a reasonable doubt that the Defendant committed the charged acts, you may consider 017for the crime Defendant had the state of mind or intent necessary 7/2 /2 charged, acted according to a plan ord 07 to prepare to commit a crime, or e ew or mistake. committed the charged acts by accident , vi 226 4 16. No evidence of similar acts done on other occasions to decide whether the ANNOTATIONS AND COMMENTS Rule 404. [Fed. R. Evid.] Character Evidence Not Admissible To Prove Conduct; Exceptions; Other Crimes * * * * * (b) Other crimes, wrongs, or acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial. 58 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 85 of 677 United States v. Beechum, 582 F.2d898 (5th Cir. 1978) (en banc) cert. denied, 440 U.S. 920, 99 S. Ct. 1244, 59 L. Ed. 2d 472 (1979), discusses at length the tests to be applied in admitting or excluding evidence under Rule 404(b); and, more specifically, the different standards that apply depending upon the purpose of the evidence, i.e., to show intent versus identity, for example. See note 15 at pages 911-912. Beechum also approves a limiting instruction similar to this one. See note 23 at pages 917-918. Both the Supreme Court and the Eleventh Circuit have expressly endorsed the Beechum test. Huddleston v. United States, 485 U.S. 681, 108 S. Ct. 1496, 99 L. Ed. 2d 771 (1988); United States v. Miller, 959 F.2d1535 (11th Cir. 1992) (en banc), cert. denied, 506 U.S. 942, 113 S. Ct. 382, 121 L. Ed. 2d 292 (1992). d we e , vi 226 4 16. No 59 0 017 7/2 7/2 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 86 of 677 5 Note-taking You’ve been permitted to take notes during the trial. Most of you – perhaps all of you – have taken advantage of that opportunity. You must use your notes only as a memory aid during deliberations. You must not give your notes priority over your independent recollection of the evidence. And you must not allow yourself to be unduly influenced by the notes of other jurors. I emphasize that notes are not entitled to any greater weight than 017 7/2 7/2 your memories or impressions about the testimony. d we e , vi 226 4 16. No 60 0 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 87 of 677 6 Possession The law recognizes several kinds of possession. A person may have actual possession, constructive possession, sole possession, or joint possession. “Actual possession” of a thing occurs if a person knowingly has direct physical control of it. “Constructive possession” of a thing occurs if a person doesn’t have actual possession of it, but has both the power and the intention to take control over it later. 017 7/2 7/2 “Sole possession” of a thing occurs if a person is the only one to 0 ed if two or more people share “Joint possession” of a thing occurs w vie possession of it. 26, -42 The term16 “possession” includes actual, constructive, sole, and o. N joint possession. possess it. ANNOTATIONS AND COMMENTS See United States v. Hastamorir, 881 F.2d1551 (11th Cir. 1989). 61 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 88 of 677 7 Aiding and Abetting; Agency 18 U.S.C. § 2 It’s possible to prove the Defendant guilty of a crime even without evidence that the Defendant personally performed every act charged. Ordinarily, any act a person can do may be done by directing another person, or “agent.” Or it may be done by acting with or under the direction of others. A Defendant “aids and abets” a person if the Defendant intentionally joins with the person to commit a crime. 017 A Defendant person if the Defendant aids and abets the other /person. 72 2 07/ is also responsible if the Defendant willfully directs or authorizes the d weassociate. acts of an agent, employee, orie , v other 26 But finding that 2 Defendant is criminally responsible for the acts a 4 16. of another o N person requires proof that the Defendant intentionally A Defendant is criminally responsible for the acts of another associated with or participated in the crime – not just proof that the Defendant was simply present at the scene of a crime or knew about it. In other words, you must find beyond a reasonable doubt that the Defendant was a willful participant and not merely a knowing spectator. ANNOTATIONS AND COMMENTS 18 U.S.C. § 2 provides: (a) whoever commits an offense against the United States or, aids, abets, counsels, commands, 62 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 89 of 677 induces or procures its commission, is punishable as a principal. (b) whoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal. See United States v. Broadwell, 870 F.2d594, 607 (11th Cir. 1989), cert. denied, 493 U.S. 840, 110 S. Ct. 125, 107 L. Ed. 2d 85 (1989). See also United States v. Walker, 621 F.2d163 (5th Cir. 1980), cert. denied, 450 U.S. 1000, 101 S. Ct. 1707, 68 L. Ed. 2d 202 (1981). d we e , vi 226 4 16. No 63 0 017 7/2 7/2 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 90 of 677 8 Deliberate Ignorance as Proof of Knowledge If a Defendant’s knowledge of a fact is an essential part of a crime, it’s enough that the Defendant was aware of a high probability that the fact existed – unless the Defendant actually believed the fact didn’t exist. “Deliberate avoidance of positive knowledge” – which is the equivalent of knowledge – occurs, for example, if a defendant possesses a package and believes it contains a controlled substance but deliberately avoids learning that it contains the controlled substance 1 0the7possession of So you may find that a defendant knew about /2 /27 7 a controlled substance if you determine beyond a reasonable doubt that d0 e ew the controlled substance, or (2) the defendant (1) actually knew about , vi 226 had every reason to know but deliberately closed [his] [her] eyes. 4 16. But o must emphasize that negligence, carelessness, or NI so he or she can deny knowledge of the package’s contents. foolishness isn’t enough to prove that the Defendant knew about the possession of the controlled substance. ANNOTATIONS AND COMMENTS United States v. Stone, 9 F.3d 934, 937 (11th Cir. 1993), cert. denied, 513 U.S. 833, 115 S. Ct. 111, 130 L. Ed. 2d 58 (1994), "deliberate ignorance" instruction appropriate only when evidence in the record shows that the Defendant purposely contrived to avoid learning the truth. United States v. Aleman, 728 F.2d492, 494 (11th Cir. 1984), this instruction should be given only if there are facts that suggest the Defendant consciously avoided knowledge, not when the Defendant has actual knowledge; see also United States v. Rivera, 944 F.2d1563, 1570-72 (11th Cir. 1991) (describing circumstances in 64 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 91 of 677 which deliberate ignorance instruction is appropriate) and United States v. PerezTosta, 36 F.3d 1552 (11th Cir. 1994) (approving a similar instruction). See also Basic Instruction 9.1. d we e , vi 226 4 16. No 65 0 017 7/2 7/2 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 92 of 677 9 Good-Faith Defense to Willfulness (as under the Internal Revenue Code) Good-Faith is a complete defense [to the charge(s) in the indictment] since good-faith on the part of the Defendant is inconsistent with willfulness, and willfulness is an essential part of the charge(s). If the Defendant acted in good faith, sincerely believing [himself] [herself] to be exempt by the law [from the withholding of income taxes], then the Defendant did not intentionally violate a known legal duty – that is, the Defendant did not act “willfully.” The burden of proof is not on the Defendant to prove good-faith intent because the Defendant does not 7 01charged. reasonable doubt that the Defendant acted willfully as 7/2 2 Intent and motive must not be confused. “Motive” is what prompts 07/ d we acts. a person to act.” It is why the ie person , v of mind with which the act is done. “Intent” refers to the state 226 4 If you .find beyond a reasonable doubt that the Defendant 16No need to prove anything. The Government must establish beyond a specifically intended to do something that is against the law and voluntarily committed the acts that make up the crime, then the element of “willfulness” is satisfied, even if the Defendant believed that violating the law was [religiously, politically, or morally] required or that ultimate good would result. ANNOTATIONS AND COMMENTS This instruction has been updated and now more closely resembles the language of other good faith defenses. See United States v. Anderson, 872 F.2d1508, 1517 -18 (11th Cir. 1989), cert. denied, 493 U.S. 1004 (1989). However, in United States v. Paradies, 98 F.3d 1266 66 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 93 of 677 (11th Cir. 1996), cert. denied, 521 U.S. 1106 and 522 U.S. 1014 (1997), the Eleventh Circuit noted that although the jury instructions given in the case were legally sufficient as a whole, a portion of the former Special Instruction 9 “might potentially be deemed confusing.” Id. at 1285. The updated instruction eliminates the confusion. It may be given when appropriate as a supplement to Basic Instruction 9.1B. d we e , vi 226 4 16. No 67 0 017 7/2 7/2 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 94 of 677 10.1 Lesser Included Offense (Single) In some cases a defendant is charged with breaking a law that actually covers two separate crimes. A “lesser included offense” is a crime that isn’t as serious as the other crime a defendant is charged with. If you find the Defendant not guilty of the crime charged in Count number __, you must determine whether the Defendant is guilty of the lesser included offense. 017 7/2 reasonable doubt of the facts necessary to prove the crime charged in 2 07/not required for the lesser d Count number __, except ___ [list elements we e , vi included offense]. 226 4 16. No AND COMMENTS ANNOTATIONS Proof of the lesser included offense requires proof beyond a See United States v. Alvarez, 755 F.2d830 (11th Cir. 1985), cert. denied, 474 U.S. 905, 106 S. Ct. 274, 88 L. Ed. 2d 235 (1985) and cert. denied, 482 U.S. 908, 107 S. Ct. 2489, 96 L. Ed. 2d 380 (1987). The Committee recognizes - - and cautions - - that sentence enhancing factors subject to the principle of Apprendi are not necessarily “elements” creating separate offenses for purposes of analysis in a variety of contexts. See United States v. Sanchez, 269 F.3d 1250, 1277 n. 51 (11th Cir. 2001) en banc, cert. denied 535 U.S. 942, 122 S. Ct. 1327, 152 L. Ed. 2d 234 (2002). Even so, the lesser included offense model is an appropriate and convenient procedural mechanism for purposes of submitting sentence enhancers to a jury when required by the principle of Apprendi. The following is one form of verdict that may be used in cases in which the offense charged in the indictment embraces a lesser included offense or offenses in the traditional sense, or involves sentencing enhancers subject to Apprendi. Alternatively, especially in drug cases involving multiple defendants and/or multiple forms of controlled substances, it may be preferable to use a form of special verdict 68 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 95 of 677 for each Defendant (preceded by appropriate instructions concerning the reasons for, and the use of, such verdict forms). See infra, Offense Instructions 85 and 87. Verdict 1. We, the Jury, find the Defendant [name of Defendant] offense charged in Count One of the indictment. of the [Note: Proceed to the remainder of the verdict form only if you find the Defendant not guilty of the offense as charged.] 2. We, the Jury, having found the Defendant [name of Defendant] not guilty of the offense as charged in Count One of the indictment, now find the Defendant of the [first] lesser included offense in Count One of [give generic description of lesser included offense, i.e., conspiring to distribute less than 50 grams but not less than 5 grams of cocaine base]. 017 7/2 7/2 So Say We All. Date: d we e , vi 226 4 16. No 69 0 Foreperson Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 96 of 677 10.2 Lesser Included Offense (Multiple) In some cases a defendant is charged with breaking a law that actually covers two or more separate crimes. A “lesser included offense” is a crime that isn’t as serious as other crimes a defendant is charged with. If you find the Defendant not guilty of the crime charged in Count ___, you must determine whether the Defendant is guilty of the first lesser included offense. Proof of the first lesser included offense requires proof beyond a reasonable doubt of the facts necessary to prove the crime charged in 017 7/2 7/2 Count ___, except [list elements not required for the first lesser included offense]. d we 0 If you find the Defendant not guilty of the offense charged in e , vi 226 Count __ and not guilty of the first lesser included offense, you must 4 16offense. No. determine whether the Defendant is guilty of the second lesser included Proof of the second lesser included offense requires proof beyond a reasonable doubt of the facts necessary to prove the crime charged in Count ___, except [ list elements not required for the second lesser included offense]. ANNOTATIONS AND COMMENTS See United States v. Alvarez, 755 F.2d830 (11th Cir. 1985), cert. denied, 474 U.S. 905, 106 S. Ct. 274, 88 L. Ed. 2d 235 (1985) and cert. denied, 482 U.S. 908, 107 S. Ct. 2489, 96 L. Ed. 2d 380 (1987). The Committee recognizes - - and cautions - - that sentence enhancing factors subject to the principle of Apprendi are not necessarily “elements” creating separate offenses for purposes of analysis in a variety of contexts. See United States v. 70 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 97 of 677 Sanchez, 269 F.3d 1250, 1277 n. 51 (11th Cir. 2001) en banc, cert. denied 535 U.S. 942, 122 S. Ct. 1327, 152 L. Ed. 2d 234 (2002). Even so, the lesser included offense model is an appropriate and convenient procedural mechanism for purposes of submitting sentence enhancers to a jury when required by the principle of Apprendi. The following is one form of verdict that may be used in cases in which the offense charged in the indictment embraces a lesser included offense or offenses in the traditional sense, or involves sentencing enhancers subject to Apprendi. Alternatively, especially in drug cases involving multiple Defendants and/or multiple forms of controlled substances, it may be preferable to use a form of special verdict for each Defendant (preceded by appropriate instructions concerning the reasons for, and the use of, such verdict forms). See infra, Offense Instructions 85 and 87. Verdict 1. We, the Jury, find the Defendant [name of Defendant] offense charged in Count [___] of the indictment. of the [Note: Proceed to the remainder of the verdict form only if you find the Defendant not guilty of the offense as charged.] 017 2 7/[name of Defendant] not 2 2. We, the Jury, having found the Defendant guilty of the offense as charged in Count [___]7 the indictment, now find the 0 of/in Count [___] of [give generic Defendant of the [first] lesser includedd e offense description of lesser included offense, i.e., conspiring to distribute less than 50 ew base]. grams but not less than 5 grams of cocaine , vi 226 the remainder of the verdict 4 [Note: Proceed to form you find 16- only if first lesserthe Defendant not o. guilty of the included offense.] N 3. We, the Jury, having found the Defendant [name of Defendant] not guilty of the first lesser included offense within Count [___] now find the Defendant of the second lesser included offense in Count [___] of [give generic description of second lesser included offense, i.e., conspiring to distribute less than 5 grams of cocaine base]. So Say We All. Date: Foreperson 71 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 98 of 677 11 Attempt(s) In some cases, it’s a crime to attempt to commit an offense – even if the attempt fails. In this case the Defendant is charged in Count ___ with attempting to commit [substantive offense]. The Defendant can be found guilty of [substantive offense] only if all the following facts are proved beyond a reasonable doubt: [list elements of substantive offense]. The Defendant can be found guilty of an attempt to commit that offense only if both of the following facts are proved beyond a 017 7/2 First: That the Defendant knowingly /2 intended to commit d 07 the crime of e ; and ew , vi intent was strongly Second: The Defendant’s 226 corroborated by [his][her] taking a 4 substantial step toward committing 16. No the crime. reasonable doubt: A “substantial step” is an important action leading up to committing of an offense – not just an inconsequential act. It must be more than simply preparing. It must be an act that would normally result in committing the offense. ANNOTATIONS AND COMMENTS Instruction taken from United States v. McDowell, 250 F.3d 1354, 1365 (11th Cir. 2001). 72 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 99 of 677 12 Character Evidence Evidence of a defendant’s character traits may create a reasonable doubt. You should consider testimony that a defendant is an honest and law-abiding citizen along with all the other evidence to decide whether the Government has proved beyond a reasonable doubt that the Defendant committed the offense. ANNOTATIONS AND COMMENTS Rule 404. [Fed. R. Evid.] Character Evidence Not Admissible To Prove Conduct; Exceptions; Other Crimes 0of 7 person's 2 1 (a) Character evidence generally. Evidence /for the a character or a trait of character is not admissible purpose of /27 proving action in conformity therewith07 a particular occasion, on d except: we e (1) Characterv accused. Evidence of a pertinent trait , ofi an accused, or by the prosecution to of character offered by 26 rebut the 42 same;. . . 61v. Broadwell, 870 F.2d 594, 609 (11th Cir. 1989), cert. denied, . See United States No110 S. Ct. 125, 107 L. Ed. 2d 85 (1989). 493 U.S. 840, United States v. Darland, 626 F.2d1235 (5th Cir. 1980) held that it can be plain error to refuse this instruction when the Defendant offers evidence of good character; and, further, the admission of such evidence may not be conditioned on the Defendant testifying as a witness. Character evidence may be excluded, however, when the proffered witness has an inadequate basis for expressing an opinion as to the Defendant’s character. United States v. Gil, 204 F.3d 1347 (11th Cir. 2000). A distinction must be drawn between evidence of a pertinent trait of the Defendant's character, offered under Fed. R. Evid. 404(a)(1), and evidence of the character of a witness for truthfulness (including the Defendant as a witness) offered under Fed. R. Evid. 608(a). This instruction should be given when the evidence has been admitted under Rule 404. Basic Instruction 6.7 should be given when evidence has been admitted under Rule 608. In either case - - whether character evidence is admitted under Rule 404 or Rule 608 - -Rule 405(a) provides that such "proof may be made by testimony as to reputation or by testimony in the form of an opinion." 73 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 100 of 677 13.1 Entrapment “Entrapment” occurs when law-enforcement officers or others under their direction persuade a defendant to commit a crime that the defendant had no previous intent to commit. The Defendant has claimed to be a victim of entrapment regarding the charged offense. The law forbids convicting an entrapped defendant. But there is no entrapment when a defendant is willing to break the law and the Government merely provides what appears to be a 017 agent to For example, it’s not entrapment for a Government 7/2 /2 pretend to be someone else and offer 07 – directly or through another ed wtransaction. e person – to engage in an unlawful , vi 26 So a defendant2 isn’t a victim of entrapment if you find beyond a 4 16. reasonableo N doubt that the government only offered the defendant an favorable opportunity for the defendant to commit a crime. opportunity to commit a crime the defendant was already willing to commit. But if there is a reasonable doubt about whether the Defendant was willing to commit the crime without the persuasion of a Government officer or a person under the Government’s direction, then you must find the Defendant not guilty. 74 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 101 of 677 ANNOTATIONS AND COMMENTS See United States v. Davis, 799 F.2d1490, 1493-94 (11th Cir. 1986). See also United States v. King, 73 F.3d 1564, 1569-71 (11th Cir. 1996), cert. denied, 519 U.S. 886, 117 S. Ct. 220, 136 L. Ed. 2d 153 (1996). However, in Jacobson v. United States, 503 U.S. 540, 112 S. Ct. 1535, 118 L. Ed. 2d 174 (1992), the Supreme Court held that the necessary predisposition of the Defendant must have existed before the Defendant was approached by Government agents or cooperating informants, and in United States v. Brown, 43 F.3d 618, 628 n.8 (11th Cir. 1995), cert. denied, 516 U.S. 917, 116 S. Ct. 309, 133 L. Ed. 2d 212 (1995), the Court of Appeals upheld the sufficiency and correctness of the former instruction but implied that clarification might be appropriate in the light of Jacobson. The present reformulation of the instruction on entrapment makes that clarification. d we e , vi 226 4 16. No 75 0 017 7/2 7/2 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 102 of 677 13.2 Entrapment: Evaluating Conduct Of Government Agents “Entrapment” occurs when law-enforcement officers or others under their direction persuade a defendant to commit a crime the defendant had no previous intent to commit. The Defendant has claimed to be a victim of entrapment regarding the charged offense. The law forbids convicting an entrapped defendant. But there is no entrapment when a Defendant is willing to break the law and the Government merely provides what appears to be a 017 /2 7Government agent to For example, it’s not entrapment for 2 a 07/ d pretend to be someone else and offer – directly or through another we e , vi transaction. person – to engage in an6 22 unlawful -4 You must 6 evaluate the conduct of Government officers or 1not . No their direction to decide whether you approve of the others under favorable opportunity for the Defendant to commit a crime. conduct or think it was moral. So a defendant isn’t a victim of entrapment if you find beyond a reasonable doubt that the Government only offered the defendant an opportunity to commit a crime the Defendant was already willing to commit. But if there is a reasonable doubt about whether the Defendant was willing to commit the crime without the persuasion of a Government 76 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 103 of 677 officer or a person under the Government’s direction, then you must find the Defendant not guilty. ANNOTATIONS AND COMMENTS See United States v. Davis, 799 F.2d1490, 1493-94 (11th Cir. 1986). See also United States v. King, 73 F.3d 1564, 1569-71 (11th Cir. 1996), cert. denied, 519 U.S. 886, 117 S. Ct. 220, 136 L. Ed. 2d 153 (1996). However, in Jacobson v. United States, 503 U.S. 540, 112 S. Ct. 1535, 118 L. Ed. 2d 174 (1992), the Supreme Court held that the necessary predisposition of the Defendant must have existed before the Defendant was approached by Government agents or cooperating informants, and in United States v. Brown, 43 F.3d 618, 628 n.8 (11th Cir. 1995), cert. denied, 516 U.S. 917, 116 S. Ct. 309, 133 L. Ed. 2d 212 (1995), the Court of Appeals upheld the sufficiency and correctness of the former instruction but implied that clarification might be appropriate in the light of Jacobson. The present reformulation of the instruction on entrapment makes that clarification. d we e , vi 226 4 16. No 77 0 017 7/2 7/2 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 104 of 677 14 Alibi Evidence has been introduced to establish an alibi – that the Defendant was not present at the time or place of the charged crime. If you have a reasonable doubt about whether the Defendant was present at the time and place of the charged crime, you must find the Defendant not guilty. ANNOTATIONS AND COMMENTS 017 7/2 7/2 United States v. Rhodes, 569 F.2d384 (5th Cir. 1978), cert. denied, 439 U.S. 844, 99 S. Ct. 138, 58 L. Ed. 2d 143 (1978) approved instruction in substantially same form. d we e , vi 226 4 16. No 78 0 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 105 of 677 15 Insanity There is an issue about the Defendant’s sanity when the charged offense occurred. If you find beyond a reasonable doubt that the Defendant committed the offense, you must consider whether the Defendant was “not guilty only by reason of insanity.” A defendant is “insane” only if the defendant is unable – because of severe mental disease or defect – to appreciate the nature and quality or wrongfulness of an act. But mental disease or defect doesn’t otherwise constitute a defense. 017 /2 7Clear and convincing 2 insanity by clear and convincing evidence. 07/ d evidence is evidence sufficient to persuade you that the Defendant’s we ve , It iis a higher standard of proof than a claim is highly probable. 226 4 preponderance of the evidence but less exacting than proof beyond a 16. No reasonable doubt. On the issue of insanity, it is the Defendant who must prove his A “preponderance of the evidence” is enough evidence to persuade you that the Defendant’s claim is more likely true than not true. If the Defendant proves insanity by clear and convincing evidence, then you must find the Defendant “not guilty only by reason of insanity.” So there are three possible verdicts: • guilty; • not guilty; and 79 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 • Pg: 106 of 677 not guilty only by reason of insanity. ANNOTATIONS AND COMMENTS 18 U.S.C. § 17 provides: (a) Affirmative defense.--It is an affirmative defense to a prosecution under any Federal statute that, at the time of the commission of the acts constituting the offense, the defendant, as a result of a severe mental disease or defect, was unable to appreciate the nature and quality or the wrongfulness of his acts. Mental disease or defect does not otherwise constitute a defense. (b) Burden of proof.--The defendant has the burden of proving the defense of insanity by clear and convincing evidence. See Also 18 U.S.C. § 4242: 017 7/2 7/2 § 4242. Determination of the existence of insanity at the time of the offense. 0 edof insanity is raised by notice (b) Special verdict.--If the issue w as provided in Rule 12.2 ofvieFederal Rules of Criminal Procedure the on motion of the defendant or of the attorney for the Government, or 26, the jury shall be instructed to find, or, in the on the court's own 2 4 motion, event of a 16- trial, the court shall find the defendant-non jury . No guilty; (1) * * * * * * (2) not guilty; or (3) not guilty only by reason of insanity. See United States v. Owens, 854 F.2d432 (11th Cir. 1988) (describing the circumstances in which the insanity instruction should be given). In Owens, the Eleventh Circuit defined the clear and convincing standard set forth above. Id. at n.8. 80 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 107 of 677 16 Duress and Coercion (Justification or Necessity) The Defendant claims that if he committed the acts charged inthe indictment, he did so only because he was forced to commit the crime. If you conclude that the Government has proved beyond a reasonable doubt that the Defendant committed the crime as charged, you must then consider whether the Defendant should nevertheless be found “not guilty” because his actions were justified by duress or coercion. To excuse a criminal act, the Defendant must prove by a preponderance of the evidence: First: 017 7/2 7/2 That there was an unlawful and present, immediate, and impending threat of death or serious bodily harm to the Defendant or another; 0 edown negligent Second: That the Defendant’s w or reckless vie conduct did not create a situation , where the Defendant 226 would be forced to engage in a 4 crime; 16. No That the Defendant had no Third: reasonable legal alternative to violating the law; and Fourth: That avoiding the threatened harm caused the criminal action. A “preponderance of the evidence” is enough evidence to persuade you that the Defendant’s claim is more likely true than not true. 81 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 108 of 677 If you find that the Defendant has proven each of these elements by a preponderance of the evidence, you must find the Defendant not guilty. ANNOTATIONS AND COMMENTS The substantive elements of this instruction are taken from United States v. Deleveaux, 205 F.3d 1292 (11th Cir. 2000), cert. denied, 530 U.S. 1264, 120 S. Ct. 2724 (2000). The Court of Appeals reiterated the requirements of the defense in United States v. Harmon, 213 Fed.Appx. 914, 916 (11th Cir. 2007)(unpublished) (citing Deleveaux, 205 F.3d at 1297). The instruction also is based in part on Modern Federal Jury Instructions-Criminal § 8.06 (2008), which was revised following the Supreme Court’s decision in Dixon v. United States, 548 U.S. 1, 126 S. Ct. 2437 (2006). 017 7/2 7/2 Dixon resolved a split among the circuits regarding which party bears the burden of persuasion for a duress defense. In Dixon, the defendant was charged with receiving a firearm while under indictment in violation of 18 U.S.C. § 922(n) and with making false statements in connection with the acquisition of a firearm in violation of § 922(a)(6). The Supreme Court held that (1) the jury instructions given “did not run afoul of the Due Process Clause when they placed the burden on petitioner to establish the existence of duress by a preponderance of the evidence,” and (2) under modern law, in the context of the firearms offenses at issue, duress is an affirmative defense that does not require the government to bear the burden of disproving the defendant’s defense beyond a reasonable doubt. See Dixon, 548 U.S. at 6-8, 15-17, 126 S. Ct. at 2442, 2447 - 48. Accordingly, the above instruction clearly reflects that the Government bears the burden of proving beyond a reasonable doubt each element of the offense, and if the jury finds that the Government has met its burden, then a defendant who seeks to use the justification defense must prove the affirmative defense by a preponderance of the evidence. d we e , vi 226 0 4 16. No In Deleveaux the Court of Appeals cautioned that this defense is available in only “extraordinary circumstances” (205 F.3d at 1297), and the holding was expressly limited to prosecutions under 18 U.S.C. § 922(g)(1) -- felon in possession of a firearm. See Offense Instruction 34.6, infra. In Harmon, the Court of Appeals noted that “[t]he imminency prong ‘requires nothing less than an immediate emergency.’” 213 Fed.Appx. at 916 (citing United States v. Bell, 214 F.3d 1299, 1300 (11th Cir. 2000)); see also United States v. Rice, 214 F.3d 1295 (11th Cir. 2000) (affirming the defendant’s conviction on the ground that the facts proffered were insufficient to establish a justification defense, as the defendant did not face an immediate emergency). The defense of duress or necessity “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.’” Dison, 548 U.S., 1, 7,126 S. Ct. at 2442 (citing United States v. Bailey, 444 U.S. 394, 402 100 S. Ct. 624, 631 (1980)). Further, the Dixon 82 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 109 of 677 Court noted that “there may be crimes [such as common-law crimes requiring ‘malice’] where the nature of the mens rea would require the Government to disprove the existence of duress beyond a reasonable doubt. Id. at 2442 n.4. Bailey discusses the common law distinction between coercion/duress and necessity/justification, observing: “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.” Bailey, 444 U.S. at 409, 100 S. Ct. at 634. However, the Supreme Court noted that, [m]odern cases have tended to blur the distinction. . . .” Id. d we e , vi 226 4 16. No 83 0 017 7/2 7/2 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 110 of 677 17 Good-Faith Defense “Good faith” is a complete defense to a charge that requires intent to defraud. A defendant isn’t required to prove good faith. The Government must prove intent to defraud beyond a reasonable doubt. An honestly held opinion or an honestly formed belief cannot be fraudulent intent – even if the opinion or belief is mistaken. Similarly, evidence of a mistake in judgment, an error in management, or carelessness can’t establish fraudulent intent. 017 7/2 2 succeed doesn’t constitute good faith 07/ Defendant intended to if the d we deceive others by making representations the Defendant knew to be e , vi 6 false or fraudulent. 22 4 16-COMMENTS . ANNOTATIONS AND No But an honest belief that a business venture would ultimately United States v. Goss, 650 F.2d1336 (5th Cir. 1981), failure to give this instruction as a theory-of-defense charge, when requested to do so, is error if there is any evidentiary foundation to support the Defendant's claim. Note, however, that there must be some evidentiary basis for the request. If the usual instructions are given defining willfulness and intent to defraud, that will ordinarily suffice in the absence of evidence of good faith. United States v. Boswell, 565 F.2d1338 (5th Cir. 1978), reh'g denied, 568 F.2d1367 (11th Cir. 1978), cert. denied, 439 U.S. 819, 99 S. Ct. 81, 58 L. Ed. 2d 110 (1978); United States v. England, 480 F.2d1266 (5th Cir. 1973), cert. denied, 414 U.S. 1041, 94 S. Ct. 543, 38 L. Ed. 2d 332 (1973); United States v. Williams, 728 F.2d1402 (11th Cir. 1984). 84 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 111 of 677 18 Good-Faith Reliance upon Advice of Counsel Good-faith is a complete defense to the charge in the indictment because the Government must prove beyond a reasonable doubt that the Defendant acted with [intent to defraud] [bad purpose to disobey or disregard the law] [a specific intent to violate a known legal duty]. Evidence that the Defendant in good-faith followed the advice of counsel would be inconsistent with such an unlawful intent. Unlawful intent has not been proved if the Defendant, before acting: 017 7/2 specific course of 2 • received the attorney’s advice as to the 07/ conduct that was followed; and ed wthat advice in good-faith. • reasonably reliedvie , upon 226 4 ANNOTATIONS AND COMMENTS 16o. Nis a defense whenever the defendant’s good-faith is inconsistent with “Good-faith” • made a full and complete good-faith report of all material facts to an attorney he or she considered competent; a finding that the defendant acted with the mental state required by the definition of the offense charged. Good-faith exculpates when it necessarily negates the required mental state for the offense. Of course, whether good-faith would negate the mental state element depends on how that element is defined with respect to the offense charged and the evidence presented at trial in support of the defendant’s good-faith defense. Because good-faith relates to an element of the offense, the defendant does not have the buren of persuasion, although the defendant may have the burden of production. Perhaps because of Cheek v. United States, 498 U.S. 192 (1991), where the Supreme Court held that the defendant could not be convicted if the jury found that he honestly believed the tax laws did not make his conduct criminal, even if that belief was unreasonable, this defense is often thought of in connection with tax offenses. The defense has also been used commonly in the context of fraud type offenses, such as mail fraud, securities fraud, bankruptcy fraud, bank fraud and the liek, as well as false statement crimes. 85 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 112 of 677 This instruction should be used, where appropriate, only in cases where “intent” is an element. It is not to be used where it is required only that the defendant acted “knowingly.” See United States v. Eisenstein, 731 F.2d1540, 1544 (11th Cir. 1984). See also United States v. Condon, 132 F.3d 653 (11th Cir. 1998) (describing the circumstances in which a good-faith reliance upon advice of counsel instruction is appropriate). See also United States v. Petrie, 302 F.3d 1280 (11th Cir. 2002) (the instruction may be applied to the charges of conspiracy to launder money if there is an evidentiary predicate for the defense). d we e , vi 226 4 16. No 86 0 017 7/2 7/2 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 113 of 677 INDEX TO OFFENSE INSTRUCTIONS 1. TITLE 18 OFFENSES* Title 18 Section Number Instruction Number 111(a)(1) 1 Forcibly Assaulting a Federal Officer: Without Use of a Deadly WeaponFelony Offense 106 Forcibly Assaulting a Federal Officer: With Use of a Deadly Weapon or Inflicting Bodily Injury 108 Concealment of Property Belonging to the Estate of a Bankruptcy Debtor 4 017 2 7/False Claim Presenting or Using a 2 07/ in a Bankruptcy Proceeding d we e , vi 226Embezzlement of a Bankruptcy Estate 111 5 .1 Bribery of Public Official or Juror 119 .2 Receipt of a Bribe by a Public Official Or Juror 121 .1 Bribery of a Bank Officer 123 .2 Receipt of a Bribe or Reward by a Bank Officer 125 111(b) .1 152(1) 152(4) 153 . No 201(b)(1) .2 2 3 4 16- 201(b)(2) 215(a)(1) 215(a)(2) Nature of Offense 6 * 115 117 The Offense Instructions are indexed sequentially, rather than topically or by subject matter, according to the appropriate section numbers of Title 18, United States Code. Offenses defined in other titles of the Code are similarly indexed in a sequential manner following the Title 18 offenses. 87 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 114 of 677 INDEX TO OFFENSE INSTRUCTIONS (Continued) 228(a)(3) 7 Failure to Pay Child Support 127 242 8 Deprivation of Civil Rights (Without Bodily Injury, Kidnapping, Sexual Assault or Death) 129 Damage to Religious Property 133 Freedom of Access to Reproductive Health Services: Intimidation or Injury of a Person 136 Freedom of Access to Reproductive Health Services: Damage to a Facility 137 Conspiracy to Defraud the Government with Respect to Claims 139 False Claims Against the Government 142 Presenting False Declaration or Certification 145 .1 General Conspiracy Charge** 147 .2 Multiple Objects of a Conspiracy – for use with General Conspiracy Charge13.1 150 247(a)(1) & (d)(2) 9 248(a)(1) 10 248(a)(3) 286 .2 6, v 22 64 111- .1 . No 287 289 371 .1 .2 12 13 d e ew i ** / /27 07 017 2 See Offense Instruction 99 for instructions concerning conspiracy offenses charged under 21 USC §§ 846 and/or 955c and 963, and Offense Instruction 74.2 for instructions concerning conspiracy offenses charged under RICO, 18 USC § 1962(d). 88 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 115 of 677 INDEX TO OFFENSE INSTRUCTIONS (Continued) 371 13 .3 Multiple Conspiracies – for use with General Conspiracy Charge13.1 151 Withdrawal from a Conspiracy – for use with General Conspiracy Charge13.1 152 .5 Pinkerton Instruction 154 .6 Conspiracy to Defraud the United States 155 Counterfeiting 158 .4 471 14 472 15 017 2 474(a) 495 or 510(a)(1) 160 Counterfeit Notes: Passing or Uttering 161 e , vi 226Counterfeit Notes: Dealing 17 18 .1 .2 513(a) .3 19 163 Counterfeit Notes: Possession of Notes Made after the Similitude of Genuine Notes 495 or 510(a)(2) 521 d we / /27 07 4 1616 . No Possession of Counterfeit Notes .2 473 .1 165 Forgery: Endorsement of Government Check 166 Forgery: Uttering a Forged Endorsement 168 Counterfeit or Forged Securities 170 Criminal Street Gangs 173 89 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 116 of 677 INDEX TO OFFENSE INSTRUCTIONS (Continued) 545 20 Smuggling 175 641 21 Theft of Government Money or Property 177 Theft or Embezzlement by Bank Employee 180 .1 Theft from an Interstate Shipment 182 .2 Buying or Receiving Goods Stolen from an Interstate Shipment 184 656 22 659 23 666(a)(1)(B) 751(a) 752(a) 24 .1 017 7/2 7/2 Bribery Concerning a (NonGovernmental Program Receiving Federal Funds 0 ed .2 Bribery Concerning a (Governmental) w vie Program Receiving Federal Funds 26, 2 64 125. No 26 187 189 Escape 192 Instigating or Assisting an Escape 194 844(e) 27 Making Threats by Mail or Telephone 196 844(i) 28 Federal Arson Statute 198 871 29 Threats Against the President 200 875(a) 30 Interstate Transmission of a Demand for Ransom for Return of a Kidnapped Person 202 Interstate Transmission of an Extortionate Communication 204 875(b) .1 .2 90 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 117 of 677 INDEX TO OFFENSE INSTRUCTIONS (Continued) 875(c) .3 875(d) .4 876 31 .1 .2 .3 .4 911 912 922(a)(1)(A) 922(a)(5) 922(a)(6) 922(b)(5) 207 Interstate Transmission of an Extortionate Communication 209 Mailing Threatening Communications (First Paragraph) 212 Mailing Threatening Communications (Second Paragraph) 214 Mailing Threatening Communications (Third Paragraph) 217 Mailing Threatening Communications (Fourth Paragraph) 219 d we / /27 07 017 2 e , vi 226False Impersonation of a Citizen 4 1632 . No Interstate Transmission of Threat to Kidnap or Injure 33 34 222 False Impersonation of an Officer of the United States .1 .2 .3 .4 224 Dealing in Firearms without a License 226 Transfer of Firearm to Nonresident 228 False Statement to Firearms Dealer 230 Failure of Firearms Dealer to Keep Proper Record of Sale 232 91 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 118 of 677 INDEX TO OFFENSE INSTRUCTIONS (Continued) 922(d)(1) .5 Possession of Firearm by a Convicted Felon 236 False Entry in a Record by a Firearms Dealer 239 Possession of a Machine Gun 240 .1 False Statement with Respect to Information Required to be Kept by a Firearms Dealer 241 .6 922(m) .7 922(o)(1) 924(a)(1)(A) 35 . No 017 7/2 7/2 0 ed .2 Carrying/Possessing a Firearm During ew or vi Furtherance of a Drug Trafficking in , 26Offense or Crime of Violence 2 924(c)(1)(A) 1001 234 .8 922(g)(1) Sale of a Firearm to a Convicted Felon 4 1636 243 False Statement to a Federal Agency 247 1005 37 False Entry in Bank Records 250 1010 38 False Statements in Department of Housing and Urban Development and Federal Housing Administration Transactions 252 False Statement to a Federally Insured Institution 254 1014 39 92 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 119 of 677 INDEX TO OFFENSE INSTRUCTIONS (Continued) 1028(a)(3) .1 False Identification Documents 256 1028(a)(4) .2 False Identification Documents 259 1028A(a)(1) .3 Aggravated Identity Theft 261 .1 Fraudulent Use of Counterfeit Credit Cards or Other Access Devices 263 Fraudulent Use of Unauthorized Credit Cards or Other Access Devices 266 1029(a)(1) 40 41 1029(a)(2) 1030(a)(1) .2 42 .1 1030(a)(2) & (c)(2)(B) .2 d we 270 0 Computer Fraud: Obtaining Financial Information 273 to Computer or Program 276 Computer Fraud: Trafficking in Passwords 279 e , vi .3 226Computer Fraud: Causing Damage 4 16. No 1030(a)(6) 1030(a)(5) (A) & (B) 017 7/2 7/2 Computer Fraud: Injury to the United States .4 (A) or (B) 1031 43 Major Fraud against the United States 282 1084 44 Transmission of Wagering Information 285 First Degree Murder: Premeditated Murder 287 First Degree Murder (Felony Murder) 289 Second Degree Murder 291 1111 45 .1 .2 .3 93 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 120 of 677 INDEX TO OFFENSE INSTRUCTIONS (Continued) 1112 46 .1 Voluntary Manslaughter 295 .2 Involuntary Manslaughter 298 1113 47 Attempted Murder 301 1114 48 Killing or Attempting to Kill a Federal Officer or Employee 303 Kidnapping 304 1201(a)(1) 49 1341 50 017 2 Mail Fraud .2 1341 & 1346 .1 Mail Fraud: Depriving Another of an Intangible Right of Honest Services d e ew i / /27 07 307 ,v 6Wire Fraud 22 312 52 Bank Fraud 322 1347 53 Health-Care Fraud 325 1349 54 Conspiracy to Commit [Mail] Fraud 328 1343 1344 4 1651 . No 317 1461 55 Mailing Obscene Material 330 1462 56 Interstate Transportation of Obscene Material by Common Carrier 336 94 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 121 of 677 INDEX TO OFFENSE INSTRUCTIONS (Continued) 1465 Interstate Transportation of Obscene Material (for Purpose of Sale or Distribution) 341 Obstruction Of Justice: Omnibus Clause 347 .2 Corruptly Influencing a Juror 349 .3 Threatening a Juror 351 .1 Killing a Witness 353 1512(b)(1) .2 Tampering with a Witness 354 1542 0 ed in Application False Statement w ve and iUse of Passport 26, 2 1503 1512(a)(1)(A) 57 58 59 .1 60 64 1611546(a) o. N 017 7/2 7/2 356 Possession or Use of a False Visa 358 1581 & 1584 62 Involuntary Servitude and Peonage 360 1591(a) 63 Sex Trafficking of Children by Force, Fraud, or Coercion 363 1623(a) 64 False Declaration Before a Grand Jury 367 1702 65 Obstruction of Correspondence – Taking of Mail 369 Theft of Mail 371 1708 66 .1 95 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 122 of 677 INDEX TO OFFENSE INSTRUCTIONS (Continued) 1708 66 1709 67 1791(a)(1) 1791(a)(2) .1 1920 .2 375 Providing Contraband to a Federal Prisoner 377 Possession of Contraband by a Federal Prisoner 379 False Statement Regarding Federal Workers' Compensation Benefits 0 ed with Commerce by .1 Interference w vie Extortion - Hobbs Act: Racketeering , 26(Force or Threats of Force) 2 70 . No 373 017 7/2 7/2 69 1951(a) Possession of Stolen Mail Theft of Mail Matter by Postal Service Employee 68 .2 4 16- .2 .3 382 384 Interference with Commerce by Extortion - Hobbs Act: Racketeering (Color of Official Right) 387 Interference with Commerce by Robbery - Hobbs Act: Racketeering (Robbery) 390 1952(a)(3) 71 Interstate Travel in Aid of Racketeering 392 1953 72 Interstate Transportation of Wagering Paraphernalia (Bookmaking) 395 Illegal Gambling Business (Bookmaking) 397 1955 73 96 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 123 of 677 INDEX TO OFFENSE INSTRUCTIONS (Continued) 1956(a) (1)(A)(i) 74 1956(a) (1)(B)(i)&(ii) .1 .2 1956(a)(2)(A) .3 1956(a)(3)(A) or .4 (a)(3)(b) or (a)(3)(C) Money Laundering: Promoting Unlawful Activity 400 Money Laundering: Concealing Proceeds of Specified Unlawful Activity or Avoiding Transaction Reporting Requirement 404 Money Laundering: International Transportation Of Monetary Instruments 409 Money Laundering Sting 412 017 7/2 .5 Money Laundering Conspiracy 2 07/ d .6 Moneywe Laundering e , vi 226 1956(h) 1957 416 419 64 175- .1 . No 1962(d) .2 RICO - Substantive Offense 422 RICO - Conspiracy Offense 426 2113(a) .1 Bank Robbery (Subsection (a) Only) 429 .2 Bank Robbery (Subsections (a) and (d) Alleged in Separate Counts) 432 Bank Robbery (Subsections (a) and (d) Alleged in the Same Count) 435 Bank Robbery (Subsection (e) Only - Alleged in a Separate Count) 439 Armed Postal/U.S. Property Robbery 441 1962(c) 76 2113(a) & (d) 2113(a) & (d) .3 2113(e) 2114(a) .4 77 97 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 124 of 677 INDEX TO OFFENSE INSTRUCTIONS (Continued) 2119 78 2241(a) 79 Motor Vehicles: "Carjacking" .1 .2 .3 .4 2241(c) 80 2252(a)(2) 2252A(a)(1) Aggravated Sexual Abuse: Crossing a State Line with the Intent to Engage in a Sexual Act with Child Under 12 449 Aggravated Sexual Abuse: Sexual Act with a Child Under 12 452 017 7/2 7/2 Aggravated Sexual Abuse: Sexual Act with Child between 12 and 16 d we 0 454 .1 .2 Sexual Abuse of a Minor 457 Abusive Sexual Contact 460 Abusive Sexual Contact: Sexual Contact with Child Under 12 463 Sexual Exploitation of Children Producing Child Pornography 82 83 447 e .2 2252(a)(1) Aggravated Sexual Abuse: by Force or Threat , vi 226 64 181- .1 2244(a)(3) o. N 2251(a) 444 466 Transporting or Shipping Material Involving Sexual Exploitation of Minors 471 Receiving and Distributing Material Involving Sexual Exploitation of Minors 475 .3A Child Pornography: Transporting or Shipping (Visual Depiction of Actual Minor) 98 479 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 125 of 677 INDEX TO OFFENSE INSTRUCTIONS (Continued) 2251A(a)(1) 83 484 .4A Child Pornography: Receiving, Possessing and Distributing (Visual Depiction of Actual Minor) 489 .4B Child Pornography: Receiving, Possessing, Distributing (Computer or Digital Image that Appears Indistinguishable from Actual Minor but may not be of an Actual Person) 2252A(a)(2)(A) and (5)(B) .3B Child Pornography: Transporting or Shipping (Computer or Digital Image that Appears Indistinguishable from Actual Minor but may not be of an Actual Person) 495 017 2 2283(a) 84 / /27 07 Transportation of Explosive, Biological, d Radioactive or Nuclear e Chemical or ew Materials , vi 226 64 1852284(a) o. N 2312 2313 2314 Transportation of Terrorists .1 .2 506 Sale or Receipt of a Stolen Motor Vehicle 87 504 Interstate Transportation of a Stolen Motor Vehicle 86 88 501 508 Interstate Transportation of Stolen Property (First Paragraph) 511 Causing Interstate Travel in Execution of a Scheme to Defraud (Second Paragraph) 513 99 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 126 of 677 INDEX TO OFFENSE INSTRUCTIONS (Continued) 2315 2332a(a)(2) 2339A 89 2422(b) . No 2423(a) 515 Use of Weapons of Mass Destruction Against Person or Property in the United States 517 .1 Providing Material Support to Terrorists 520 .2 Providing Material Support or Resources to Designated Foreign Terrorist Organizations 522 90 91 2339B 2422(a) Sale or Receipt of Stolen Property (First Paragraph) 92 .2 528 Transportation with Intent to Engage in Criminal Sexual Activity 531 Travel with Intent to Engage in Illicit Sexual Conduct 534 Engaging in Illicit Sexual Conduct in a Foreign Place 538 Facilitating Travel of Another to Engage in Illicit Sexual Conduct 542 Failure To Appear (Bail Jumping) 547 2 -42 16 93 .1 .2 2423(c) .3 2423(d) 3146 to Engage in Sexual Activity .1 017 7/2 Inducement of Juvenile to Travel to /2 Engage in d 07 Sexual Activity Criminal e ew and Enticement of a Minor Coercion , vi 6 .4 94 100 525 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 127 of 677 INDEX TO OFFENSE INSTRUCTIONS (Continued) 2. OFFENSES IN OTHER TITLES 7 USC 2024(b) 95 Unlawful Possession of Food Stamps 549 8 USC 96 1324(a)(1)(A)(I) .1 Bringing Aliens into the United States 551 1324(a)(1)(A)(ii) .2 Unlawfully Transporting Aliens 553 1321(a)(1)(A)(iii) .3 Concealing or Harboring Aliens 556 017 2 8 USC 1326 97 Illegal Entry by Deported Alien 21 USC 841(a)(1) 98 Controlled Substances: Possession with Intent to Distribute 561 Controlled Substances: Unlawful Use of Communications Facility 564 6, v 22 64 19921 USC o. N 843(b) d e ew i / /27 07 558 21 USC 846, 955c and/or 963 100 Controlled Substances: Conspiracy 566 --- 101 .1 Withdrawal as a Defense to Conspiracy - Quantity of Drugs 570 Withdrawal as a Defense to Conspiracy Based on the Statute of Limitations 573 --- .2 101 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 128 of 677 INDEX TO OFFENSE INSTRUCTIONS (Continued) 21 USC 848 102 .1 21 USC 848(e) 21 USC 860 103 575 Controlled Substances: Continuing Criminal Enterprise - Murder 579 Possession of Controlled Substances Near Schools or Public Housing .2 Controlled Substances: Continuing Criminal Enterprise 581 21 USC 952(a) 104 Controlled Substances: Importation 583 26 USC 5604(a)(1)& 5301(d) 105 Possession or Transfer of Non-Tax-Paid Distilled Spirits 585 017 2 / /27 7 26 USC 106 .1 Possession of Unregistered Firearm d0 e 5861(d) ew of Firearm Having Altered 5861(h) .2 Possession , vi 226or Obliterated Serial Number 4 16- .3 Possession or Receipt of Firearm . 5861(i) No not Identified by a Serial Number 26 USC 7201 107 .1 587 589 590 Tax Evasion: General Charge 591 .2 Net Worth Method 594 .3 Bank Deposits Method 597 .4 Cash Expenditures Method 599 26 USC 7203 108 Failure to File a Tax Return 602 26 USC 7206(1) 109 .1 Filing a False Tax-Related Document 605 102 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 129 of 677 INDEX TO OFFENSE INSTRUCTIONS (Continued) 26 USC 7206(2) .2 Aiding or Assisting in Preparation of False Documents Under Internal Revenue Laws 607 26 USC 7207 110 False Tax Return 609 26 USC 7212(a) 111 Impeding Internal Revenue Service 611 31 USC 5322(b) & 5324(3) 112 Evading Currency-Transaction Reporting Requirement (While Violating Another Law) by Structuring Transaction 613 33 USC 1311(a) & 1319(c)(2)(A) 38 USC 6102(b) 113 Knowing Discharge of a Pollutant in Violation of the Clean Water Act 6, v 22 6-4 1114 . No 42 USC 408(a)(7)(B) 115 42 USC 3631 116 46 USC 1903(a) 117 49 USC 46504 118 / /27 07 017 2 d e ew i 615 Fraudulent Receipt of V.A. Benefits 618 Falsely Representing a Social Security Number 619 Forceful Intimidation Because of Race: Occupancy of Dwelling (No Bodily Injury) 620 Controlled Substances: Possession on United States Vessel 622 Assaulting or Intimidating a Flight Crew of an Aircraft in United States: without Dangerous Weapon 627 103 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 130 of 677 INDEX TO OFFENSE INSTRUCTIONS (Continued) 49 USC 46505(b) 119 Attempting to Board Air Craft with Concealed Weapon or Explosive Device d we e , vi 226 4 16. No 104 0 017 7/2 7/2 629 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 131 of 677 OFFENSE INSTRUCTIONS d we e , vi 226 4 16. No 105 0 017 7/2 7/2 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 132 of 677 1.1 Forcibly Assaulting a Federal Officer: without Use of a Deadly Weapon 18 USC § 111(a)(1) - Felony Offense It’s a Federal crime to forcibly assault a Federal officer who is performing official duties. [A Special Agent of the Federal Bureau of Investigation is a Federal officer and has the official duty to execute arrest warrants issued by a Judge or Magistrate Judge of this Court.] The Defendant can be found guilty of this crime only if all the following facts are proved beyond a reasonable doubt: 017 person (1) the Defendant “forcibly assaulted” the 7/2 described in the indictment; and 2 07/ d (2) the person assaulted was a Federal officer we duty. performing vie , an official 226 A "forcible assault" is an intentional threat or attempt to cause 6-4 1injury when the ability to do so is apparent and . serious bodily No immediate. It includes any intentional display of force that would cause a reasonable person to expect immediate and serious bodily harm or death, regardless of whether the act is carried out or the person injured. The Government must prove beyond a reasonable doubt that the victim was a Federal officer performing an official duty and that the Defendant forcibly assaulted the officer. Whether the Defendant knew at the time that the victim was a Federal officer carrying out an official duty does not matter. But you can’t find forcible assault if you believe that the Defendant 106 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 133 of 677 acted only on a reasonable good-faith belief that self-defense was necessary to protect against an assault by a private citizen, and you have a reasonable doubt that the Defendant knew that the victim was a Federal officer. ANNOTATIONS AND COMMENTS 18 USC § 111(a)(1) provides: Whoever forcibly assaults, resists, opposes, impedes, intimidates or interferes with any [Federal officer or employee] designated in Section 1114 of this title while engaged in or on account of the performance of his official duties [shall be guilty of an offense against the United States], d we 017 7/2 7/2 0 Maximum Penalty: Three (3) years imprisonment and applicable fine. e , vi 226 In United States v. Martinez, 486 F.3d 1239 (11th Cir. 2007), the court distinguished between forcible assault where no physical contact occurs, as was the case in United States v. Fallen, and forcible assault that does result in physical contact. The court held that a simple assault (willful attempt to inflict injury) coupled with actual physical contact is sufficient to constitute a "forcible assault." 4 16. No In United States v. Fallen, 256 F.3d 1082 (11th Cir. 2001), the court distinguished simple assault, as defined at common law (the misdemeanor offense included within subsection (a) of the statute), from the “forcible assault” proscribed by the statute as a felony offense. The latter is characterized by a threat or attempt to inflict serious bodily harm or death. In some cases, therefore, it may be necessary to give a lesser included offense instruction on simple assault. See Special Instruction 10. United States v. Young, 464 F.2d 160 (5th Cir. 1972); United States v. Danehy, 680 F.2d 1311 (11th Cir. 1982), although knowledge of the official capacity of the victim is unnecessary for conviction, a Defendant may not be found guilty if the Defendant acts from the mistaken belief that he or she is threatened with an intentional tort by a private citizen. In connection with a claim of self-defense, see United States v. Alvarez, 755 F.2d 830 (11th Cir. 1985), concerning an instruction about the relevance of the Defendant's state of mind and the alternative methods the Government has to negate such a claim. 107 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 134 of 677 1.2 Forcibly Assaulting a Federal Officer: with Use of a Deadly Weapon or Inflicting Bodily Injury 18 USC § 111(b) It’s a Federal crime to forcibly assault a Federal officer [using a deadly or dangerous weapon] [inflicting bodily injury] while the officer is performing official duties. [A Special Agent of the Federal Bureau of Investigation is a Federal officer and has the official duty to execute arrest warrants issued by a Judge or Magistrate Judge of this Court.] The Defendant can be found guilty of this crime only if all the 017 person the Defendant “forcibly assaulted” the 7/2 2 described in the indictment; 07/ d the person assaulted was a Federal officer we duty; and performing vie , an official 226 the Defendant [used a deadly or 6-4 following facts are proved beyond a reasonable doubt: (1) (2) (3) o. 1 dangerous weapon] [inflicted bodily injury] N A "forcible assault" is an intentional threat or attempt to cause serious bodily injury when the ability to do so is apparent and immediate. It includes any intentional display of force that would cause a reasonable person to expect immediate and serious bodily harm or death, regardless of whether the act is carried out or the person is injured. The Government must prove beyond a reasonable doubt that the victim was a Federal officer performing an official duty and the Defendant forcibly assaulted the officer. Whether the Defendant knew 108 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 135 of 677 at the time that the victim was a Federal officer carrying out an official duty does not matter. But you can’t find forcible assault if you believe that the Defendant acted only on a reasonable good-faith belief that self-defense was necessary to protect against an assault by a private citizen, and you have a reasonable doubt that the Defendant knew that the victim was a Federal officer. [A “deadly or dangerous weapon” includes any object that a person can readily use to inflict serious bodily harm on someone else. To show that such a weapon was “used,” the Government must 017 7/2 7/2 prove that the Defendant possessed the weapon and intentionally displayed it during the forcible assault.] d we 0 [Though a forcible assault requires an intentional threat or attempt e , vi 226 to inflict serious bodily injury, the threat or attempt doesn’t have to be 4 16. But in this case, the indictment alleges that bodily injury actually No carried out and the victim doesn’t have to be injured. occurred, so that is the fourth element that the government must prove. A “bodily injury” is any injury to the body, no matter how temporary. It includes any cut, abrasion, bruise, burn, or disfigurement; physical pain; illness; or impairment of the function of a bodily member, organ, or mental faculty.] 109 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 136 of 677 ANNOTATIONS AND COMMENTS 18 U.S.C. § 111(b) provides: Whoever, in the commission of any such act (i.e., a violation of § 111(a) - - assaulting a Federal officer) uses a deadly or dangerous weapon or inflicts bodily injury [shall be punished as provided by law]. Maximum Penalty: Ten (10) years imprisonment and applicable fine. In United States v. Martinez, 486 F.3d 1239 (11th Cir. 2007), the court distinguished between forcible assault where no physical contact occurs, as was the case in United States v. Fallen, and forcible assault that does result in physical contact. The court held that a simple assault (willful attempt to inflict injury) coupled with actual physical contact is sufficient to constitute a "forcible assault." In United States v. Fallen, 256 F.3d 1082 (11th Cir. 2001), the court distinguished simple assault, as defined at common law (the misdemeanor offense included within subsection (a) of the statute), from the “forcible assault” proscribed by the statute as a felony offense. The latter is characterized by a threat or attempt to inflict serious bodily harm or death. In some cases, therefore, it may be necessary to give a lesser included offense instruction on simple assault. See Special Instruction 10. d we 017 7/2 7/2 0 United States v. Young, 464 F.2d 160 (5th Cir. 1972); United States v. Danehy, 680 F.2d 1311 (11th Cir. 1982), although knowledge of the official capacity of the victim is unnecessary for conviction, a Defendant may not be found guilty if the Defendant acts from the mistaken belief that he or she is threatened with an intentional tort by a private citizen. In connection with a claim of self-defense, see United States v. Alvarez, 755 F.2d 830 (11th Cir. 1985), concerning an instruction about the relevance of the Defendant's state of mind and the alternative methods the government has to negate such a claim. e , vi 226 4 16. No The definition of "bodily injury" in the last paragraph of the instruction is from United States v. Myers, 972 F.2d 1566, 1572 (11th Cir. 1992), cert. denied, 507 U.S. 1017, 113 S.Ct. 1813, 123 L.Ed.2d 445 (1993), defining the term under 18 U.S.C. § 242. If the evidence justifies an instruction on the lesser included offense of assaulting a Federal officer without use of deadly weapon or infliction of bodily injury, see Special Instruction 10, Lesser Included Offense. 110 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 137 of 677 2 Concealment of Property Belonging to the Estate of a Bankruptcy Debtor 18 U.S.C. § 152(1) In a case governed by the Federal bankruptcy laws, it’s a Federal crime to fraudulently conceal any property belonging to the estate of a bankruptcy debtor from creditors or from an officer of the court who has a duty to take control of the property. The Defendant can be found guilty of this crime only if all the following facts are proved beyond a reasonable doubt: (1) on or about the date charged, a bankruptcy case docketed as case number ____was pending in the United States Bankruptcy Court for the District of , and _______ [doing business as ] was the Debtor; (2) (3) d we 017 7/2 7/2 0 the property or an interest in the property described in the indictment was a part of the Debtor’s bankruptcy estate; and e , vi 226 No the and 6-4Defendant knowinglyfrom fraudulently creditors or . 1 concealed the property from the [Bankruptcy Administrator] [United States Trustee] who had responsibility for the control or custody of the property. A "Debtor" is a person or corporation that’s the subject of a federal bankruptcy case. When a debtor files a petition for bankruptcy, the bankruptcy estate is created. Among other things, the estate includes all the property owned by the debtor and the debtor’s claims on or rights to other property, no matter where the property is or who possesses it when the bankruptcy case begins. 111 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 138 of 677 If another person or entity also owns an interest in a property, the debtor’s interest in it is still part of the bankruptcy estate. The bankruptcy estate also includes any proceeds, products, rents, or profits of or from property of the estate except earnings from services performed by an individual debtor after the bankruptcy case begins. Note: In Chapter 11 bankruptcy cases filed after October 17, 2005, and all cases filed under Chapter 12 and Chapter 13, use the following alternative definition of “bankruptcy estate.” 017 2 rents, or profits of or from property of the 27/ estate. It also includes / 07individual debtor after the earnings from services performed ed an w by e , vi commencement of the bankruptcy case.] 226 4 The [Bankruptcy Administrator] [United States Trustee] for the 16. NoCourt for the Bankruptcy District of is an [The bankruptcy estate also includes any proceeds, products, officer of the court and was at all relevant times responsible for the control or custody of all property constituting the bankruptcy estate in case number . The heart of this charge is the knowing and fraudulent concealment of property belonging to the debtor’s estate. “Conceal" has its ordinary sense of “to hide” or “to prevent recognition” of something. To "fraudulently conceal" property means to knowingly withhold information about property or to knowingly prevent its discovery while 112 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 intending to deceive or Pg: 139 of 677 cheat a creditor or custodian, usually for personal financial gain or to cause financial loss to someone else. A "creditor" is a person or company that has a claim or right to payment from the debtor that arose before or when a bankruptcy court issued an order for relief concerning the debtor. The term “custodian” means a person authorized by a bankruptcy court to administer the property of the debtor. It includes a bankruptcy administrator or trustee. Fraudulently concealing property may include: 017 7/2 7/2 • transferring property to a third party or entity; • destroying the property; • withholding information about the property’s existence or e , vi 226 location; or • 4 16. No creditor any d we 0 knowingly doing anything else to hinder, delay, or defraud [or the] [Bankruptcy Administrator] [United States Trustee]. ANNOTATIONS AND COMMENTS 18 U.S.C. § 152(1) provides that whoever: (1) knowingly and fraudulently conceals . . . in connection with a case under title 11, from creditors or the United States Trustee, any property belonging to the estate of a debtor [shall be guilty of an offense against the United States]. Maximum Penalty: Five (5) years imprisonment and applicable fine. 113 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 140 of 677 Some of the definitions in this instruction are from 11 U.S.C. §§ 101 and 541. The Eleventh Circuit determined that in the term “property of the estate” has a broader definition in Chapter 13 bankruptcy cases, and includes “earnings from services performed by the debtor after the commencement of the case but before the case is closed, dismissed or converted. . . .” In re Waldron, 536 F.3d 1239, 1241 (11th Cir. 2008)(quoting 11 U.S.C. § 1306(a)(2). Chapter 11, as amended by BAPCPA, has a similar provision for individual Chapter 11 debtors. 11 U.S.C. § 1115(a)(2), as does Chapter 12. 11 U.S.C. § 1207(a)(2). d we e , vi 226 4 16. No 114 0 017 7/2 7/2 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 141 of 677 3 Presenting or Using a False Claim in a Bankruptcy Proceeding 18 U.S.C. § 152(4) It’s a Federal crime to knowingly and fraudulently [present] [use] a false claim in any bankruptcy proceeding. The Defendant can be found guilty of this crime only if all the following facts are proved beyond a reasonable doubt: (1) 017 the Defendant [in a personal capacity] [as 7/2 or through an agent, proxy, or attorney] 7/2 [presented] [used] d 0 a claim against the e estate of the Debtor in that bankruptcy ew proceeding; i 6, v a-material fact in the claim so [presented] 422 [used] was false; and . 16 (2) (3) on or about the date charged, a bankruptcy case docketed as Case Number was pending in the United States Bankruptcy Court for the District of , and [doing business as ] was the Debtor; No (4) the Defendant knowingly and fraudulently [presented] [used] the claim. A claim is "false" if it is untrue when [made] [presented] and the person [making] [presenting] it knows it is untrue. A “material fact” is an important fact -- not some unimportant or trivial detail. A claim is "fraudulent" if it is intended to deceive or to cheat, usually for personal financial gain or to cause someone else financial loss. 115 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 142 of 677 ANNOTATIONS AND COMMENTS 18 U.S.C. § 152(4) provides that whoever: (4) knowingly and fraudulently presents any false claim for proof against the estate of a debtor, or uses any such claim in any case under title 11, in a personal capacity or as or through an agent, proxy, or attorney [shall be guilty of an offense against the United States]. Maximum Penalty: Five (5) years imprisonment and applicable fine. See 11 U.S.C. § 101(5) for a definition of “claim” if one is needed. There are no decisions in the Eleventh Circuit as to whether materiality is an element of this offense. However, because the statute expressly incorporates the term “fraudulently” in conjunction with the term “false claim,” the Committee believes that materiality is an essential element of the offense that must be submitted to the jury under the Supreme Court decisions in United States v. Gaudin, 515 U.S. 506, 115 S.Ct. 2310 (1995); United States v. Wells, 519 U.S. 482, 117 S.Ct. 921 (1997); and Neder v. United States, 527 U.S. 1, 119 S.Ct. 1827 (1999). The Court concluded in Wells that materiality was not an element of the offense of making a “false statement” in violation of 18 U.S.C. § 1014, but held in Neder that use of the words “fraud”or “fraudulently” in 18 U.S.C. §§ 1341, 1343 and 1344, as terms of art, incorporated the common law requirement that proof of fraud necessitates proof of misrepresentation or concealment of a material fact. And Gaudin held that when materiality is an essential element of an offense, it must be submitted to the jury. d we e , vi 226 4 16. No 116 0 017 7/2 7/2 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 143 of 677 4 Embezzlement of a Bankruptcy Estate 18 U.S.C. § 153 It’s a Federal crime for the trustee or custodian of a bankruptcy estate to knowingly and fraudulently embezzle or appropriate any property belonging to the bankruptcy estate. The Defendant can be found guilty of this crime only if all the following facts are proved beyond a reasonable doubt: (1) on or about the date charged a bankruptcy case docketed as Case Number was pending in the United States Bankruptcy Court for District of , and [doing business as] was the Debtor; (2) 017 7/2 in the the property or interest 7/2 described indictment was part 0 the bankruptcy of d estate of the Debtor; we e , vi had access to the property the Defendant 26 as42 trustee or custodian of the a 16. bankruptcy estate; and (3) No (4) the Defendant knowingly and fraudulently embezzled, spent, transferred, or appropriated to the Defendant’s own use property belonging to the bankruptcy estate. A “Debtor” is a person or corporation that’s the subject of a Federal bankruptcy case. When a debtor files a voluntary petition for bankruptcy, the bankruptcy estate is created. Among other things, it includes all the property owned by the Debtor and the Debtor’s claims on or rights to other property, no matter where the property is or who possessed it 117 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 144 of 677 when the bankruptcy case began. The Bankruptcy Court for the has the authority and power to appoint a custodian or trustee to administer the bankruptcy estate of a Debtor. The custodian or trustee is responsible for the control of all the property belonging to the bankruptcy estate. The heart of the charge in the indictment is the knowing and fraudulent embezzlement or appropriation of property belonging to the Debtor’s estate. “Fraudulent” means to knowingly deceive or mislead someone, 017 72 To “embezzle” or “appropriate” means/ to wrongfully take 2 07/convert it to personal use, d someone’s property and spend it, transfer it, we e , vi or convert it to someone else’s use. 226 4 16. No AND COMMENTS ANNOTATIONS usually for personal gain. 18 U.S.C. § 153 provides: (a) Offense. A person described in subsection (b) [a trustee or other custodian] who knowingly and fraudulently appropriates to the person’s own use, embezzles, spends, or transfers any property. . . belonging to the estate of a debtor [shall be guilty of an offense against the United States]. Maximum Penalty: Five (5) years imprisonment and applicable fine. 118 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 145 of 677 5.1 Bribery of a Public Official or Juror 18 U.S.C. § 201(b)(1) It’s a Federal crime for anyone to bribe a [public official] [juror]. The Defendant can be found guilty of this crime only if all the following facts are proved beyond a reasonable doubt: (1) the Defendant directly or indirectly [gave] [offered or promised] something of value to a [public official] [juror]; and (2) the Defendant acted knowingly and corruptly, with intent [to influence an official act] [to influence the public official to allow or make an opportunity for the commission of a fraud on the United States] [to induce the public official to violate the public official's lawful duty by failing to do an act]. d we 017 7/2 7/2 0 Anyone holding the position of [position], as described in the e , vi 226 indictment, is a [public official] [juror]. 4 16. brought before a [public official][juror] for a decision to be acted on. No An "official act" means any decision or action on any matter To act "corruptly" means to act knowingly and dishonestly for a wrongful purpose. ANNOTATIONS AND COMMENTS 18 U.S.C. § 201(a)(1) and (b)(1) provide: §201. Bribery of public officials and [jurors] (a) For the purpose of this section - (1) the term "public official" means . . . an officer or employee or person acting for or on behalf of the United States, or any department, agency or branch of Government thereof. . . or a juror; 119 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 146 of 677 * * * * * (b) Whoever - (1) directly or indirectly, corruptly gives, offers or promises anything of value to any public official or person who has been selected to be a public official, or offers or promises any public official or any person who has been selected to be a public official to give anything of value to any other person or entity, with intent - (A) to influence any official act; or (B) to influence such public official or person who has been selected to be a public official to commit or aid in committing, or collude in, or allow, any fraud, or make opportunity for the commission of any fraud, on the United States; or 017 7/2 7/2 C) to induce such public official or such person who has been selected to be a public official to do or omit to do any act in violation of the lawful duty of such official or person [shall be guilty of an offense against the United States]. 0 ed see the Annotations and Comments w For a definition of “fraud on the United States” vie to Offense Instruction 13.6, infra. 26, 42 Maximum Penalty: 6Fifteen (15) years imprisonment and applicable fine, which may be enhanced three times the monetary o. 1 amount of the bribe.to Thus, under the principle ofvalue of the N Apprendi, if the indictment alleges the amount of the bribe as a means of enhancing the maximum fine, the instruction should be modified to submit that issue to the jury. Consideration should also be given in such a case to the possible use of Special Instruction 10, Lesser Included Offense. 120 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 147 of 677 5.2 Receipt of a Bribe by a Public Official or Juror 18 U.S.C. § 201(b)(2) It’s a Federal crime for a [public official] [juror] to [demand or seek] [receive or accept] [agree to receive or accept] a bribe. The Defendant can be found guilty of this crime only if all the following facts are proved beyond a reasonable doubt: (1) the Defendant was a [public official] [juror]; (2) the Defendant [demanded or sought] [received or accepted] [agreed to receive or accept] either personally or for another person or entity, something of value; and (3) the Defendant did so knowingly and corruptly in return for [being influenced in the performance of an official act] [being influenced to allow or make an opportunity for the commission of a fraud on the United States] [being induced to violate the Defendant’s lawful duty by failing to do some act]. d we e , vi 226 017 7/2 7/2 0 4 16. No be a [public official] [juror]. indictment, would Anyone holding the position of , as described in the An "official act" is any decision or action on any matter brought before a [public official] [juror] for a decision to be acted on. To act "corruptly" means to act knowingly and dishonestly for a wrongful purpose. ANNOTATIONS AND COMMENTS 18 U.S.C. § 201(a)(1) and (b)(2) provide: § 201. Bribery of public officials and [jurors] 121 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 148 of 677 (a) For the purpose of this section - (1) the term "public official" means . . . an officer or employee or person acting for or on behalf of the United States, or any department, agency or branch of Government thereof. . . or a juror; * * * * * (b) Whoever - (2) being a public official or person selected to be a public official, directly or indirectly, corruptly demands, seeks, receives, accepts, or agrees to receive or accept anything of value personally or for any other person or entity, in return for: (A) being influenced in the performance of any official act; (B) being influenced to commit or aid in committing, or to collude in, or allow, any fraud, or make opportunity for the commission of any fraud, on the United States; or 017 7/2 7/2 C) being induced to do or omit to do any act in violation of the official duty of such official or person [shall be guilty of an offense against the United States]. d we 0 For a definition of “fraud on the United States” see the Annotations and Comments to Offense Instruction 13.6, infra. e , vi imprisonment and applicable fine, which may Maximum Penalty: Fifteen (15) years 226 be enhanced to three times the monetary value of the amount 4 of 16-the bribe. Thus, under the principle of Apprendi, if the . alleges the of the bribe as means of No indictment the maximumamount instruction shouldabe modified enhancing fine, the to submit that issue to the jury. Consideration should also be given in such a case to the possible use of Special Instruction 10, Lesser Included Offense. 122 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 149 of 677 6.1 Bribery of a Bank Officer 18 U.S.C. § 215(a)(1) It’s a Federal crime for anyone to corruptly [give] [offer] [promise] anything of value to any person with the intent to [influence] [reward] an [officer] [director] [employee] [agent] [attorney] of a financial institution in connection with any [business] [transaction] of the institution. The Defendant can be found guilty of this crime only if all the following facts are proved beyond a reasonable doubt: (1) the Defendant [gave] [offered] [promised] something of value to the person named in the indictment; (2) the Defendant did so knowingly and corruptly with the intent to [influence] [reward] an [officer] [director] [employee] [agent] [attorney] of a financial institution in connection with any [business] [transaction] of that institution; and d we e (3) , vi 226 017 7/2 7/2 0 the money or property [given] 6-4 greater than $1,000. [offered] [promised] had . 1 a value No name] is legally a "financial institution.” [Institution’s To act "corruptly" means to act knowingly and dishonestly for a wrongful purpose. ANNOTATIONS AND COMMENTS Title 18 U.S.C. § 215(a)(1) provides: § 215. Receipt of commissions or gifts for procuring loans (a) Whoever - (1) corruptly gives, offers, or promises anything of value to any person, with intent to influence or reward an officer, director, 123 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 150 of 677 employee, agent, or attorney of a financial institution in connection with any business or transaction of such institution [shall be guilty of an offense against the United States]. The term "financial institution" is defined in 18 U.S.C. § 20. Maximum penalty: Thirty (30) years imprisonment and applicable fine, which may be enhanced to three times the monetary value of the amount of the bribe. Thus, under the principle of Apprendi, if the indictment alleges the amount of the bribe as a means of enhancing the maximum fine, the instruction should be modified to submit that issue to the jury. Consideration should also be given in such a case to the possible use of Special Instruction 10, Lesser Included Offense. 18 U.S.C. § 215(a) provides that if the value of the bribe does not exceed $1,000, the Defendant is subject to imprisonment for not more than one year, i.e., a misdemeanor offense. See Special Instruction 10, Lesser Included Offense. 017 7/2 7/2 The forfeiture provisions of 18 U.S.C. § 982 apply (18 U.S.C. § 982(a)(2)(A)) if the indictment has given notice under Federal Rule of Criminal Procedure 32.2 that the Government will seek forfeiture as part of the sentence. The principle of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000), does not apply to forfeiture proceedings following conviction, and the burden of proof on a forfeiture count is preponderance of the evidence. United States v. Cabeza, 258 F.3d 1256 (11th Circuit 2001). d we e , vi 226 0 4 16-for use in submitting forfeiture issues to the jury. . See Trial Instruction 6 No 124 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 151 of 677 6.2 Receipt of a Bribe or Reward by a Bank Officer 18 U.S.C. § 215(a)(2) It’s a federal crime for an [officer] [director] [employee] [agent] [attorney] of a financial institution, for the benefit of any person, corruptly to [solicit or demand] [accept or agree to accept] anything of value from any person, intending to be [influenced] [rewarded] in connection with any business or transaction of the institution. The Defendant can be found guilty of this crime only if all the following facts are proved beyond a reasonable doubt: (1) the Defendant, as an [officer] [director] [employee] [agent] [attorney] of a financial institution [solicited or demanded] [accepted or agreed to accept] ] something of value from the person named in the indictment for [his or her own benefit] [the benefit of another person]; d we (2) (3) e , vi did Defendant 226 017 7/2 7/2 0 the so knowingly and corruptly, intending to be [influenced] [rewarded] in connection with any business or transaction of the financial institution; and 4 16. No the money or other property so [solicited or demanded] [accepted or agreed to accept] had a value greater than of $1,000. [Institution’s name] is legally a "financial institution.” To act "corruptly" means to act knowingly and dishonestly for a wrongful purpose. 125 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 152 of 677 ANNOTATIONS AND COMMENTS 18 U.S.C. § 215(a)(2) provides: §215. Receipt of commissions or gifts for procuring loans (a) Whoever - (2) as an officer, director, employee, agent, or attorney of a financial institution, corruptly solicits or demands for the benefit of any person, or corruptly accepts or agrees to accept, anything of value from any person, intending to be influenced or rewarded in connection with any business or transaction of such institution [shall be guilty of an offense against the United States] The term "financial institution" is defined in 18 U.S.C. § 20. Maximum Penalty: Thirty (30) years imprisonment and applicable fine, which may be enhanced to three times the monetary value of the amount of the bribe. Thus, under the principle of Apprendi, if the indictment alleges the amount of the bribe as a means of enhancing the maximum fine, the instruction should be modified to submit that issue to the jury. Consideration should also be given in such a case to the possible use of Special Instruction 10, Lesser Included Offense. d we e , vi 226 017 7/2 7/2 0 4 16. No 18 U.S.C. § 215(a) provides that if the value of the bribe does not exceed $1,000, the Defendant is subject to imprisonment for not more than one year, i.e., a misdemeanor offense. See Special Instruction 10, Lesser Included Offense. The forfeiture provisions of 18 U.S.C. § 982 apply (18 U.S.C. § 982(a)(2)(A)) if the indictment has given notice under Federal Rule of Criminal Procedure 32.2 that the Government will seek forfeiture as part of the sentence. The principle of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000) does not apply to forfeiture proceedings following conviction, and the burden of proof on a forfeiture count is preponderance of the evidence. United States v. Cabeza, 258 F.3d 1256 (11th Circuit 2001). See Trial Instruction 6 for use in submitting forfeiture issues to the jury. 126 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 153 of 677 7 Failure to Pay Child Support 18 U.S.C. § 228(a)(3) It’s a Federal crime to willfully fail to pay a child-support obligation for a child who resides in another State if that obligation [has been unpaid for more than two years] [is more than $10,000]. The Defendant can be found guilty of this crime only if all the following facts are proved beyond a reasonable doubt: (1) the Defendant failed to pay a support obligation; (2) the support obligation was for a child who resides in another State; (3) 017 the Defendant willfully failed to pay the 7/2 support obligation; and 7/2 0 ed [has been unpaid the support obligation w for more thane vi two years] [is more than $10,000]. , 226 6-4 (4) o. 1 N A “support obligation” is any amount set by a court order, or an order of an administrative process under state law, requiring a person to pay for the support of a child and the parent whom the child lives with. The requirement that the Defendant act willfully in failing to pay the support obligation means that [he] [she] must have had a legal duty to pay the support obligation, that [he] [she] knew of this duty, and that [he] [she] voluntarily and intentionally violated that duty. It also means that the Defendant must have known that this child resided in another state. [The existence of a support obligation that was in effect during the time charged in the indictment creates a rebuttable presumption that the 127 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 154 of 677 Defendant had the ability to pay the support. That presumption may be assumed true unless contrary evidence rebuts it.] ANNOTATIONS AND COMMENTS 18 U.S.C. § 228(a)(3) provides: (a) Any person who - (3) willfully fails to pay a support obligation with respect to a child who resides in another state, if such obligation has remained unpaid for a period longer than 2 years, or is greater than $10,000 [shall be guilty of an offense against the United States]. Maximum Penalty: Two (2) years imprisonment and applicable fine. Section 228(d) mandates restitution in an amount equal to the unpaid support obligation as it exists at the time of sentencing. 017 7/2 /2 In United States v. Fields, 500 F.3d 1327 (11th07 2007), the court held that the Cir. d “willful” element requires the government to prove that the defendant knew the child we resided in another state. e , vi The rebuttable presumption 2 created by the statute, 18 U.S.C. § 228(b). However 2 is 6 4 in United States v. Grigsby, 85 F. Supp. 2d 100 (D.R.I. 2000), the court held the 16. presumption to be unconstitutional in violation of the Due Process Clause of the Fifth No other court has addressed this issue to date. Amendment. No 128 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 155 of 677 8 Deprivation of Civil Rights (Without Bodily Injury, Kidnapping, Sexual Assault or Death) 18 U.S.C. § 242 It’s a Federal crime for anyone acting under color of state law to willfully deprive someone else of his or her rights secured by the Constitution or laws of the United States. The Defendant can be found guilty of this crime only if all the following facts are proved beyond a reasonable doubt: (1) the Defendant deprived the victim of the right [of] [to] [describe right infringed, e.g., deprivation of liberty without due process of law]; (2) the Defendant acted or claimed to act under color of state law; and (3) the Defendant willfully exceeded and misused or abused the Defendant's authority under state law. d we e , vi 226 4 16. official under a state law or regulation. No 017 7/2 7/2 0 An act "under color of state law" includes any act done by an It also covers acts done by an official under the ordinances and regulations of any county or municipality of the state. It even includes acts performed under a state or local custom. To act "under color of state law" means to exceed or abuse lawful authority while claiming or pretending to perform an official duty. An unlawful act under color of state law occurs when a person has power only because that person is an official, and that person does acts that are a misuse or abuse of that power. [The Defendant may be found guilty even though the Defendant 129 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 156 of 677 isn’t an official or employee of the State, or of any county, or other governmental unit, if the Government has proved beyond a reasonable doubt that the essential facts constituting the offense charged have been established and that the Defendant willfully participated with the State or its agents in the misuse or abuse of lawful authority.] [“Liberty" includes freedom from unlawful attack upon one's person and the principle that no person may be physically assaulted, intimidated, or otherwise abused intentionally and without justification by a person acting under the color of the laws of any state.] 017 7/2 7/2 [To be deprived of liberty "without due process of law" means to be deprived of liberty without legal authority. d we 0 To determine whether the alleged victim was deprived of liberty e , vi 226 without due process of law, you must first determine from the evidence 4 16. No you must determine whether the Defendant acted within If so, then whether the Defendant did any of the acts charged. the bounds of the Defendant's lawful authority.] [If you find that the Defendant acted within the limits of lawful authority under state law, the Defendant did not deprive the alleged victim of any liberty without due process of law.] [But if you find that the Defendant exceeded the limits of lawful authority under state law, you may find that the Defendant deprived the alleged victim of liberty without due process of law and then decide whether the Defendant acted willfully.] 130 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 157 of 677 ANNOTATIONS AND COMMENTS 18 U.S.C. § 242 provides: Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any person in any State . . . to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States [shall be guilty of an offense against the United States.] Maximum Penalty: One (1) year imprisonment and applicable fine. 18 U.S.C. § 242 was amended in 1988 to increase the maximum penalty in a variety of situations, such as when bodily injury results or dangerous weapons are used. Under the principle of Apprendi, this charge must be modified if one of the many situations calling for an increased punishment is charged and, in that event, the Lesser Included Offense Special Instruction may also be used. 017 7/2 7/2 The Eleventh Circuit has approved the following definition of "bodily injury" under § 242: "the term 'bodily injury' means -- (A) a cut, abrasion, bruise, burn or disfigurement; (B) physical pain; C) illness; (D) impairment of a function of a bodily member, organ or mental faculty; or (E) any other injury to the body, no matter how temporary." United States v. Myers, 972 F.2d 1566, 1572 (11th Cir. 1992), cert. denied, 507 U.S. 1017, 113 S.Ct. 1813, 123 L.Ed.2d 445 (1993). d we 0 e , vi 6 A private citizen who aids 22 abets a state officer may be guilty under § 242 if the and 4 private citizen willfully acts who are active 16F.2d with state officersCir. 1991). participants. United . 923 1557, 1564 (11th States v. Farmer, No If the determination of whether the Defendant acted within or without the limits of lawful authority is dependent upon the presence of “probable cause,” an instruction defining probable cause, tailored to the case, must be included in the charge. For an example of a “probable cause” instruction, see Federal Claims Instruction 2.2, Pattern Jury Instructions (Civil Cases). The civil action requirement that the alleged constitutional infringement be “clearly established” under substantially similar circumstances in order to overcome qualified immunity is equally applicable in criminal prosecutions in the sense that the unlawfulness of the conduct must be apparent in the light of pre-existing case law so as to give “fair warning” to the accused offender. United States v. Lanier, 520 U.S. 259, 117 S.Ct. 1219 (1997). See also Marsh v. Butler County, 268 F.3d 1014, 1031 n.9 (11th Cir. 2001). The committee believes that the general definition of “willfully” in Basic Instruction 9.1A would usually apply to this crime. 131 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 158 of 677 9 Damage to Religious Property 18 U.S.C. § 247 (a)(1) and (d)(2) Under certain circumstances, it’s a Federal crime for anyone to [deface] [damage] [destroy] any religious real property because of the religious character of that property. The Defendant can be found guilty of this crime only if all the following facts are proved beyond a reasonable doubt: (1) the Defendant intentionally [defaced] [damaged] [destroyed] the real property described in the indictment; (2) the Defendant did so knowingly and because of the property’s religious character; (3) 017 7/2 or the crime was in or affected interstate 7/2 foreign commerce; d 0 e ew in the indictment the personvi , named as a direct or suffered6bodily injury 2 proximate result of the Defendant’s acts; -42 and . 16 (4) No (5) the Defendant used [fire] [an explosive] in committing the crime. “Religious property" is any church, synagogue, mosque, religious cemetery, or other religious property. The required effect on [interstate] [foreign] commerce can arise in many ways, such as when the Defendant traveled into the state where the conduct occurred from [another state] [a foreign country]; or when materials to repair the damage traveled from one state into another state; or [insert other relevant conduct that affects commerce]. [A "bodily injury" means any injury to the body, no matter how 132 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 159 of 677 temporary. It includes any cut, abrasion, bruise, burn, or disfigurement; physical pain; illness; or impairment of the function of a bodily member, organ, or mental faculty.] ANNOTATIONS AND COMMENTS 18 U.S.C. § 247 provides: (a) Whoever, in any of the circumstances referred to in subsection (b) of this section - (1) intentionally defaces, damages, or destroys any religious real property, because of the religious character of that property, or attempts to do so [shall be guilty of an offense against the United States]. d we * * * * * e , vi 226 017 7/2 7/2 0 (b) The circumstances referred to in subsection (a) are that the offense is in or affects interstate or foreign commerce. 4 16. No * * * * * (d) The punishment for a violation of subsection (a) of this section shall be - (2) if bodily injury results to any person, including any public safety officer performing duties as a direct or proximate result of conduct prohibited by this section, and the violation is by means of fire or an explosive a fine under this title or imprisonment for not more than 40 years, or both; Maximum Penalty: One (1) year imprisonment and applicable fine unless bodily injury results (or the offense is otherwise aggravated as specified in subsection (d)(1),(2) and (3) of the statute). This instruction covers three separate offenses embodied in § 247: (1) damage to property; (2) damage to property with bodily injury; (3) damage to property with bodily injury resulting from use of fire or explosives. In an appropriate case, therefore, it 133 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 160 of 677 may be necessary to use Special Instruction 10, Lesser Included Offenses, and to modify that instruction if both of the lesser crimes are submitted to the jury. d we e , vi 226 4 16. No 134 0 017 7/2 7/2 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 161 of 677 10.1 Freedom of Access to Reproductive Health Services: Intimidation or Injury of a Person 18 U.S.C. § 248(a)(1) It’s a Federal crime for anyone to use [force] [a threat of force] [a physical obstruction] to intentionally [injure] [intimidate] [interfere with] a person [obtaining] [providing] reproductive-health services. The Defendant can be found guilty of this crime only if all the following facts are proved beyond a reasonable doubt: (1) the Defendant used [force] [a threat of force] [a physical obstruction] to intentionally [injure] [intimidate] [interfere with] the person named in the indictment; [and] (2) 7 01and the Defendant did so knowingly /2 7had been because the person was /2 or 07 [providing] [obtaining] reproductive-health d services; [and] we e , vi acts resulted in [death] the Defendant's 226 [bodily injury]. 6-4 (3) o. 1 N [To "force" a person means to exert or apply physical compulsion or restraint against the person.] [To "interfere with" means to restrict a person's freedom of movement.] [To "intimidate" a person means to place the person in reasonable fear of bodily harm either to that person or to someone else.] [To "physically obstruct" means to block the entry to or exit from a facility that provides reproductive-health services.] “Reproductive-health services" are medical, surgical, counseling, or referral services relating to the human reproductive system – 135 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 162 of 677 including services relating to pregnancy or the termination of a pregnancy – provided in a hospital, clinic, physician’s office, or other facility. [A "bodily injury" means any injury to the body, no matter how temporary. It includes any cut, abrasion, bruise, burn, or disfigurement; physical pain; illness; or impairment of the function of a bodily member, organ, or mental faculty.] ANNOTATIONS AND COMMENTS 017 7/2 7/2 18 U.S.C. § 248(a)(1) provides: d0 eforce or by physical obstruction, w (1) by force or threat of vie or interferes with or attempts to , intentionally injures, intimidates 26or interfere with any person because that injure, intimidate 42 person6-or has been, or in order to intimidate such person or is any other person or any class of persons from, obtaining or o. 1 reproductive health services [shall be guilty of an Nproviding Whoever - - offense against the United States]. Maximum Penalty: Ten (10) years imprisonment, and applicable fine, if bodily injury results. Three (3) years imprisonment, and applicable fine, for repeat offense. One (1) year imprisonment, and applicable fine, for first offense without bodily injury. Six (6) months, and applicable fine, “for an offense involving exclusively a nonviolent physical obstruction.” Lesser Included Offense (Special Instruction 10) may apply. Also, if the indictment or information charges only an exclusively nonviolent physical obstruction, the Defendant is not entitled of right to a jury trial. United States v. Unterberger, 97 F.3d 1413 (11th. Cir. 1996). 136 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 163 of 677 10.2 Freedom of Access to Reproductive-Health Services: Damage to a Facility 18 U.S.C. § 248(a)(3) It’s a Federal crime for anyone to intentionally [damage] [destroy] a facility because the facility provides reproductive-health services. The Defendant can be found guilty of this crime only if all the following facts are proved beyond a reasonable doubt: (1) the Defendant intentionally [damaged] [destroyed] the facility described in the indictment; and (2) the Defendant did so knowingly and because the facility was being used to provide reproductive-health services; [and] 017 other facility A "facility" is a hospital, clinic, physician's office, or 7/2 2 07/ that provides reproductive-health services. It includes the building or d we structure in which the facility is ie , v located. 226 “Reproductive-health services" are medical, surgical, counseling, 4 16. or referralNo services relating to the human reproductive system – including services relating to pregnancy or the termination of a pregnancy– provided in a hospital, clinic, physician’s office, or other facility. ANNOTATIONS AND COMMENTS 18 U.S.C. § 248(a)(3) provides: Whoever - (3) intentionally damages or destroys the property of a facility, or attempts to do so, because such facility provides reproductive health services, or intentionally damages or destroys the property of a place of religious worship [shall be 137 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 164 of 677 guilty of an offense against the United States]. Maximum Penalty: Ten (10) years imprisonment, and applicable fine, if bodily injury results. Three (3) years imprisonment, and applicable fine, for repeat offense. Lesser Included Offense (Special Instruction 10) may apply. d we e , vi 226 4 16. No 138 0 017 7/2 7/2 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 165 of 677 11.1 Conspiracy to Defraud the Government with Respect to Claims 18 U.S.C. § 286 It’s a separate Federal crime for anyone to conspire or agree with someone else to defraud the Government by obtaining or helping to obtain the payment or allowance of any false or fraudulent claim. A “conspiracy” is an agreement by two or more persons to commit an unlawful act. In other words, it is a kind of partnership for criminal purposes. Every member of the conspiracy becomes the agent or partner of every other member. The Government does not have to prove that all the people named 017 7/2 The heart of a 2 members made any kind of formal agreement. 07/ d conspiracy is the making of the unlawful plan itself, so the Government we ve ,theiconspirators succeeded in carrying out does not have to prove that 226 4 the plan. 16. No The Defendant can be found guilty only if all the following facts are in the indictment were members of the plan, or that those who were proved beyond a reasonable doubt: (1) two or more people in some way agreed to try to accomplish a shared and unlawful plan; (2) the Defendant knew the unlawful purpose of the plan and willfully joined in it; and (3) the plan was to defraud the Government by obtaining the payment or allowance of a claim based on a false or fraudulent material fact. A “material fact” is an important fact – not some unimportant or 139 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 166 of 677 trivial detail – that has a natural tendency to influence or is capable of influencing a decision of a department or agency in reaching a required decision. A person may be a conspirator even without knowing all the details of the unlawful plan or the names and identities of all the other alleged conspirators. If the Defendant played only a minor part in the plan but had a general understanding of the unlawful purpose of the plan – and willfully joined in the plan on at least one occasion – that’s sufficient for you to 017 2 But simply being present at the scene 7/ an event or merely of 2 07/ common goals and associating with certain people and d we discussing e , vi interests doesn’t establish proof of a conspiracy. Also, a person who 226 4 doesn’t know about a conspiracy but happens to act in a way that 16o. Nsome purpose of one doesn’t automatically become a advances find the Defendant guilty. conspirator. ANNOTATIONS AND COMMENTS 18 U.S.C. § 286 provides: Whoever enters into any agreement, combination, or conspiracy to defraud the United States, or any department or agency thereof, by obtaining or aiding to obtain the payment or allowance of any false, fictitious or fraudulent claim, shall be [guilty of an offense against the United States]. Maximum Penalty: Ten (10)years and applicable fine. 140 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 167 of 677 Section 286 does not require the Government to prove an overt act. United States v. Lanier, 920 F.2d 887, 892 (11th Cir. 1991). Because the statute expressly incorporates the term “fraudulent” in conjunction with the term “false,” the Committee believes that materiality is an essential element of the offense that must be submitted to the jury under the more recent Supreme Court decisions in United States v. Gaudin, 515 U.S. 506, 115 S.Ct. 2310 (1995); United States v. Wells, 519 U.S. 482, 117 S.Ct. 921 (1997); and Neder v. United States, 527 U.S. 1, 119 S.Ct. 1827 (1999). The Court concluded in Wells that materiality was not an element of the offense of making a “false statement” in violation of 18 U.S.C. § 1014, but held in Neder that use of the words “fraud” or “fraudulently” as terms of art in 18 U.S.C. §§ 1341, 1343 and 1344 incorporated the common law requirement that proof of fraud necessitates proof of misrepresentation or concealment of a material fact. And Gaudin held that when materiality is an essential element of an offense, it must be submitted to the jury. The committee believes that the general definition of “willfully” in Basic Instruction 9.1A would usually apply to this crime. d we e , vi 226 4 16. No 141 0 017 7/2 7/2 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 168 of 677 11.2 False Claims Against the Government 18 U.S.C. § 287 It’s a Federal crime to knowingly make a false claim against any department or agency of the United States. [The General Services Administration is a department or agency of the United States.] The Defendant can be found guilty of this crime only if all the following facts are proved beyond a reasonable doubt: (1) the Defendant knowingly presented a false claim against the United States to an agency of the United States; 017 7/2 or on 7/2 a false 0 (2) the claim was based fraudulent material fact; and (3) the Defendant acted intentionally and knew that the claim was false and fraudulent. A d we e , vi 226 4 16. No is "false" claim or "fraudulent" if it is untrue when [made][presented] and the person [making] [presenting] it knows it is untrue. But the Government doesn’t have to show that the Governmental department or agency was in fact deceived or misled. It’s not a crime to make a false claim unless the falsity or fraudulent aspect relates to a material fact. A misrepresentation is “material” if it contains a “material fact” that is false. A “material fact” is an important fact – not some unimportant or trivial detail – that has a natural tendency to influence or is capable of influencing a department 142 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 169 of 677 or agency in reaching a required decision. [The defendant does not have to directly submit the claim to an employee or agency of the United States. It is sufficient if the defendant submits the claim to a third party knowing that the third party will submit the claim or seek reimbursement from the United States [or a department or agency thereof]. ANNOTATIONS AND COMMENTS 18 U.S.C. § 287 provides: 017 7/2 7/2 Whoever makes or presents to any person or officer in the civil, military, or naval service of the United States, or to any department or agency thereof, any claim upon or against the United States, or any department or agency thereof, knowing such claim to be false fictitious, or fraudulent [shall be guilty of an offense against the United States]. d we Maximum Penalty: 0 e , vi 6 Five (5)2 2 years imprisonment and applicable fine. 6-4 o. 1 N Note that Section 287, unlike other false claims or false statements provisions such as 18 U.S.C. § 1001, does not expressly state that "materiality" is an essential element of the offense. Before 1997, the Fourth and Eighth Circuits held that materiality is an element of a violation under 18 U.S.C. § 287. United States v. Pruitt, 702 F.2d 152, 155 (8th Cir. 1983); United States v. Snider, 502 F.2d 645, 652 n.12 (4th Cir. 1974), while the Second, Fifth, Ninth, and Tenth Circuits held that materiality is not an element under 18 U.S.C. § 287. United States v. Upton, 91 F.3d 677 (5th Cir. 1996); United States v. Taylor, 66 F.3d 254, 255 (9th Cir. 1995); United States v. Parsons, 967 F.2d 452, 455 (10th Cir. 1992); United States v. Elkin, 731 F.2d 1005, 1009 (2d Cir. 1984), cert. denied, 469 U.S. 822, 105 S.Ct. 97, 83 L.Ed.2d 43 (1984). The Eleventh Circuit had explicitly avoided deciding whether materiality is an element under 18 U.S.C. § 287. United States v. White, 27 F.3d 1531, 1535 (11th Cir. 1994). However, because the statute expressly incorporates the term “fraudulent” in conjunction with the term “false,” the Committee believes that materiality is an essential element of the offense that must be submitted to the jury under the more recent Supreme Court decisions in United States v. Gaudin, 515 U.S. 506, 115 S.Ct. 143 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 170 of 677 2310 (1995); United States v. Wells, 519 U.S. 482, 117 S.Ct. 921 (1997); and Neder v. United States, 527 U.S. 1, 119 S.Ct. 1827 (1999). The Court concluded in Wells that materiality was not an element of the offense of making a “false statement” in violation of 18 U.S.C. § 1014, but held in Neder that use of the words “fraud”or “fraudulently” as terms of art in 18 U.S.C. §§ 1341, 1343 and 1344 incorporated the common law requirement that proof of fraud necessitates proof of misrepresentation or concealment of a material fact. And Gaudin held that when materiality is an essential element of an offense, it must be submitted to the jury. With respect to the additional language provided in this instruction for claims submitted to third parties, the Committee relies on the following authorities. United States v. Precision Med. Labs., Inc., 593 F.2d 434, 442-43 (2nd Cir. 1978); United States v. Catena, 500 F.2d 1319 (3rd Cir. 1974), cert. denied, 419 U.S. 1047 (1974). See generally 18 U.S.C. § 2(b). See also United States ex rel. Marcus v. Hess, 317 U.S. 537 (1943) (interpreting R.S. § 5438, forerunner of 18 U.S.C. § 287); United States v. Beasley, 550 F.2d 261 (5th Cir. 1977), cert. denied, 434 U.S. 938 (1977). d we e , vi 226 4 16. No 144 0 017 7/2 7/2 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 171 of 677 12 Presenting False Declaration or Certification 18 U.S.C. § 289 It’s a Federal crime for anyone to knowingly and willfully make a false declaration or certification to the Department of Veterans Affairs. The Defendant can be found guilty of this crime only if all the following facts are proved beyond a reasonable doubt: (1) the Defendant knowingly presented a false or fraudulent declaration or certificate to the Department of Veterans Affairs; (2) the declaration or certificate related to a material fact; and 017 7/2 is a declaration A "false" or "fraudulent" declaration or /2 certificate 07 d or certificate that the person [presenting] [using] it knows is untrue. But we ie , vto show that the Department of Veterans the Government does not have 226 4 Affairs was in .fact deceived or misled. 16No fact” in a declaration or certificate is an important fact A “material (3) the Defendant acted willfully, knowing that the declaration was false or fraudulent. – not some unimportant or trivial detail – that has a natural tendency to influence or is capable of influencing the Department of Veterans Affairs in reaching a required decision. ANNOTATIONS AND COMMENTS 18 U.S.C. § 289 provides: Whoever knowingly and willfully makes, or presents any false, fictitious or fraudulent affidavit, declaration, certificate, voucher, endorsement, or paper or writing purporting to be such, concerning any 145 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 172 of 677 claim for pension or payment thereof, or pertaining to any other matter within the jurisdiction of the Secretary of Veterans Affairs [shall be guilty of an offense against the United States]. Maximum Penalty: Five (5) years imprisonment and applicable fine. Note that Section 289, like Section 287, but unlike other false claims or false statements provisions such as 18 U.S.C. § 1001, does not expressly state that "materiality" is an essential element of the offense. There are no decisions on the point under Section 289, but there seems to be no reason to distinguish cases decided under Section 287. Before 1997, the Fourth and Eighth Circuits had held that materiality is an element of a violation under 18 U.S.C. § 287. United States v. Pruitt, 702 F.2d 152, 155 (8th Cir. 1983); United States v. Snider, 502 F.2d 645, 652 n.12 (4th Cir. 1974), while the Second, Fifth, Ninth, and Tenth Circuits had held that materiality is not an element under 18 U.S.C. § 287. United States v. Upton, 91 F.3d 677 (5th Cir. 1996); United States v. Taylor, 66 F.3d 254, 255 (9th Cir. 1995); United States v. Parsons, 967 F.2d 452, 455 (10th Cir. 1992); United States v. Elkin, 731 F.2d 1005, 1009 (2d Cir. 1984), cert. denied, 469 U.S. 822, 105 S.Ct. 97, 83 L.Ed.2d 43 (1984). 017 7/2 2 The Eleventh Circuit had explicitly avoided deciding whether materiality is an element 07/ d under 18 U.S.C. § 287. we vie However, because the statute ,expressly incorporates the term “fraudulent” in conjunction with the term “false,” the Committee believes that materiality is an 226 4 essential element of6- offense that must be submitted to the jury under the more 1 the recent Supreme. No Court decisions in United States v. Gaudin, 515 U.S. 506, 115 S.Ct. 2310 (1995); United States v. Wells, 519 U.S. 482, 117 S.Ct. 921 (1997); and Neder v. United States, 527 U.S. 1, 119 S.Ct. 1827 (1999). The Court concluded in Wells that materiality was not an element of the offense of making a “false statement” in violation of 18 U.S.C. § 1014, but held in Neder that use of the words “fraud”or “fraudulently” as terms of art in 18 U.S.C. §§ 1341, 1343 and 1344 incorporated the common law requirement that proof of fraud necessitates proof of misrepresentation or concealment of a material fact. And Gaudin held that when materiality is an essential element of an offense, it must be submitted to the jury. The committee believes that the general definition of “willfully” in Basic Instruction 9.1A would usually apply to this crime. 146 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 173 of 677 13.1 General Conspiracy Charge 18 U.S.C. § 371 It’s a separate Federal crime for anyone to conspire or agree with someone else to do something that would be another Federal crime if it was actually carried out. A "conspiracy" is an agreement by two or more people to commit an unlawful act. In other words, it is a kind of "partnership" for criminal purposes. Every member of a conspiracy becomes the agent or partner of every other member. 017 who were in the indictment were members of the plan, or /that those 72 2 07/ members made any kind of formal agreement. d we to prove that the members e The Government doesvnot have , i 26 planned together all42 details of the plan or the “overt acts” that the the 16. indictment charges would be carried out in an effort to commit the No The Government does not have to prove that all the people named intended crime. The heart of a conspiracy is the making of the unlawful plan itself followed by the commission of any overt act. The Government does not have to prove that the conspirators succeeded in carrying out the plan. The Defendant can be found guilty of this crime only if all the following facts are proved beyond a reasonable doubt: (1) two or more persons in some way agreed to try to accomplish a shared and unlawful plan; (2) the Defendant knew the unlawful purpose 147 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 174 of 677 of the plan and willfully joined in it; (3) during the conspiracy, one of the conspirators knowingly engaged in at least one overt act as described in the indictment; and (4) the overt act was committed at or about the time alleged and with the purpose of carrying out or accomplishing some object of the conspiracy. An "overt act" is any transaction or event, even one that may be entirely innocent when viewed alone, that a conspirator commits to accomplish some object of the conspiracy A person may be a conspirator without knowing all the details of 017 7/2 7/2 the unlawful plan or the names and identities of all the other alleged conspirators. d we 0 If the Defendant played only a minor part in the plan but had a e , vi 226 general understanding of the unlawful purpose of the plan and willfully 4 16. the Defendant guilty. No joined in the plan on at least one occasion, that’s sufficient for you to find But simply being present at the scene of an event or merely associating with certain people and discussing common goals and interests doesn’t establish proof of a conspiracy. A person who doesn’t know about a conspiracy but happens to act in a way that advances some purpose of one doesn’t automatically become a conspirator. ANNOTATIONS AND COMMENTS 18 U.S.C. § 371 provides: If two or more persons conspire . . . to commit any offense 148 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 175 of 677 against the United States . . . and one or more of such persons do any act to effect the object of the conspiracy, each [shall be guilty of an offense against the United States]. Maximum Penalty: Five (5) years imprisonment and applicable fine. See United States v. Horton, 646 F.2d 181, 186 (5th Cir. 1981). The committee believes that the general definition of “willfully” in Basic Instruction 9.1A would usually apply to this crime. d we e , vi 226 4 16. No 149 0 017 7/2 7/2 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 176 of 677 13.2 Multiple Objects of a Conspiracy – for use with General Conspiracy Charge 13.1 18 U.S.C. § 371 In this case, regarding the alleged conspiracy, the indictment charges that the Defendants conspired to commit [first crime] and to commit [second crime]. In other words, the Defendants are charged with conspiring to commit two separate substantive crimes. The Government does not have to prove that the Defendant willfully conspired to commit both crimes. It is sufficient if the Government proves beyond a reasonable doubt that the Defendant 017 Defendant of guilty, you must all agree on which of the two crimes the 7/2 2 07/ conspired to commit. d we e , vi 26 ANNOTATIONS AND -42 COMMENTS . 16 No Ballard, 663 F.2d 534, 544 (5th Cir. Unit B, 1981), requires this United States v. willfully conspired to commit one of those crimes. But to return a verdict instruction in order to assure a unanimous verdict when a single conspiracy embraces multiple alleged objects. 150 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 177 of 677 13.3 Multiple Conspiracies – for use with General Conspiracy Charge13.1 18 U.S.C. § 371 Proof of several separate conspiracies isn’t proof of the single, overall conspiracy charged in the indictment unless one of the several conspiracies proved is the single overall conspiracy. You must decide whether the single overall conspiracy charged existed between two or more conspirators. If not, then you find the Defendants not guilty of that charge. But if you decide that a single overall conspiracy did exist, then you 017 – not the particular Defendant was a member of some other2 7/ conspiracy 7/2 one charged – then you must find thatd 0 Defendant not guilty. e ew you must all agree that the So to find a Defendanti guilty, 6, v 2 Defendant was a member of the conspiracy charged – not a member of -42 . 16 conspiracy. some other o N separate must decide who the conspirators were. And if you decide that a ANNOTATIONS AND COMMENTS See United States v. Diecidue, 603 F.2d 535, 548-49 (5th Cir. 1979). 151 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 178 of 677 13.4 Withdrawal from a Conspiracy – for use with General Conspiracy Charge 13.1 18 U.S.C. §371 A conspiracy isn’t a crime unless (1) there is an agreement, and (2) a conspirator performs an overt act. So, if a Defendant joins a conspiracy but later has a change of mind and withdraws from the conspiracy before any conspirator has committed an "overt act," the Defendant isn’t guilty of conspiracy. But to find that a Defendant withdrew from a conspiracy, you must 017 7/2 the conspiracy before any member of the conspiracy committed any 2 07/ d overt act. we e , vi 226 4 ANNOTATIONS AND 16 COMMENTS . No find that the Defendant took action to disavow or defeat the purpose of See United States v. Jimenez, 622 F.2d 753 (5th Cir. 1980). United States v. Marolla, 766 F.2d 457 (11th Cir. 1985), withdrawal, to constitute a defense, must come before the completion or consummation of the offense through the commission of an overt act. This instruction is sometimes used when the charged conspiracy is not pursuant to 18 U.S.C. § 371 (general conspiracy charge). The holding of Marolla prevents a defendant from raising withdrawal under a conspiracy statute that does not require proof of an overt act (such as 21 U.S.C. § 846, 955c, and 963) except in two instances. First, when the defendant raises withdrawal as a defense to Pinkerton liability, in which case withdrawal is a defense to subsequent criminal conduct of the defendant’s co-conspirators. See United States v. Alvarez, 755 F.2d 830 (11th Cir. 1985); United States v. Marolla, 766 F.2d 457 (11th Cir. 1985). Second, when the defendant claims to have withdrawn from the conspiracy outside the limitations period, in which case withdrawal, in conjunction with the operation of the statute of limitations, is a complete defense to the conspiracy charge. United States v. Harriston, 329 F.3d 779 (11th Cir. 2003); United States v. Arias, 431 F.3d 1327 (11th 152 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 179 of 677 Cir. 2005). Withdrawal is an affirmative defense. The defendant must prove "that he undertook affirmative steps, inconsistent with the objects of the conspiracy, to disavow or to defeat the conspiratorial objectives, and either communicated those acts in a manner reasonably calculated to reach his co-conspirators or disclosed the illegal scheme to law enforcement authorities." United States v. Firestone, 816 F.2d 583, 589 (11th Cir.), cert. denied, 484 U.S. 948, 108 S.Ct. 338, 98 L.Ed.2d 365 (1987). Neither arrest nor incarceration during the time frame of the conspiracy automatically triggers withdrawal from a conspiracy. United States v. Gonzalez, 940 F.2d 1413, 1427 (11th Cir. 1991). d we e , vi 226 4 16. No 153 0 017 7/2 7/2 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 180 of 677 13.5 Pinkerton Instruction [Pinkerton v. U. S., 328 U.S. 640 (1946)] During a conspiracy, if a conspirator commits a crime to advance the conspiracy toward its goals, then in some cases a coconspirator may be guilty of the crime even though the coconspirator did not participate directly in the crime. So regarding counts , and Defendants , if you have first found [either] [any] of those Defendants guilty of the crime of conspiracy as charged in Count , you may also find that 017 in the crime. even though the Defendant did not personally participate 7/2 2 07/ To do so, you must find beyond a reasonable doubt: d we e , viconspiracy a conspirator (1) during26 2 the committed the additional crime charged to 4 further 16- the conspiracy’s purpose; . No the Defendant was a knowing and willful (2) Defendant guilty of any of the crimes charged in Counts member of the conspiracy when the crime was committed; and (3) it was reasonably foreseeable that a coconspirator would commit the crime as a consequence of the conspiracy. ANNOTATIONS AND COMMENTS This charge is an adaptation of the one set forth in United States v. Alvarez, 755 F.2d 830, 848 n. 22 (11th Cir. 1985). The committee believes that the general definition of “willfully” in Basic Instruction 9.1A would usually apply to this crime. 154 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 181 of 677 13.6 Conspiracy to Defraud the United States 18 U.S.C. § 371 (Second Clause) It’s a Federal crime for anyone to conspire or agree with someone else to defraud the United States or any of its agencies. To "defraud" the United States means to cheat the Government out of property or money or to interfere with any of its lawful governmental functions by deceit, craft, or trickery. A “conspiracy” is an agreement by two or more persons to commit an unlawful act. In other words, it is a kind of partnership for criminal 017 7/2 7/2 purposes. Every member of the conspiracy becomes the agent or partner of every other member. d we 0 The Government does not have to prove that all the people named e , vi 226 in the indictment were members of the plan, or that those who were 4 16. members made any kind of formal agreement. No The heart of a conspiracy is the making of the unlawful plan itself, so the Government does not have to prove that the conspirators succeeded in carrying out the plan. The Government does not have to prove that the members planned together all the details of the plan or the “overt acts” that the indictment charges would be carried out in an effort to commit the intended crime. The Defendant can be found guilty of this crime only if all the following facts are proved beyond a reasonable doubt: (1) Two or more people in some way agreed 155 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 182 of 677 to try to accomplish a shared and unlawful plan; (2) the Defendant knew the unlawful purpose of the plan and willfully joined in it; (3) during the conspiracy, one of the conspirators knowingly engaged in at least one overt act described in the indictment; and (4) the overt act was knowingly committed at or about the time alleged and with the purpose of carrying out or accomplishing some object of the conspiracy. An "overt act" is any transaction or event, even one which may be 017 2 accomplish some object of the conspiracy. 27/ 07/ knowing all the details A person may be a conspirator ed without weven ie of the unlawful plan or the6, v and identities of all the other alleged names 2 -42 conspirators. 16 . No If the Defendant played only a minor part in the plan but had a entirely innocent when viewed alone, that a conspirator commits to general understanding of the unlawful purpose of the plan – and willfully joined in the plan on at least one occasion – that's sufficient for you to find the Defendant guilty. But simply being present at the scene of an event or merely associating with certain people and discussing common goals and interests doesn't establish proof of a conspiracy. Also a person who doesn't know about a conspiracy but happens to act in a way that advances some purpose of one doesn't automatically become a conspirator. 156 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 183 of 677 ANNOTATIONS AND COMMENTS 18 U.S.C. § 371 provides: If two or more persons conspire . . . to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each [shall be guilty of an offense against the United States]. The definition of “to defraud the United States” comes from Hammerschmidt v. United States, 265 U.S. 182 (1924), and United States v. Porter, 591 F.2d 1048 (5th Cir. 1979): “To conspire to defraud the United States means primarily to cheat the government out of property or money, but it also means to interfere with or obstruct one of its lawful government functions by deceit, craft or trickery, or at least by means dishonest.” 017 2 The committee believes that the general definition of27/ “willfully” in Basic Instruction 9.1A would usually apply to this crime. 07/ d we e , vi 226 4 16. No Maximum Penalty: Five (5) years imprisonment and applicable fine. 157 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 184 of 677 14 Counterfeiting 18 U.S.C. § 471 It’s a Federal crime to counterfeit any United States Federal Reserve Notes. The Defendant can be found guilty of this crime only if all the following facts are proved beyond a reasonable doubt: (1) the Defendant made counterfeit Federal Reserve Notes; and (2) the Defendant did so with intent to defraud. To act with "intent to defraud" means to act with the specific intent 017have to prove financial loss to someone else. The Government does not 7/2 7/2 that anyone was in fact defrauded. d 0 e ew , vi ANNOTATIONS AND COMMENTS 226 4 18 U.S.C. § 471 provides: 16. No to deceive or cheat, usually for personal financial gain or to cause Whoever, with intent to defraud, falsely makes, forges, counterfeits, or alters any obligation or other security of the United States [shall be guilty of an offense against the United States]. Maximum Penalty: Twenty (20) years imprisonment and applicable fine. See Trial Instruction 6 for use in submitting forfeiture issues to the Jury. In cases where there is an issue as to whether the forged instrument is “counterfeit,” the court should consider defining “counterfeit.” The Eleventh Circuit has apparently not in a published opinion defined “counterfeit” for purposes of 18 U.S.C. § 471. In an unpublished opinion, however, the Circuit stated: “The test for determining whether a replica item of currency is counterfeit is ‘whether the fraudulent obligation bears such a likeness or resemblance to any of the genuine obligations or securities 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 upright and honest.’” United States v. Collett, 135 Fed.Appx. 402, 404 (11th Cir. 2005) (per curiam) (quoting United States v. Parr, 716 F.2d 796, 158 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 185 of 677 807 (11th Cir.1983)). d we e , vi 226 4 16. No 159 0 017 7/2 7/2 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 186 of 677 15.1 Possession of Counterfeit Notes 18 U.S.C. § 472 It’s a Federal crime to possess counterfeit United States Federal Reserve Notes with the intent to defraud. The Defendant can be found guilty of this crime only if all the following facts are proved beyond a reasonable doubt: (1) the Defendant possessed counterfeit Federal Reserve Notes; (2) the Defendant knew that the notes were counterfeit; and (3) the Defendant possessed the notes with intent to defraud. d we 017 7/2 7/2 0 To act with "intent to defraud" means to act with the specific intent e , vi 226 to deceive or cheat, usually for personal financial gain or to cause 4 16. No in fact defrauded. that anyone was financial loss to someone else. The Government does not have to prove ANNOTATIONS AND COMMENTS 18 U.S.C. § 472 provides: Whoever, with intent to defraud . . . keeps in possession or conceals any falsely made [or] counterfeited . . . obligation . . . of the United States [shall be guilty of an offense against the United States.] Maximum Penalty: Twenty (20) years imprisonment and applicable fine. See Trial Instruction 6 for use in submitting forfeiture issues to the jury. 160 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 187 of 677 15.2 Counterfeit Notes: Passing or Uttering 18 U.S.C. § 472 It’s a Federal crime to pass or utter, with intent to defraud, any counterfeit United States Federal Reserve Note. The Defendant can be found guilty of this crime only if all the following facts are proved beyond a reasonable doubt: (1) the Defendant passed or tried to pass a counterfeit Federal Reserve Note; (2) the Defendant knew that the note was counterfeit; and (3) the Defendant acted with the intent to defraud. 017 to spend it or To "pass" (or “utter”) a counterfeit note means to try 7/2 2 07/ otherwise place it in circulation. ed wmeans to act with the specific intent e To act with "intent to defraud" , vi 26 to deceive or cheat, 2 usually for personal financial gain or to cause 4 16. financial loss to someone else. The Government does not have to prove No that anyone was in fact defrauded. ANNOTATIONS AND COMMENTS 18 U.S.C. § 472 provides: Whoever, with intent to defraud, passes [or] utters . . . any falsely made [or] counterfeited . . . obligation . . . of the United States [shall be guilty of an offense against the United States.] Maximum Penalty: Twenty (20) years imprisonment and applicable fine. The "pass" element can be satisfied at any stage after the manufacturing of a counterfeit bill by the willful delivery of the bill to someone for the purpose of placing the bill in circulation, provided the person delivering the bill had the intent to defraud someone who might thereafter accept the bill as true and genuine. See United States v. Wilkerson, 469 F.2d 963 (5th Cir. 1972). 161 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 188 of 677 See Trial Instruction 6 for use in submitting forfeiture issues to the Jury. d we e , vi 226 4 16. No 162 0 017 7/2 7/2 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 189 of 677 16 Counterfeit Notes: Dealing 18 U.S.C. § 473 It’s a Federal crime to buy, sell, exchange, transfer, receive, or deliver a counterfeit Federal Reserve Note with the intent to pass or use the note as true and genuine. The Defendant can be found guilty of this crime only if all the following facts are proved beyond a reasonable doubt: (1) the Defendant bought, sold, exchanged, transferred, received or delivered [a] counterfeit Federal Reserve Note[s] as charged; (2) the Defendant knew that the note[s] [was] [were] counterfeit; and (3) the Defendant intended that the note[s] be passed or used as genuine. To "pass" d we e , vi or "use"6 counterfeit 22 a 6-4 o. 1 N The indictment 017 7/2 7/2 0 note as "true and genuine" includes any attempt to spend it or otherwise place it in circulation. alleges that the Defendant bought, sold, exchanged, transferred, received, and delivered a counterfeit Federal Reserve Note. The Government does not have to prove all those acts but must prove beyond a reasonable doubt that the Defendant bought or sold or exchanged or transferred or received or delivered a counterfeit note. To find the Defendant guilty, you must all agree on which one of those things the Defendant did. 163 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 190 of 677 ANNOTATIONS AND COMMENTS 18 U.S.C. § 473 provides: Whoever buys, sells, exchanges, transfers, receives, or delivers any false, forged, counterfeited, or altered obligation or other security of the United States, with the intent that the same be passed, published, or used as true and genuine, shall be [guilty of an offense against the United States]. Maximum Penalty: Twenty (20) years imprisonment and applicable fine. The "pass" element can be satisfied at any stage after the manufacturing of a counterfeit bill by the willful delivery of the bill to someone for the purpose of placing the bill in circulation, provided the person delivering the bill had the intent to defraud someone who might thereafter accept the bill as true and genuine. See United States v. Wilkerson, 469 F.2d 963 (5th Cir. 1972). 017 7/2 7/2 See Trial Instruction 6 for use in submitting forfeiture issues to the jury. d we e , vi 226 4 16. No 164 0 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 191 of 677 17 Counterfeit Notes: Possession of Notes Made after the Similitude of Genuine Notes 18 U.S.C. § 474(a) (Fifth Paragraph) It’s a Federal crime to possess a counterfeit made United States Federal Reserve Note made to look like a genuine note with the intent to sell or otherwise use it. The Defendant can be found guilty of this crime only if all the following facts are proved beyond a reasonable doubt: (1) the Defendant possessed fake Federal Reserve Notes made to look like genuine notes; 017 /2 7notes with (3) the Defendant possessed /2 the 07 the intent to sell or otherwise use them. d we for purposes of this statute when A Federal Reserve Notevie , is “fake” 26 it looks so much like42 a genuine note that it is calculated to deceive an 16. honest unsuspecting person who uses ordinary observation and care. No (2) the Defendant knew that the notes were fake; and ANNOTATIONS AND COMMENTS 18 U.S.C. § 474(a) (fifth paragraph) provides: Whoever has in his possession or custody . . . any obligation or other security made or executed, in whole or in part, after the similitude of any obligation or other security issued under the authority of the United States, with intent to sell or otherwise use the same [shall be guilty of an offense against the United States]. Maximum Penalty: Twenty-five (25) years imprisonment for a Class B felony (18 U.S.C. § 3581) and applicable fine. The definition of "after the similitude" is taken from United States v. Parr, 716 F.2d 796, 807 (11th Cir. 1983). See Trial Instruction 6 for use in submitting forfeiture issues to the Jury. 165 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 192 of 677 18.1 Forgery: Endorsement of Government Check 18 U.S.C. § 510(a)(1) Having a Face Value of More Than $1,000 It’s a Federal crime for anyone to forge the endorsement of the payee on a United States Treasury check. The Defendant can be found guilty of this crime only if all the following facts are proved beyond a reasonable doubt: (1) the Defendant forged the payee's endorsement on a United States Treasury check having a face value of more than $1,000; and (2) the Defendant forged the endorsement with the intent to defraud by getting (or enabling someone else to get) money directly or indirectly from the United States. 017 7/2 7/2 0 edperson to whom the check is The "payee" of a check isw the ie 6, v payable. 2 -42to write a payee's endorsement or signature on To “forge"16 o. means N a Treasury check without the payee's permission or authority. To act with "intent to defraud" means to act with the specific intent to deceive or cheat, usually for personal financial gain or to cause financial loss to someone else. The crime is complete when someone intentionally forges a payee’s signature with the intent to defraud. The Government does not have to prove that the United States was in fact defrauded or that anyone actually obtained any money from the United States. 166 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 193 of 677 ANNOTATIONS AND COMMENTS 18 U.S.C. § 510(a)(1) provides: (a) Whoever, with intent to defraud - - (1) falsely makes or forges any endorsement or signature on a Treasury check or bond or security of the United States [having a face value of more than $1,000] [shall be guilty of an offense against the United States]. Maximum penalty: Ten (10) years imprisonment and applicable fine. If the evidence justifies an instruction on the lesser included offense under § 510(c), see Special Instruction 10, Lesser Included Offense. See also 18 U.S.C. § 495. d we e , vi 226 4 16. No 167 0 017 7/2 7/2 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 194 of 677 18.2 Forgery: Uttering a Forged Endorsement 18 U.S.C. § 510(a)(2) Having a Face Value of More Than $1,000 It’s a Federal crime for anyone to pass or try to pass any United States Treasury check with a forged endorsement. The Defendant can be found guilty of this crime only if all the following facts are proved beyond a reasonable doubt: (1) the Defendant passed or tried to pass a genuine United States Treasury check having a face value of more than $1,000 as alleged in the indictment; (2) the Defendant knew that the payee's endorsement on the check was a forgery; and 017 /2 7to defraud (3) the Defendant acted with 7/2 intent the United States. d 0 e ew person to whom the check is The "payee" of a checki is the 6, v 2 payable. -42 . 16 a signature or endorsement made without the “Forgery" means No true payee’s permission or authority. To "pass" (or “utter”) a check includes any attempt to cash the check or otherwise place it in circulation while stating or implying, directly or indirectly, that the check and the endorsement are genuine. To act with "intent to defraud" means to act with the specific intent to deceive or cheat, usually for personal financial gain or to cause financial loss to someone else. The crime is completed when someone who knows that the signature or endorsement on a check is a forgery and intentionally tries 168 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 195 of 677 to pass or otherwise circulate the check as genuine with the intent to defraud. The Government does not have to prove that the Defendant in fact did the forgery or that anyone actually obtained money from the United States. ANNOTATIONS AND COMMENTS 18 U.S.C. § 510(a)(2) provides: (a) Whoever, with intent to defraud - - 017 7/2 7/2 (2) passes, utters, or publishes, or attempts to pass, utter, or publish, any Treasury check or bond or security of the United States [having a face value of more than $1,000] bearing a falsely made or forged endorsement or signature [shall be guilty of an offense against the United States]. d we e , vi 226 0 Maximum penalty: Ten (10) years imprisonment and applicable fine. 4 16. No If the evidence justifies an instruction on the lesser included offense, see Special Instruction 10, Lesser Included Offense. See also 18 U.S.C. § 495. 169 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 196 of 677 18.3 Counterfeit or Forged Securities 18 U.S.C. § 513(a) It’s a Federal crime to possess any counterfeit or forged securities of an organization with the intent to defraud. The Defendant can be found guilty of this crime only if all the following facts are proved beyond a reasonable doubt: (1) the Defendant made, passed or attempted to pass, or possessed a counterfeit or forged security; (2) the counterfeit or forged security was of an organization; and (3) the Defendant possessed the counterfeit or forged security with intent to deceive another person, organization, or government. d we 017 7/2 7/2 0 e , vi The term “counterfeit” means a document that has been falsely 226 4 16- so as to appear to be a genuine security. To be . made or manufactured No counterfeit, the fraudulent security does not have appear to be a genuine security of an organization that in fact exists, but rather, it must look so much like a genuine security that it is calculated to deceive an honest, unsuspecting person who uses ordinary observation and care. The term “forged” means a document that purports to be genuine but has been fraudulently altered, completed, signed, or endorsed. An “organization” is a nongovernmental legal entity. It includes, but is not limited to, a corporation, company, association, firm, partnership, joint-stock company, foundation, institution, society, union, 170 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 197 of 677 or any other association of persons that operates in or the activities of which affect interstate or foreign commerce. The term “security” includes: a note, stock certificate, treasurystock certificate, bond, treasury bond, debenture, certificate of deposit, interest coupon, bill, check, draft, warrant, debit instrument, 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, certificate of interest in tangible or intangible property, instrument 017 2 for any of the items meeting this definition. 27/ 07/act with the specific intent d To act with "intent to deceive" means to we ie , for to deceive or cheat, usually v personal financial gain or to cause 226 financial loss to 16-4 else. The Government does not have to prove someone . No that anyone was in fact deceived. evidencing ownership of goods, wares, merchandise, and blank forms ANNOTATIONS AND COMMENTS 18 U.S.C. § 513(a) provides: Whoever makes, utters or possesses a counterfeited security of . . . an organization with intent to deceive another person, organization, or government [shall be guilty of an offense against the United States]. 18 U.S.C. § 513(c) provides numerous helpful definitions to terms used in § 513(a). Maximum Penalty: Ten (10) years imprisonment and applicable fine. See United States v. Prosperi, 201 F.3d 1335 (11th Cir. 2000) (holding that § 513(a) does not require counterfeits to bear a similitude to genuine securities). 171 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 198 of 677 This charge applies to securities of organizations, but can be modified to apply to securities of a state or political subdivision thereof. d we e , vi 226 4 16. No 172 0 017 7/2 7/2 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 199 of 677 19 Criminal Street Gangs 18 U.S.C. § 521 Note: Section 521 creates a maximum sentence enhancement of up to ten years imprisonment under certain circumstances for any member of a “criminal street gang” who commits a federal felony crime of violence or a federal felony controlled-substance offense. The Committee believes, therefore, any indictment containing allegations sufficient to invoke Section 521 requires submission of those issues to the jury. In such a case the following additional elements of proof would apply: (1) (2) 017 7/2 7/2 the Defendant committed the crime charged in Count ___ while participating in a criminal street gang; d we e , vi 226 0 the Defendant knew that the members of the criminal street gang committed a continuing series of [felony crimes of violence with an element of physical force, or attempted physical force against another person] [controlled-substances crimes that are punishable by at least five years imprisonment]; 4 16. No (3) the Defendant committed the crime charged in Count ___ with the intent to promote or advance the criminal street gang’s felonious activities or to maintain or raise [his] [her] position in the gang; and (4) within the five years before the crime charged was committed, the Defendant was convicted of [a felony crime of violence with an element of physical force, or attempted physical force against another] [a controlled-substances crime punishable by at least five years imprisonment] . 173 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 200 of 677 A “criminal street gang” is a group or organization that: (1) is ongoing; (2) has as one of its primary purposes the commission of one or more [federal felony crimes of violence with an element of physical force or attempted physical force against another person] [federal controlled-substances felonies]; (3) consists of at least five members; (4) engages or has engaged within the past five years in a continuing series of [federal felony crimes of violence that include an element of physical force or attempted physical force against another person] [federal controlled-substances felonies]; and (5) through its activities affects 017 7/2 2 A “continuing series” of crimes means proof of at least three 07/ d we together as a series of related or qualifying crimes that were connected e , vi ongoing activities – not isolated and disconnected acts. 226 4 16. No interstate or foreign commerce. 174 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 201 of 677 20 Smuggling 18 U.S.C. § 545 (First Paragraph) It’s a Federal crime to willfully smuggle merchandise into the United States in violation of the customs laws and regulations. The Defendant can be found guilty of this crime only if all the following facts are proved beyond a reasonable doubt: (1) the Defendant smuggled merchandise into the United States without declaring it for invoicing as required by customs laws and regulations; (2) the Defendant knew that the merchandise should have been invoiced; and 017to (3) the Defendant acted willfully with2 7/ intent defraud the United States. /2 7 d0 e ew something into the United States To "smuggle" means to bring , vi 226 secretly or fraudulently. 4 16. “Merchandise [that] should have been invoiced" means any goods No or articles that must be declared to customs officials upon entry into the United States, even if the goods or articles are not subject to the payment of a tax or duty. [Describe the merchandise involved in the case] is merchandise that must be declared to customs officials upon entry into the United States. To act with "intent to defraud" means to act with the specific intent to deceive or cheat, usually for personal financial gain or to cause financial loss to someone else. The Government does not have to prove 175 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 202 of 677 that anyone was in fact defrauded. ANNOTATIONS AND COMMENTS 18 U.S.C. § 545 (first paragraph) provides: Whoever knowingly and willfully, with intent to defraud the United States, smuggles, or clandestinely introduces . . . into the United States any merchandise which should have been invoiced [shall be guilty of an offense against the United States]. Maximum Penalty: Five (5) years imprisonment and applicable fine. See Trial Instruction 6 for use in submitting forfeiture issues to the Jury. The committee believes that the general definition of “willfully” in Basic Instruction 9.1A would usually apply to this crime. d we e , vi 226 4 16. No 176 0 017 7/2 7/2 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 203 of 677 21 Theft of Government Money or Property 18 U.S.C. § 641 (First Paragraph) It’s a Federal crime to [embezzle] [steal] [convert] any money or property belonging to the United States and worth more than $1,000. The Defendant can be found guilty of this crime only if all the following facts are proved beyond a reasonable doubt: (1) the money or property described in the indictment belonged to the United States; (2) the Defendant [embezzled] [stole] [knowingly converted] the money or property to his own use or to someone else’s use; 017 (3) the Defendant knowingly and2 willfully / intended to deprive the owner of the use /27 7 or benefit of the money0 property; and d or e ew had a value greater (4) the money or property , vi than $1,000. 226 -4 The word 16 "value" means the greater of (1) the face, par, or market . No price, whether wholesale or retail. value, or (2) the It doesn’t matter whether the Defendant knew that the Government owned the property. But it must be proved beyond a reasonable doubt that the Government did in fact own the money or property, that the Defendant knowingly [embezzled] [stole] [converted] it, and that the value was greater than $1,000. [To "embezzle" means to wrongfully or intentionally take someone else’s money or property after lawfully taking possession or control of it.] [To "steal" or "convert" means to wrongfully or intentionally take 177 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 204 of 677 the money or property belonging to someone else with the intent to deprive the owner of its use or benefit permanently or temporarily.] A “taking” doesn’t have to be any particular type of movement or carrying away. But any appreciable and intentional change in the property’s location is a taking, even if the property isn’t removed from the owner’s premises. ANNOTATIONS AND COMMENTS 18 U.S.C. § 641 (first paragraph) provides: 017 7/2 7/2 Whoever embezzles, steals, purloins, or knowingly converts to his use or the use of another . . . any . . . money, or thing of value of the United States [having a value in excess of the sum of $1,000 [shall be guilty of an offense against the United States]. 0 ed and applicable fine; or if the value w Maximum Penalty: Ten (10) years imprisonment vie does dot exceed $1,000, then one (1) year of the property taken 26, and applicable fine. imprisonment -42 . 16 Government does not lose its property interest in an erroneously issued tax refund No check payable to the defendant even where defendant who received the check has done nothing to induce the issuance of the check. United States v. McRee, 7 F.3d 976 (11th Cir. 1993) (en banc), cert. denied, 511 U.S. 1071, 114 S.Ct. 1649, 128 L.Ed.2d 368 (1994). When an outright grant is paid over to the end recipient, utilized, commingled or otherwise loses its identity, the money in the grant ceases to be federal. United States v. Smith, 596 F.2d 662 (5th Cir. 1979). But federal grant money remains federal money even after being deposited in grantee's bank account and even if commingled with non-federal funds so long as the government exercises supervision and control over the funds and their ultimate use. Hayle v. United States, 815 F.2d 879 (2nd Cir. 1987), cited with approval in United States v. Hope, 901 F.2d 1013, 1019 (11th Cir. 1990). Identifiable funds advanced by a HUD grantee to a subgrantee in anticipation of immediate federal reimbursement for purposes governed by and subject to federal statutes and regulations can be considered federal funds when those funds are diverted by the subgrantee prior to their delivery to the end recipient. United States v. Hope, supra. Elements of an embezzlement offense under this statute are: (1) that the money or 178 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 205 of 677 property belonged to the United States or an agency thereof [and had a value in excess of $1,000]; (2) that the property lawfully came into the possession or care of the defendant; (3) that the defendant fraudulently appropriated the money or property to his own use or the use of others; and (4) that the defendant did so knowingly and willfully with the intent either temporarily or permanently to deprive the owner of the use of the money or property so taken. United States v. Burton, 871 F.2d 1566 (11th Cir. 1989). If the evidence justifies an instruction on the lesser included offense (theft of property having a value of $1,000 or less), see Special Instruction 10, Lesser Included Offense. The committee believes that the general definition of “willfully” in Basic Instruction 9.1A would usually apply to this crime. d we e , vi 226 4 16. No 179 0 017 7/2 7/2 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 206 of 677 22 Theft or Embezzlement by Bank Employee 18 U.S.C. § 656 It’s a Federal crime for a bank employee to [embezzle] [misapply] the bank’s funds. The Defendant can be found guilty of this crime only if all the following facts are proved beyond a reasonable doubt: (1) the Defendant was an officer or employee of the bank described in the indictment; (2) the bank was an insured bank; (3) the Defendant knowingly and willfully [embezzled] [misapplied] funds or credits belonging to the bank or entrusted to its care; d we 017 7/2 7/2 0 (4) the Defendant intended to injure or defraud the bank; and (5) the [misapplied] funds or credits had a value greater than $1,000. e , vi [embezzled] 226 4 16. An "insured bank" means any bank whose deposits are insured by No the Federal Deposit Insurance Corporation. [To "embezzle" means to wrongfully or willfully take someone else’s money or property after lawfully taking possession or control of it. To "take" money or property means to knowingly and willfully deprive the owner of its use or benefit by converting it to one's own use with the intent to defraud the bank. A "taking" doesn’t have to be any particular type of movement or carrying away. But any appreciable and intentional change in location 180 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 207 of 677 of the property is a taking, even if the property isn’t removed from the owner's premises.] [To "misapply" a bank's money or property means to willfully convert or take a bank’s money or property by a bank employee for [his] [her] own use and benefit, or the use and benefit of another, with intent to defraud the bank, whether or not the money or property has been entrusted to the employee's care.] To act with "intent to defraud" means to act with the specific intent to deceive or cheat, usually for personal financial gain or to cause 017 7/2 7/2 financial loss to someone else. ANNOTATIONS AND COMMENTS d we 0 e , vi 6 18 U.S.C. § 656 provides:22 4 16- being an officer, director, agent or employee of . . . o.national N.Whoever, bank or insured bank . . . embezzles, abstracts, any . . purloins or willfully misapplies any of the moneys, funds or credits [having a value in excess of $1,000] of such bank . . . or . . . intrusted to the custody or care of such bank [shall be guilty of an offense against the United States]. Maximum Penalty: Thirty (30) years imprisonment and applicable fine. If the evidence justifies an instruction on the lesser included offense (embezzlement or misapplication of funds having a value of $1,000 or less), see Special Instruction 10, Lesser Included Offense. The committee believes that the general definition of “willfully” in Basic Instruction 9.1A would usually apply to this crime. See Trial Instruction 6 for use in submitting forfeiture issues to the Jury. 181 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 208 of 677 23.1 Theft from an Interstate Shipment 18 U.S.C. § 659 (First Paragraph) It’s a Federal crime to [embezzle] [steal] from a [railroad car] [motor truck] any property that is part of an interstate shipment of freight if the property’s value is more than $1,000. The Defendant can be found guilty of this crime only if all the following facts are proved beyond a reasonable doubt: (1) the Defendant knowingly [embezzled] [stole] from a [railroad car] [motor truck] the property described in the indictment; (2) the property was moving as or was part of an interstate shipment of freight or express; and (3) the property then had a value greater than $1,000. d we e , vi 226 017 7/2 7/2 0 4 16. (2) the price, whether wholesale or retail. No “Value" means the greater of (1) the face, par, or market value, or [To "embezzle" means to wrongfully take someone else’s property after lawfully taking possession or control of it.] [To "steal" or "unlawfully take" means to wrongfully take goods or property belonging to someone else with the intent to deprive the owner of the use or benefit permanently or temporarily and to convert it to one's own use or the use of another.] An "interstate shipment" means the movement or transportation of property from one state into another. An interstate shipment begins when property is identified and 182 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 209 of 677 prepared for shipping and placed in the carrier’s possession, and continues until the shipment is delivered at its destination. A waybill or other shipping document is prima facie evidence of the shipment’s places of origin and destination. “Prima facie evidence” is evidence that’s sufficient for proof unless it’s outweighed by other evidence. So an authenticated waybill, bill of lading, invoice, or other shipping document is enough to show that a shipment was interstate unless other evidence leads you to a different conclusion. 017 7/2 offense, but it’s not necessary to prove that the Defendant knew that the 2 07/ d property was part of an interstate shipment when the alleged we e , vi [embezzlement] [theft] occurred; only that the Defendant intended to 226 4 [embezzle] [steal]61 them. . No The interstate nature of the shipment is an essential part of the ANNOTATIONS AND COMMENTS 18 U.S.C. § 659 (first Paragraph) provides: Whoever embezzles, steals, or unlawfully takes [or] carries away . . . from any . . . railroad car . . . motortruck, or other vehicle . . . with intent to convert to his own use any goods or chattels [having a value in excess of $1,000, and] moving as or which are a part of or which constitute an interstate or foreign shipment of freight, express, or other property [shall be guilty of an offense against the United States]. Maximum Penalty: Ten (10) years imprisonment and applicable fine. If the evidence justifies an instruction on the lesser included offense (embezzlement or theft of goods having a value of $1,000 or less), see Special Instruction 10, Lesser Included Offense. 183 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 210 of 677 23.2 Buying or Receiving Goods Stolen from an Interstate Shipment 18 U.S.C. § 659 (Second Paragraph) It’s a Federal crime to knowingly buy or receive goods stolen from a [railroad car] [motor truck] carrying an interstate shipment of freight if the property’s value is more than $1,000. The Defendant can be found guilty of this crime only if all the following facts are proved beyond a reasonable doubt: (1) someone knowingly [embezzled] [stole] from a [railroad car] [motor truck] the property described in the indictment while it was moving as or part of, an interstate shipment of freight or express; (2) 017or the Defendant bought, received 7/2 that it possessed the property 7/2 knowing 0 was stolen; and d we a value greater than the propertyvie had , then $1,000. 6 2 -42 . 16 (3) No “Value" means the greater of (1) the face, par, or market value, or (2) the price, whether wholesale or retail. An "interstate shipment" means the movement or transportation of property from one state into another. An interstate shipment begins when property is identified and prepared for shipping and placed in the carrier’s possession, and continues until the shipment is delivered at its destination. A waybill or other shipping document is prima facie evidence of the shipment’s places of origin and destination. “Prima facie evidence” is evidence that’s sufficient for proof unless 184 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 211 of 677 it’s outweighed by other evidence. So an authenticated waybill, bill of lading, invoice, or other shipping document is enough to show that a shipment was interstate unless other evidence leads you to a different conclusion. The interstate nature of the shipment is an essential part of the offense, but it’s not necessary to prove that the Defendant knew that the property was part of an interstate shipment when the alleged [embezzlement] [theft] occurred; only that the Defendant intended to [embezzle] [steal] it. 017 72 property was stolen property when [he] [she] /bought, received or 2 07/ d possessed it. we vie To "embezzle" means,to wrongfully take someone else’s property 226 4 after lawfully taking-possession or control of it. 16 . No or "unlawfully take" means to wrongfully take property To "steal" But the Government must prove that the Defendant knew the belonging to someone else with the intent to deprive the owner of the property’s use or benefit permanently or temporarily and to convert it to one's own use or the use of another. The Government must prove beyond a reasonable doubt that the Defendant bought or received or possessed the stolen property, not that the Defendant did all three. But to find the Defendant guilty, you must all agree on which of those things the Defendant did. 185 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 212 of 677 ANNOTATIONS AND COMMENTS 18 U.S.C. § 659 (second paragraph) provides: Whoever buys or receives or has in his possession any such [goods having a value in excess of $1,000 embezzled or stolen from an interstate shipment of freight], knowing the same to have been embezzled or stolen [shall be guilty of an offense against the United States]. Maximum Penalty: Ten (10) years imprisonment and applicable fine. If the evidence justifies an instruction on the lesser included offense (receipt of stolen goods having a value of $1,000 or less), see Special Instruction 10, Lesser Included Offense. d we e , vi 226 4 16. No 186 0 017 7/2 7/2 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 213 of 677 24.1 Bribery Concerning a (non-governmental) Program Receiving Federal Funds 18 U.S.C. § 666(a)(1)(B) It’s a Federal crime for anyone who is an agent of an organization receiving significant benefits under a Federal assistance program, corruptly [solicit or demand] [accept] [agree to accept] anything of value from any person when the agent intends to be influenced or rewarded in connection with certain transactions of the organization. The Defendant can be found guilty of this crime only if all the following facts are proved beyond a reasonable doubt: (1) (2) (3) 017 7/2 [Organization’s name] was 2 corporation 7/ a or other legal entity d 0 during the one-year e period from [starting date] to [ending date]; ew i , vperiod, the [Organization’s during2that 2 6 Name] received benefits greater than 6-4 the Defendant was [Organization’s name]; an agent of under Federal program o. 1 $10,000 some formaof Federal assistance; involving N (4) during that period the Defendant [solicited or demanded] [accept] [agreed to accept] a thing valued at approximately $____ from someone other than [Organization’s name]; (5) in return for the [acceptance] [agreement], the Defendant intended to be influenced or rewarded for a transaction or series of transactions of [Organization’s name] involving something worth $5,000 or more; and (6) the Defendant acted corruptly. To act "corruptly" means to act voluntarily, deliberately, and 187 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 214 of 677 dishonestly to either accomplish an unlawful end or result or to use an unlawful method or means to accomplish an otherwise lawful end or result. An "agent" is any employee, officer, or director of [Organization’s name]. ANNOTATIONS AND COMMENTS 18 U.S.C. § 666(a)(1)(B) and (b) provides: (a) Whoever, if the circumstance described in subsection (b) of this section exists - - 017 7/2 7/2 (1) being an agent of an organization, or of a State, local, or Indian tribal government, or any agency thereof - - d we 0 (B) corruptly solicits or demands for the benefit of any person, or accepts or agrees to accept, anything of value from any person, intending to be influenced or rewarded in connection with any business, transaction, or series of transactions of such organization, government, or agency involving anything of value of $5,000 or more [shall be guilty of an offense against the United States]. e , vi 226 4 16. No (b) The circumstance referred to in subsection (a) of this section is that the organization, government, or agency receives, in any one year period, benefits in excess of $10,000 under a Federal program involving a grant, contract, subsidy, loan, guarantee, insurance, or other form of Federal assistance. Maximum Penalty: Ten (10) years imprisonment and applicable fine. In United States v. Fischer, 168 F.3d 1273 (11th Cir. 1999), aff’d., Fischer v. United States, 529 U.S. 667, 120 S. Ct. 1780 (2000), the Court held that Medicare disbursements are “benefits” within the meaning of the statute, and that the Government is not required to prove a direct link between the federal assistance and the fraudulent conduct in issue. 188 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 215 of 677 24.2 Bribery Concerning a (Governmental) Program Receiving Federal Funds 18 U.S.C. § 666(a)(1)(B) It’s a Federal crime for anyone who is an agent of a local government, or local governmental agency receiving significant benefits under a Federal assistance program, corruptly [solicit or demand] [accept] [agree to accept] anything of value from any person when the agent intends to be influenced or rewarded in connection with certain transactions of the government, or agency. The Defendant can be found guilty of this crime only if all the 017 7/2 2 the Defendant was 7/ 0 an agent of d [Government’s name] [Agency’s name]; we e , vi [Government’s name] [Agency’s name] 6 was 22 a corporation or other legal entity established and controlled by the City of 6-4 following facts are proved beyond a reasonable doubt: (1) (2) during o. 1 [name of City]date] to the one-year period N from [starting [ending date]; (3) during that period, the [Government’s name] [Agency’s name] received benefits greater than $10,000 under a Federal program involving some form of Federal assistance; (4) during that period the Defendant [solicited or demanded] [accept] [agreed to accept] a thing valued at approximately $____ from someone other than [Government’s name] [Agency’s name]; (5) in return for the [acceptance] [agreement], the Defendant intended to be influenced or rewarded for a transaction or series of transactions of [Government’s name] [Agency’s name] involving something 189 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 216 of 677 worth $5,000 or more; and (6) the Defendant acted corruptly. To act "corruptly" means to act voluntarily, deliberately and dishonestly to either accomplish an unlawful end or result or to use an unlawful method or means to accomplish an otherwise lawful end or result. An "agent" is any employee, officer, or director of [Government’s name] [Agency’s name]. ANNOTATIONS AND COMMENTS 017 7/2 2 (a) Whoever, if the circumstance described in subsection (b) of 07/ d this section exists - we ie (1) being an , v of an organization, or of a State, local, agent 6 or Indian tribal2 2 government, or any agency thereof - 4 16- (B) corruptly solicits or demands for the benefit of . No any person, or accepts or agrees to accept, anything of 18 U.S.C. § 666(a)(1)(B) and (b) provides: value from any person, intending to be influenced or rewarded in connection with any business, transaction, or series of transactions of such organization, government, or agency involving anything of value of $5,000 or more [shall be guilty of an offense against the United States]. (b) The circumstance referred to in subsection (a) of this section is that the organization, government, or agency receives, in any one year period, benefits in excess of $10,000 under a Federal program involving a grant, contract, subsidy, loan, guarantee, insurance, or other form of Federal assistance. Maximum Penalty: Ten (10) years imprisonment and applicable fine. In United States v. Fischer, 168 F.3d 1273 (11th Cir. 1999), Affirmed, Fischer v. United States, 529 U.S. 667, 120 S. Ct. 1780 (2000), the Court held that Medicare disbursements are “benefits” within the meaning of the statute, and that the 190 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 217 of 677 Government is not required to prove a direct link between the federal assistance and the fraudulent conduct in issue. d we e , vi 226 4 16. No 191 0 017 7/2 7/2 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 218 of 677 25 Escape 18 U.S.C. § 751(a) It’s a Federal crime to escape from the lawful custody of a Federal officer. The Defendant can be found guilty of this crime only if all the following facts are proved beyond a reasonable doubt: (1) the Defendant knowingly escaped from custody; and (2) at the time, the Defendant was in a Federal officer’s custody after a lawful arrest or under judicial process issued by a Federal judicial officer. 017 72 "Custody" means the detaining or holding /of an individual by a 2 07/ d lawful process or authority. we e , vi To "escape" means fleeing or otherwise leaving another’s custody 226 4 or failing to return6- custody while knowing that a detention is lawful. 1 to . No ANNOTATIONS AND COMMENTS 18 U.S.C. § 751(a) provides: Whoever escapes or attempts to escape from the custody of the Attorney General or his authorized representative, or from any institution or facility in which he is confined by direction of the Attorney General, or from any custody under or by virtue of any process issued under the laws of the United States by any court, judge, or magistrate judge, or from the custody of an officer or employee of the United States pursuant to lawful arrest [shall be guilty of an offense against the United States]. Maximum Penalty: Five (5) years imprisonment and $250,000 fine. 192 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 219 of 677 In United States v. Bailey, 444 U.S. 394, 408, 100 S. Ct. 624, 633, 62 L.Ed.2d 575 (1980), the Supreme Court rejected the notion that § 751(a) requires proof of "an intent to avoid confinement." The Court held that the prosecution meets its burden by showing that the escapee knew his actions would result in leaving physical confinement without permission. Regarding escape from an INS Detention Facility, see United States v. RodriguezFernandez, 234 F.3d 498 (11th Cir. 2000). The first element, pertaining to custody or confinement, normally can be established by demonstrating that a subject was (1) in the custody of the Attorney General or her authorized representative; (2) confined in an institution by direction of the Attorney General; (3) in custody under or by virtue of any process issued under the laws of the United States by any court, judge, or magistrate; or (4) in the custody of an officer or employee of the United States pursuant to a lawful arrest. Id. at 500, n.6. The Fourth, Eighth, Ninth and Tenth Circuits hold that custody may be minimal or even constructive. See United States v. Cluck, 542 F.2d 728, 731 (8th Cir. 1976); United States v. Depew, 977 F.2d 1412, 1414 (10th Cir. 1992); United States v. Hollen, 393 F.2d 479 (4th Cir. 1968). 017 7/2 2 If the indictment alleges an attempt, see Special Instruction 11. 07/ d we e , vi 226 4 16. No 193 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 220 of 677 26 Instigating or Assisting an Escape 18 U.S.C. § 752(a) It’s a Federal crime for anyone to instigate an escape or help someone else escape the lawful custody of a Federal officer. The Defendant can be found guilty of this crime only if all the following facts are proved beyond a reasonable doubt: (1) [person named in the indictment] was in the custody of [the Attorney General][a Federal officer under judicial process]; and (2) the Defendant knowingly instigated or helped with that person’s escape or attempt to escape from custody. d we 017 7/2 7/2 0 "Custody" means the detaining or holding of an individual by a e , vi 226 lawful process or authority. 4 16. No to custody while knowing that a detention is lawful. or failing to return To "escape" means fleeing or otherwise leaving another’s custody ANNOTATIONS AND COMMENTS 18 U.S.C. § 752(a) provides: Whoever rescues or attempts to rescue or instigates, aids or assists the escape, or attempt to escape, of any person arrested upon a warrant or other process issued under any law of the United States, or committed to the custody of the Attorney General or to any institution or facility by his direction [shall be guilty of an offense against the United States]. Maximum Penalty: Five (5) years imprisonment and $250,000 fine. It may be necessary in some cases to define the boundary line between aiding an 194 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 221 of 677 escape (under this section) and harboring a fugitive (in violation of 18 U.S.C. § 1072). If an escapee reaches safety so that the escape itself is accomplished, any aid given to the fugitive after that point would constitute harboring, not aiding the escape. See United States v. DeStefano, 59 F.3d 1 (1st Cir. 1995), in which the Court of Appeals approved the following instruction: "The crime of aiding or assisting an escape cannot occur after the escapee reaches temporary safety. After that, aid or assistance to a fugitive is no longer aiding or assisting his escape . . ." d we e , vi 226 4 16. No 195 0 017 7/2 7/2 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 222 of 677 27 Making Threats By Mail Or Telephone 18 U.S.C. § 844(e) It’s a Federal crime to use an instrument of commerce, including the [mail] [telephone], to willfully communicate any threat to [kill, injure, or intimidate any individual] [unlawfully damage or destroy any building, vehicle, or other real or personal property] by means of [fire] [an explosive]. The Defendant can be found guilty of this crime only if all the following facts are proved beyond a reasonable doubt: (1) d we e (2) 017 7/2 7/2 the Defendant made, or caused to be made, a threat to [kill, injure, or intimidate any individual] [unlawfully damage or destroy a building, vehicle, or other real or personal property] by means of [fire] [an explosive]; , vi 226 0 4 the Defendant 16- instrument used, or caused to be used, . of commerce, such as No an [a telephone] to communicate [the mail] the threat; and (3) the Defendant acted knowingly and willfully. A "threat" means an expression of intent to [kill, injure, or intimidate an individual] [unlawfully damage or destroy a building, vehicle, or other real or personal property] by means of [fire] [an explosive], and made with the intent that others understand it as a serious threat. The Government doesn’t have to prove that the Defendant intended to carry out the threat. 196 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 223 of 677 ANNOTATIONS AND COMMENTS 18 U.S.C. § 844(e) provides: Whoever, through the use of the mail, telephone, telegraph, or other instrument of interstate or foreign commerce, or in or affecting interstate or foreign commerce, willfully makes any threat, or maliciously conveys false information knowing the same to be false, concerning an attempt or alleged attempt being made, or to be made, to kill, injure, or intimidate any individual or unlawfully to damage or destroy any building, vehicle, or other real or personal property by means of fire or an explosive [shall be guilty of an offense against the United States]. Maximum Penalty: Ten (10) years imprisonment and applicable fine. The term “explosive” is defined in 18 U.S.C. § 844(j) if the circumstances of the case require inclusion of a definition of the term in the instructions. 017 7/2 7/2 The committee believes that the general definition of “willfully” in Basic Instruction 9.1A would usually apply to this crime. d we e , vi 226 4 16. No 197 0 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 224 of 677 28 Federal Arson Statute 18 U.S.C. § 844(I) It’s a Federal crime to [attempt to] maliciously damage or destroy by fire or explosive any building, vehicle, or any other real or personal property used in interstate or foreign commerce or affecting interstate or foreign commerce. The Defendant can be found guilty of this crime only if all the following facts are proven beyond a reasonable doubt: (1) (2) the Defendant [damaged] [destroyed] [attempted to damage or destroy] the [building] [vehicle] [other real or personal property] described in the indictment by means of [a fire] [an explosive]; 017 7/2 7/2 0 edintentionally or with the Defendantew vi acted deliberate ,disregard of the likelihood that damage or injury would result from [his] 226 [her] 6-4 acts; and o. 1 the (3) N [building] [vehicle] [other real or personal property] that the Defendant [damaged] [destroyed] [attempted to damage or destroy] was used [in interstate or foreign commerce] [in activity affecting foreign or interstate commerce]. “Interstate or foreign commerce” is trade and other business activity between people and entities located in different states or between people and entities located in the United States and outside of the United States. The Government must prove that the property was actually used for a function that involved or affected interstate or foreign commerce. 198 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 225 of 677 ANNOTATIONS AND COMMENTS 18 U.S.C. § 844(i) provides: Whoever maliciously damages or destroys, or attempts to damage or destroy, by means of fire or an explosive, any building, vehicle, or other real or personal property used in interstate or foreign commerce or in any activity affecting interstate or foreign commerce shall be imprisoned . . . Penalty ranges from 5 years imprisonment to the death penalty and includes an applicable fine. See 18 U.S.C. § 844(i). United States v. Gullett, 75 F.3d 941, 948 (4th Cir. 1996), “maliciously,” as contained in § 844(i), is comparable to the common law definition of malice and “is satisfied if the defendant acted intentionally or with willful disregard of the likelihood that damage or injury would result from his or her acts.” This instruction has avoided the use of “willful” because of possible confusion with Basic Instruction 9.1A. 017 7/2 7/2 Jones v. United States, 529 U.S. 848, 859, 120 S. Ct. 1904, 1912, 146 L. Ed. 2d 902 (2000), holding that “building” in § 844(i) “covers only property currently used in commerce or in an activity affecting commerce,” and does not cover an owneroccupied dwelling. d we e , vi 226 0 For a discussion of the interstate commerce requirement of § 844(i) in light of Jones, see United States v. Odom, 252 F.3d 1289 (11th Cir. 2001). 4 16-18 U.S.C. § 844(j). . Explosive is defined in No If the indictment alleges an attempt, see Special Instruction 11. 199 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 226 of 677 29 Threats Against the President 18 U.S.C. § 871 It’s a Federal crime to knowingly and willfully make a threat to injure or kill the President of the United States. The Defendant can be found guilty of this crime only if all the following facts are proved beyond a reasonable doubt: (1) the Defendant [mailed] [wrote] [said] the words alleged to be the threat against the President; (2) the Defendant understood and meant the words as a true threat; and 017 2 (3) the Defendant knowingly 27/ willfully and [mailed] [wrote] [said] the7/ words. d0 e A "threat" is a statement expressing an intention to kill or injure the ew , vi President. 226 4 16- is a serious threat – not idle talk, a careless remark, . A "true threat" No or something said jokingly – that is made under circumstances that would lead a reasonable person to believe that the Defendant intended to injure or kill the President. The heart of the crime is knowingly and willfully making a true threat. If the Government proves beyond a reasonable doubt that the Defendant knowingly made a true threat against the President, and intended others to understand it as a serious threat, then the crime is complete. The Government doesn’t have to prove that the Defendant intended to carry out the threat. 200 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 227 of 677 ANNOTATIONS AND COMMENTS 18 U.S.C. § 871(a) provides: Whoever knowingly and willfully deposits for conveyance in the mail . . . any letter . . . or document containing any threat to take the life of, to kidnap, or to inflict bodily harm upon the President of the United States . . . or knowingly and willfully otherwise makes any such threat against the President [shall be guilty of an offense against the United States]. Maximum Penalty: Five (5) years imprisonment and $250,000 fine. The language defining a "true threat" provides explanation and clarification as to the proper standard to be applied in determining whether a threat is a true threat or not. See, e.g., United States v. Callahan, 702 F.2d 964, 965 (11th Cir. 1983); see generally Lucero v. Trosch, 904 F. Supp. 1336, 1340 (S.D. Ala. 1995). In United States v. Alaboud, 347 F.3d 1293 (11th Cir. 2003), the Court of Appeals explained that: 017 7/2 /2 A communication is a threat when in its context07 it would have a reasonable d tendency to create apprehension that its originator will act according to its wethere was sufficient evidence to tenor. In other words, the inquiry is whether ie , that prove beyond a reasonable doubt v the defendant intentionally made the statement under such circumstances that a reasonable person would 226 4 construe them as a serious expression of an intention to inflict bodily harm. 16. No (internal citations, quotations, footnote and alterations omitted) Id. at 1296-97 (construing 18 U.S.C. § 875(c)). The committee believes that the general definition of “willfully” in Basic Instruction 9.1A would usually apply to this crime. 201 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 228 of 677 30.1 Interstate Transmission of a Demand for Ransom for Return of a Kidnapped Person 18 U.S.C. § 875(a) It’s a Federal crime to knowingly send in interstate or foreign commerce a demand or request for a reward or ransom for the release of any kidnapped person. The Defendant can be found guilty of this crime only if all the following facts are proved beyond a reasonable doubt: (1) the Defendant knowingly sent in [interstate] [foreign] commerce a demand or request for a ransom or reward for the kidnapped person’s release; and 017 7/2 2 (2) the Defendant did so 07/ the intent to with d extort money or some other thing of value. we ie [To send something 6,“interstate commerce” means to transmit it in v 422 -state to a place in another state.] from a place in 16 one . o [To N send something in “foreign commerce” means to transmit it from a place in the United States to anyplace outside the United States.] To act with “intent to extort” means to act with the purpose of getting money or something of value from someone who consents because of the wrongful use of actual or threatened force or violence. A “thing of value” is anything that has value to the Defendant, whether it is tangible or not. A kidnapped person is someone who is forcibly and unlawfully held, kept, or imprisoned against his or her will. The heart of the crime is the sending of a message in interstate or 202 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 229 of 677 foreign commerce to extort something of value in return for the release of a kidnapped victim. The Government doesn’t have to prove that the Defendant participated in the kidnapping or succeeded in obtaining money or any other thing of value. ANNOTATIONS AND COMMENTS 18 U.S.C. § 875(a) provides that: Whoever transmits in interstate or foreign commerce any communication containing any demand or request for a ransom or reward for the release of any kidnapped person, [shall be guilty of an offense against the United States]. 017 2 Maximum Penalty: Twenty (20) years imprisonment 27/ and applicable fine. 07/ require an intent to extort, it Although this subsection of § 875 does not specifically ed wan element. “Congress intended not only has been held that such intent is implicitly e , vi that there be a criminal intent element of the crime charged in the statute [18 U.S.C. 6 § 875(a)] but also that this22 element be specifically the intent to extort.” United intent 4 States v. Heller, 5796- 990, 995 (6th Cir. 1978). 1 F.2d . No v. Nilsen, 967 F.2d 539, 543 (11th Cir. 1992), “thing of value” Under United States is a clearly defined term that includes both tangibles and intangibles. The federal kidnapping statute is 18 U.S.C. § 1201. 203 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 230 of 677 30.2 Interstate Transmission of an Extortionate Threat to Kidnap or Injure 18 U.S.C. § 875(b) It’s a Federal crime to knowingly transmit an extortionate communication in interstate or foreign commerce. The Defendant can be found guilty of this crime only if all the following facts are proved beyond a reasonable doubt: (1) the Defendant knowingly sent a message in [interstate] [foreign] commerce containing a true threat [to kidnap any person] [to injure the person of another]; and 017 2 (2) the Defendant did so with 27/ intent to the extort money or something else of value to 07/ d the Defendant. we e , vi [To transmit something in “interstate commerce” means to send it 226 4 from a place in 16-state to a place in another state.] one . No something in “foreign commerce” means to send it [To transmit from a place in the United States to anyplace outside the United States.] A “true threat” is a serious threat – not idle talk, a careless remark, or something said jokingly – that is made under circumstances that would lead a reasonable person to believe that the Defendant intended to [kidnap] [ injure] another person. To act with “intent to extort” means to act with the purpose of obtaining money or something of value from someone who consents because of fear or because of the wrongful use of actual or threatened force or violence. 204 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 231 of 677 A “thing of value” is anything that has value to the Defendant, whether it’s tangible or not. The heart of the crime is intentionally sending a message in interstate or foreign commerce to extort something of value. The Government doesn’t have to prove that the Defendant intended to carry out the threat or succeeded in obtaining the money or any other thing of value. ANNOTATIONS AND COMMENTS 017 2 Whoever, with intent to extort from any 27/ . . . any money person 7/ or other thing of value, transmits in interstate or foreign commerce any 0kidnap any person or any d communication containing any threat to we [shall be guilty of an offense threat to injure the person ofie another , against the United States]. v 226 4 Maximum Penalty: Twenty (20) years imprisonment and applicable fine. 16. No The language defining a “true threat” provides explanation and clarification as to the 18 U.S.C. § 875(b) provides that: proper standard to be applied in determining whether a threat is a true threat or not. See, e.g., United States v. Callahan, 702 F.2d 964, 965 (11th Cir. 1983); see generally Lucero v. Trosch, 904 F. Supp. 1336, 1340 (S.D. Ala. 1995). In United States v. Alaboud, 347 F.3d 1293 (11th Cir. 2003), the Court of Appeals explained that: A communication is a threat when in its context it would have a reasonable tendency to create apprehension that its originator will act according to its tenor. In other words, the inquiry is whether there was sufficient evidence to prove beyond a reasonable doubt that the defendant intentionally made the statement under such circumstances that a reasonable person would construe them as a serious expression of an intention to inflict bodily harm. Id. at 1296-97 (internal citations, quotations, footnote and alterations omitted) (construing 18 U.S.C. § 875(c)). In United States v. Evans, 478 F.3d 1332 (11th Cir. 2007), the Court of Appeals considered and rejected the argument that the “threat to injure” language contained 205 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 232 of 677 in 18 U.S.C. § 876(c) (which deals with mailing threatening communications) included only future threats. The Eleventh Circuit joined the Second, Third, and Fifth Circuits in holding that a future threat is not necessary and that the statute also applied to immediate threats of harm. Under United States v. Nilsen, 967 F.2d 539, 543 (11th Cir. 1992), “thing of value” is a clearly defined term that includes both tangibles and intangibles. d we e , vi 226 4 16. No 206 0 017 7/2 7/2 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 233 of 677 30.3 Interstate Transmission of Threat to Kidnap or Injure 18 U.S.C. § 875(c) It’s a Federal crime to knowingly send in interstate or foreign commerce a true threat to kidnap or injure any person. The Defendant can be found guilty of this crime only if the Government proves beyond a reasonable doubt that the Defendant knowingly sent a message in [interstate] [foreign] commerce containing a true threat [to kidnap any person] [to injure the person of another]. [To transmit something in “interstate commerce” means to send it 017 7/2 2 [To transmit something in “foreign 07/ commerce” means to send it d we from a place in the United Statese anyplace outside the United States.] to , vi 6 A “true threat” is 22 a serious threat – not idle talk, a careless remark, 4 16-jokingly – that is made under circumstances that or something .said No from a place in one state to a place in another state.] would lead a reasonable person to believe that the Defendant intended to [kidnap] [injure] another person. The heart of the crime is intentionally sending a true threat in interstate or foreign commerce. The Government doesn’t have to prove that the Defendant intended to carry out the threat. ANNOTATIONS AND COMMENTS 18 U.S.C. § 875(c) provides that: Whoever transmits in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another, shall be fined under this title or 207 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 234 of 677 imprisoned not more than five years, or both [shall be guilty of an offense against the United States]. Maximum Penalty: Five (5) years imprisonment and applicable fine. The language defining a “true threat” provides explanation and clarification as to the proper standard to be applied in determining whether a threat is a true threat or not. See, e.g., United States v. Callahan, 702 F.2d 964, 965 (11th Cir. 1983); see generally, Lucero v. Trosch, 904 F. Supp. 1336, 1340 (S.D. Ala. 1995). In United States v. Alaboud, 347 F.3d 1293 (11th Cir. 2003), the Court of Appeals explained that: A communication is a threat when in its context it would have a reasonable tendency to create apprehension that its originator will act according to its tenor. In other words, the inquiry is whether there was sufficient evidence to prove beyond a reasonable doubt that the defendant intentionally made the statement under such circumstances that a reasonable person would construe them as a serious expression of an intention to inflict bodily harm. Thus, the offending remarks must be measured by an objective standard. 017 2 Id. at 1296-97 (internal citations, quotations, footnote27/ alterations omitted). and 07/ 2007), the Court of Appeals d In United States v. Evans, 478 F.3d 1332 (11th Cir. we “threat to injure” language contained considered and rejected the argument that the ie in 18 U.S.C. § 876(c) (which , v with mailing threatening communications) deals included only future threats. The Eleventh Circuit joined the Second, Third, and Fifth 226 -4 Circuits in holding that a future threat is not necessary and that the statute also 16threats of harm. . applied to immediate No This subsection, as distinguished from § 875(a) (implicitly), and § 875(b) and § 875(d) (explicitly), does not require an intent to extort. 208 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 235 of 677 30.4 Interstate Transmission of an Extortionate Communication 18 U.S.C. § 875(d) It’s a Federal crime to knowingly send in interstate or foreign commerce a threat to damage another person’s property or reputation. The Defendant can be found guilty of this crime only if all the following facts are proved beyond a reasonable doubt: (1) the Defendant knowingly sent a message in [interstate] [foreign] commerce containing a true threat [to damage the reputation] [to damage the property] of another; (2) the Defendant did so with the intent to extort money or something else of value to the Defendant. d we 017 7/2 7/2 0 [To transmit something in “interstate commerce” means to send it e , vi 226 from a place in one state to a place in another state.] 4 16. No the United States to anyplace outside the United States.] from a place in [To transmit something in “foreign commerce” means to send it A “true threat” is a serious threat – not idle talk, a careless remark, or something said jokingly – that is made under circumstances that would lead a reasonable person to believe that the Defendant intended to [kidnap] [injure] another person. To act with “intent to extort” means to act with the purpose of obtaining money or something of value from someone who consents because of fear or because of the wrongful use of actual or threatened force or violence. A “thing of value” is anything that has value to the Defendant, 209 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 236 of 677 whether it’s tangible or not. The heart of the crime is intentionally sending a message in interstate or foreign commerce to extort something of value. The Government doesn’t have to prove that the Defendant intended to carry out the threat or succeeded in obtaining the money or any other thing of value. ANNOTATIONS AND COMMENTS 18 U.S.C. § 875(d) provides that: 017 7/2 7/2 Whoever, with intent to extort from any person, firm, association, or corporation, any money or other thing of value, transmits in interstate or foreign commerce any communication containing any 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 [shall be guilty of an offense against the United States]. d we e , vi 226 0 4 16. No The language defining a “true threat” provides explanation and clarification as to the Maximum Penalty: Two (2) years imprisonment and applicable fine. proper standard to be applied in determining whether a threat is a true threat or not. See, e.g., United States v. Callahan, 702 F.2d 964, 965 (11th Cir. 1983); see generally Lucero v. Trosch, 904 F. Supp. 1336, 1340 (S.D. Ala. 1995). In United States v. Alaboud, 347 F.3d 1293 (11th Cir. 2003), the Court of Appeals explained that: A communication is a threat when in its context it would have a reasonable tendency to create apprehension that its originator will act according to its tenor. In other words, the inquiry is whether there was sufficient evidence to prove beyond a reasonable doubt that the defendant intentionally made the statement under such circumstances that a reasonable person would construe them as a serious expression of an intention to inflict bodily harm. Id. at 1296-97 (internal citations, quotations, footnote and alterations omitted) (construing 18 U.S.C. § 875(c)). In United States v. Evans, 478 F.3d 1332 (11th Cir. 2007), the Court of Appeals considered and rejected the argument that the “threat to injure” language contained 210 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 237 of 677 in 18 U.S.C. § 876(c) (which deals with mailing threatening communications) included only future threats. The Eleventh Circuit joined the Second, Third, and Fifth Circuits in holding that a future threat is not necessary and that the statute also applied to immediate threats of harm. Under United States v. Nilsen, 967 F.2d 539, 543 (11th Cir. 1992), “thing of value” is a clearly defined term that includes both tangibles and intangibles. d we e , vi 226 4 16. No 211 0 017 7/2 7/2 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 238 of 677 31.1 Mailing Threatening Communications 18 U.S.C. § 876 (First Paragraph) It’s a Federal crime to knowingly use the United States mail to send someone a demand or request for a reward or ransom in return for the release of a kidnapped person. The Defendant can be found guilty of this crime only if all the following facts are proved beyond a reasonable doubt: (1) the Defendant knowingly sent or caused to be sent through the United States Mail a demand or request for a ransom or reward for the release of a kidnapped person; and 017 2 (2) the Defendant did so with 27/ intent to the 7 extort money or some other/thing of value. d0 e To act with “intent to extort" means to act with the purpose of ew , vi obtaining money or something of value from someone who consents 226 64 1or -because of the wrongful use actual or threatened because of o. N fear force or violence. A “thing of value” is anything that has value to the Defendant, whether it’s tangible or not. The heart of the crime is intentionally sending something through the United States mail in order to extort something of value for the release of a kidnapping victim. The Government doesn’t have to prove that the Defendant participated in a kidnapping or succeeded in obtaining the money or any other thing of value. 212 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 239 of 677 ANNOTATIONS AND COMMENTS 18 U.S.C. § 876(a) provides: Whoever knowingly deposits in any post-office or authorized depository for mail matter, to be sent or delivered by the Postal Service or knowingly causes to be delivered by the Postal Service according to the direction thereon, any communication, with or without a name or designating mark subscribed thereto, addressed to any other person, and containing any demand or request for ransom or reward for the release of any kidnapped person [shall be guilty of an offense against the United States]. Maximum Penalty: Twenty (20) years imprisonment and applicable fine. Under United States v. Nilsen, 967 F.2d 539, 543 (11th Cir. 1992), “thing of value” is a clearly defined term that includes both tangible and intangibles. 017 7/2 7/2 The federal kidnapping statute is 18 U.S.C. § 1201. d we e , vi 226 4 16. No 213 0 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 240 of 677 31.2 Mailing Threatening Communications 18 U.S.C. § 876 (Second Paragraph) It’s a Federal crime to use the United States mail to send an extortionate communication. The Defendant can be found guilty of this crime only if all the following facts are proved beyond a reasonable doubt: (1) the Defendant knowingly used the United States Mail to send a message containing a true threat; (2) the nature of the true threat was to [kidnap] [injure] a person; and (3) the Defendant made the threat with intent to extort money or some other thing of value. 017 7/2 7/2 0 ed not idle talk, a careless remark, w A “true threat” is a seriousithreat – ve 26,– that is made under circumstances that or something said jokingly -42 . 16 would lead a reasonable person to believe that the Defendant intended No to [kidnap] [injure] another person. To act with “intent to extort” means to act with the purpose of obtaining money or something of value from someone who consents because of fear or because of the wrongful use of actual or threatened force or violence. A “thing of value” is anything that has value to the Defendant, whether it’s tangible or not. The heart of the crime is knowingly using the United States mail to send a threat to [kidnap] [injure] a person, and sending it with the intent 214 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 241 of 677 to extort something of value. The Government doesn’t have to prove that the Defendant intended to carry out the threat or succeeded in obtaining the money or any other thing of value. ANNOTATIONS AND COMMENTS 18 U.S.C. § 876(b) provides: Whoever, with intent to extort from any person any money or other thing of value, [deposits in any post-office or authorized depository for mail matter, or causes to be delivered by the Post-office] any communication containing any threat to kidnap any person or any threat to injure the person of the addressee or of another [shall be guilty of an offense against the United States]. 017 7/2 2 United States v. DeShazo, 565 F.2d 893 (5th Cir. 1978), present intent to actually do 07/ 434 F.3d 1116 (8th Cir. injury is not required; see also United Statesd McMorrow, e won v. threat is not an element of [a crime 2006) (noting “the intent to carry through e a i under 18 U.S.C. §876(b)]”). 6, v 2 -42 threat" provides explanation and clarification as to the The language defining a "true 16 proper standard. be applied in determining whether a threat is a true threat or not. to No See United States v. Taylor, 972 F.2d 1247, 1251 (11th Cir. 1992) (standard is Maximum Penalty: Twenty (20) years imprisonment and applicable fine. whether a reasonable recipient, familiar with context of the communication at issue, would interpret it as a threat). In United States v. Alaboud, 347 F.3d 1293 (11th Cir. 2003), the Court of Appeals explained that: A communication is a threat when in its context it would have a reasonable tendency to create apprehension that its originator will act according to its tenor. In other words, the inquiry is whether there was sufficient evidence to prove beyond a reasonable doubt that the defendant intentionally made the statement under such circumstances that a reasonable person would construe them as a serious expression of an intention to inflict bodily harm. Id. at 1296-97 (internal citations, quotations, footnote and alterations omitted) (construing 18 U.S.C. § 875(c)). The defendant in United States v. Bly, 510 F.3d 453 (4th Cir. 2007), sent threatening letters to various employees of the University of Virginia in violation of § 876(b). The 215 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 242 of 677 indictment charged that he sent the letters “knowingly, and with intent to extort from the University of Virginia a sum of money or other thing of value.” In an issue of first impression, the Fourth Circuit rejected the defendant’s argument that “any person” provided for in statute was limited to “living and breathing persons.” The university, therefore, was a “person” for purposes of the statute. Under United States v. Nilsen, 967 F.2d 539, 543 (11th Cir. 1992) “thing of value” is a clearly defined term that includes both tangibles and intangibles. d we e , vi 226 4 16. No 216 0 017 7/2 7/2 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 243 of 677 31.3 Mailing Threatening Communications 18 U.S.C. § 876 (Third Paragraph) It’s a Federal crime for anyone to knowingly use the United States to send someone a true threat to kidnap or injure any person. The Defendant can be found guilty of this crime only if the Government proves beyond a reasonable doubt that the Defendant knowingly used the United States mail to send a true threat to [kidnap] [injure] a person. A “true threat” is a serious threat – not idle talk, a careless remark, 017 2 would lead a reasonable person to believe that 7/ Defendant intended the 2 07/ to [kidnap] [injure] another person. ed w vie The heart of the crime , knowingly using the United States mail to 26 is 42 send a true threat. - doesn’t matter whether anyone actually intended It . 16 No to carry out the threat. or something said jokingly – that is made under circumstances that ANNOTATIONS AND COMMENTS 18 U.S.C. § 876(c) provides: Whoever knowingly so deposits or causes to be delivered as aforesaid, any communication with or without a name or designating mark subscribed thereto, addressed to any other person and containing any threat to kidnap any person or any threat to injure the person of the addressee or of another [shall be guilty of an offense against the United States]. Maximum Penalty: Up to ten (10) years imprisonment (if the addressee is a United States judge or federal officer/official) and applicable fine. The language defining a “true threat” provides explanation and clarification as to the 217 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 244 of 677 proper standard to be applied in determining whether a threat is a true threat or not. See, e.g., United States v. Callahan, 702 F.2d 964, 965 (11th Cir. 1983); see generally Lucero v. Trosch, 904 F. Supp. 1336, 1340 (S.D. Ala. 1995). In United States v. Alaboud, 347 F.3d 1293 (11th Cir. 2003), the Court of Appeals explained that: A communication is a threat when in its context it would have a reasonable tendency to create apprehension that its originator will act according to its tenor. In other words, the inquiry is whether there was sufficient evidence to prove beyond a reasonable doubt that the defendant intentionally made the statement under such circumstances that a reasonable person would construe them as a serious expression of an intention to inflict bodily harm. Id. at 1296-97 (internal citations, quotations, footnote and alterations omitted) (construing 18 U.S.C. § 875(c)). 017 7/2 7/2 In United States v. Evans, 478 F.3d 1332 (11th Cir. 2007), the Court of Appeals considered and rejected the argument that the “threat to injure” language contained in § 876(c) included only future threats. The Eleventh Circuit joined the Second, Third, and Fifth Circuits in holding that a future threat is not necessary and that the statute also applied to immediate threats of harm. d we e , vi 226 0 This subsection, like its counterpart §875(c), does not require an intent to extort. 4 16. No 218 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 245 of 677 31.4 Mailing Threatening Communications 18 U.S.C. § 876 (Fourth Paragraph) It’s a Federal crime to use the United States mail – knowingly and with the intent to extort something of value – to send someone else a true threat to (1) damage anyone’s property or reputation, or (2) accuse anyone of a crime. The Defendant can be found guilty of this crime only if all the following facts are proved beyond a reasonable doubt: (1) the Defendant knowingly used the United States mail to send a message containing a true threat [to damage someone’s reputation] [to damage someone’s property] [to accuse someone of a crime]; and 017 7/2 7/2 d0 eso with the intent to w (2) the Defendantedid vior other thing of value. extort money 26, 42 A “true threat”-is a serious threat – not idle talk, a careless remark, . 16 No or something said jokingly – that is made under circumstances that would lead a reasonable person to believe that the Defendant intended to [damage the [property] [reputation] of another person] [accuse another person of a crime]. To act with “intent to extort” means to act with the purpose of obtaining money or something of value from someone who consents because of fear or because of the wrongful use of actual or threatened force or violence. A “thing of value” is anything that has value to the Defendant, whether it’s tangible or not. 219 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 246 of 677 The heart of the crime is knowingly sending something through the United States mail in order to extort money or some other thing of value. The Government doesn’t have to prove that the defendant intended to carry out the threat or succeeded in obtaining anything. ANNOTATIONS AND COMMENTS 18 U.S.C. § 876(d) provides that: Whoever, with intent to extort from any person any money or other thing of value, knowingly so deposits or causes to be delivered, as aforesaid, any communication, with or without a name or designating mark subscribed thereto, addressed to any other person and containing any 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 [shall be guilty of an offense against the United States]. 017 7/2 7/2 0 ed Maximum Penalty: Up to ten (10) yearsw e imprisonment (if the addressee is a United , vi States judge or federal officer/official) and applicable fine. 226 4 The language defining - “true threat” provides explanation and clarification as to the a 16applied in determining whether a threat is a true threat or not. proper standard. be o to See, e.g., N United States v. Callahan, 702 F.2d 964, 965 (11th Cir. 1983); see generally Lucero v. Trosch, 904 F. Supp. 1336, 1340 (S.D. Ala. 1995). In United States v. Alaboud, 347 F.3d 1293 (11th Cir. 2003), the Court of Appeals explained that: A communication is a threat when in its context it would have a reasonable tendency to create apprehension that its originator will act according to its tenor. In other words, the inquiry is whether there was sufficient evidence to prove beyond a reasonable doubt that the defendant intentionally made the statement under such circumstances that a reasonable person would construe them as a serious expression of an intention to inflict bodily harm. Id. at 1296-97 (internal citations, quotations, footnote and alterations omitted) (construing 18 U.S.C. § 875(c)). In United States v. Evans, 478 F.3d 1332 (11th Cir. 2007), the Court of Appeals considered and rejected the argument that the “threat to injure” language contained 220 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 247 of 677 in 18 U.S.C. § 876(c) (which deals with mailing threatening communcations) included only future threats. The Eleventh Circuit joined the Second, Third, and Fifth Circuits in holding that a future threat is not necessary and that the statute also applied to immediate threats of harm. Under United States v. Nilsen, 967 F.2d 539, 543 (11th Cir. 1992), “thing of value” is a clearly defined term that includes both tangibles and intangibles. d we e , vi 226 4 16. No 221 0 017 7/2 7/2 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 248 of 677 32 False Impersonation of a Citizen 18 U.S.C. § 911 It’s a Federal crime for anyone to falsely and willfully impersonate a citizen of the United States. The Defendant can be found guilty of this crime only if all the following facts are proved beyond a reasonable doubt: (1) the Defendant was an alien at the time alleged in the indictment; (2) the Defendant falsely claimed to be a citizen of the United States; and (3) the Defendant knowingly and willfully made the false claim. d we 017 7/2 7/2 0 An "alien" is a person who isn’t a citizen of the United States. e , vi 226 A “citizen of the United States” is someone born in the United 4 16o. NUnited States is a citizen if both parents were United States outside the States or granted citizenship through "naturalization." A person born citizens and one of them had a residence in the United States before the birth. [The United States Citizenship and Immigration Services, in the Department of Homeland Security, is responsible for controlling the entry of aliens into the United States. Officers of that agency are authorized to administer oaths, and to take and consider evidence about an alien’s right or privilege to enter, reenter, pass through, or remain in the United States.] 222 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 249 of 677 ANNOTATIONS AND COMMENTS 18 U.S.C. § 911 provides: Whoever falsely and willfully represents himself to be a citizen of the United States [shall be guilty of an offense against the United States]. Maximum Penalty: Three (3) years imprisonment and applicable fine. The Eleventh Circuit has not discussed it, but other circuits have made it clear that “fraudulent purpose” is not an element of the crime. It must only be proved that “the misrepresentation was voluntarily and deliberately made.” See Chow Bing Kew v. United States, 248 F.2d 466, 469 (9th Cir.) cert. denied, 355 U.S. 889, 78 S. Ct. 259, 2 L. Ed. 2d 188 (1957); United States v. Franklin, 188 F.2d 182, 186 (7th Cir. 1951) (“A fraudulent purpose in making a false claim of citizenship is not essential to offense [sic] under statute and consequently the indictment need not contain an allegation, nor need there be proof as to defendant’s fraudulent purpose in making such claim.”). The logic of this view is based, in part, on the fact that a prior version of 18 U.S.C. § 746(a) (the predecessor to § 911) required a showing of fraudulent purpose, but that requirement was expressly omitted from § 911. d we 0 017 7/2 7/2 The committee believes that the general definition of “willfully” in Basic Instruction 9.1A would usually apply to this crime.. e , vi 226 4 16. No 223 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 250 of 677 33 False Impersonation of an Officer of the United States 18 U.S.C. § 912 It’s a Federal crime to falsely impersonate an officer of the United States. The Defendant can be found guilty of this crime only if all the following facts are proved beyond a reasonable doubt: (1) the Defendant pretended to be an officer or employee acting under the authority of the United States; (2) the Defendant [acted as such] [demanded or obtained money or other thing of value]; and 017 7/2 2 (3) the Defendant did so knowingly with intent 07/ d to deceive or defraud another. we vie For purposes of this, crime, to act "with intent to deceive or 226 4 defraud" means16act with the specific intent to try to get a person to do to o. Nhe would not otherwise have done. something ANNOTATIONS AND COMMENTS 18 U.S.C. § 912 provides: Whoever falsely assumes or pretends to be an officer or employee acting under the authority of the United States or any department, agency, or officer thereof, and [1] acts as such, or [2] in such pretended character demands or obtains any money . . . or thing of value [shall be guilty of an offense against the United States]. Maximum Penalty: Three (3) years imprisonment and applicable fine. United States v. Gayle, 967 F.2d 483, 486-87 (11th Cir. 1992) (en banc), held that intent to defraud is an essential element of this offense, relying on the amended statutory language which omitted “with intent to defraud” in deference to the 224 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 251 of 677 Supreme Court’s holding in United States v. Lepowitch, 318 U.S. 702, 63 S. Ct. 914, 87 L. Ed. 1091 (1943): “the words ‘intent to defraud’ in the context of this statute, do not require more than the defendants have, by artifice or deceit, sought to cause the deceived person to follow some course he would not have pursued but for the deceitful conduct.” 318 U.S. at 704. The Eleventh Circuit joined the Third, Eighth, and D.C. Circuits in determining that intent to defraud remained an element of the offense, even though it did not have to be alleged in the indictment. Note, however, that the Second, Fourth, Seventh, and Ninth Circuits have held that “intent to defraud” is no longer an element of this offense. In United States v. Tin Yat Chin, 476 F.3d 144 (2d Cir. 2007), the Second Circuit observed that § 912 “only applies to persons impersonating a present government employee,” and not a former employee). d we e , vi 226 4 16. No 225 0 017 7/2 7/2 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 252 of 677 34.1 Dealing in Firearms without a License 18 U.S.C. § 922(a)(1)(A) It’s a Federal crime to be in the business of dealing in firearms without a Federal license. The Defendant can be found guilty of this crime only if all the following facts are proved beyond a reasonable doubt: (1) the Defendant engaged in the business of dealing in firearms; (2) the Defendant didn’t have a license issued under Federal law; and (3) the Defendant acted knowingly and willfully. d we 017 7/2 7/2 0 A "firearm" is any weapon designed to or readily convertible to e , vi 226 expel a projectile by the action of an explosive. The term includes the 4 16. No is “engaged in the business of dealing in firearms” at A person frame or receiver of any such weapon or any firearm muffler or silencer. wholesale or retail if that person regularly devotes time, attention, and labor to repeatedly purchasing and reselling firearms principally to earn a living. A person who makes an occasional sale, exchange, or purchase of firearms for that person’s own personal collection or hobby or sells all or part of that person's own personal collection is not engaged in the business of selling firearms. A “dealer” is any person engaged in the business of selling firearms at wholesale or retail, even if it’s not the person’s primary business or job. 226 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 253 of 677 The Government must prove that the Defendant knew that [his] [her] conduct was unlawful, but it doesn’t have to prove that the defendant actually knew about the federal licensing requirement. The "principal objective of livelihood and profit" is the intent to earn a living or make some money from the regular sale of firearms – not just to improve a person’s collection or reduce a personal collection. Whether a profit actually results does not matter. [Proof of a profit motive isn’t required if the Defendant deals regularly in firearms for criminal or terroristic purposes. ANNOTATIONS AND COMMENTS 18 U.S.C. § 922(a)(1)(A) provides: (a) d we e , vi 226 017 7/2 7/2 0 It shall be unlawful - - 4 (1) 16- for any person - . No (A) except a . . . licensed dealer, to engage in the business of . . . dealing in firearms. Maximum Penalty: Five (5) years imprisonment and applicable fine. The definition of "firearm" is taken from 18 U.S.C. § 921(a)(3). The definition of “dealing” is derived from “dealer,” as defined at 18 U.S.C. § 921(a)(11). The definition of "engaged in the business" is taken from 18 U.S.C. § 921(a)(21)(C). The definition of "principal objective of livelihood and profit" is taken from 18 U.S.C. § 921(a)(22). The term “willfully” in § 924(a)(1)A, which imposes the penalty for a violation of § 922(a)(1)(A), requires proof only that the accused knew that the accused’s conduct was unlawful, and not that the accused also knew of the federal licensing requirement. Bryan v. United States, 524 U.S. 184, 118 S. Ct. 1939, 141 L. Ed. 2d 197 (1998). The committee believes that the general definition of “willfully” in Basic Instruction 9.1A would usually apply to this crime. 227 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 254 of 677 34.2 Transfer of Firearm to Nonresident 18 U.S.C. § 922(a)(5) Under certain circumstances, it’s a Federal crime for anyone who isn’t a licensed dealer to sell or transfer a firearm to someone who lives in another state. The Defendant can be found guilty of this crime only if all the following facts are proved beyond a reasonable doubt: (1) the Defendant willfully transferred, sold, or delivered a firearm to another person; (2) at the time, neither the Defendant nor the person who received the firearm was a licensed firearms dealer, importer, manufacturer, or collector; and (3) 017 7/2 7/2 0 edor had reasonable w the Defendanteknew vi that the person who cause to ,believe received the firearm resided in another 226 state. 6-4 o. 1 is any weapon designed to or readily convertible to N A "firearm" expel a projectile by the action of an explosive. The term includes the frame or receiver of any such weapon or any firearm muffler or silencer. To "transfer" a firearm means to deliver it to someone else. To have "reasonable cause to believe" that someone resides in another state means to know facts that would lead a reasonable person to conclude that the other person resides in another state. The heart of this crime is to willfully transfer a firearm to a resident of another state. [It’s not a crime to lend or rent a firearm to someone for legal 228 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 255 of 677 sporting purposes. It’s not a crime to transfer or deliver a firearm to a nonresident when carrying out a bequest or intestate succession as long as the person who receives the firearm may do so under that person’s state law.] [A "bequest" is property given to someone else in a will. “Intestate succession" is the method defined by state law to distribute the estate of someone who dies without a will.] 017 7/2 7/2 ANNOTATIONS AND COMMENTS 18 U.S.C. § 922(a)(5) provides: (a) It shall be unlawful - - d we e , v*i * * * 226 0 * 4 (5) person [other than a dealer] to 16- for. .any deliver any firearm to anylicensed [other than . sell . or o Ntransfer, dealer] who the transferor knows personreasonable a licensed or has cause to believe does not reside in . . . the State in which the transferor resides [unless] the transfer [is] made to carry out a bequest . . . [or constitutes a] loan or rental . . . for temporary use for lawful sporting purposes. Maximum Penalty: Five (5) years imprisonment and applicable fine. The term “willfully” in § 924(a)(1)(A) which imposes the penalty for a violation of inter alia, this subsection, requires proof only that the accused knew that the accused’s conduct was unlawful, and not that the accused also knew of the federal licensing requirement. Bryan v. United States, 524 U.S. 184, 118 S. Ct. 1939, 141 L. Ed. 2d 197 (1998). The committee believes that the general definition of “willfully” in Basic Instruction 9.1A would usually apply to this crime. 229 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 256 of 677 34.3 False Statement to a Firearms Dealer 18 U.S.C. § 922(a)(6) It’s a Federal crime to make a false statement to a licensed firearms dealer while buying a firearm. The Defendant can be found guilty of this crime only if all the following facts are proved beyond a reasonable doubt: (1) the Defendant bought or tried to buy a firearm from a federally licensed firearms dealer; (2) the Defendant [knowingly made a false or fictitious statement, orally or in writing] [knowingly furnished false identification] that was [intended to deceive] [likely to deceive] the dealer; and 017 7/2 7/2 (3) 0 ed false [statement] w the subject matter of the vie was material to the [identification] 26, of the sale. lawfulness -42 6 o. 1 N A "firearm" is any weapon designed to or readily convertible to expel a projectile by the action of an explosive. The term includes the frame or receiver of any such weapon or any firearm muffler or silencer. A [statement] [identification] is "false" if it is untrue when [made] [used] and the person [making] [using] it knows it is untrue. A false [statement] [identification] is "likely to deceive" if under the circumstances a reasonable person of ordinary prudence would probably be deceived. Whether the allegedly false [statement] [identification] is “material” is a question of law for the court to decide. If you find the [statement] 230 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 257 of 677 [identification] in this case is false, then it was material to the sale. ANNOTATIONS AND COMMENTS 18 U.S.C. § 922(a)(6) provides: (a) It shall be unlawful - * * * * * (6) for any person in connection with the acquisition or attempted acquisition of any firearm or ammunition from a licensed importer, . . . manufacturer, . . . dealer, or . . . collector, knowingly to make any false or fictitious oral or written statement or to furnish or exhibit any false, fictitious, or misrepresented identification, intended or likely to deceive such importer, manufacturer, dealer, or collector with respect to any fact material to the lawfulness of the sale or other disposition of such firearm or ammunition . . . . d we 017 7/2 7/2 0 Maximum Penalty: Ten (10) years imprisonment and applicable fine. e , vi 226 United States v. Klais, 68 F.3d 1282 (11th Cir. 1995), held that under § 922(a)(6) materiality is a question of law, distinguishing the Supreme Court's decision in United States v. Gaudin, 515 U.S. 506, 115 S. Ct. 2310, 132 L. Ed. 2d 444 (1995) (holding that in context of 18 U.S.C. § 1001, materiality is a question for the jury). 4 16. No Willfulness is not an essential element of this offense. See 18 U.S.C. § 924(a)(2). 231 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 258 of 677 34.4 Failure of Firearms Dealer to Keep Proper Record of Sale 18 U.S.C. § 922(b)(5) It’s a Federal crime for a federally licensed firearms dealer to sell [a firearm] [armor-piercing ammunition] to anyone without keeping a record about the purchaser. The Defendant can be found guilty of this crime only if all the following facts are proved beyond a reasonable doubt: (1) the Defendant was a federally licensed firearms dealer when the alleged offense occurred; (2) the Defendant sold or delivered [a firearm] [armor-piercing ammunition] to [buyer’s name]; and 017 7/2 7/2 (3) 0 ed the Defendant w vie knowingly and willfully failed to ,record the name, age, and address of [buyer’s name] as required by 226 4 law. 16. No [A "firearm" is any weapon designed to or readily convertible to expel a projectile by the action of an explosive. The term includes the frame or receiver of any such weapon or any firearm muffler or silencer.] [“Armor-piercing ammunition" is a projectile or projectile core that may be used in a handgun and is constructed almost entirely from any one or a combination of tungsten alloys, steel, iron, brass, bronze, beryllium copper, or depleted uranium. The term includes any fulljacketed projectile larger than .22 caliber that is designed and intended for use in a handgun and has a jacket weight greater than 25 percent of the projectile’s total weight.] 232 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 259 of 677 ANNOTATIONS AND COMMENTS 18 U.S.C. § 922(b)(5) provides: (b) It shall be unlawful for any licensed . . . dealer . . . to sell or deliver - * * * * * (5) any firearm or armor-piercing ammunition to any person unless the licensee notes in his records, required to be kept pursuant to section 923 of this chapter, the name, age, and place of residence of such person . . . . Maximum Penalty: Five (5) years imprisonment and applicable fine. 18 U.S.C. § 924(a)(1)(D) makes willfulness an element of this offense. However, in Bryan v. United States, 524 U.S. 184, 118 S. Ct. 1939, 141 L. Ed. 2d 197 (1998), the Court held that “willfulness” should be given its usual meaning of general knowledge of the unlawfulness of the conduct, but did not require proof that the Defendant had specific knowledge of the criminal statute being violated by his conduct. The committee believes, therefore, that the general definition of “willfully” in Basic Instruction 9.1A would usually apply to this crime. d we e , vi 226 4 16. No 233 0 017 7/2 7/2 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 260 of 677 34.5 Sale of a Firearm to a Convicted Felon 18 U.S.C. § 922(d)(1) It’s a Federal crime to knowingly sell a firearm to a convicted felon. The Defendant can be found guilty of this crime only if all the following facts are proved beyond a reasonable doubt: (1) the Defendant sold the firearm described in the indictment at or about the time alleged; (2) the firearm’s buyer had been convicted of a felony – a crime punishable by imprisonment for more than a year; and (3) the Defendant knew or had reasonable cause to believe that the buyer had been convicted of a felony. d we 017 7/2 7/2 0 A "firearm" is any weapon designed to or readily convertible to e , vi 226 expel a projectile by the action of an explosive. The term includes the 4 16. No “Reasonable cause to believe" that someone is a convicted felon frame or receiver of any such weapon or any firearm muffler or silencer. means knowing facts that would cause a reasonable person to conclude that the other person is a convicted felon. ANNOTATIONS AND COMMENTS 18 U.S.C. § 922(d)(1) provides: (d) It shall be unlawful for any person to sell or otherwise dispose of any firearm or ammunition to any person knowing or having reasonable cause to believe that such person - (1) is under indictment for, or has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year. 234 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 261 of 677 Maximum Penalty: Ten (10) years imprisonment and applicable fine. Willfulness is not an essential element of this offense. See 18 U.S.C. § 924(a)(2). See United States v. Peters, 403 F.3d 1263 (11th Cir. 2005). d we e , vi 226 4 16. No 235 0 017 7/2 7/2 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 262 of 677 34.6 Possession of a Firearm by a Convicted Felon 18 U.S.C. 922(g)(1) It’s a Federal crime for anyone who has been convicted of a felony offense to possess a firearm in or affecting interstate or foreign commerce. The Defendant can be found guilty of this crime only if all the following facts are proved beyond a reasonable doubt: (1) the Defendant knowingly possessed a firearm in or affecting interstate or foreign commerce; and (2) before possessing the firearm, the Defendant had been convicted of a felony – a crime punishable by imprisonment for more than one year. d we e , vi 226 017 7/2 7/2 0 A "firearm" is any weapon designed to or readily convertible to 4 16. No of any such weapon or any firearm muffler or silencer. frame or receiver expel a projectile by the action of an explosive. The term includes the The term "interstate or foreign commerce" includes the movement of a firearm from one state to another or between the United States and any foreign country. It’s not necessary for the Government to prove that the Defendant knew the firearm had moved from one state to another, only that the firearm did, in fact, move from one state to another. ANNOTATIONS AND COMMENTS 18 U.S.C. § 922(g)(1) provides: (g) It shall be unlawful for any person - 236 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 263 of 677 (1) who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year . . . to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce. Maximum Penalty: Ten (10) years imprisonment and applicable fine. However, under the Armed Career Criminal Act, if a Defendant violates § 922(g) and has three previous convictions for a violent felony or a serious drug offense, or both, committed on occasions different from one another, such person shall be fined and imprisoned for not less than fifteen (15) years. See 18 U.S.C. § 924(e)(1). For what may be included as a “violent felony,” see Begay v. United States, 553 U.S. 137, 128 S. Ct. 1581, 170 L. Ed. 2d 490 (2008) (driving under the influence is not a “violent felony”); James v. United States, 550 U.S. 192, 127 S. Ct. 1586, 167 L. Ed. 2d 532 (2007) (attempted burglary is a “violent felony”). 017 7/2 7/2 When a Defendant offers to stipulate to his or her status as a previously convicted felon, and the Government declines the stipulation, the issue should be evaluated under the balancing test of Fed. R. Evid. 403. While there is no per se rule requiring the Government to accept such a stipulation, it can be an abuse of discretion to admit evidence of the nature of a stipulated conviction where the nature of the crime (as distinguished from the fact of the conviction itself) has potential prejudice outweighing any probative value. Old Chief v. United States, 519 U.S. 172, 117 S. Ct. 644, 136 L. Ed. 2d 574 (1997). d we e , vi 226 0 4 16Willfulness is o. an essential element of this offense. See 18 U.S.C. § 924(a)(2); Nnot see also United States v. Palma, 511 F.3d 1311, 1315 (11th Cir. 2008) (“We have consistently held that § 922(g) is a strict liability offense that ‘does not require the prosecution to prove that the criminal acts were done with specific criminal intent.’”). The Government is not required to prove that the unlawfully possessed firearm was operable. United States v. Adams, 137 F.3d 1298 (11th Cir. 1998). What constitutes a prior state court “conviction” is determined, under 18 U.S.C. §921(a)(20), according to state law; and, under Florida law, a “conviction” requires an adjudication of guilt by a jury verdict or a plea of guilty. A plea of nolo contendere followed by a withholding of adjudication by the Court is not a “conviction” for purposes of § 922(g)(1). United States v. Willis, 106 F.3d 966 (11th Cir. 1997). In Small v. United States, 544 U.S. 385, 125 S. Ct. 1752, 161 L. Ed. 2d 651 (2005), the Supreme Court held that § 922(g)(1)’s phrase “convicted in any court” encompasses only domestic, not foreign, convictions. In United States v. Scott, 263 F.3d 1270 (11th Cir. 2001), the Court held that as long as the weapon at issue had a minimal nexus to interstate commerce, application of § 922(g) was constitutional. The interstate nexus was demonstrated by the fact that 237 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 264 of 677 the firearm Defendant possessed was manufactured in California and had moved in interstate commerce to Georgia, where Defendant was found in possession of the weapon. With regard to a “justification” defense under § 922(g), see United States v. Deleveaux, 205 F.3d 1292 (11th Cir. 2000). The Court held that in order to establish a justification defense, Defendant must prove by a preponderance of the evidence that: (1) Defendant was under unlawful and present, imminent, and impending threat of death or serious bodily injury, (2) Defendant did not negligently or recklessly place himself in a situation where Defendant would be forced to engage in criminal conduct, (3) Defendant had no reasonable legal alternative to violating the law, and (4) there was a direct causal relationship between the criminal action and the avoidance. Id. at 1297. See Special Instruction 16, Justification or Necessity. A justification defense may be available only in “extremely limited” and “extraordinary circumstances.” See United States v. Palma, 511 F.3d 1311, 1316 n.3 (11th Cir. 2008). d we e , vi 226 4 16. No 238 0 017 7/2 7/2 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 265 of 677 34.7 False Entry in a Record by a Firearms Dealer 18 U.S.C. § 922(m) It’s a Federal crime for a licensed firearms dealer to make a false entry in any record that federal law requires the dealer to keep. The Defendant can be found guilty of this crime only if all the following facts are proved beyond a reasonable doubt: (1) the Defendant was a federally licensed firearms dealer when the alleged offense occurred; (2) the Defendant made a false entry in a firearm record that [he] [she] was required to keep under federal law; and 017 7/2 2 (3) the Defendant knew that / 07 the entry was d false. we ie Federal law requires ,avlicensed firearms dealer to maintain a 226 4 [record’s name]16record. . No in a record is "false" if it is untrue when made and the An entry person making it knows it is untrue. ANNOTATIONS AND COMMENTS 18 U.S.C. § 922(m) provides: It shall be unlawful for any licensed . . . dealer . . . . knowingly to make any false entry in, to fail to make appropriate entry in, or to fail to properly maintain, any record which he is required to keep pursuant to section 923 of this chapter or regulations promulgated thereunder. Maximum Penalty: One (1) year imprisonment and applicable fine. Willfulness is not an essential element of this offense. See 18 U.S.C. § 924(a)(3)(B). 239 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 266 of 677 34.8 Possession of a Machine Gun 18 U.S.C. § 922(o)(1) It’s a Federal crime to possess a machine gun. A “machine gun” is any weapon that shoots, is designed to shoot, or can be readily restored to shoot multiple shots automatically, without manual reloading, by a single function of the trigger. The Defendant can be found guilty of this crime only if all the following facts are proved beyond a reasonable doubt: (1) the Defendant possessed a “machine gun”; and (2) 017 2 the Defendant knew it was a27/ machine gun or was aware of the firearm’s essential 07/it a “machine characteristics that d we made gun” as defined. e , vi 226 6-4 o. 1 N ANNOTATIONS AND COMMENTS 18 U.S.C. § 922(o)(1) provides: . . . [I]t shall be unlawful for any person to transfer or possess a machine gun. Maximum Penalty: Ten (10) years imprisonment and applicable fine. Willfulness is not an essential element of this offense. See 18 U.S.C. § 924(a)(2). Note: The definition of “machine gun” in 26 U.S.C. § 5845(b) also encompasses the “frame or receiver” and “parts” which may be used in converting or assembling a machine gun, and the expanded definition may be required when included in the charged offense. 240 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 267 of 677 35.1 False Statement in Required Information Kept by a Firearms Dealer 18 U.S.C. § 924(a)(1)(A) It’s a Federal crime to make a false statement in a record that Federal law requires a licensed firearms dealer to keep. Federal law requires a licensed firearms dealer to maintain [record’s name]. The Defendant can be found guilty of this crime only if all the following facts are proved beyond a reasonable doubt: 017 7/2 2 (2) to a federally licensed firearms dealer; and 07/ d we that the statement or (3) the Defendant e knew , vi representation was false. 226 4 An entry in a 16record is “false” if it was untrue when made and the . No it knew it was untrue. person making (1) the Defendant made a false statement or representation in the [record’s name]; ANNOTATIONS AND COMMENTS 18 U.S.C. § 924(a)(1)(A) provides: (a)(1) . . . [W]hoever: (A) knowingly makes any false statement or representation with respect to the information required by this chapter to be kept in the records of a person licensed under this chapter [shall be guilty of an offense against the United States.] Maximum Penalty: Five (5) years imprisonment and applicable fine. Willfulness is not an essential element of this offense. 18 U.S.C. § 924(a)(1) 241 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 268 of 677 In United States v. Nelson, 221 F.3d 1206 (11th Cir. 2000), the Court held that § 924(a)(1)(A) applies to “straw purchases” where the buyer of the firearm intends at the point of sale to later transfer the weapon to another person. Such a buyer cannot truthfully certify on ATF 4473 that he or she is the “actual buyer” of the firearm. d we e , vi 226 4 16. No 242 0 017 7/2 7/2 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 269 of 677 35.2 Carrying/Possessing a Firearm During or in Furtherance of a Drug Trafficking Crime or Crime Of Violence 18 U.S.C. § 924(c)(1)(A) It’s a separate Federal crime for anyone to [use a firearm in relation to] [carry a firearm during and in relation to] [possess a firearm in furtherance of] a [drug-trafficking crime] [crime of violence]. The Defendant can be found guilty of this crime only if all the following facts are proved beyond a reasonable doubt: (1) the Defendant committed the [drugtrafficking crime] [crime of violence] charged in Count of the indictment; (2) 017 7/2 2 the Defendant knowingly7/ 0 [used] [carried] d [possessed] a firearm; and we e , vi the Defendant [used the firearm “in relation to”] [carried the firearm “in relation 226 4 to”] 16- [possessed the firearm “in furtherance . (3) No of”] the [drug-trafficking crime] [violent crime]. A "firearm" is any weapon designed to or readily convertible to expel a projectile by the action of an explosive. The term includes the frame or receiver of any such weapon or any firearm muffler or silencer. [To “use” a firearm means more than a mere possession and more than proximity and accessability; it requires active employment of the weapon as by brandishing or displaying it in some fashion.] To [“carry”] [“possess”] a firearm is to have a firearm on one’s person or to transport or control a firearm in a way that makes it available for immediate use while committing the [drug-trafficking crime] 243 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 270 of 677 [violent crime]. To [use] [carry] a firearm “in relation to” a crime means that there must be a firm connection between the Defendant, the firearm, and the [drug-trafficking crime] [violent crime]. The firearm must have helped with some important function or purpose of the crime, and not simply have been there accidentally or coincidentally. [Possessing a firearm “in furtherance of” a crime means that the firearm helped, promoted, or advanced the crime in some way.] [The indictment charges that the Defendant knowingly carried a 017 2 and possessed a firearm in furtherance of [a27/ drug-trafficking crime] [a 07/ is charged with violating d violent crime]. In other words, the Defendant we ie the law in Count in 6, v two separate ways. The Government has to 2 -42ways, not both. But to find the Defendant guilty prove only one of 6 those .1 o you must N agree on which of the two ways the Defendant violated the all firearm during and in relation to [a drug-trafficking crime] [a violent crime] law.] ANNOTATIONS AND COMMENTS 18 U.S.C. § 924(c)(1) provides: (c)(1)(A) . . . [A]ny person who, during and in relation to any crime of violence or drug trafficking crime (including a crime of violence or drug trafficking crime that provides for an enhanced punishment if committed by the use of a deadly or dangerous weapon or device) for which the person may be prosecuted in a court of the United States, uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime - 244 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 271 of 677 (i) be sentenced to a term of imprisonment of not less than 5 years; (ii) if the firearm is brandished, be sentenced to a term of imprisonment of not less than 7 years; and (iii) if the firearm is discharged, be sentenced to a term of imprisonment of not less than 10 years. (B) If the firearm possessed by a person convicted of a violation of this subsection - (i) is a short-barreled rifle, short-barreled shotgun, the person shall be sentenced to a term of imprisonment of not less than 10 years; or (ii) is a machine gun or a destructive device, or is equipped with a firearm silencer or firearm muffler, the person shall be sentenced to a term of imprisonment of not less than 30 years. 017 7/2 Maximum Penalty: As stated in statute above and applicable fine. Sentence must 2 be consecutive. 07/ ed winstruction (Special Instruction 6) may not NOTE: Because the standard possession ie apply very well to the possession , v of this statute, a bracket addition is included aspect and caution is required when this instruction is used with other instructions that also 226 4 require the more general possession definition. 16. No States, 516 U.S. 137, 116 S. Ct. 501, 133 L. Ed. 2d 472 (1995), In Bailey v. United the Court held that “uses” within the meaning of § 924(c)(1) means more than mere possession and more than proximity and accessibility; it requires, instead, active employment of the weapon as by brandishing or displaying it in some fashion. In 1998, in direct response to Bailey, Congress amended the statute in several respects, including the insertion of the phrase “or who, in furtherance of any such crime, possesses a firearm. . .” The stated purpose and effect of this amendment was to overcome the Bailey court’s constrictive interpretation of the scope of the statute and to extend its reach to any drug trafficking or violent crime in which the Defendant merely possesses a firearm “in furtherance of any such crime.” Thus, there are three possible charges under this statute: (1) “used” during and in relation to; (2) “carried” during and in relation to; or (3) “possessed” in furtherance of; the offense. This instruction was prepared to cover situations when one or any combination of the three are charged in the same count. See United States v. Timmons, 283 F.3d 1246 (11th Cir. 2002). If “use” is also charged, some of the additional bracketed material may be appropriate. 245 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 272 of 677 In Watson v. United States, 552 U.S. 74, 128 S. Ct. 579, 169 L. Ed. 2d 472 (2007), the Supreme Court held that, for purposes of § 924(c)(1)(A), the term “uses” would turn on the language as it was normally spoken. Therefore, as applied to the facts of that case, a person does not “use” a firearm under the statute when he receives it in trade for drugs. In United States v. Dean, 517 F.3d 1224 (11th Cir. 2008), the Eleventh Circuit held that § 924(c)(1)(A)(iii), which, as quoted above, provides for enhanced penalty if the firearm is discharged during and in relation to/in furtherance of the crime, does not require separate proof of intent. In other words, the enhancement will apply even if the firearm is discharged by accident. See id. In Harris v. United States, 536 U.S. 545, 122 S. Ct. 2406, 153 L. Ed. 2d 524 (2002), the Court held that the provisions of the statute requiring enhanced mandatory minimum sentences if the firearm is brandished or discharged (§ 924(c)(1)(A)(ii) and (iii)) are sentencing factors for the sentencing judge and are not elements of the offense that must be charged in the indictment and submitted to the jury under the principle of Apprendi which applies to factors that would increase the maximum sentence allowable. See also United States v. Pounds, 230 F.3d 1317, 1319 (11th Cir. 2000). The Eleventh Circuit has joined the majority of sister circuits and held that the sentencing factors in § 924(c)(1)(B) (which trigger minimum mandatory sentences) do not require a jury determination, and thus do not run afoul of Apprendi and the constitution. See United States v. Ciszkowski, 492 F.3d 1264 (11th Cir. 2007). d we 017 7/2 7/2 0 e , vi Whether a crime is a crime of violence is a question of law, not of fact. United States 226 4 v. Amparo, 68 F.3d 1222 (9th Cir. 1995); United States v. Moore, 38 F.3d 977 (8th 16- v. Weston, 960 F.2d 212 (1st Cir. 1992); United States v. . Cir. 1994); United States No 947 (4th Cir. 1991). But see, United States v. Jones, 993 F.2d 58 Adkins, 937 F.2d (5th Cir. 1993). Cf. Begay v. United States, 553 U.S. 137, 128 S. Ct. 1581, 170 L. Ed. 2d 490 (2008) (“In determining whether [a] crime is a violent felony [for purposes of § 924(e)], we consider the offense generically, that is to say, we examine it in terms of how the law defines the offense and not in terms of how an individual offender might have committed it on a particular occasion.”); James v. United States, 550 U.S. 192, 127 S. Ct. 1586, 167 L. Ed. 2d 532 (2007) (stating that in determining if a crime qualifies as a violent felony for purposes of § 924(e), “we look only to the fact of conviction and the statutory definition of the prior offense, and do not generally consider the particular facts disclosed by the record of conviction”). 246 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 273 of 677 36 False Statement to a Federal Agency 18 U.S.C. § 1001 It’s a Federal crime to willfully make a false or fraudulent statement to a department or agency of the United States. The Defendant can be found guilty of this crime only if all the following facts are proved beyond a reasonable doubt: (1) the Defendant [made the statement] [made or used the document], as charged; (2) the [statement] [document] was false; 017 7/2 2 the Defendant acted willfully, knowing that 07/was false; and d the [statement] [document] we e , vi the [false statement] [false document] was 6 made 2 used for a matter within the 2 or 4 jurisdiction of a department or agency of 16. (3) the falsity concerned a material matter; (4) (5) No the United States. A [statement] [document] is "false" when [made] [used] if it is untrue when made and the person [making] [using] it knows it is untrue. The Government doesn’t have to show that the Governmental agency or department was, in fact, deceived or misled. [When Government agents are conducting an investigation, a false “no” in response to a question is a false statement.] [United States Citizenship and Immigration Services, Department of Homeland Security, is an agency of the United States. Filing documents with that agency to produce a change in an alien’s 247 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 274 of 677 immigration status is a matter within that agency’s jurisdiction.] The [making of a false statement] [use of a false document] is not a crime unless the falsity relates to a "material" fact. A "material fact" is an important fact – not some unimportant or trivial detail – that has a natural tendency to influence or is capable of influencing a decision of a department or agency in reaching a required decision. ANNOTATIONS AND COMMENTS 017 2 . . . [W]hoever, in any matter within 27/ the jurisdiction of the / executive, legislative, or judicial branch07the Government of the of United States, knowingly and willfully -d(1) falsifies . . . a material fact; we - or fraudulent statement or (2) makes any materially false, fictitious e , vi representation; or (3) makes or uses any false writing or document knowing the same 2 contain any materially false, fictitious or 2 to6 4 fraudulent statement or entry [shall be guilty of an offense against the 16United o. N States.] 18 U.S.C. § 1001(a) provides: Maximum Penalty: Five (5) years imprisonment and applicable fine. The enumeration of the elements of the offense is taken from United States v. Calhoon, 97 F.3d 518, 523 (11th Cir. 1996). In Arthur Pew Const. Co. v. Lipscomb, 965 F.2d 1559, 1576 (11th Cir. 1992), the court held that misrepresentation for purposes of § 1001 must be deliberate, knowing, and willful, or at least have been made with a reckless disregard of the truth and a conscious purpose to avoid telling the truth. In United States v. Gaudin, 515 U.S. 506, 115 S. Ct. 2310, 132 L. Ed. 2d 444 (1995), the Supreme Court held that the materiality of a false statement under this section is a jury question, and that failure to submit the question of materiality to the jury constitutes reversible error. See United States v. Klais, 68 F.3d 1282, 1283 (11th Cir. 1995) (recognizing holding). The Eleventh Circuit has held that for a conviction to be sustained under § 1001, “it is imperative that the writing or document’ be ‘false.’” United States v. Blankenship, 382 F.3d 1110, 1132 (11th Cir. 2004). Where the writing or document at issue is a contract, the Court of Appeals further held that 248 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 275 of 677 there are only two ways in which a contract can possibly be considered false: (1) where a person forges or alters it, or (2) where it contains “factual misrepresentations.” Id. The materiality definition is adopted from Gaudin, 115 S. Ct. at 2313, and United States v. Lichenstein, 610 F.2d 1272 (5th Cir. 1980). See United States v. Grizzle, 933 F.2d 943, 948 (11th Cir. 1991); United States v. Herring, 916 F.2d 1543, 1547 (11th Cir. 1990); United States v. Gafyczk, 847 F.2d 685, 691 (11th Cir. 1988). The “exculpatory no” doctrine as an exception to the scope of the offense (see United States v. Payne, 750 F.2d 844, 861 (11th Cir. 1985)) was repudiated by the Supreme Court in Brogan v. United States, 522 U.S. 398, 118 S. Ct. 805, 139 L. Ed. 2d 830 (1998). The committee believes that the general definition of “willfully” in Basic Instruction 9.1A would usually apply to this crime. d we e , vi 226 4 16. No 249 0 017 7/2 7/2 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 276 of 677 37 False Entry in Bank Records 18 U.S.C. § 1005 (Third Paragraph) It’s a Federal crime for anyone to make a false entry in any book or record of a federally insured bank. The Defendant can be found guilty of this crime only if all the following facts are proved beyond a reasonable doubt: (1) That the Defendant made or caused to be made a false entry in a book or record of an insured bank; (2) That the entry was “material;” and (3) That the Defendant knowingly and willfully made the entry, or caused the entry to be made knowing it was false and with the intent to defraud or deceive, as charged. 017 7/2 7/2 0 ed deposits are insured by the w An "insured bank” is any bank whose vie , 26Corporation. Federal Deposit Insurance -42 . 16 An entry in a book or record is "false" if it is untrue when made and No the person making it knows it is untrue. An entry in a book or record is “material” if it has the capacity or natural tendency to influence the operations of the bank. It is not a trivial detail. To act "with intent to defraud" is to act with the specific intent to deceive or cheat, usually for personal financial gain or to cause financial loss to someone else. The heart of the crime is willfully making a material false entry with intent to defraud. The Government doesn’t have to prove that anyone 250 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 277 of 677 was actually deceived or defrauded. ANNOTATIONS AND COMMENTS 18 U.S.C. § 1005 (third paragraph) provides: Whoever makes any false entry in any book, report, or statement of [an insured bank] with intent to injure or defraud such bank . . . or to deceive any officer of such bank . . . or the Comptroller of the Currency, or the Federal Deposit Insurance Corporation, or any agent or examiner appointed to examine the affairs of such bank . . . or the Board of Governors of the Federal Reserve System [shall be guilty of an offense against the United States]. Maximum Penalty: Thirty (30) years imprisonment and $1,000,000 fine. 017 7/2 7/2 United States v. Rapp, 871 F.2d 957, 963 (11th Cir. 1989), statute requires knowing and willful making of a false entry with knowledge of its falsity and with intent to deceive or defraud a bank. As the Tenth Circuit has explained, the defendant himself need not make the false entries in bank records; “it suffices that he set in motion management actions that necessarily caused [bank personnel] to make false entries.” United States v. Weidner, 437 F.3d 1023, 1037 (10th Cir. 2006). d we e , vi 226 0 4 16. No The committee believes that the general definition of “willfully” in Basic Instruction 9.1A would usually apply to this crime. There are no decisions in the Eleventh Circuit as to whether materiality is an element of this offense. However, because the statute expressly requires that the false entry be made “with intent to defraud,” the Committee believes that materiality is an essential element of the offense that must be submitted to the jury under the Supreme Court decisions in United States v. Gaudin, 515 U.S. 506, 115 S. Ct. 2310 (1995); United States v. Wells, 519 U.S. 482, 117 S. Ct. 921 (1997); and Neder v. United States, 527 U.S. 1, 119 S. Ct. 1827 (1999). The Court concluded in Wells that materiality was not an element of the offense of making a “false statement” in violation of 18 U.S.C. § 1014, but held in Neder that use of the words “fraud” or “fraudulently” as terms of art in 18 U.S.C. §§ 1341, 1343 and 1344 incorporated the common law requirement that proof of fraud necessitates proof of misrepresentation or concealment of a material fact. And, Gaudin held that when materiality is an essential element of an offense, it must be submitted to the jury. See Trial Instruction 6 for use in submitting forfeiture issues to the jury. 251 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 278 of 677 38 False Statements in Department of Housing and Urban Development and Federal Housing Administration Transactions 18 U.S.C. § 1010 It’s a Federal crime to [make a false statement] [forge or counterfeit any document] [pass as genuine any forged or counterfeited document] [willfully overvalue any asset or income] to [obtain a loan with the intent that the loan be offered to or accepted by the Department of Housing and Urban Development for insurance] [obtain an extension or renewal of any loan or mortgage insured by the Department of Housing 017 7/2 2 The Defendant can be found guilty 7/ this crime only if all the 0 of d we following facts are proved beyond a reasonable doubt: e , vi (1) the Defendant [made a false statement] 226 4 [forged or counterfeited a document] 16. genuine a No [passed as document]; and forged or counterfeited and Urban Development]. (2) [the Defendant knowingly acted [to obtain a loan with the intent that the loan be offered to or accepted by] [to obtain an extension or renewal of any loan or mortgage insured by] the Department of Housing and Urban Development]. – or – (if the alleged wrongdoing is overstating the value of an asset or income) [(1) The Defendant willfully overvalued an asset or income; and (2) the Defendant did so [to obtain a loan with the intent that the loan be offered to or accepted by] [to obtain an extension or 252 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 279 of 677 renewal of any loan or mortgage insured by] the Department of Housing and Urban Development].] A [statement] [document] is “false” it if is untrue when made and the person making it knows it is untrue. ANNOTATIONS AND COMMENTS 18 U.S.C. § 1010 provides: Whoever, for the purpose of obtaining any loan or advance of credit . . . with the intent that such loan or advance of credit shall be offered to or accepted by the Department of Housing and Urban Development for insurance, or for the purpose of obtaining any extension or renewal of any loan, advance of credit, or mortgage insured by such Department, or the acceptance, release, or substitution of any security on such a loan, advance of credit, or for the purpose of influencing in any way the action of such Department, makes, passes, utters, or publishes any statement, knowing the same to be false, or alters, forges, or counterfeits any instrument, paper, or document, or utters, publishes, or passes as true any instrument, paper, or document, knowing it to have been altered, forged, or counterfeited, or willfully overvalues any security, asset, or income. . . . [shall be guilty of an offense against the United States]. d we e , vi 226 017 7/2 7/2 0 4 16. No Maximum Penalty: Two (2) years imprisonment and applicable fine. United States v. DeCastro, 113 F.3d 176 (11th Cir. 1997), materiality is not an element of the offense under 18 U.S.C. § 1010. Although DeCastro was decided before Neder v. United States, 527 U.S. 1, 119 S. Ct. 1827, 144 L. Ed. 2d 35 (1999), the decision is in harmony with Neder because § 1010 does not require proof of fraud or fraudulent intent. Accord, United States v. Wells, 419 U.S. 482, 117 S. Ct. 921, 137 L. Ed. 2d107 (1997). In cases involving overvaluation of assets, the committee believes that the general definition of “willfully” in Basic Instruction 9.1A would usually apply to this crime. 253 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 280 of 677 39 False Statement to a Federally Insured Institution 18 U.S.C. § 1014 It’s a Federal crime to knowingly make a false statement or report to a federally insured financial institution. The Defendant can be found guilty of this crime only if all the following facts are proved beyond a reasonable doubt: (1) the Defendant made a false statement or report; – or – (when the alleged wrongdoing is overstating the value of an asset or income) [(1) (2) 017 7/2 the Defendant willfully overvalued land 2 property or security;] 07/ d we knowingly and with the Defendante so vi did intent to , influence an action of the institution described in the indictment 226 regarding an application, advance, 6-4 or loan, or a o. 1 commitment,any of those; and change N extension to (3) or the deposits of the institution were insured by the Federal Deposit Insurance Corporation. A statement or report is "false" if it is untrue when made and the person making it knows it is untrue. The heart of the crime is the attempt to influence the action of the institution by [knowingly] [willfully] making a false statement or report. The Government does not have to prove that the institution was actually influenced or misled. 254 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 281 of 677 ANNOTATIONS AND COMMENTS 18 U.S.C. § 1014 provides: Whoever knowingly makes any false statement or report, or willfully overvalues any land, property or security, for the purpose of influencing in any way the action of . . . any institution the accounts of which are insured by the Federal Deposit Insurance Corporation,... [or] the Resolution Trust Corporation . . . upon any application, advance, . . . commitment, or loan, or any change or extension of any of the same [shall be guilty of an offense against the United States]. Maximum Penalty: Thirty (30) years imprisonment and applicable fine. United States v. Key, 76 F.3d 350, 353 (11th Cir. 1996), a defendant need not know of the victim institution's insured status to be guilty of this offense; rather, it is sufficient that the defendant knowingly directed conduct at a bank that the government proves was insured. 017 2 United States v. Greene, 862 F.2d 1512, 1514 (11th27/ Cir. 1989), section applies to representations made in connection with conventional loan or related transactions. 07/ d weS. Ct. 921, 137 L. Ed. 2d 107 (1997), United States v. Wells, 519 U.S. 482, 117 e , vi materiality is not an element of this offense. 226 4 Section 1014 also includes “willfully overvalues” as an alternative offense. If that is 16- must be modified accordingly. The committee believes that . charged, this instruction No of “willfully” in Basic Instruction 9.1A would usually apply to this the general definition crime. 255 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 282 of 677 40.1 False Identification Documents 18 U.S.C. § 1028(a)(3) It’s a Federal crime to knowingly possess five or more false identification documents with the intent to unlawfully use or transfer them if the possession is in or affects interstate or foreign commerce. The Defendant can be found guilty of this crime only if all the following facts are proved beyond a reasonable doubt: (1) the Defendant possessed at least five false identification documents; (2) the Defendant knew the documents were false, knowingly possessed them, and intended to use or transfer them unlawfully; and 017 7/2 7/2 (3) d0 epossession of the w the Defendant’s viein or affecting interstate or documents was 6, 2commerce. foreign -42 . 16 No To “intend to use or transfer” false identification documents unlawfully is to intend to sell, give, lend, or otherwise transfer them with the knowledge that they were unlawfully produced. A “false identification document” is one of a type that is commonly accepted for purposes of an individual’s identification and is not issued by, or under the authority of, a governmental entity, but appears to be issued by or under the authority of [the United States Government] [a State or a political subdivision of a State]. [The term “interstate commerce” refers to any transaction or event that involves travel, trade, transportation or communication between a 256 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 283 of 677 place in one state and a place in another state.] [The term “foreign commerce” refers to any transaction or event that involves travel, trade, transportation or communication between a place in the United States and a place outside the United States.] The government must prove only a minimal connection with interstate or foreign commerce to satisfy the “in or affects interstate or foreign commerce” requirement of the statute. It must also prove that the defendant had the intent to accomplish acts, which, if successful, would have affected interstate or foreign commerce in some way. But the 017 7/2 of the interstate-or foreign-commerce connection when 2 07/ d committed the crime. we e , vi 226 4 ANNOTATIONS AND 16 COMMENTS . No 18 U.S.C. § 1028(a)(3) provides: Government does not have to prove that the Defendant had knowledge [he] [she] (a) Whoever . . . - (3) knowingly possesses with intent to use unlawfully or transfer unlawfully five or more identification documents (other than those issued lawfully for the use of the possessor), authentication features, or false identification documents [shall be guilty of an offense against the United States]. Maximum penalty: depends on the use of the documents and can be as many as 30 (thirty) years and applicable fine. Subsection (a)(3) in § 1028 is one of eight subsections in the statute concerning the possession, production, transfer, use and/or trafficking of false identification documents. The elements of this instruction can be modified to fit the facts of the case if the Defendant is charged with one of the seven other subsections. United States v. Alejandro, 118 F.3d 1518 (11th Cir. 1997), the Eleventh Circuit aff’d 257 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 284 of 677 the trial court’s use of this instruction. In United States v. Klopf, 423 F.3d 1228, 1239 (11th Cir. 2005), the Eleventh Circuit again aff’d the use of this instruction, but it “clarified” the interstate or foreign commerce requirement: “[W]e now hold that the government must prove only a minimal nexus with interstate commerce in a § 1028(a) prosecution to satisfy the “in or affects interstate or foreign commerce” requirement of § 1028(c)(3)(A). The defendant need have had only the intent to accomplish acts, which, if successful, would have affected interstate or foreign commerce. The government, however, is not required to prove that the defendant had knowledge of the interstate commerce nexus when he committed an act in violation of § 1028(a).” In a 2008 decision involving § 1028(a)(1), the Eleventh Circuit held that, under Klopf, the requisite interstate commerce nexus was satisfied when the defendant fraudulently obtained a Florida commercial driver’s license, even if he only intended to (and did) drive on roads within the state. In rejecting the defendant’s argument that “if driving on public roads satisfies the minimal interstate nexus requirement, all local crimes would be federalized,” the Court of Appeals held that the facts showed the defendant “clearly intended to operate a commercial vehicle, and operating a commercial vehicle illegally, even if the vehicle never leaves Florida, sufficiently affects interstate commerce to satisfy the minimal nexus requirement.” United States v. Mendez, 528 F.3d 811, 817 (11th Cir. 2008). 017 7/2 7/2 0 ed enhancing circumstances listed in § w If the indictment alleges one of the sentencing vie more persons over age 55, or targeting 2326 (telemarketing, victimizing, 10 or persons over age 55), that factor should be stated as an additional element under 226 the principle of Apprendi and consideration should be given to a lesser included 6-4 1Special Instruction 10. . offense instruction, No 258 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 285 of 677 40.2 False Identification Documents 18 U.S.C. § 1028(a)(4) It’s a federal crime to knowingly possess a false identification document with the intent to use the document to defraud the United States. The Defendant can be found guilty of this crime only if all the following facts are proved beyond a reasonable doubt: (1) the Defendant knowingly possessed a false identification document; and 017 7/2 2 An “identification document” is a document that’s made or issued 07/ d weStates Government and contains by or under the authority of the United e , vi information about a particular person. In other words, it is of a type 226 4 16- accepted to identify an individual. intended or o. N commonly (2) the Defendant intended to use the document to defraud the United States. A “false identification document” is one made and used to identify the bearer that falsely appears to have been issued by or under the authority of [the United States Government] [a State or a political subdivision of a State]. The phrase “intended for the document to be used to defraud the United States” means a specific intent to mislead or deceive an officer or employee of the United States in carrying out his or her official duties. The heart of the crime is the intent to mislead or deceive. The Government does not have to prove that anyone was actually misled or 259 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 286 of 677 deceived. ANNOTATIONS AND COMMENTS 18 U.S.C. § 1028(a)(4) provides: (a) Whoever, in a circumstance described in subsection (c) of this section - * * * * (4) knowingly possesses an identification document (other than one issued lawfully for the use of the possessor), authentication feature, or a false identification document, with the intent such document be used to defraud the United States [shall be guilty of an offense against the United States]. * * * * 017 7/2 7/2 (c) The circumstance referred to in subsection (a) of this section is that - - d we 0 (1) the identification document, authentication feature, or false identification document is or appears to be issued by or under the authority of the United States . . . or the document-making implement is designed or suited for making such an identification document, authentication feature, or false identification document; e , vi 226 4 16o. N(2) the offense is an offense under subsection (a)(4) of this section . . . Maximum Penalty: Up to thirty (30) years imprisonment (if the offense is committed to facilitate an act of domestic or international terrorism) and applicable fine. 260 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 287 of 677 40.3 Aggravated Identity Theft 18 U.S.C. § 1028A(a)(1) The law provides for an enhanced penalty when anyone commits aggravated identity theft during and in relation to other certain specified felony offenses. The Defendant can be found guilty of that offense only if all the following facts are proved beyond a reasonable doubt: (1) the Defendant knowingly transferred, possessed, or used another person’s [means of identification] [identification documents]; 017 7/2 2 (3) during and in relation to07/ eligible felony [the d alleged in the indictment]. we e , vi The Government must prove that the Defendant knowingly 226 4 transferred, possessed, or used another person’s identity “without lawful 16o. NThe Government does not have to prove that the Defendant authority.” (2) without lawful authority; stole the [means of identification] [identification documents], only that there was no legal authority for the Defendant to transfer, possess, or use them. The Government must prove that the Defendant knew that the [identification] [documents], in fact, belonged to another actual person, not a fictitious person. ANNOTATIONS AND COMMENTS 18 U.S.C. § 1028A(a)(1) provides: 261 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 288 of 677 (a) Offenses. - (1) In general. - - Whoever, during and in relation to any felony violation enumerated in subsection (c), knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person shall, in addition to the punishment provided for such felony, be sentenced to a term of imprisonment of 2 years. The Supreme Court recently clarified the elements of an offense under § 1028A(a)(1), and held that it “requires the Government to show that the defendant knew that the ‘means of identification’ he or she unlawfully transferred, possessed, or used, in fact, belonged to ‘another person.’” Flores-Figueroa v. United States, --U.S. ---, 129 S. Ct. 1886, 1888 (2009) (emphasis in original). This part of the holding is contrary to United States v. Hurtado, 508 F.3d 603 (11th Cir. 2007) (per curiam), in which the Eleventh Circuit had held that the government was not required to show that the Defendant used identification documents that he knew had actually been assigned to another individual, as opposed to a fictitious person. 017 7/2 7/2 Hurtado’s holding that § 1028A(a)(1) does not require the Government to prove that the defendant obtained another person’s identification documents by “stealing” has not been overruled. See id. at 608. In other words, the phrase “without lawful authority” prohibits methods of obtaining another person’s identification beyond stealing. See id.; see also Flores-Figueroa, 129 S. Ct. at 1893 (noting that examples of identity theft identified in the legislative history of § 1028A include “dumpster diving,” “accessing information that was originally collected for an authorized purpose,” “hack[ing] into computers,” and “steal[ing] paperwork likely to contain personal information” (citing H.R.REP. NO . 108-528, at 4-5 (2004))). d we e , vi 226 4 16. No 0 Accordingly, the elements of this offense (as originally set forth in Hurtado) have been modified and combined, as the Supreme Court requires. See also United States v. Gomez, 580 F.3d 1229 (11th Cir. 2009). 262 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 289 of 677 41.1 Fraudulent Use of Counterfeit Credit Cards or Other Access Devices 18 U.S.C. § 1029(a)(1) It’s a Federal crime to [produce] [use] [traffic in] counterfeit credit cards or other access devices. The Defendant can be found guilty of this crime only if all the following facts are proved beyond a reasonable doubt: (1) the Defendant knowingly [produced] [used] [trafficked in] a counterfeit access device; (2) the Defendant knew the access device was counterfeit, and acted with the intent to defraud or deceive; and 017 7/2 2 (3) the Defendant's conduct affected 07/ d interstate or foreign commerce. we ie An "access device" is , v a credit card, plate, code, account number, 226 4 electronic serial 6number, mobile identification number, personal 1 . Nonumber, or other means of account access that can be identification used, alone or in conjunction with another access device, to get 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). A "counterfeit access device" is an access device that’s counterfeit, fictitious, altered, or forged, or an identifiable component of an access device or a counterfeit access device. [To “produce” a counterfeit access device is to design, alter, authenticate, duplicate, or assemble one.] 263 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 290 of 677 [To "use" includes any effort to obtain money, goods, services, or any other thing of value, or to initiate a transfer of funds with a counterfeit access device.] [The term "trafficked in" means transferring or otherwise disposing of a counterfeit access device to another, or possessing or controlling a counterfeit device with the intent to transfer or dispose of it to another.] To act "with intent to defraud" means to act with intent to deceive or cheat, usually for personal financial gain or to cause financial loss to someone else. 017 2 device with intent to defraud. The Government 7/ not have to prove does 2 07/ d that anyone was actually deceived or defrauded. we ie The term “interstate 6, v commerce” refers to any transaction or event 422 -trade, transportation or communication between a that involves travel, . 16 No place in one state and a place in another state. The heart of the crime is the knowing use of a counterfeit access The term “foreign commerce” refers to any transaction or event that involves travel, trade, transportation or communication between a place in the United States and a place outside the United States. The Government does not have to prove that the Defendant specifically intended to interfere with or affect interstate or foreign commerce. But the Government must prove that the natural consequences of the acts alleged in the indictment would be to affect interstate or foreign commerce. For example, if you find beyond a reasonable doubt that [the device was used to purchase goods from 264 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 291 of 677 another state [country]] [the device was used to purchase goods manufactured outside of this state [country]], you may find that [interstate] [foreign] commerce has been affected. ANNOTATIONS AND COMMENTS 18 U.S.C. § 1029(a)(1) provides: (a) Whoever - (1) knowingly and with intent to defraud produces, uses, or traffics in one or more counterfeit access devices [shall be guilty of an offense against the United States] if the offense affects interstate commerce or foreign commerce. . . . 017 7/2 7/2 Maximum Penalty: Up to twenty (20) years imprisonment (if the offense occurs after a conviction for another offense under this section) and applicable fine. 0 edCir. 1997) (unprogrammed ESN-MIN w United States v. Sepulveda, 115 F.3di882 (11th v e within the meaning of § 1029). combinations constitute access devices 26, -42 United States v. Dabbs, 134 F.3d 1071 (11th Cir. 1998) (a merchant account number 16 constitutes ano. access device). N Obasohan v. United States Attorney General, 479 F.3d 785, 789 n.7 (11th Cir. 2007) (noting that § 1029(a)(1) has no minimum loss associated with it, unlike § 1029(a)(2) which contains a $1,000 minimum loss amount). If the indictment alleges one of the sentencing enhancing circumstances listed in § 2326 (telemarketing, victimizing 10 or more persons over age 55, or targeting persons over age 55), that factor should be stated as an additional element under the principle of Apprendi and consideration should be given to a lesser included offense instruction, Special Instruction 10. 265 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 292 of 677 41.2 Fraudulent Use of Unauthorized Credit Cards or Other Access Devices 18 U.S.C. § 1029(a)(2) It’s a Federal crime to [use] [traffic in] unauthorized access devices, including ordinary credit cards, to get things of value collectively worth $1,000 or more in any 12-month period. The Defendant can be found guilty of this crime only if all the following facts are proved beyond a reasonable doubt: (1) the Defendant [used] [trafficked in] one or more unauthorized access devices to get things of value totaling $1,000 or more during a 12-month period; (2) 017 7/2 2 the Defendant knowingly acted with the 07/ and d intent to defraud or deceive; we e , vi the Defendant's conduct 26or foreign commerce. affected interstate -42 . 16 (3) No An "access device" is a credit card, plate, code, account number, electronic serial number, mobile identification number, personal identification number, or other means of account access that can be used, alone or in conjunction with another access device, to get 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). An “unauthorized access device" is an access device that’s lost, stolen, expired, canceled, or revoked, and used with the intent to defraud. 266 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 293 of 677 [To "use" includes any effort to obtain money, goods, services, or any other thing of value, or to initiate a transfer of funds with an unauthorized access device.] [To "traffic in" means to transfer, or otherwise dispose of an unauthorized access device to another, or the possession or control of an unauthorized device with the intent to transfer or dispose of it to another person.] To act "with intent to defraud" means to act with the intent to deceive or cheat, usually for personal financial gain or to cause financial 017 2 The heart of the crime is the knowing27/ of an unauthorized use 07/ Government does not d access device with the intent to defraud. The we e , vi have to prove that anyone was actually deceived or defrauded. 226 4 The term “interstate commerce” refers to any transaction or event 16. Notravel, trade, transportation or communication between a that involves loss to someone else. place in one state and a place in another state. The term “foreign commerce” refers to any transaction or event that involves travel, trade, transportation or communication between a place in the United States and a place outside the United States. The Government does not have to prove that the Defendant specifically intended to interfere with or affect interstate or foreign commerce (the flow of commercial or business activities between two or more states or between a place in the United States and a place outside of the United States). But the Government must prove that the natural 267 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 294 of 677 consequences of the acts alleged in the indictment would be to affect interstate or foreign commerce. ANNOTATIONS AND COMMENTS 18 U.S.C. § 1029(a)(2) provides: (a) Whoever - (2) knowingly and with intent to defraud traffics in or uses one or more unauthorized access devices during any oneyear period, and by such conduct obtains anything of value aggregating $1,000 or more during that period [shall be guilty of an offense against the United States] if the offense affects interstate commerce or foreign commerce. . . . 017 7/2 7/2 Maximum Penalty: Up to twenty (20) years imprisonment (if the offense occurs after a conviction for another offense under this section) and applicable fine. 0 ed Cir. 1997) (un-programmed ESNUnited States v. Sepulveda, 115 F.3d 882 (11th ew videvices within the meaning of § 1029). MIN combinations constitute access 26, -42 United States v. Dabbs, 134 F.3d 1071 (11th Cir. 1998) (a merchant account number 16 constitutes ano. access device). N See, United States v. Klopf, 423 F.3d 1228 (11th Cir. 2005). The defendant in that case was a fugitive, who, without authorization, obtained credit cards from various banks in the names of four other individuals. He was charged with, and convicted of, inter alia, using unauthorized credit cards in violation of § 1029(a)(2). He argued on appeal that he could not be convicted under the statute because he merely “borrow[ed] the creditworthiness of unsuspecting individuals to open corporate accounts in order to utilize credit cards because he was unable to apply for credit cards under his own name because of his fugitive status.” He contended that he did not possess the requisite intent to defraud because he made regular payments on the credit card accounts. The Eleventh Circuit rejected the arguments, holding that the credit cards were clearly obtained with intent to defraud and that it was “irrelevant” that the defendant made payments on the cards because, “in each application for a credit card, he intended to defraud the banks by representing to them that they were dealing with persons other than himself.” If the indictment alleges one of the sentencing enhancing circumstances listed in § 2326 (telemarketing, victimizing 10 or more persons over age 55, or targeting persons over age 55), that factor should be stated as an additional element under 268 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 295 of 677 the principle of Apprendi and consideration should be given to a lesser included offense instruction, Special Instruction 10. d we e , vi 226 4 16. No 269 0 017 7/2 7/2 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 296 of 677 42.1 Computer Fraud: Injury to the United States 18 U.S.C. § 1030(a)(1) It’s a Federal crime to knowingly access a computer without authorization to get secret information to be used to the injury of the United States or to give some advantage to any foreign nation. The Defendant can be found guilty of this crime only if all the following facts are proved beyond a reasonable doubt: (1) (2) the Defendant knowingly accessed a computer [without authorization] [in a way that went beyond authorized use]; 017 7/2 the Defendant got [information that the 2 United States Government protected 07/ d against unauthorized disclosure for weor foreign relations national defense vie reasons] , [data about the design, manufacture, or use of atomic weapons]; 226 and 6-4 o. 1 the (3) N Defendant intended to use the [information] [data] to harm the United States or to give some advantage to a foreign nation. The term "computer" includes any high-speed data-processing device that can perform logical, arithmetic, or storage functions, including any data-storage facility or communications facility that is directly related to or operates in conjunction with the device. [To access a computer “in a way that goes beyond authorized use” is to use the computer to get or change information that the person is not permitted to get or change.] 270 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 297 of 677 The Government does not have to prove that any [secret information] [restricted data] the Defendant obtained without permission was actually used to harm of the United States or to the advantage of any foreign nation. But the Government must prove that the Defendant intended to use the [secret information] [restricted data] to harm the United States or give some advantage to a foreign nation. ANNOTATIONS AND COMMENTS 18 U.S.C. § 1030(a)(1) provides: 017 2 7 computer without (1) having knowingly accessed a / 2 authorization or exceeding authorized access, and by means of 07/ d such conduct having obtained information that has been we Government pursuant to an determined by the United States ie , statute to require protection against Executive order6or v 2 unauthorized disclosure for reasons of national defense or -42 or any restricted data, as defined in paragraph foreign6 relations, . 1 11 of the Atomic Energy Act of 1954, with reason o Ny. of section such information so obtained could be used to to believe that (a) Whoever - - the injury of the United States, or to the advantage of any foreign nation [shall be guilty of an offense against the United States]. Maximum Penalty: Up to twenty (20) years imprisonment (if the offense occurs after a conviction for another offense under this section) and applicable fine. The Atomic Energy Act defines "Restricted Data" as "all data concerning (1) design, manufacture, or utilization of atomic weapons; (2) the production of special nuclear material; or (3) the use of special nuclear material in the production of energy, but shall not include data declassified or removed from the Restricted Data category pursuant to section 2162 of this title." 42 U.S.C. § 2014(y). The Senate Judiciary Committee emphasized that "obtains information" in this context includes mere observation of the data. "Actual asportation, in the sense of physically removing the data from its original location or transcribing the data, need not be proved in order to establish a violation of this subsection." S.Rep. 99-432, at 271 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 298 of 677 6-7 (1986), reprinted in 1986 U.S.C.C.A.N. 2479, 2484. The Seventh Circuit has observed that in this context,“[t]he difference between ‘without authorization’ and ‘exceeding authorized access’ is paper thin, but not quite invisible.” International Airport Centers, LLC v. Citrin, 440 F.3d 418, 420 (7th Cir. 2006). “Intent” has been deleted from § 1030(a)(1), which now requires only that the defendant act “with reason to believe” that the information could harm the United States. To date, no reported appellate opinion has defined “with reason to believe” in this context. The Committee recommends that the phrase be given its ordinary and common usage. d we e , vi 226 4 16. No 272 0 017 7/2 7/2 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 299 of 677 42.2 Computer Fraud: Obtaining Financial Information 18 U.S.C. § 1030(a)(2)(A) and (c)(2)(B) It’s a Federal crime to intentionally access a computer [without authorization] [in excess of authorized access] and get information from a financial record of [a financial institution] [the issuer of a credit card] [a consumer-reporting agency about a consumer]. The Defendant can be found guilty of this crime only if all the following facts are proved beyond a reasonable doubt: (1) (2) 017 7/2 7/2 the Defendant intentionally accessed a computer [without authorization] [in a way or to an extent beyond the permission given]; and 0 ed w the Defendant got information from a vie of a financial institution] , [financial record 26record of the issuer of a credit [financial -42 card] [file of a consumer reporting agency 6 o. 1 concerning a consumer]; and N (3) the Defendant acted [for private financial gain or a commercial advantage] [to further a criminal or tortious act] [to get information worth more than $5,000]. The term "computer" includes any high-speed data-processing device that can perform logical, arithmetic, or storage functions, including any data-storage facility or communications facility that is directly related to or operates in conjunction with the device. [To access a computer “in a way or to an extent beyond the permission given” is to use authorized access to get or change information that the person is not permitted to get or change.] 273 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 300 of 677 [A "financial record" is information kept by a financial institution or credit-card issuer about a customer.] [A "financial institution" is [an institution with deposits insured by the Federal Deposit Insurance Corporation.] [a credit union with accounts insured by the National Credit Union Administration.] [a brokerdealer registered with the Securities and Exchange Commission pursuant to section 15 of the Securities Exchange Act of 1934.] [A "consumer reporting agency" is a person or corporation that, for a fee, dues, or on a cooperative nonprofit basis, regularly assembles or 017 7/2 and provides reports about consumers to third parties. An agency may 2 07/ or furnish the reports.] d use any tools of interstate commerce to prepare we e , vi A “criminal or tortious act” includes [describe the crime or tort 226 4 intended to be furthered by this crime]. 16. No evaluates consumer-credit information or other consumer information ANNOTATIONS AND COMMENTS 18 U.S.C. § 1030(a)(2)(A) provides: (a) Whoever - * * * * * (2) intentionally accesses a computer without authorization or exceeds authorized access, and thereby obtains - (A) information contained in a financial record of a financial institution, or of a card issuer as defined in section 1602(n) of Title 15, or contained in a file of a consumer reporting agency on a consumer, as such terms are defined in the Fair Credit Reporting Act (15 U.S.C. 1681 et seq.) [shall be guilty of an offense against the United States]. 274 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 301 of 677 Maximum Penalty: Ten (10) years imprisonment and applicable fine. 15 U.S.C. § 1681a(c) defines "consumer" to mean "an individual," and 15 U.S.C. § 1681a(f) defines "consumer reporting agency" to mean “any person which, for monetary fees, dues, or on a cooperative nonprofit basis, regularly engages in whole or in part in the practice of assembling or evaluating consumer credit information or other information on consumers for the purpose of furnishing consumer reports to third parties, and which uses any means or facility of interstate commerce for the purpose of preparing or furnishing consumer reports.” 15 U.S.C. § 1602(n) defines "card issuer" to mean "any person who issues a credit card, or the agent of such person with respect to such card." The Senate Judiciary Committee emphasized that "obtains information" in this context includes mere observation of the data. "Actual asportation, in the sense of physically removing the data from its original location or transcribing the data, need not be proved in order to establish a violation of this subsection." S.Rep. 99-432, at 6-7 (1986), reprinted in 1986 U.S.C.C.A.N. 2479, 2484. d we e , vi 226 4 16. No 275 0 017 7/2 7/2 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 302 of 677 42.3 Computer Fraud: Causing Damage to Computer or Program 18 U.S.C. § 1030(a)(5)(A) and (B) It’s a Federal crime to knowingly transmit a harmful [program] [information] [code] [command] to a protected computer [system] without authorization. The Defendant can be found guilty of this crime only if all the following facts are proved beyond a reasonable doubt: (1) the Defendant knowingly transmitted [a program] [information] [a code] [a command] to a protected computer without authorization; (2) 017 /2 the Defendant intended to7access a 2 protected computer without authorization 07/ and d and [recklessly] cause damage; we e , i the damagevresulted in [losses of more 6 than 22 $5,000 during a one-year period 4 [beginning [date], and ending [date]] 16. (3) No [modification or impairment, or potential modification or impairment, of one or more individual’s medical examination, diagnosis, treatment, or care] [physical injury to any person] [a threat to public health or safety] [affecting a computer system used by or for a government entity in furtherance of the administration of justice, national defense, or national security]. The term "computer" includes any high-speed data-processing device that can perform logical, arithmetic, or storage functions, including any data-storage facility or communications facility that is directly related to or operates in conjunction with the device. The term “protected computer” means [a computer exclusively for 276 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 303 of 677 the use of a financial institution or the United States Government] [a computer 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] [a computer that 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 communications of the United States]. The term “interstate commerce” refers to any transaction or event 017 2 place in one state and a place in another state.7/ 2 07/ any transaction or event The term “foreign commerce” ed w refers to ie that involves travel, trade,6, v transportation or communication between a 2 -42 and a place outside the United States. place in the United States . 16 No that involves travel, trade, transportation or communication between a ANNOTATIONS AND COMMENTS 18 U.S.C. § 1030(a)(5)(A) and (B) provide: (a) Whoever - * * * * * (5)(A)(i) knowingly causes the transmission of a program, information, code, or command, and as a result of such conduct, intentionally causes damage without authorization, to a protected computer; (ii) intentionally accesses a protected computer without authorization, and as a result of such conduct, recklessly causes damage; or 277 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 304 of 677 (iii) intentionally accesses a protected computer without authorization, and as a result of such conduct, causes damage; and (B) by conduct described in clause (i), (ii), or (iii) of subparagraph (A), caused (or, in the case of an attempted offense, would, if completed, have caused)-(i) loss to 1 or more persons during any 1-year period (and, for purposes of an investigation, prosecution, or other proceeding brought by the United States only, loss resulting from a related course of conduct affecting 1 or more other protected computers) aggregating at least $5,000 in value; (ii) the modification or impairment, or potential modification or impairment, of the medical examination, diagnosis, treatment, or care of 1 or more individuals; (iii) physical injury to any person; 017 2 (v) damage affecting a computer27/ system used by or for a government entity in furtherance of the administration of justice, national defense, 07/ the United States]. d or national security [shall be guilty of an offense against we ie Maximum Penalty: Up to life in6, v (if the offender knowingly or recklessly causes prison 2 or attempts to cause death from conduct in violation of subsection (a)(5)(A)(i)) and -42 applicable fine. . 16 No (iv) a threat to public health or safety; or 278 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 305 of 677 42.4 Computer Fraud: Trafficking in Passwords 18 U.S.C. § 1030(a)(6)(A) or (B) It’s a Federal crime for anyone – knowingly and with intent to defraud – to traffic in any password that will enable a person to access a computer without permission. The Defendant can be found guilty of this crime only if all the following facts are proved beyond a reasonable doubt: (1) the Defendant trafficked in a computer password without permission; 017 7/2 2 (3) the Defendant's acts [affected interstate 07/ to a computer commerce] [involvedd access we the United States used by oriefor Government]. 6, v 2 4any -is 2 high-speed data-processing device that can A "computer" . 16 No perform logical, arithmetic, or storage functions, including any data(2) the Defendant someone; and intended to defraud storage facility or communications facility that is directly related to or operates in conjunction with the device. To "traffic" in a computer password is to transfer the password to someone else or to get it with the intent to transfer it to someone else, either with or without any financial interest in the transfer. The "intent to defraud" is the specific intent to deceive or cheat someone, usually for personal financial gain or to cause financial loss to someone else. The term “interstate commerce” refers to any transaction or event 279 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 306 of 677 that involves travel, trade, transportation or communication between a place in one state and a place in another state. The term “foreign commerce” refers to any transaction or event that involves travel, trade, transportation or communication between a place in the United States and a place outside the United States. [The Government claims that the Defendant’s acts affected interstate commerce because the Defendant [used interstate telephone or Internet facilities in committing the alleged offense]. If you find that the Government has proved beyond a reasonable doubt that the 017 7/2 7/2 Defendant did the acts claimed, then you may find that interstate commerce was affected.] e , vi 226 ANNOTATIONS AND COMMENTS d we 0 4 16o. N(a) Whoever - - 18 U.S.C. § 1030(a)(6)(A) provides: * * * * * * (6) knowingly and with intent to defraud traffics (as defined in section 1029) in any password or similar information through which a computer may be accessed without authorization, if - (A) such trafficking affects interstate or foreign commerce [shall be punished as provided in subsection (c) of this section]; or (B) such computer is used by or for the Government of the United States [shall be punished as provided in subsection (c) of this section] [shall be guilty of an offense against the United States]. 280 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 307 of 677 Maximum Penalty: Up to ten (10) years imprisonment (if the offense occurs after a conviction for another offense under this section) and applicable fine. The wording of the statute leaves some uncertainty as to what “without authorization” is intended to modify. It seems logical that it is intended to describe the access to the computer, and this instruction is drafted to incorporate that construction. d we e , vi 226 4 16. No 281 0 017 7/2 7/2 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 308 of 677 43 Major Fraud against the United States 18 U.S.C. § 1031 It’s a Federal crime to knowingly execute a scheme or try to execute a scheme with the intent to defraud the United States or to get money or property by making false or fraudulent pretenses, representations, or promises in procuring property or services as a prime contractor or supplier under a contract connected to a prime contract with the United States worth $1,000,000 or more. The Defendant can be found guilty of this crime only if all the 017 2 7 or the Defendant knowingly used / tried to 2 use a scheme with the intent to defraud 07/ money or d the United Stateseor to get w materially false or property by iusing ve fraudulent,pretenses, representations, or promises; 226 6-4 following facts are proved beyond a reasonable doubt: (1) (2) place as a part of o. 1 the scheme took [services] [money] as N acquiring [property] a contractor with the United States or as a subcontractor or a supplier on a contract with the United States; and (3) the value of the contract or subcontract was $1,000,000 or more. The value of the contract or subcontract is the value of the amount to be paid under the contract. The false or fraudulent pretenses, representations, or promises violate the law if they occur [before the contract is created] [when the contract is created] [while the contract is being carried out]. A “scheme to defraud” includes any plan or course of action 282 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 309 of 677 intended to deceive or cheat someone out of money or property by using false or fraudulent pretenses, representations, or promises. A statement or representation is “false” or “fraudulent” if it is about a material fact that the speaker knows is untrue or makes with a reckless indifference to the truth, and makes with the intent to defraud. A statement or representation may be “false” or “fraudulent” when it constitutes a half truth or effectively conceals a material fact, and is made with intent to defraud. A “material fact” is an important fact that a reasonable person 017 7/2 The “intent to defraud” is the specific intent to deceive or cheat /2 07or to cause financial loss to d someone, usually for personal financial gain we e , vi someone else. 226 4 16. No AND COMMENTS ANNOTATIONS would use to decide whether to do or not to do something. 18 U.S.C. § 1031 provides: (a) Whoever knowingly executes, or attempts to execute, any scheme or artifice with the intent - (1) to defraud the United States; or (2) to obtain money or property by means of false or fraudulent pretenses, representations, or promises, in any procurement of property or services as a prime contractor with the United States or as a subcontractor or supplier on a contract in which there is a prime contract with the United States, if the value of the contract, subcontract, or any constituent part thereof, for such property or services is $1,000,000 or more shall [be guilty of an offense against the United States]. 283 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 310 of 677 Maximum Penalty: Ten (10) years and applicable fine. See United States v. Nolan, 223 F.3d 1311 (11th Cir. 2000). d we e , vi 226 4 16. No 284 0 017 7/2 7/2 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 311 of 677 44 Transmission of Wagering Information 18 U.S.C. § 1084 It’s a Federal crime for anyone engaged in betting or wagering as a business to use a wire-communication facility for an interstate transmission of a bet or betting information on any sporting event. The Defendant can be found guilty of this crime only if all the following facts are proved beyond a reasonable doubt: (1) the Defendant was in the business of betting; (2) as a part of the business, the Defendant knowingly used a wire-communication facility to send in interstate [or foreign] commerce bets or information to help with placing bets on a sporting event; and 017 7/2 7/2 0 ed so knowingly and (3) the defendant w e did , vi intentionally. 226 4 The “business of betting" doesn’t mean that a person’s primary 16. No must come from making bets or wagers, or dealing in source of income wagering information. It doesn’t matter how many bets a person has made or how much money the person bet, or whether the person made a profit on betting. To prove the Defendant was “in the business of betting,” it must be proved beyond a reasonable doubt that the Defendant regularly engaged in activities devoted to betting or wagering with the goal of making a profit. Isolated or sporadic activities are not a business. A "wire-communication facility" includes long-distance telephone facilities. 285 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 312 of 677 Information conveyed or received by telephone from one state to another state [or between the United States and a foreign country], is a transmission in “interstate” [or “foreign”] commerce. ANNOTATIONS AND COMMENTS 18 U.S.C. § 1084(a) provides: Whoever being engaged in the business of betting or wagering knowingly uses a wire communication facility for the transmission in interstate or foreign commerce of bets or wagers or information assisting in the placing of bets or wagers on any sporting event or contest [shall be guilty of an offense against the United States]. 017 7/2 2 The "use" of a wire communication facility for the transmission of gambling 07/ of such information. United information includes either the transmission d receipt we orcert. denied, 417 U.S. 908, 94 S. Ct. States v. Sellers, 483 F.2d 37 (5th Cir. 1973), vie 2604, 41 L. Ed. 2d 212 (1974),, overruled on other grounds by United States v. 6 McKeever, 905 F.2d 82922 Cir. 1990). Also, the Defendant need not have (5th 4 personal knowledge6-the interstate character of the transmission. United States 1 of (11th Cir. 1994). . v. Miller, 22 F.3d 1075 No Maximum Penalty: Two (2) years imprisonment and applicable fine. 286 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 313 of 677 45.1 First Degree Murder: Premeditated Murder 18 U.S.C. § 1111 It’s a Federal crime to murder another human being within the [special maritime] [territorial] jurisdiction of the United States. Murder is the unlawful killing of a human being with malice aforethought. The Defendant can be found guilty of this crime only if all the following facts are proved beyond a reasonable doubt: (1) the victim, [victim’s name], was killed; (2) the Defendant caused the death of the victim with malice aforethought; (3) the Defendant did so with premeditated intent; and (4) the killing took place within the [special maritime] [territorial] jurisdiction of the United States. d we e , vi 226 017 7/2 7/2 0 4 16. else’s life No deliberately and intentionally, or to willfully act with callous and To kill with "malice aforethought" is to intend to take someone wanton disregard for human life. It doesn’t matter whether the Defendant hated the victim or felt any ill will toward the victim at the time. But the Government must prove beyond a reasonable doubt that the Defendant intended to kill or willfully acted with callous and wanton disregard for the consequences, knowing that a serious risk of serious bodily harm or death would result. Proof of premeditated intent is required in addition to proof of malice aforethought. To kill with "premeditated intent" is to kill in cold blood after the 287 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 314 of 677 accused has had time to think over the matter and formed the intent to kill. There’s no exact amount of time that must pass between forming the intent to kill and the killing itself. But it must be enough time for the killer to be fully conscious of having the intent to kill. [The Government does not have to prove that the victim was the person the Defendant intended to kill. If a person has a premeditated intent to kill one person and in attempting to kill that person kills someone else instead, the killing is premeditated.] If you find beyond a reasonable doubt that the crime occurred at 017 7/2 [special maritime] [territorial] jurisdiction of the United States. 2 07/ d we e , vi ANNOTATIONS AND COMMENTS 226 4 (See Annotations and 16 Comments following Offense Instruction 45.3, infra.) . No case, the instructions for a Lesser Included Offense, for Second In the appropriate the location described in the indictment, that location is within the Degree Murder, and for Voluntary or Involuntary Manslaughter may need to be incorporated. If there is evidence that the Defendant acted lawfully, such as in self defense, a fifth element should be added and explained. For example: “The Defendant did not act in self defense,” with a definition or explanation of what constitutes self defense. The absence of self defense in such circumstances must be proven beyond a reasonable doubt by the Government. United States v. Alvarez, 755 F.2d 830, 842-43, 846 (11th Cir. 1985). 288 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 315 of 677 45.2 First Degree Murder (Felony Murder) 18 U.S.C. § 1111 It’s a Federal crime to murder another person while [committing] [attempting to commit] the crime of [arson] [escape] [murder] [kidnapping] [treason] [espionage] [sabotage] [aggravated sexual abuse] [sexual abuse] [child abuse] [burglary] [robbery] within the [special maritime] [territorial] jurisdiction of the United States. The Defendant can be found guilty of this crime only if all the 017 2 7 killed; the victim, [victim’s name], was / 2 07/ as a result d the death of the victim occurred we of the Defendant’s knowingly [committing] e , vi [attempting to commit] the crime specified in the indictment; and 226 4 16. following facts are proved beyond a reasonable doubt: (1) (2) (3) No the killing took place within the [special maritime] [territorial] jurisdiction of the United States. The crime is "felony murder" – a killing that takes place during the knowing and willful commission of some other specified felony crime. The Government does not have to prove that the Defendant had a premeditated plan or intent to kill the victim. The Government only has to prove beyond a reasonable doubt that the Defendant knowingly [committed] [attempted to commit] the crime specified and that the victim died during and as a result of that crime. 289 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 316 of 677 If you find beyond a reasonable doubt that the crime occurred at the location described in the indictment, that location is within the [special maritime] [territorial] jurisdiction of the United States. ANNOTATIONS AND COMMENTS (See Annotations and Comments following Offense Instruction 45.3, infra.) In the case of felony murder the malice aforethought requirement of Section 1111 is satisfied if the murder results from the perpetration of the enumerated crime. United States v. Thomas, 34 F.3d 44, 49 (2d Cir.), cert. denied, 513 U.S. 1007, 115 S. Ct. 527, 130 L. Ed. 2d 431 (1994). The felony murder statute “reflects the English common law principle that one who caused another’s death while committing or attempting to commit a felony was guilty of murder even though he did not intend to kill the deceased.” United States v. Tham, 118 F.3d 1501, 1508 (11th Cir. 1997). It applies to the accidental, self-inflicted death of a co-conspirator. Id. Seconddegree murder is not a lesser included offense of felony murder under Section 1111(a) because the malice aforethought elements are different. Unlike seconddegree murder, malice aforethought for felony murder is satisfied only by commission of a felony enumerated in Section 1111(a). United States v. Chanthadara, 230 F.3d 1237, 1258 (10th Cir. 2000). d we e , vi 226 4 16. No 290 0 017 7/2 7/2 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 317 of 677 45.3 Second-Degree Murder 18 U.S.C. § 1111 It’s a Federal crime to murder another human being within the [special maritime] [territorial] jurisdiction of the United States. Murder is the unlawful killing of a human being with malice aforethought. The Defendant can be found guilty of this crime only if all the following facts are proved beyond a reasonable doubt: (1) the victim, [victim’s name] was killed; (2) the Defendant caused the death of the victim with malice aforethought; and 017 7/2 (3) the killing occurred within2the [special maritime] [territorial] jurisdiction of the 07/ d United States. we ie To kill with "malice 6, v aforethought" is to intend to take someone 22 -4and intentionally, or to willfully act with callous and else’s life deliberately . 16 No wanton disregard for human life. It doesn’t matter whether the Defendant hated the victim or felt any ill will toward the victim at the time. But the Government must prove beyond a reasonable doubt that the Defendant intended to kill or willfully acted with callous and wanton disregard for the consequences, knowing that a serious risk of death or serious bodily harm would result. The difference between second-degree murder, which is the charge you are considering, and first-degree murder, is that second291 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 318 of 677 degree murder does not require premeditation. Premeditation is typically associated with killing in cold blood and requires a period of time in which the accused thinks the matter over before acting. The crime charged here is second-degree murder. The Government only has to prove beyond a reasonable doubt that the Defendant killed the victim deliberately and intentionally, but without premeditation. In other words, that the Defendant killed the victim by acting with callous and wanton disregard for human life. If you find beyond a reasonable doubt that the crime occurred at 017 7/2 [special maritime] [territorial] jurisdiction of the United States. 2 07/ d we e , vi ANNOTATIONS AND COMMENTS 226 4 18 U.S.C. § 1111 provides: 16o. N(a) Murder is the unlawful killing of a human being with malice the location described in the indictment, that location is within the aforethought. Every murder 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, kidnaping, 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 him who is killed, is murder in the first degree. Any other murder is murder in the second degree. (b) Within the special maritime and territorial jurisdiction of the United States, 292 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 319 of 677 Whoever is guilty of murder in the first degree shall be punished by death or by imprisonment for life; Whoever is guilty of murder in the second degree, shall be imprisoned for any term of years or for life. First degree murder under Section 1111 (including murder by transferred intent) requires both a finding of malice aforethought and premeditation (or felony murder). United States v. Weise, 89 F.3d 502, 505 (8th Cir. 1996) ("first degree murder is a killing with malice aforethought and premeditation, second degree murder is a killing with malice aforethought. . ."); United States v. Shaw, 701 F.2d 367, 392 (5th Cir. 1983), cert. denied, 465 U.S. 1067, 104 S. Ct. 1419, 79 L. Ed. 2d 744 (1984) ("Section 1111 retains the common law distinction between second degree murder, which requires a killing with malice aforethought, and first degree murder, which in addition to malice aforethought requires a killing with premeditation and deliberation.") Malice aforethought is a term of art which has several definitions. United States v. Pearson, 159 F.3d 480, 485 (10th Cir. 1998). Under both the common law and the federal murder statute, malice aforethought encompasses three distinct mental states: (1) intent to kill; (2) intent to do serious bodily injury; and (3) extreme recklessness and wanton disregard for human life (i.e. a "depraved heart"). Lara v. U.S. Parole Commission, 990 F.2d 839, 841 (5th Cir. 1993); United States v. Browner, 889 F.2d 549, 551-52 (5th Cir. 1989); see also United States v. Harrelson, 766 F.2d 186, 189 n.5 (5th Cir.) cert. denied, 474 U.S. 908, 106 S. Ct. 277, 88 L. Ed. 2d 241 (1985)("’Malice aforethought' means an intent, at the time of the killing, willfully to take the life of a human being, or an intent willfully to act in callous and wanton disregard of the consequences to human life. . . .") (quoting 2 E. Devitt & C. Blackmar, Federal Jury Practice and Instructions 215 (1977)). In United States v. Milton, 27 F.3d 203, 206-07 (6th Cir. 1994), and United States v. Sheffey, 57 F.3d 1419, 1430 (6th Cir. 1995), cert. denied 516 U.S. 1065, 116 S. Ct. 749, 133 L. Ed. 2d 697 (1996), the Sixth Circuit adopted essentially the same definition of malice aforethought: malice aforethought may be established by (1) "evidence of conduct which is `reckless and wanton, and a gross deviation from a reasonable standard of care, of such nature that a jury is warranted in inferring that defendant was aware of a serious risk of death or serious bodily harm.'" United States v. Black Elk, 579 F.2d 49, 51 (8th Cir. 1978) (citing United States v. Cox, 509 F.2d 390, 392 (D.C. Cir. 1974)); (2) evidence that the defendant "intentionally commit[ted] a wrongful act without legal justification or excuse." United States v. Celestine, 510 F.2d 457, 459 (9th Cir. 1975); or (3) "circumstances which show `a wanton and deprived spirit, a mind bent on evil mischief without regard to its consequences.'" Id. To prove that the Defendant acted with malice aforethought, “the government must show that he engaged in ‘conduct which is reckless and wanton, and a gross deviation from a reasonable standard of care, of such a nature that a jury is warranted in inferring that d we e , vi 226 4 16. No 293 0 017 7/2 7/2 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 320 of 677 defendant was aware of a serious risk of death or serious bodily harm.’” United States v. Tan, 254 F.3d 1204, 1207 (10th Cir. 2001) (addressing second degree murder) (quoting United States v. Wood, 207 F.3d 1222, 1228 (10th Cir. 2000)). In other words, “the government must show that Defendant knew that his conduct posed a serious risk of death or harm to himself or others, but did not care.” Id. See also United States v. Sheffey, 57 F.3d 1419, 1430 (6th Cir. 1995), cert. denied, 516 U.S. 1065, 116 S. Ct. 749, 133 L. Ed. 2d 697 (1996); United States v. Milton, 27 F.3d 203, 206-07 (6th Cir. 1994), cert. denied, 513 U.S. 1085, 115 S. Ct. 741, 130 L. Ed. 2d 642 (1995). In the case of a felony murder, the malice aforethought requirement of section 1111 is satisfied if the murder results from the perpetration of the enumerated crime. See United States v. Thomas, 34 F.3d 44, 49 (2d Cir.), cert. denied, 513 U.S. 1007, 115 S. Ct. 527, 130 L. Ed. 2d 431 (1994). d we e , vi 226 4 16. No 294 0 017 7/2 7/2 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 321 of 677 46.1 Voluntary Manslaughter 18 U.S.C. § 1112 It’s a Federal crime to commit voluntary manslaughter, which is the unlawful and intentional killing of a human being without malice upon a sudden quarrel or heat of passion, when the crime occurs within the [special maritime] [territorial] jurisdiction of the United States. The Defendant can be found guilty of this crime only if all the following facts are proved beyond a reasonable doubt: (1) (2) (3) (4) 017 7/2 the Defendant caused the victim’s death; 7/2 0intentionally but d the Defendant acted we the heat of passion; without malicee in and , vi and 226 the 6-4killing occurred within the [special the victim, [victim’s name], was killed; o. 1 maritime] [territorial] N United States. jurisdiction of the Manslaughter is the unlawful killing of another human being without malice. It’s voluntary when it happens intentionally during a sudden quarrel or in the heat of passion. The term “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 passion in an ordinary person, but which did not justify the use of deadly force. 295 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 322 of 677 If you find beyond a reasonable doubt that the crime occurred at the location described in the indictment, that location is within the [special maritime] [territorial] jurisdiction of the United States. ANNOTATIONS AND COMMENTS 18 U.S.C. § 1112 provides: (a) Manslaughter is the unlawful killing of a human being without malice. It is of two kinds: Voluntary - - Upon a sudden quarrel or heat of passion. 017 7/2 7/2 Involuntary - - In the commission of an unlawful act not amounting to a felony, or in the commission in an unlawful manner, or without due caution and circumspection, of a lawful act which might produce death. 0 ed and territorial jurisdiction of w (b) Within the special maritime vie the United States, 26, 42 Whoever-is guilty of voluntary manslaughter [shall be guilty of . 16 an offense against the United States]. o NWhoever is guilty of involuntary manslaughter [shall be guilty of an offense against the United States]. Maximum Penalty: Fifteen (15) years imprisonment and applicable fine for voluntary manslaughter. Eight (8) years imprisonment and applicable fine for involuntary manslaughter. The fact that distinguishes manslaughter from murder is the absence of malice. See 18 U.S.C. § 112(a) 1112(a). In the case of voluntary manslaughter, the existence of a sudden quarrel or heat of passion is deemed to demonstrate the absence of malice. United States v. Pearson, 203 F.3d 1243, 1271 (10th Cir. 2000); United States v. Collins, 690 F.2d 431, 437 (5th Cir. 1982), cert. denied, 460 U.S. 1046, 103 S. Ct. 1447, 75 L. Ed. 2d 801 (1983). “A ‘heat of passion’ is 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.” Lizama v. U.S. Parole Comm’n., 245 F.3d 503, 506 (5th Cir. 2001). 296 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 323 of 677 The government is not required to prove the absence of sudden provocation or heat of passion for a voluntary manslaughter conviction to stand in a murder trial. However, once evidence is presented that the defendant’s capacity for self-control was impaired by an extreme provocation, “the burden is on the Government to prove beyond a reasonable doubt the absence of sudden quarrel or heat of passion before a conviction for murder can be sustained. See United States v. Quintero, 21 F.3d 885, 890 (9th Cir. 1994) (citing Mullaney v. Wilbur, 421 U.S. 684, 704, 95 S. Ct. 1881, 1892, 44 L. Ed. 2d 508 (1975). d we e , vi 226 4 16. No 297 0 017 7/2 7/2 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 324 of 677 46.2 Involuntary Manslaugther 18 U.S.C. § 1112 It’s a Federal crime to commit involuntary manslaughter, which is the unlawful but unintentional killing of a human being [while committing an unlawful act that isn’t a felony] [as a result of an act done in wanton and reckless disregard for human life] when the offense occurs within the [special maritime] or [territorial] jurisdiction of the United States. The Defendant can be found guilty of this crime only if all the 017 7/2 the victim, [victim’s name], is dead; /2 07victim’s death; d the Defendant caused the we ie , death occurred as a result of the victim’s v the Defendant committing an unlawful act 226 4 that 16- wasn’t a felony, namely [describe . following facts are proved beyond a reasonable doubt: (1) (2) (3) No unlawful act], committing a lawful act in an unlawful manner, or acting with wanton and reckless disregard for human life; (4) the Defendant knew or could have reasonably foreseen that the Defendant’s conduct was or could be a threat to the lives of others; and (5) the killing took place within the [special maritime] [territorial] jurisdiction of the United States. Manslaughter is the unlawful killing of another human being without malice. It’s involuntary if it is unintentional but happens while a 298 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 325 of 677 person commits a crime that isn’t a felony, or during a lawful act done in an unlawful manner, or during a lawful action done without taking due caution. The Government doesn’t have to prove that the Defendant intended to cause the victim’s death. But the Government must prove beyond a reasonable doubt that the Defendant was more than just negligent or failed to use reasonable care. It must prove gross negligence amounting to “wanton and reckless disregard for human life,” which means the Defendant acted unreasonably or maliciously and 017 2 7 the If you find beyond a reasonable doubt that / crime occurred at /2 07that location is within the d the location described in the indictment, we e , vi [special maritime] [territorial] jurisdiction of the United States. 226 4 16. No AND COMMENTS ANNOTATIONS didn’t care about the consequences. 18 U.S.C. § 1112 provides: (a) Manslaughter is the unlawful killing of a human being without malice. It is of two kinds: Voluntary - - Upon a sudden quarrel or heat of passion. Involuntary - - In the commission of an unlawful act not amounting to a felony, or in the commission in an unlawful manner, or without due caution and circumspection, of a lawful act which might produce death. (b) Within the special maritime and territorial jurisdiction of the United States, 299 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 326 of 677 Whoever is guilty of voluntary manslaughter [shall be guilty of an offense against the United States]. Whoever is guilty of involuntary manslaughter [shall be guilty of an offense against the United States]. Maximum Penalty: Fifteen (15) years imprisonment and applicable fine for voluntary manslaughter. Eight (8) years imprisonment and applicable fine for involuntary manslaughter. "A proper instruction on an involuntary manslaughter charge requires the jury to find that the defendant (1) act with gross negligence, meaning a wanton or reckless disregard for human life, and (2) have knowledge that his or her conduct was a threat to the life of another or knowledge of such circumstances as could reasonably have enabled the defendant to foresee the peril to which his or her act might subject another." United States v. Fesler, 781 F.2d 384, 393 (5th Cir.), cert. denied 476 U.S. 1118, 106 S. Ct. 1977, 90 L. Ed. 2d 661 (1986); see also, United States v. Paul, 37 F.3d 496, 499 (9th Cir. 1994) ("involuntary manslaughter is an unintentional killing that `evinces a wanton or reckless disregard for human life but not of the extreme nature that will support a finding of malice'" sufficient to justify a conviction for second degree murder). The intent element of involuntary manslaughter is not satisfied by a showing of simple negligence. United States v. Gaskell, 985 F.2d 1056, 1064 (11th Cir. 1993). d we e , vi 226 017 7/2 7/2 0 These elements are based upon United States v. Sasnett, 925 F.2d 392 (11th Cir. 1991), and United States v. Schmidt, 626 F.2d 616 (8th Cir. 1980), cert. denied 449 U.S. 904, 101 S. Ct. 278, 66 L. Ed. 2d (1981), but there may be some confusion regarding the third element in the Sasnett opinion. The third element set out here is intended to encompass the statutory distinction between lawful and unlawful acts, but should be tailored to fit the specific case. See also United States v. Browner, 889 F.2d 549 (5th Cir. 1989). 4 16. No 300 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 327 of 677 47 Attempted Murder 18 U.S.C. § 1113 It’s a Federal crime to try to murder another human being within the [special maritime] [territorial] jurisdiction of the United States. The Defendant can be found guilty of this crime only if all the following facts are proved beyond a reasonable doubt: (1) the Defendant did something that was a substantial step toward killing the victim, [victim’s name]; (2) when the Defendant took that step, [he] [she] intended to kill the victim; and 017 2 7within the (3) the attempted killing occurred / 2 [special maritime] [territorial] jurisdiction of 07/ the United States. ed w viesome important action leading toward A “substantial step” means 26, -42 committing a crime. It is more than an unimportant or inconsequential . 16 o act. TheN must be more than preparation. It must be an act that act would ordinarily and likely result in an attempt to commit a crime, unless interrupted or frustrated by some condition or event. If the Government has presented evidence of several acts taken by the Defendant, each of which may qualify as a “substantial step,” you must all agree upon one act that you find was a substantial step toward committing the crime. 301 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 328 of 677 ANNOTATIONS AND COMMENTS 18 U.S.C. §1113 provides: Except as provided in section 113 of this title, whoever, within the special maritime and territorial jurisdiction of the United States, attempts to commit murder or manslaughter, shall, for an attempt to commit murder be imprisoned not more than twenty years or fined under this title, or both, and for an attempt to commit manslaughter be imprisoned not more than seven years or fined under this title, or both. Attempted murder requires proof of a specific intent to kill the victim. Recklessness and wanton conduct, grossly deviating from a reasonable standard of care such that the Defendant was aware of the serious risk of death, will not suffice as proof of an intent to kill. Braxton v. United States, 500 U.S. 344, 351 n.1, 111 S. Ct. 1854, 1859 n.1, 114 L. Ed. 2d 385 (1991) (“Although a murder may be committed without an intent to kill, an attempt to commit murder requires a specific intent to kill.”); United States v. Kwong, 14 F.3d 189, 194-95 (2d Cir. 1994). 017 7/2 7/2 Whether a Defendant’s conduct amounts to a “substantial step” depends in large part on the facts of each case. United States v. Neal, 78 F.3d 901, 906 (4th Cir. 1996). “‘A substantial step is an appreciable fragment of a crime and an action of such substantiality that, unless frustrated, the crime would have occurred.’” United States v. Smith, 264 F.3d 1012, 1016 (10th Cir. 2001) (quoting United States v. DeSantiago-Flores, 107 F.3d 1472, 1478-79 (10th Cir. 1997)). d we e , vi 226 4 16. No 302 0 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 329 of 677 48 Killing or Attempting to Kill a Federal Officer or Employee 18 U.S.C. § 1114 Note: If a Defendant is charged with murder, manslaughter, or attempted murder of an officer or employee of the United States in violation of 18 U.S.C. § 1114, the appropriate murder, manslaughter, or attempted murder instruction should be used, but modified to additionally require the jury to find that the victim was a federal officer or employee. The jurisdictional element set out in those instructions isn’t necessary here. 017 7/2 7/2 ANNOTATIONS AND COMMENTS 18 U.S.C. § 1114 provides: d we 0 e , vi Whoever kills or attempts to kill any officer or employee of the 226 United States or of any agency in any branch of the United States 6-4 1(including any member of the uniformed services) while Government o. Nofficer or employee is engaged in or on account of the such performance of official duties, or any person assisting such an officer or employee in the performance of such duties or on account of that assistance, shall be punished - (1) in the case of murder, as provided under section 1111; (2) in the case of manslaughter, as provided under section 1112; or (3) in the case of attempted murder or manslaughter, as provided in section 1113. See United States v. Alvarez, 755 F.2d 830 (11th Cir. 1985). 303 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 330 of 677 49 Kidnapping 18 U.S.C. § 1201(a)(1) It’s a Federal crime for anyone to kidnap [seize] [confine] [inveigle] [decoy] [abduct] [carry away] another person and then transport that person in interstate commerce. The Defendant can be found guilty of this crime only if all the following facts are proved beyond a reasonable doubt: (1) the Defendant knowingly and willfully kidnapped [seized] [confined] [inveigled] [decoyed] [abducted] [carried away] the victim, [victim’s name]; (2) (3) 017 72 the Defendant kidnapped / [seized] 7/2 [confined] [inveigled] [decoyed] [abducted] 0with the intent to [carried away] the victim ed wreward, or other benefit collect a ransom, ie and held6, v the victim for that reason; and 2 -42 the 6 victim was willfully transported in commerce while being o. 1 interstate [seized] [confined] [inveigled] N kidnapped [decoyed] [abducted] [carried away]. To "kidnap" a person means to forcibly and unlawfully hold, keep, detain, and confine that person against the person’s will. Involuntariness or coercion related to taking and keeping the victim is an essential part of the crime. [To "inveigle" a person means to lure, or entice, or lead the person to do something by making false representations or promises, or using other deceitful means.] 304 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 331 of 677 The Government doesn’t have to prove that the Defendant committed the kidnapping for ransom or any kind of personal financial gain. It only has to prove that the Defendant intended to gain some benefit from the kidnapping. "Interstate commerce" means business or travel between one state and another. A person is “transported in interstate commerce” if the person is moved from one state to another, in other words, if the person crosses a state line. 017 2 7only has to prove the [he] [she] took the victim across a state line.2It / 07/victim. d Defendant was intentionally transporting the we e , vi 226 4 ANNOTATIONS AND 16 COMMENTS . No 18 U.S.C. § 1201(a)(1) provides: The Government does not have to prove that the Defendant knew Whoever unlawfully seizes, confines, inveigles, decoys, kidnaps, abducts, or carries away and holds for ransom or reward or otherwise any person [and willfully transports such person in interstate or foreign commerce] [shall be guilty of an offense against the United States]. Maximum Penalty: Imprisonment for any term of years or for life or if the death of any person results, shall be punished by death or life imprisonment. An additional element, prompted by the Apprendi doctrine, is required when the indictment alleges that the kidnapping resulted in the death of a person and the prosecution is seeking the death penalty. If a disputed issue is whether a death resulted, the Court should consider giving a lesser included offense instruction. 305 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 332 of 677 Inveiglement or decoying someone across state lines is not in and of itself conduct proscribed by the federal kidnapping statute. “Inveiglement” becomes unlawful under the federal kidnapping statute, “when the alleged kidnapper interferes with his victim’s action, exercising control over his victim through the willingness to use forcible action should his deception fail.” United States v. Boone, 959 F.2d 1550, 1555 n.5 (11th Cir. 1992). However, the mere fact that physical force was not ultimately necessary does not take such conduct outside of the statute. See id. at 1556. See United States v. Lewis, 115 F.3d 1531, 1535 (11th Cir. 1997) (setting forth elements of crime of kidnapping and transporting in interstate commerce under 18 U.S.C. § 1201): (1) “the transportation in interstate commerce (2)of an unconsenting person who is (3) held for ransom, reward, or otherwise, (4) with such acts being done knowingly and willfully.” “Knowledge of crossing state lines is not an essential element . . . . The requirement that an offender cross state lines merely furnishes a basis for the exercise of federal jurisdiction.” Id.; United States v. Broadwell, 870 F.2d 594, 601 n.16 (11th Cir. 1989) (recognizing that crime of kidnapping is complete upon transportation across state lines). 017 7/2 Note that Section 1201 also sets out four other jurisdictional circumstances in 2 subparts (a)(2) through (a)(5), and this instruction will need to be modified to fit those 07/ if the charge is not under subpart (a)(1). ed w vie 26, -42 . 16 No 306 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 333 of 677 50.1 Mail Fraud 18 U.S.C. § 1341 It’s a Federal crime to [use the United States mail] [transmit something by private or commercial interstate carrier] in carrying out a scheme to defraud someone. The Defendant can be found guilty of this crime only if all the following facts are proved beyond a reasonable doubt: (1) the Defendant knowingly devised or participated in a scheme to defraud someone, or obtain money or property, using false or fraudulent pretenses, representations, or promises; (2) 017 7/2 2 the false or fraudulent pretenses, 07/ were about a representations, ored w promises material fact; ie 6, v intended to defraud the 22 -4 Defendant someone; and . 16 (3) (4) No the Defendant used [the United States Postal Service by mailing or by causing to be mailed] [a private or commercial interstate carrier by depositing or causing to be deposited with the carrier] something meant to help carry out the scheme to defraud. [A “private or commercial interstate carrier” includes any business that transmits, carries, or delivers items from one state to another. It doesn’t matter whether the message or item actually moves from one state to another as long as the message or item is delivered to the 307 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 334 of 677 carrier.] A "scheme to defraud" includes any plan or course of action intended to deceive or cheat someone out of money or property using false or fraudulent pretenses, representations, or promises. A statement or representation is "false" or "fraudulent" if it is about a material fact, it is made with intent to defraud, and the speaker either knows it is untrue or makes it with reckless indifference to the truth. It may be false or fraudulent if it is made with the intent to defraud and is a half-truth or effectively conceals a material fact. 017 2 would use to decide whether to do or not do7/ something. A fact is 2 07/ tendency to influence a “material” if it has the capacity ored w natural vie person’s decision. It doesn’t,matter whether the decision-maker actually 226 4 relied on the statement or knew or should have known that the statement 16. No was false. A “material fact” is an important fact that a reasonable person To act with "intent to defraud" means to act knowingly and with the specific intent to deceive or cheat someone, usually for personal financial gain or to cause financial loss to someone else. The Government does not have to prove all the details about the precise nature and purpose of the scheme or that the material [mailed] [deposited with an interstate carrier] was itself false or fraudulent. It also does not have to prove that the use of [the mail] [the interstate carrier] 308 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 335 of 677 was intended as the specific or exclusive means carrying out the fraud, or that the Defendant did the actual [mailing] [depositing]. It doesn’t even have to prove that anyone was actually defrauded. To "cause" [the mail] [an interstate carrier] to be used is to do an act knowing that the use of [the mail] [the carrier] will usually follow in the ordinary course of business or where that use can reasonably be foreseen. Each separate use of [the mail] [an interstate carrier] as part of the scheme to defraud is a separate crime. ANNOTATIONS AND COMMENTS 18 U.S.C. § 1341 provides: d we e , vi 226 017 7/2 7/2 0 Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, . . . for the purpose of executing such scheme or artifice or attempting so to do, places in any post-office or authorized depository for mail matter, any matter or thing whatever to be sent or delivered by the Postal Service [by any private or commercial interstate carrier] [shall be guilty of an offense against the laws of the United States]. 4 16. No Maximum Penalty: Twenty (20) years imprisonment and applicable fine. (If the violation affects a financial institution, or is in relation to or in connection with a presidentially declared major disaster or emergency, thirty (30) years imprisonment and $1 million fine). If the offense involved telemarketing, 18 U.S.C. § 2326 requires enhanced imprisonment penalties: A person who is convicted of an offense under section 1028, 1029, 1341, 1342, 1343, or 1344, or a conspiracy to commit such an offense, in connection with the conduct of telemarketing - - 309 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 336 of 677 (1) shall be imprisoned for a term of up to 5 years in addition to any term of imprisonment imposed under any of those sections, respectively; and (2) in the case of an offense under any of those sections that -(A) victimized ten or more persons over the age of 55; or (B) targeted persons over the Age of 55, shall be imprisoned for a term of up to 10 years in addition to any term of imprisonment imposed under any of those sections, respectively. An additional element is required under the Apprendi doctrine when the indictment alleges any facts that would result in enhanced penalties under 18 U.S.C. § 1341 or § 2326. If the alleged offense involved telemarketing, or involved telemarketing and victimized 10 or more persons over age 55 or targeted persons over age 55, or the scheme affected a financial institution, or is in relation to or in connection with a presidentially declared major disaster or emergency, the Court should consider including a fourth element for that part of the offense and giving a lesser included offense instruction for just the Section 1341 offense. Alternatively, an instruction (to be used with a special interrogatory on the verdict form) can address those statutory variations of the scheme: d we e , vi 226 017 7/2 7/2 0 4 If you 16- is find beyond a reasonable doubt that the o. to guilty of using the must carrying out a NDefendant defraud, then you mail inalso determine scheme whether the Government has proven beyond a reasonable doubt that [the scheme was in connection with the conduct of telemarketing and (a) victimized ten or more persons over the age of 55, or (b) targeted persons over the age of 55] [the scheme affected a financial institution] [the scheme was in relation to, or in connection with, a presidentially declared major disaster or emergency]. The 1994 amendment to Section 1341 now also applies it to the use of “any private or commercial interstate carrier.” Where such private carriers are involved, the statute requires the government to prove only that the carrier engages in interstate deliveries and not that state lines were crossed. See United States v. Marek, 238 F.3d 310, 318 (5th Cir.) cert. denied 534 U.S. 813, 122 S. Ct. 37, 151 L. Ed. 2d 11 (2001). 310 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 337 of 677 Mail fraud requires a showing of “(1) knowing participation in a scheme to defraud, and (2) a mailing in furtherance of the scheme.” United States v. Photogrammetric Data Svcs., Inc., 259 F.3d 229, 253 (4th Cir. 2001). The mailing, however, need only “be incident to an essential part of the scheme or a step in the plot,” and does not have to be an essential element of the scheme to be part of the execution of the fraud. Schmuck v. United States, 489 U.S. 705, 710-11, 109 S. Ct. 1443, 103 L. Ed. 2d 734 (1989). Materiality is an essential element of the crimes of mail fraud, wire fraud, and bank fraud, and must be decided by the jury. Neder v. United States, 527 U.S. 1, 25, 119 S. Ct. 1827, 144 L. Ed. 2d 35 (1999). The definition of materiality used here comes from that decision and the Eleventh Circuit’s decision in the case upon remand. United States v. Neder, 197 F.3d 1122, 1128-29 (11th Cir. 1999), cert. denied 530 U.S. 1261, 120 S. Ct. 2727, 147 L. Ed. 2d 982 (2000). In mail fraud cases involving property rights, “the Government must establish that the defendant intended to defraud a victim of money or property of some value.” United States v. Cooper, 132 F.3d 1400, 1405 (11th Cir. 1998). State and municipal licenses in general are not “property” for the purposes of Title 18, United States Code, Section 1341. Cleveland v. United States, 531 U.S. 12, 15, 121 S. Ct. 365, 369, 148 L. Ed. 2d 221 (2000). d we 017 7/2 7/2 0 In the Eleventh Circuit, there has been considerable activity with respect to whether the measure of the alleged fraudulent conduct should be an objective “intended to deceive a reasonable person” standard, or whether conduct intended to deceive “someone,” including the ignorant and gullible, was sufficient. e , vi 226 4 16- 556 F.3d 1157 (11th Cir. 2009), the Eleventh Circuit, in an In United States. Svete, No v. en banc decision, held that: Proof that a defendant created a scheme to deceive reasonable people is sufficient evidence that the defendant intended to deceive, but a defendant who intends to deceive the ignorant or gullible by preying on their infirmities is no less guilty. Either way, the defendant has criminal intent. 556 F.3d 1157, 1165 (11th Cir. 2009). 311 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 338 of 677 50.2 Mail Fraud: Depriving Another of an Intangible Right of Honest Services 18 U.S.C. §§ [1341] and 1346 It’s a Federal crime to [use the United States mail] [transmit something by private or commercial interstate carrier] to carry out a scheme to fraudulently deprive someone else of a right to honest services. The Defendant can be found guilty of this crime only if all the following facts are proved beyond a reasonable doubt: (1) (2) 017 7/2 7/2 the Defendant knowingly devised or participated in a scheme to fraudulently deprive [the public] [another person] of the intangible right of honest services; d we e , vi 226 0 the Defendant did so with an intent to defraud; and 4 16- Defendant used [the United States (3) o. the N Postal Service by mailing or by causing to be mailed] [a private or commercial interstate carrier by depositing or causing to be deposited with the carrier] some matter or thing to carry out the scheme to defraud. [A “private or commercial interstate carrier” includes any business that transmits, carries, or delivers items from one state to another. It doesn’t matter whether the message or item actually moves from one state to another as long as the message or item is delivered to the carrier.] 312 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 339 of 677 A "scheme" includes any plan or course of action intended to deceive or cheat someone. To act with "intent to defraud" means to act knowingly and with the specific intent to deceive someone, usually for personal financial gain or to cause financial loss to someone else. To "deprive someone else of the intangible right of honest services" is to violate, or to cause [a public official or employee] [an employee or agent of another person] to violate, a duty to provide honest services to an employer. 017 2 interest; in other words, they have a duty to the 7/ public to do what’s best 2 07/[official] [employee] does and what’s right for the public. So d an we if e , vi something or makes a decision that serves the [official’s] [employee’s] 226 4 personal interests -by, for example, taking a bribe or kickback or 16 . No an undisclosed conflict of interest, the official or benefitting from [Public officials and public employees must act in the public’s best employee defrauds the public of honest services, even if the public agency suffers no monetary loss.] [Regarding the private sector, an employee or agent who works for or represents a private employer has a legal duty to be honest and faithful in all dealings with the private employer and to do business in the employer’s best interests. For instance, the employee or agent must tell an employer about any personal interest or profit [or kickback] the 313 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 340 of 677 employee or agent has received or expects to receive from working on any of the employer’s business transactions. The Government must prove that the Defendant intended to breach that duty and foresaw, or should have foreseen, that the employer would suffer a loss as a result of the breach.] [A "kickback" is any kind of secret payment or reward a person gives to an employee who has been dealing in the course of employment with that person so that the employee's personal financial interest interferes with the employee's obligation to get the best deal for the 017 72 The Government does not have to prove all/ the details alleged in 2 07/ d the indictment about the precise nature and purpose of the scheme. It we e , vi doesn’t have to prove the material [mailed] [deposited with an interstate 226 4 carrier] was itself 16 false or fraudulent; or that the use of the [mail] . No was intended as the specific or exclusive way to carry [interstate carrier] employer.] out the alleged fraud; or that the Defendant actually [mailed] [deposited] the material. And it doesn’t have to prove that the alleged scheme actually succeeded in defrauding anyone. To "cause" [the mail] [an interstate carrier] to be used is to do an act knowing that the use of [the mail] [an interstate carrier] will follow in the ordinary course of business or where that use can reasonably be expected to follow. 314 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 341 of 677 Each separate use of [the mail] [an interstate carrier] as a part of the scheme to defraud is a separate crime. ANNOTATIONS AND COMMENTS 18 U.S.C. § 1341 provides: Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises . . . for the purpose of executing such scheme or artifice or attempting so to do, places in any post-office or authorized depository for mail matter, any matter or thing whatever to be sent or delivered by the Postal Service [by any private or commercial interstate carrier] [shall be guilty of an offense against the laws of the United States]. 017 7/2 7/2 Maximum Penalty: Twenty (20) years imprisonment and applicable fine. 0 edthe term "scheme or artifice to For the purposes of this ew chapter, , vi defraud" includes a scheme or artifice to deprive another of the intangible right of honest services. 226 4 16- for mail fraud involving the “intangible right of honest This instruction . prepared No is services,” but may be modified to fit the other types of fraud. 18 U.S.C. § 1346 provides: In addition to property rights, the statute protects the intangible right to honest services as a result of the addition of 18 U.S.C. § 1346 in 1988. The Supreme Court had ruled in McNally v. United States, 483 U.S. 350, 360, 107 S. Ct. 2875, 2882, 97 L. Ed. 2d 292 (1987), that Section 1341 was limited in scope to the protection of property rights and did not prohibit schemes to defraud citizens of their intangible right to honest and impartial government. Thus, Congress passed Section 1346 to overrule McNally and reinstate prior law. Defrauding one of honest services typically involves government officials depriving their constituents of honest governmental services. Such “public sector” fraud falls into two categories: first, “a public official owes a fiduciary duty to the public, and misuse of his office for private gain is a fraud;” second, “an individual without formal office may be held to be a public fiduciary if others rely on him because of a special relationship in the government and he in fact makes governmental decisions.” United States v. deVegter, 198 F.3d 1324, 1328 n.3 (11th Cir. 1999) (quoting McNally and addressing wire fraud); United 315 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 342 of 677 States v. Lopez-Lukis, 102 F.3d 1164, 1169 (11th Cir. 1997) (addressing mail fraud). Public officials inherently owe a fiduciary duty to the public to make governmental decisions in the public’s best interest. “If the official instead secretly makes his decision based on his own personal interests - - as when an official accepts a bribe or personally benefits from an undisclosed conflict of interest - - the official has defrauded the public of his honest services.” Lopez-Lukis, 102 F.3d at 1169. Although the typical case of defrauding one of honest services is the bribery of a public official, section 1346 also extends to defrauding some private sector duties of loyalty. Since a strict duty of loyalty ordinarily is not part of private sector relationships, it is not enough to prove that a private sector defendant breached the duty of loyalty alone. In the private sector context, the breach of loyalty must inherently harm the purpose of the parties’ relationship. deVegter, 198 F.3d at 132829. “‘The prosecution 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.’” Id. at 1329 (quoting United States v. Frost, 125 F.3d 346, 368 (6th Cir. 1997)). Federal law governs the existence of a fiduciary duty owed under this statute. Id. at 1329 & n.5. 017 7/2 7/2 The Supreme Court has recently granted certiorari in a line of cases involving prosecutions under this statute. See United States v. Black, 530 F.3d 596 (7th Cir. 2008), cert. granted, 129 S. Ct. 2379 (2009); United States v. Weyhrauch, 548 F. 3d 1237 (9th Cir. 2008), cert. granted, 129 S. Ct. 2863 (2009); United States v. Skilling, 554 F.3d 529 (5th Cir. 2009), cert. granted, 130 S. Ct. 393 (2009). d we e , vi 226 4 16. No 316 0 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 343 of 677 51 Wire Fraud 18 U.S.C. § 1343 It’s a Federal crime to use interstate wire, radio, or television communications to carry out a scheme to defraud someone else. The Defendant can be found guilty of this crime only if all the following facts are proved beyond a reasonable doubt: (1) the Defendant knowingly devised or participated in a scheme to defraud, or to obtain money or property by using false pretenses, representations, or promises; (2) the false pretenses, representations, or promises were about a material fact; (3) the Defendant acted with the intent to defraud; and (4) d we 017 7/2 7/2 0 e , vi the Defendant transmitted or caused to be 226 transmitted by [wire] [radio] [television] 6-4 interstate o. 1 some communicationout in scheme to N commerce to help carry the defraud. The term "scheme to defraud" includes any plan or course of action intended to deceive or cheat someone out of money or property by using false or fraudulent pretenses, representations, or promises. A statement or representation is "false" or "fraudulent" if it is about a material fact that the speaker knows is untrue or makes with reckless indifference to the truth, and makes with the intent to defraud. A statement or representation may be “false" or "fraudulent" when it is a 317 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 344 of 677 half truth, or effectively conceals a material fact, and is made with the intent to defraud. A “material fact” is an important fact that a reasonable person would use to decide whether to do or not do something. A fact is “material” if it has the capacity or natural tendency to influence a person’s decision. It doesn’t matter whether the decision-maker actually relied on the statement or knew or should have known that the statement was false. The "intent to defraud" is the specific intent to deceive or cheat 017 7/2 7/2 someone, usually for personal financial gain or to cause financial loss to someone else. d we 0 The Government does not have to prove all the details alleged in e , vi 226 the indictment about the precise nature and purpose of the scheme. It 4 16. No[television] was itself false or fraudulent; or that using the [wire] [radio] also doesn’t have to prove that the material transmitted by interstate [wire] [radio] [television] was intended as the specific or exclusive means of carrying out the alleged fraud; or that the Defendant personally made the transmission over the [wire] [radio] [television]. And it doesn’t have to prove that the alleged scheme actually succeeded in defrauding anyone. To "use" interstate [wire] [radio] [television] communications is to act so that something would normally be sent through wire, radio, or 318 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 345 of 677 television communications in the normal course of business. Each separate use of the interstate [wire] [radio] [television] communications as part of the scheme to defraud is a separate crime. ANNOTATIONS AND COMMENTS 18 U.S.C. § 1343 provides: Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, transmits or causes to be transmitted by means of wire, radio, or television communication in interstate or foreign commerce, any writings, signs, signals, pictures, or sounds for the purpose of executing such scheme or artifice [shall be guilty of an offense against the laws of the United States]. 017 7/2 2 Maximum Penalty: Twenty (20) years imprisonment and applicable fine. (If the 07/ or is in relation to or in d violation affects a financial institution, we connection withie presidentially declared major disaster or a emergency,, v (30) years imprisonment and $1 million fine.) thirty 226 4 If the offense involved telemarketing, 18 U.S.C. § 2326 requires enhanced 16imprisonment o. N penalties: A person who is convicted of an offense under section 1028, 1029, 1341, 1342, 1343, or 1344, or a conspiracy to commit such an offense, in connection with the conduct of telemarketing - - (1) shall be imprisoned for a term of up to 5 years in addition to any term of imprisonment imposed under any of those sections, respectively; and (2) in the case of an offense under any of those sections that -(A) victimized ten or more persons over the age of 55; or (B) targeted persons over the Age of 55, 319 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 346 of 677 shall be imprisoned for a term of up to 10 years in addition to any term of imprisonment imposed under any of those sections, respectively. An additional element is required under the Apprendi doctrine when the indictment alleges any facts that would result in enhanced penalties under 18 U.S.C. § 1343 or § 2326. If the alleged offense involved telemarketing, or involved telemarketing and victimized 10 or more persons over age 55 or targeted persons over age 55, or the scheme affected a financial institution, or is in relation to or in connection with a presidentially declared major disaster or emergency, the Court should consider including a fourth element for that part of the offense and giving a lesser included offense instruction for just the Section 1341 offense. Alternatively, an instruction (to be used with a special interrogatory on the verdict form) can address those statutory variations of the scheme: If you find beyond a reasonable doubt that the defendant is guilty of using interstate [wire] [radio] [television] communications facilities in carrying out a scheme to defraud, then you must also determine whether the Government has proven beyond a reasonable doubt that [the scheme was in connection with the conduct of telemarketing] [the scheme was in connection with the conduct of telemarketing and (a) victimized ten or more persons over the age of 55, or (b) targeted persons over the age of 55] [the scheme affected a financial institution] [the scheme was in relation to, or in connection with, a presidentially declared major disaster or emergency.] d we 017 7/2 7/2 0 e , vi Wire fraud requires a showing (1) that the Defendant knowingly devised or 226 4 participated in a scheme to defraud; (2) that the Defendant did so willfully and with 16- (3) that the Defendant used interstate wires for the purpose an intent to defraud; and o. Nthe scheme. Langford v. Rite Aid of Ala., Inc., 231 F.3d 1308, 1312 of executing (11th Cir. 2000). Materiality is an essential element of the crimes of mail fraud, wire fraud, and bank fraud and must be decided by the jury. Neder v. United States, 527 U.S. 1, 25, 119 S. Ct. 1827, 144 L. Ed. 2d 35 (1999). The definition of materiality used here comes from that decision and the Eleventh Circuit’s decision in the case upon remand. United States v. Neder, 197 F.3d 1122, 1128-20 (11th Cir. 1999), cert. denied 530 U.S. 1261 (2000). In wire fraud cases involving property rights, “the Government must establish that the defendant intended to defraud a victim of money or property of some value.” United States v. Cooper, 132 F.3d 1400, 1405 (11th Cir. 1998). State and municipal licenses in general are not “property” for the purposes of this statute. Cleveland v. United States, 531 U.S. 12, 15, 121 S. Ct. 365, 369, 148 L. Ed. 2d 221 (2000) (addressing “property” for purposes of mail fraud statute). The mail fraud and wire fraud statutes are “given a similar construction and are 320 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 347 of 677 subject to the same substantive analysis.” Belt v. United States, 868 F.3d 1208, 1211 (11th Cir. 1989). See also United States v. Svete, 556 F.3d 1157, (11th Cir. 2009) and discussion supra Offense Instruction 50.1. d we e , vi 226 4 16. No 321 0 017 7/2 7/2 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 348 of 677 52 Bank Fraud 18 U.S.C. § 1344 It’s a Federal crime to carry out or attempt to carry out a scheme to defraud a financial institution, or to get money or property owned or controlled by a financial institution by using false pretenses, representations, or promises. The Defendant can be found guilty of this crime only if all the following facts are proved beyond a reasonable doubt: (1) the Defendant carried out or attempted to carry out a scheme [to defraud a financial institution] [to get money, assets, or other property from a financial institution] by using false or fraudulent pretenses, representations, or promises about a material fact; d we (2) e , vi 26 2false or 017 7/2 7/2 0 4 16. No the fraudulent pretenses, representations, or promises were material; (3) the Defendant intended to defraud the financial institution; and (4) the financial institution was federally [insured] [chartered]. A “scheme to defraud” includes any plan or course of action intended to deceive or cheat someone out of money or property by using false or fraudulent pretenses, representations, or promises relating to a material fact. A statement or representation is “false” or “fraudulent” if it is about 322 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 349 of 677 a material fact that the speaker knows is untrue or makes with reckless indifference as to the truth and makes with intent to defraud. A statement or representation may be “false” or “fraudulent” when it’s a half truth or effectively conceals a material fact and is made with the intent to defraud. A “material fact” is an important fact that a reasonable person would use to decide whether to do or not do something. A fact is “material” if it has the capacity or natural tendency to influence a person’s decision. It doesn’t matter whether the decision-maker actually 017 7/2 7/2 relied on the statement or knew or should have known that the statement was false. d we 0 To act with “intent to defraud” means to do something with the e , vi 226 specific intent to deceive or cheat someone, usually for personal 4 16. No The Government doesn’t have to prove all the details alleged in the financial gain or to cause financial loss to someone else. indictment about the precise nature and purpose of the scheme. It also doesn’t have to prove that the alleged scheme actually succeeded in defrauding anyone. What must be proved beyond a reasonable doubt is that the Defendant knowingly attempted or carried out a scheme substantially similar to the one alleged in the indictment. ANNOTATIONS AND COMMENTS 18 U.S.C. § 1344 provides: 323 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 350 of 677 Whoever knowingly executes, or attempts to execute, a scheme or artifice - (1) to defraud a financial institution; or (2) to obtain any of the moneys, funds, credits, assets, securities, or other property owned by, or under the custody or control of, a financial institution, by means of false or fraudulent pretenses, representations, or promises; shall be fined not more than $1,000,000 or imprisoned not more than 30 years, or both. See 18 U.S.C. § 20 for an enumeration of the financial institutions covered by § 1344. An additional element is required under the Apprendi doctrine when the indictment alleges any facts that would result in enhanced penalties under 18 U.S.C. § 2326. See Pattern Instruction 50.1. Proof that the financial institution is federally chartered or insured is an essential element of the crime, as well as necessary to establish federal jurisdiction. United States v. Scott, 159 F.3d 916, 921 (5th Cir. 1998). Materiality is an essential element of the crime of bank fraud. Neder v. United States, 527 U.S. 1, 25, 119 S. Ct. 1827, 144 L. Ed. 2d 35 (1999). d we 017 7/2 7/2 0 There are two separate offenses possible under Section 1344: (1) defrauding a financial institution, or (2) obtaining money or funds from the financial institution by means of material false or fraudulent pretenses, representations, or promises. United States v. Dennis, 237 F.3d 1295, 1303 (11th Cir. 2001) (discussing elements of bank fraud under section 1344); United States v. Mueller, 74 F.3d 1152, 1159 (11th Cir. 1996). In the case of defrauding a financial institution, the Government must establish “that the defendant (1) intentionally participated in a scheme or artifice to defraud another of money or property; and (2) that the victim of the scheme or artifice was an insured financial institution.” United States v. Goldsmith, 109 F.3d 714, 715 (11th Cir. 1997). Under the alternative theory, the Government must prove “(1) that a scheme existed in order to obtain money, funds, or credit in the custody of the federally insured institution; (2) that the defendant participated in the scheme by means of false pretenses, representations or promises, which were material; and (3) that the defendant acted knowingly.” Id. e , vi 226 4 16. No While materiality is an element of the bank fraud offense under Neder, see also United States v. Williams, 390 F.3d 1319, 1324 (11th Cir. 2004) (same), the Supreme Court has held (pre-Neder) that materiality is not an element of the offense in a prosecution under 18 U.S.C. § 1014, a similar statute which prohibits making a false statement to a federally insured bank or designated financial institution. United States v. Wells, 519 U.S. 482, 117 S. Ct. 921, 137 L. Ed. 2d 107 (1997). 324 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 351 of 677 53 Health-Care Fraud 18 U.S.C. § 1347 It’s a federal crime to knowingly and willfully execute, or attempt to execute, a scheme or artifice to defraud a health-care benefit program, or to get any of the money or property owned by, or under the custody or control of, a health-care benefit program by means of false or fraudulent pretenses, representations, or promises. The Defendant can be found guilty of this offense only if all the following facts are proved beyond a reasonable doubt: (1) d we e , vi 226 (2) 017 7/2 7/2 the Defendant knowingly executed, or attempted to execute, a scheme or artifice to defraud a health-care benefit program, [or to obtain money or property owned by, or under the custody or control of, a health-care benefit program] by means of false or fraudulent pretenses, representations, or promises; -4 16false or o. Nthe representations, or 0 fraudulent pretenses, promises related to a material fact; (3) the Defendant acted willfully and intended to defraud; and (4) the Defendant did so in connection with the delivery of or payment for health-care benefits, items, or services. “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 325 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 352 of 677 is providing a medical benefit, item, or service for which payment may be made under the plan or contract. A “scheme to defraud” includes any plan or course of action intended to deceive or cheat someone out of money or property by using false or fraudulent pretenses, representations, or promises relating to a material fact. A statement or representation is “false” or “fraudulent” if it is about a material fact that the speaker knows is untrue or makes with reckless indifference as to the truth and makes with intent to defraud. A statement or representation may be “false” or “fraudulent” when it’s a half truth or effectively 017 7/2 A “material fact” is an important fact that a reasonable person would use 2 07/ is “material” if it has the d to decide whether to do or not do something. A fact we e , vi capacity or natural tendency to influence a person’s decision. It doesn’t matter 226 4 whether the decision-maker actually relied on the statement or knew or should 16o. Nthe statement was false. have known that conceals a material fact and is made with the intent to defraud. To act with “intent to defraud” means to do something with the specific intent to deceive or cheat someone, usually for personal financial gain or to cause financial loss to someone else. The Government doesn’t have to prove all the details alleged in the indictment about the precise nature and purpose of the scheme. It also doesn’t have to prove that the alleged scheme actually succeeded in defrauding anyone. What must be proved beyond a reasonable doubt is that the 326 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 353 of 677 Defendant knowingly attempted or carried out a scheme substantially similar to the one alleged in the indictment. ANNOTATIONS AND COMMENTS 18 U.S.C. § 1347 provides: Whoever knowingly and willfully executes, or attempts to execute, a scheme or artifice-(1) to defraud any health-care benefit program; or (2) to obtain, by means of false or fraudulent pretenses, representations, or promises, any of the money or property owned by, or under the custody or control of, any health-care benefit program, 017 7/2 7/2 in connection with the delivery of or payment for health-care benefits, items, or services, [shall be guilty of an offense against the United States]. d we 0 Maximum penalty: Ten (10) years imprisonment and applicable fine. (If the violation results in serious bodily injury or death, twenty (20) years or life imprisonment, respectively, and applicable fine.) e , vi 226 4 16- that: “To prove health-care fraud under 18 U.S.C. § 1347, The Eleventh Circuit has stated . the government must prove ‘knowing and willful execution of or attempt to execute a No scheme to defraud a health-care benefit program in connection with delivery of or payment for health-care.’” United States v. Marti, 294 Fed. Appx. 439, 444 (11th Cir. 2008) (quoting United States v. Mitchell, 165 Fed. Appx. 821, 824 (11th Cir. 2006). Thus, this instruction includes “willfully” to track the statute and circuit case law. The committee believes that the general definition of “willfully” in Basic Instruction 9.1A would usually apply to this crime. The Fifth Circuit has indicated that a jurisdictional element (“affecting commerce”) may be appropriate. See United States v. Hickman, 331 F.3d 439, 443 (5th Cir. 2003), This committee believes that the jurisdictional requirement is implied by the nature of “healthcare benefit program” as defined from the statute, however, and that it is not an element of the offense. Materiality is included as an element of this offense under the rationale of Neder v. United States, 527 U.S. 1, 25, 119 S. Ct. 1827, 144 L. Ed. 2d 35 (1999). 327 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 354 of 677 54 Conspiracy to Commit [Mail] Fraud 18 U.S.C. § 1349 It’s a Federal crime to knowingly and willfully conspire or agree with someone to do something that, if actually carried out, would result in the crime of mail fraud. A “conspiracy” is an agreement by two or more persons to commit an unlawful act. In other words, it is a kind of partnership for criminal purposes. Every member of the conspiracy becomes the agent or partner of every other member. 017 7/2 2 indictment were members of the plan, or that those/who were members made 07 ed wof a conspiracy is the making of the any kind of formal agreement. The heart e , vi 6 unlawful plan itself, so the 22 Government does not have to prove that the -4 16in carrying out the plan. . conspirators succeeded No The Government does not have to prove that all the people named in the The Defendant can be found guilty of this conspiracy offense only if all the following facts are proved beyond a reasonable doubt: (1) two or more persons, in some way or manner, agreed to try to accomplish a common and unlawful plan to commit mail fraud, as charged in the indictment; and (2) the Defendant knew the unlawful purpose of the plan and willfully joined in it; A person may be a conspirator even without knowing all the details of the unlawful plan or the names and identities all of the other alleged conspirators. 328 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 355 of 677 If the Defendant played only a minor part in the plan but had a general understanding of the unlawful purpose of the plan – and willfully joined in the plan on at least one occasion – that’s sufficient for you to find the Defendant guilty. But simply being present at the scene of an event or merely associating with certain people and discussing common goals and interests doesn’t establish proof of a conspiracy. Also, a person who doesn’t know about a conspiracy but happens to act in a way that advances some purpose of one doesn’t automatically become a conspirator. 017 7/2 7/2 ANNOTATIONS AND COMMENTS d0 ecommit any offense under this w Any person who attempts or conspires to vie chapter shall be subject to the same penalties as those prescribed for the 26,was the object of the attempt or conspiracy. offense, the commission of which -42 16 Maximum penalty: As.stated above. No 18 U.S.C. § 1349 provides: Section 1349 applies to all fraud offenses in Chapter 63, i.e., Sections 1341 through 1348. So, a conspiracy could be charged with any of those substantive offenses as the underlying count. This instruction is thus intended to be modified to fit the specific underlying fraud alleged in the indictment, and it is in the same general form as the controlled substances conspiracy instruction for 21 U.S.C. § 846 and the money laundering conspiracy instruction for 18 U.S.C. 1956(h). No overt act is required by Section 1349, and Congress’s omission of that requirement (which is specifically included in 18 U.S.C. § 371) has been held by both the Supreme Court and the Eleventh Circuit to mean that it has dispensed with such a requirement. Cf. United States v. Shabani, 513 U.S. 10, 12, 115, S. Ct. 382, 130 L. Ed. 2d 225 (1994); United States v. Pistone, 177, F.3d 957, 959-60 (11th Cir. 1999). For a case involving conspiracy to defraud the United States arising under 18 U.S.C. § 371, see United States v. Mendez, 528 F.3d 811 (11th Cir. 2008). 329 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 356 of 677 55 Mailing Obscene Material 18 U.S.C. § 1461 It’s a Federal crime to use the United States mail to transmit obscene material. The Defendant can be found guilty of this crime only if all the following facts are proved beyond a reasonable doubt: (1) the Defendant knowingly sent or caused to be sent certain material using the United States mail; (2) when the material was mailed, the Defendant knew the general nature of the material’s content; and 017 2 (3) the material was legally obscene. 7/ 2 07/ the Defendant knew the d The Government doesn’t have to prove that we ie material was legally obscene. 6, v has to prove that the Defendant knew It only 2 -42 material. the general sexual nature of the . 16 o So if you N beyond a reasonable doubt that the Defendant sent the find material in the mail and knew what it was, in other words, knew about the material’s general sexual nature, and if you find that the material was legally obscene, as I’ll shortly define that word for you, then you may find that the Defendant knew the material was obscene. Freedom of expression is a constitutional right that is fundamental to our system, and we all enjoy it. It has contributed much to the development and well-being of our free society. In exercising this right, sex may be portrayed 330 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 357 of 677 and the subject of sex may be discussed freely and publicly. Material may not be condemned merely because it contains passages or sequences that describe or depict sexual activity. But the constitutional right to free expression doesn’t extend to legally “obscene” material. To prove beyond a reasonable doubt that material is “obscene,” the Government must prove three things: (1) that the material predominantly appeals to prurient interest; (2) that it depicts or describes sexual conduct in a patently offensive way; and (3) that it lacks serious literary, artistic, political, or scientific value. d we 017 7/2 7/2 0 First, you must view the material as a whole, keeping in mind the e , vi 226 intended and probable audience, and decide whether the material’s 4 16o. Nof the community as a whole [or the prurient interest of average person predominant theme or purpose is an appeal to the prurient interest of an members of a deviant sexual group, as the case may be]. An appeal to “prurient” interest is an appeal to a morbid, degrading, and unhealthy interest in sex, not just an ordinary interest. Viewing the material as a whole for the “predominant theme or purpose of the material” means looking for the main or principal focus of the whole work based on its total effect, not on the focus of incidental themes or isolated passages or sequences. 331 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 358 of 677 To decide whether the material appeals to a morbid, degrading, or unhealthy interest in sex of the “average person of the community as a whole,” you must consider the contemporary community standards that would be applied by an average person with an ordinary attitude toward and interest in sex. Contemporary community standards are set by the community as a whole; in other words, what society at large or people in general currently find acceptable or unacceptable. So obscenity is not a matter of individual or personal taste or how the 017 7/2 depends on what the average person of the community as a whole would think 2 07/ d of it. we e , vi [In addition to considering the viewpoint of a normal person, you can 226 4 determine whether the material has prurient appeal by considering the sexual 16. Nodefined deviant group, such as sadomasochists. You must interest of a clearly material strikes an individual juror – whether something is obscene or not find beyond a reasonable doubt that the material appeals to the prurient interest of such a group.] Second, you must decide whether the material depicts or describes, in a patently offensive way, sexual conduct such as ultimate sexual acts or masturbation, excretory functions, or lewd exhibition of the genitals. But you must not judge the material by your own standards. You must judge the material by contemporary community standards and decide whether the 332 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 359 of 677 material is more than the generally accepted limits of public tolerance and is clearly offensive. I emphasize that whether material appeals to a prurient interest or whether it is patently offensive must be judged by contemporary community standards, not by how the material affects you personally. You must consider the material in the same way that an average person in the community, with a normal attitude toward and interest in sex would consider it. Contemporary community standards are those accepted by the community as a whole; in other words, what society at large or people in 017 7/2 believe the community should accept or refuse to accept. 2 07/ lacks serious literary, Third, you must decide whether thed we material vie artistic, political or scientific value. ,An item may portray explicit sexual conduct 226 4 and still have serious 16- in one or more of these areas. You must decide value . No in this case has such value. The ideas represented in a whether the material general will accept. It does not include what some groups in the community work do not need majority approval to be worthy of protection. So for this decision, you should not use contemporary community standards. Instead, you must objectively decide whether a reasonable person considering the material as a whole would find it has or does not have serious literary, artistic, political, or scientific value. The Government must prove all three things before you can decide the material is obscene. If any one of those things is not proved, then the material 333 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 360 of 677 is not obscene within the meaning of the law. To use the mail is to act so that something will normally be sent through the mail in the normal course of business or reasonably foresee that the mail will be used. ANNOTATIONS AND COMMENTS 18 U.S.C. § 1461 provides: Every obscene, lewd, lascivious, indecent, filthy or vile article, matter, thing, device, or substance . . . Is declared to be nonmailable matter and shall not be conveyed in the mails [and] . . . 017 7/2 Whoever knowingly uses the mails for the mailing, carriage in the /2 mails, or delivery of anything declared . . . to be07 nonmailable [shall be guilty of an offense against the United States]. ed w vie and applicable fine. Maximum Penalty: Ten (10) years imprisonment 26, -42 A Defendant charged under 18 U.S.C. § 1461 has the requisite scienter if the Defendant 16 knows of the nature o. character of the allegedly obscene material. Hamling v. United and States, 418 U.S. N 94 S. Ct. 2887, 41 L. Ed. 2d 590 (1974). See United States v. 87, Johnson, 855 F.2d 299, 306 (6th Cir. 1988); United States v. Friedman, 528 F.2d 784 (10th Cir. 1976) vacated by, 430 U.S. 925, 97 S. Ct. 1541, 51 L. Ed. 2d 769 (1977); United States v. Grassi, 602 F.2d 1192, 1195 n.3 (5th Cir. 1979); United States v. Groner, 494 F.2d 499 (5th Cir.), cert. denied, 419 U.S. 1010, 95 S. Ct. 331, 42 L. Ed. 2d 285 (1975). It is not necessary to prove that the Defendant knew the material was obscene under legal standards. United States v. Schmeltzer, 20 F.3d 610, 612 (5th Cir. 1994), cert. denied, 513 U.S. 1041, 115 S. Ct. 634, 130 L. Ed. 2d 540 (1994); United States v. Hill, 500 F.2d 733, 740 (5th Cir. 1974), cert. denied, 420 U.S. 952, 95 S. Ct. 1336, 43 L. Ed. 2d 430 (1975). The only questions as to intent are whether the Defendant knowingly used (or caused to be used) the mail for the transmission or delivery of the material, and whether the Defendant was aware of the nature of the material sent through the mail. See United States v. Shumway, 911 F.2d 1528 (11th Cir. 1990); Spillman v. United States, 413 F.2d 527 (9th Cir. 1969). A specific intent to mail something known to be obscene is not required. Hamling v. United States, 418 U.S. 87, 94 S. Ct. 2887, 41 L. Ed. 2d 590 (1974). 334 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 361 of 677 The “statute’s intent is to punish for the use of the mails, not the mere possession of obscene materials”. Therefore, the prohibition in Section 1461 against knowingly using the mail for obscene materials applies to “persons who order obscene materials for personal use, and thus cause the mail to be used for delivery of those materials.” United States v. Carmack, 910 F.2d 748 (11th Cir. 1990). The three-part test used in this instruction for determining whether a matter is legally obscene is set forth in Miller v. California, 413 U.S. 15, 93 S. Ct. 2607, 37 L. Ed. 2d 419 (1973). See United States v. Bagnell, 679 F.2d 826, 835-37 (11th Cir. 1982) (applying Miller test for obscenity), cert. denied, 460 U.S. 1047, 103 S. Ct. 1449, 75 L. Ed. 2d 803 (1983). Although the first two prongs of the Miller test are to be judged by the community standards, the third prong is to be objective - - a “reasonable person” standard. See Pope v. Illinois, 481 U.S. 497, 500-01, 107 S. Ct. 1918, 1921, 95 L. Ed. 2d 439 (1987). d we e , vi 226 4 16. No 335 0 017 7/2 7/2 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 362 of 677 56 Interstate Transportation of Obscene Material by Common Carrier 18 U.S.C. § 1462 It’s a Federal crime to use a common carrier to send obscene materials in interstate commerce. The Defendant can be found guilty of this crime only if all the following facts are proved beyond a reasonable doubt: (1) the Defendant knowingly used or caused to be used a common carrier to transport in interstate commerce certain materials described in the indictment; (2) when the materials were transported, the Defendant knew the general sexual nature of the material’s content; and (3) the material was legally obscene. d we e , vi 226 017 7/2 7/2 0 A “common carrier” includes any person or corporation whose business 4 16. No To send something in "interstate commerce" means to move it from one is transporting goods and commodities for members of the public. state into another state. The Government doesn’t have to prove that the Defendant knew the material was legally obscene. It only has to prove that the Defendant knew the general sexual nature of the material. So if you find beyond a reasonable doubt that the Defendant sent the material by common carrier and knew what it was, in other words, knew about the material’s general sexual nature, and if you find that the material was 336 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 363 of 677 legally obscene, as I’ll shortly define that word for you, then you may find that the Defendant knew the material was obscene. Freedom of expression is a constitutional right that is fundamental to our system, and we all enjoy it. It has contributed much to the development and well-being of our free society. In exercising this right, sex may be portrayed and the subject of sex may be discussed freely and publicly. Material may not be condemned merely because it contains passages or sequences that describe or depict sexual activity. But the constitutional right to free expression doesn’t extend to legally obscene material. 017 7/2 7/2 To prove beyond a reasonable doubt that material is legally obscene, the Government must prove three things: d we (1) e , vi 6 that 22 it depicts or describes sexual 4 conduct in a patently offensive way; 16. (2) No (3) 0 that the material predominantly appeals to prurient interest; and that it lacks serious literary, artistic, political, or scientific value. First, you must view the material as a whole, keeping in mind the intended and probable audience, and decide whether the material’s predominant theme or purpose is an appeal to the prurient interest of an average person of the community as a whole [or the prurient interest of members of a deviant sexual group, as the case may be]. An appeal to “prurient” interest is an appeal to a morbid, degrading, and 337 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 364 of 677 unhealthy interest in sex, not just an ordinary interest. Viewing the material as a whole for the “predominant theme or purpose of the material” means looking for the main or principal focus of the whole work based on its total effect, not on the focus of incidental themes or isolated passages or sequences. To decide whether the material appeals to a morbid, degrading, or unhealthy interest in sex of the “average person of the community as a whole,” you must consider the contemporary community standards that would be applied by an average person with an ordinary attitude toward and interest in 017 2 Contemporary community standards are set27/the community as a by 07/ in general currently find d whole; in other words, what society at large or people we ie acceptable or unacceptable. 6, v 422 -a matter of individual or personal taste or how the So obscenity is16 not . o material strikesN individual juror – whether something is obscene or not an sex. depends on what the average person of the community as a whole would think of it. [In addition to considering the viewpoint of a normal person, you can determine whether the material has prurient appeal by considering the sexual interest of a clearly defined deviant group, such as sadomasochists. You must find beyond a reasonable doubt that the material appeals to the prurient interest of such a group.] 338 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 365 of 677 Second, you must decide whether the material depicts or describes, in a patently offensive way, sexual conduct such as ultimate sexual acts or masturbation, excretory functions, or lewd exhibition of the genitals. But you must not judge the material by your own standards. You must judge the material by contemporary community standards and decide whether the material exceeds the generally accepted limits of public tolerance and is clearly offensive. I emphasize that whether material appeals to a prurient interest or whether it is patently offensive must be judged by contemporary community 017 2 the material in the same way that an average person7/ the community, with in 2 07/consider it. a normal attitude toward and interest in sex d we would vie Contemporary community , standards are those accepted by the 226 4 community as a whole; in other words, what society at large or people in 16. No It does not include what some groups in the community general will accept. standards, not by how the material affects you personally. You must consider believe the community should accept or refuse to accept. Third, you must decide whether the material lacks serious literary, artistic, political or scientific value. An item may portray explicit sexual conduct and still have serious value in one or more of these areas. You must decide whether the material in this case has such value. The ideas represented in a work do not need majority approval to be worthy of protection. So for this decision, you should not use contemporary community 339 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 366 of 677 standards. Instead, you must objectively decide whether a reasonable person considering the material as a whole would find it has or does not have serious literary, artistic, political, or scientific value. The Government must prove all three things before you can decide the material is obscene. If any one of those things is not proved, then the material is not obscene within the meaning of the law. To “cause” the common carrier to be used is to do an act with knowledge that the use of the common carrier will follow in the ordinary course of business or where that use can reasonably be foreseen. ANNOTATIONS AND COMMENTS 18 U.S.C. § 1462 provides: d we e , vi 226 017 7/2 7/2 0 Whoever . . . knowingly uses any express company or other common carrier . . . for carriage in interstate . . . commerce - - 4 16o.be obscene . . book, against the United States]. N(a) anyguilty of an .offense pamphlet, picture [or] motion-picture film [shall Maximum Penalty: Ten (10) years imprisonment and applicable fine. The scienter requirement for this offense is the same as for 18 U.S.C. § 1461: It is not necessary to prove that the Defendant knew the material was obscene under legal standards. (See Annotations and Comments following Offense Instruction 55, supra.) 340 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 367 of 677 57 Interstate Transportation of Obscene Material (for Purpose of Sale or Distribution) 18 U.S.C. § 1465 It’s a Federal crime to transport obscene materials in interstate commerce for the purpose of selling or distributing them. The Defendant can be found guilty of this crime only if all the following facts are proved beyond a reasonable doubt: (1) the Defendant knowingly transported the materials described in the indictment in interstate commerce; 017 7/2 2 (3) when the materials were 07/ transported, the d Defendant knew the general sexual nature of the we material’s content; and e , vi 6 (4) the material 2 legally obscene. 2 was 4 16-in "interstate commerce" is to move it from one state . To move something No (2) the Defendant transported the materials to sell or distribute them; into another state. To transport material with “the purpose to sell or distribute” is to move the material with the intent to transfer the material to someone else, even if no money is involved. [You may presume that the Defendant intended to sell or distribute the material if the material comprised two or more of any article of the kind described in the indictment; or a combined total of five publications or articles of the kind described in the indictment. 341 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 368 of 677 But that presumption may be overcome or outweighed by other evidence.] The Government doesn’t have to prove that the Defendant knew the material was legally obscene. It only has to prove that the Defendant knew the general sexual nature of the material. So if you find beyond a reasonable doubt that the Defendant moved the material in interstate commerce and knew about the material’s general sexual nature, and if you find that the material was legally obscene, as I’ll shortly 017 7/2 7/2 define that word for you, then you may find that the Defendant knew the material was obscene. d we 0 Freedom of expression is a constitutional right that is fundamental to our e , vi 226 system, and we all enjoy it. It has contributed much to the development and 4 16. No may be discussed freely and publicly. Material may not and the subject of sex well-being of our free society. In exercising this right, sex may be portrayed be condemned merely because it contains passages or sequences that describe or depict sexual activity. But the constitutional right to free expression doesn’t extend to legally obscene material. To prove beyond a reasonable doubt that material is legally obscene, the Government must prove three things: (1) that the material predominantly appeals to prurient interest; (2) that it depicts or describes sexual 342 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 369 of 677 conduct in a patently offensive way; and (3) that it lacks serious literary, artistic, political, or scientific value. First, you must view the material as a whole, keeping in mind the intended and probable audience, and decide whether the material’s predominant theme or purpose is an appeal to the prurient interest of an average person of the community as a whole [or the prurient interest of members of a deviant sexual group, as the case may be]. An appeal to “prurient” interest is an appeal to a morbid, degrading, and 017 7/2 Viewing the material as a whole for the “predominant theme or purpose 2 07/ focus of the whole work of the material” means looking for the main ed w or principal ie based on its total effect, not on , v focus of incidental themes or isolated the 226 4 passages or sequences. 16 o. Nwhether the material appeals to a morbid, degrading, or To decide unhealthy interest in sex, not just an ordinary interest. unhealthy interest in sex of the “average person of the community as a whole,” you must consider the contemporary community standards that would be applied by an average person with an ordinary attitude toward and interest in sex. Contemporary community standards are those accepted by the community as a whole; in other words, what society at large or people in general will accept. It does not include what some groups in the community 343 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 370 of 677 believe the community should accept or refuse to accept. But customs and standards change. So the community as a whole may decide to accept things that weren’t acceptable before. What matters is what is acceptable now. So obscenity is not a matter of individual or personal taste or how the material strikes an individual juror – whether something is obscene or not depends on what the average person of the community as a whole would think of it. [In addition to considering the viewpoint of a normal person, you can 017 7/2 interest of a clearly defined deviant group, such as sadomasochists. You must 2 07/ appeals to the prurient d find beyond a reasonable doubt that the material we e , vi interest of such a group.] 226 4 Second, you must decide whether the material depicts or describes, in 16. No way, sexual conduct such as ultimate sexual acts or a patently offensive determine whether the material has prurient appeal by considering the sexual masturbation, excretory functions, or lewd exhibition of the genitals. But you must not judge the material by your own standards. You must judge the material by contemporary community standards and decide whether the material exceeds the generally accepted limits of public tolerance and is clearly offensive. I emphasize that whether material appeals to a prurient interest or whether it is patently offensive must be judged by contemporary community 344 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 371 of 677 standards, not by how the material affects you personally. You must consider the material in the same way that an average person in the community, with a normal attitude toward and interest in sex would consider it. Contemporary community standards are those accepted by the community as a whole; in other words, what society at large or people in general will accept. It does not include what some groups in the community believe the community should accept or refuse to accept. Third, you must decide whether the material lacks serious literary, artistic, political or scientific value. An item may portray explicit sexual conduct 017 7/2 whether the material in this case has such value. The ideas represented in a 2 07/ protection. d work do not need majority approval to be worthy of we e , vi So for this decision, you should not use contemporary community 226 4 standards. Instead, you must objectively decide whether a reasonable person 16. No as a whole would find it has or does not have serious considering the material and still have serious value in one or more of these areas. You must decide literary, artistic, political, or scientific value. The Government must prove all three things before you can decide the material is obscene. If any one of those things is not proved, then the material is not obscene within the meaning of the law. 345 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 372 of 677 ANNOTATIONS AND COMMENTS 18 U.S.C. § 1465 provides: . . . [W]hoever knowingly transports [in interstate commerce] for the purpose of sale or distribution of any obscene . . . book, pamphlet, picture [or] film [shall be guilty of an offense against the United States]. The transportation as aforesaid of two or more copies of any publication or two or more of any article of the character described above, or a combined total of five such publications and articles, shall create a presumption that such publications or articles are intended for sale or distribution, but such presumption shall be rebuttable. Maximum Penalty: Five (5) years imprisonment and applicable fine. The scienter requirement for this offense is the same as for 18 U.S.C. § 1461: It is not necessary to prove that the Defendant knew the material was obscene under legal standards. 017 (See Annotations and Comments following Offense Instruction 55, supra.) 7/2 2 07/ d we e , vi 226 4 16. No 346 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 373 of 677 58.1 Obstruction of Justice: Omnibus Clause 18 U.S.C. § 1503 It’s a Federal crime to try to influence, obstruct, or impede the due administration of justice [corruptly] [by threats or force] [by any threatening letter or communication]. The Defendant can be found guilty of this crime only if all the following facts are proved beyond a reasonable doubt: (1) there was a proceeding before [this Court] [a United States Magistrate Judge of this Court] [a grand jury of this Court]; and (2) the Defendant [by threats or force] [by a threatening letter or communication] knowingly tried to influence, obstruct, or impede the due administration of justice in that [judicial] [grand jury] proceeding. d we e , vi 226 OR (2) 017 7/2 7/2 0 4 16o. Nthe Defendant knowingly and corruptly tried to influence, obstruct, or impede the due administration of justice in that [judicial] [grand jury] proceeding. To “influence, obstruct, or impede the due administration of justice” is to do something to sway or change or prevent any action likely to be taken in the [judicial] [grand jury] proceeding. [To act “corruptly” means to act voluntarily, deliberately, and dishonestly with the specific intent to sway, change, or prevent some action likely to be taken in the [judicial] [grand jury] proceeding]. 347 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 374 of 677 The Government does not have to prove that the [judicial] [grand jury] proceeding was in fact influenced or obstructed or impeded in any way. It only has to prove that the Defendant [corruptly] tried to influence, obstruct, or impede the due administration of justice [by threats of force] [by a threatening letter or communication], and that the natural and probable effect of the Defendant’s acts would be to sway, change, or prevent some action likely to be taken in the [judicial] [grand jury] proceeding. 017 7/2 7/2 ANNOTATIONS AND COMMENTS 18 U.S.C. § 1503(a) provides (in the omnibus clause): d we 0 Whoever . . . corruptly or by threats or force, or by any threatening letter or communication, influences, obstructs, or impedes, or endeavors to influence, obstruct, or impede, the due administration of justice [shall be guilty of an offense against the United States]. e , vi 226 4 16. No Maximum Penalty: In the case of a killing: Death or imprisonment for life if guilty of murder in the first degree; any term of years or for life if guilty of murder in the second degree; fifteen (15) years and/or a fine under Title 18 if guilty of voluntary manslaughter; or eight (8) years and/or a fine under Title 18 if guilty of involuntary manslaughter. In the case of an attempted killing or if the offense was committed against a petit juror and in which a class A or B felony was charged: twenty (20) years, a fine under Title 18, or both. In any other case: ten (10) years imprisonment and/or a fine under Title 18. An obstruction of justice charge under the omnibus clause of § 1503 must relate to a specific judicial or grand jury proceeding - - the “nexus” requirement. United States v. Aguilar, 515 U.S. 593, 115 S. Ct. 2357 (1995). See also United States v. Brenson, 104 F.3d 1267 (11th Cir. 1997) (Hancock, District Judge, sitting by designation). 348 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 375 of 677 58.2 Corruptly Influencing A Juror 18 U.S.C. § 1503 It’s a Federal crime for anyone to corruptly try to influence, intimidate, or impede any [grand] [petit] juror in any Federal Court. The Defendant can be found guilty of this crime only if all the following facts are proved beyond a reasonable doubt: (1) the person described in the indictment was a [grand] [petit] juror in this Court; (2) the Defendant tried to influence, intimidate or impede the juror in performing [his] [her] duties as a juror; [and] (3) the Defendant acted knowingly and corruptly[.] [; and] 017 [(4) the petit juror served as such in this Court when 7/2criminal it heard a [class A] [class B]7/2 felony 0 case.] d we a [grand] [petit] juror is to take To try to "influence, obstruct, orie , v impede" 226 some action to try to sway-the juror’s decision or change how the jury performs 4 16 . or prevent the jury from performing at all. The Government does not have to No prove that the Defendant succeeded in any way. The Government only has to prove that the Defendant tried to sway the juror or tried to change how the juror performed or tried to prevent the juror from performing at all. To act "corruptly" is to act knowingly and dishonestly for a wrongful purpose with the specific intent to subvert or undermine the integrity of the court proceeding in which the juror served. [A class A felony is any federal criminal offense punishable by life imprisonment.] 349 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 376 of 677 [A class B felony is any federal criminal offense punishable by up to 25 years.] ANNOTATIONS AND COMMENTS 18 U.S.C. § 1503(a) provides: Whoever corruptly . . . endeavors to influence, intimidate, or impede any grand or petit juror . . . in the discharge of his duty [shall be guilty of an offense against the United States]. Maximum Penalty: In the case of a killing: Death or imprisonment for life if guilty of murder in the first degree; any term of years or for life if guilty of murder in the second degree; fifteen (15) years and/or a fine under Title 18 if guilty of voluntary manslaughter; or eight (8) years and/or a fine under Title 18 if guilty of involuntary manslaughter. 017 7/2 In the case of an attempted killing or if the offense was committed 2 against a petit juror and in which a class A or B felony was charged: 07/ or both. twenty (20) years, a fine underd we Title 18, vie In any other case:,ten (10) years imprisonment and/or a fine under Title 18. 226 4 16- included in order to comply with Apprendi v. New Jersey, . The optional Fourth element is Nowhere the indictment alleges facts triggering the enhanced penalty 530 U.S. 466 (2000) under the statute. Class A and class B felonies are defined in 18 U.S.C. § 3581. 350 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 377 of 677 58.3 Threatening a Juror 18 U.S.C. § 1503 It’s a Federal crime for anyone to try to influence, intimidate, or impede any [grand] [petit] juror in Federal Court using [threats or force] [any threatening letter or communication]. The Defendant can be found guilty of this crime only if all the following facts are proved beyond a reasonable doubt: (1) the person described in the indictment was a [grand] [petit] juror in this Court; (2) the Defendant tried to influence, intimidate, or impede the juror using [threats or force] [a threatening letter or communication]; [and] 017 7/2it heard [(4) the petit juror served in this Court 2 7/ when a [class A] [class B] felonyd 0 criminal case.] e ew a [grand] [petit] juror is to take To try to "influence, obstruct, ori impede" 6, v 2 some action to try and sway the juror’s decision or change how the juror -42 .the 6 from performing at all. The Government does not o 1 juror performs or prevent N (3) the Defendant did so knowingly[.] [; and] have to prove that the Defendant succeeded in any way. The Government only has to prove that the Defendant tried to sway the juror or tried to change how the juror performed or tried to prevent the juror from performing at all. [A class A felony is any federal criminal offense punishable by life imprisonment.] [A class B felony is any federal criminal offense punishable by up to 25 years.] 351 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 378 of 677 ANNOTATIONS AND COMMENTS 18 U.S.C. § 1503(a) provides: Whoever . . . by threats or force, or by any threatening letter or communication, endeavors to influence, intimidate, or impede any grand or petit juror . . . in the discharge of his duty [shall be guilty of an offense against the United States]. Maximum Penalty: In the case of a killing: Death or imprisonment for life if guilty of murder in the first degree; any term of years or for life if guilty of murder in the second degree; fifteen (15) years and/or a fine under Title 18 if guilty of voluntary manslaughter; or eight (8) years and/or a fine under Title 18 if guilty of involuntary manslaughter. In the case of an attempted killing or if the offense was committed against a petit juror and in which a class A or B felony was charged: twenty (20) years, a fine under Title 18, or both. 017 7/2 7/2 In any other case: ten (10) years imprisonment and/or a fine under Title 18. d we 0 The optional Fourth element is included in order to comply with Apprendi v. New Jersey, 530 U.S. 466 (2000) where the indictment alleges facts triggering the enhanced penalty under the statute. e , vi 226 4 16. No Class A and class B felonies are defined in 18 U.S.C. § 3581. 352 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 379 of 677 59.1 Killing a Witness 18 U.S.C. § 1512(a)(1)(A) It’s a Federal crime to kill or try to kill a witness to prevent the the witness from attending or testifying in any proceeding in this Court. The Defendant can be found guilty of this crime only if all the following facts are proved beyond a reasonable doubt: (1) the person described in the indictment was [a witness] [scheduled to be a witness] in this Court; (2) the Defendant [killed] [tried to kill] the witness; and (3) the Defendant acted knowingly with the intent to prevent the witness from attending or testifying at a proceeding in this Court. e , vi 226 ANNOTATIONS AND COMMENTS d we 017 7/2 7/2 0 4 16o. Whoever kills or attempts to kill another person, with intent to N(A) prevent the attendance or testimony of any person in an 18 U.S.C. § 1512(a)(1)(A) provides: official proceeding [shall be guilty of an offense against the United States]. Maximum Penalty: For a killing, the punishment provided in 18 U.S.C. 1111 and 1112. For an attempt to murder or the use or attempted use of physical force against any person, imprisonment for not more than thirty (30) years. For a threat of use of physical force against any person, imprisonment not more than twenty (20) years. 353 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 380 of 677 59.2 Tampering with a Witness 18 U.S.C. § 1512(b)(1) It’s a Federal crime to [use intimidation] [use physical force] [threaten another person] with intent to [influence] [delay] [prevent] the testimony of a witness in any proceeding in this Court. The Defendant can be found guilty of this crime only if all the following facts are proved beyond a reasonable doubt: (1) the person described in the indictment was [a witness] [scheduled to be a witness] in this Court; (2) the Defendant used [intimidation] [physical force] [threats] against that person; and (3) the Defendant acted knowingly and intended to [influence] [delay] [prevent] the witness’s testimony. 017 7/2 7/2 0 ed say or do something that To "intimidate" someone is to intentionally w vie would cause an ordinary person ,to fear bodily harm. But the Government 226 -4 doesn’t have to prove 6 the witness was actually frightened or that the 1 that . No was likely to cause terror, panic, or hysteria. Defendant’s behavior To act with intent to "influence" a witness’s testimony means to try to get the witness to change or color or shade the witness’s testimony in some way. But the Government doesn’t have to prove that the witness's testimony was actually changed in any way. ANNOTATIONS AND COMMENTS 18 U.S.C. § 1512(b)(1) provides: 354 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 381 of 677 Whoever knowingly uses intimidation or physical force, or threatens . . . another person, or attempts to do so, . . . with intent to - (1) influence, delay, or prevent the testimony of any person in an official proceeding [shall be guilty of an offense against the United States]. Maximum Penalty: Twenty (20) years imprisonment, applicable fine, or both. “Official proceeding” is defined in 18 U.S.C. § 1515(a)(1). Pursuant to 18 U.S.C. § 1515(a)(6), the term “corruptly persuades” does not include conduct which would be misleading conduct but for a lack of a state of mind. In Arthur Andersen LLP v. United States, 544 U.S. 696 (2005), the United States Supreme Court interpreted § 1512(b)(2) and stated that to constitute “corrupt persuasion”, there must be proof that the defendant’s conduct was wrongful, immoral, depraved or evil. The defendant must have also acted knowingly; that is, with awareness, understanding, or consciousness. 017 7/2 2 [While there is no pattern instruction for 18 U.S.C. § 1512(b)(3), it is important to note that 07/ 1512(b)(2), section (b)(3) the Eleventh Circuit has reiterated its holding that, unlike section ed winitiated or that an official proceeding be does not require that a federal investigatione vi be ongoing. United States v. Ronda, 455, F.3d 1273, 1288 (11th Cir. 2006). Thus, Arthur 6 Andersen is irrelevant to section 22 1512(b)(3).] 4 16- F.2d 1420 (11th Cir. 1992), the Eleventh Circuit confirmed . In United States v. Moody, 977 No may also be prosecuted under section 1503. that witness tampering Additionally, the Court stated that there is a “nexus” requirement between the “persuasion” and a particular proceeding. 355 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 382 of 677 60 False Statement in Application and Use of Passport 18 U.S.C. §1542 It’s a Federal crime to knowingly and willfully make a false statement in an application for a United States passport. The Defendant can be found guilty of this crime only if all the following facts are proved beyond a reasonable doubt: (1) the Defendant made a false statement in an application for a United States passport; (2) the Defendant made the statement intending to get a United States passport for [[his] [her] own use] [someone else’s use]; (3) the Defendant acted knowingly and willfully[.] [and] 017 international [(4) the Defendant did so [to facilitate an act of 7/2crime].] 2 terrorism] [to facilitate a drug-trafficking 07/ d A statement is false if it was untrue when made, and the person making we e , vi it knows it is untrue. 226 -4 [To “facilitate” . 16 simply means to help or further the accomplishment an act No of that act.] [An “act of international terrorism” means a criminal act that is dangerous to human life, (2) appears to be intended to intimidate or coerce a civilian population, or to influence the policy of a government by intimidation or coercion, or to affect the conduct of a government by assassination or kidnapping, and (3) occurs outside the United States or transcends national boundaries in terms of the means by which it is accomplished, the persons intended to be intimidated or coerced, or the locale in which the perpetrator 356 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 383 of 677 operates or seeks asylum.] [A drug-trafficking crime” means any felony punishable under the Controlled Substances Act, 21 U.S.C. § 801 et seq.] ANNOTATIONS AND COMMENTS 18 U.S.C. §1542 (first two paragraphs) provides: Whoever willfully and knowingly makes any false statement in an application for passport with intent to induce or secure the issuance of a passport under the authority of the United States, either for his own use or the use of another, contrary to the laws regulating the issuance of passports or the rules prescribed pursuant to such laws; or 017 7/2 7/2 Whoever willfully and knowingly uses or attempts to use, or furnishes to another for use any passport the issue of which was secured in any way by reason of any false statement d we 0 The optional Fourth element is included in order to comply with Apprendi v. New Jersey, 530 U.S. 466 (2000) where the indictment alleges facts triggering the enhanced penalty under the statute. ve ,335i (1941); U.S. v. O’Bryant, 775 F2d 1528, 1535 See Browder v. United States, 312 26 U.S. 42 (11 Cir. 1985)(“Section 1542-proscribes ‘willfully and knowingly’ making a false statement in a passport application.16 crime is complete when one makes a statement one knows The o. is untrue to procure a passport.”) N th 357 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 384 of 677 61 Possession or Use of False Visa 18 U.S.C. § 1546(a) (First Paragraph) It’s a Federal crime to knowingly [possess] [use] a false or counterfeit visa or other document required [for entry into] [as evidence of an authorized stay or employment in] the United States. The Defendant can be found guilty of this crime only if all the following facts are proved beyond a reasonable doubt: (1) the Defendant knowingly [possessed] [used] [tried to use] a[n] [immigrant or nonimmigrant visa] [permit] [border-crossing card] [alienregistration receipt card] required [for entry into] [as evidence of an authorized stay or employment in] the United States, as charged; [and] 017 7/2 7/2 (2) [(3) 0 ed the [immigrant or The Defendant kneww ie that nonimmigrant 6, v [permit] [border-crossing visa] 2 card] [alien-registration receipt card] [other -42[had been forged, counterfeited, document] . 16 altered, or falsely made] [had been procured by o Nmeans of a false claim or statement][.] [;and] intended to [help an act of international terrorism] [help commit a drug-trafficking crime].] A “false document required to enter or stay in the United States” is an immigrant or nonimmigrant visa, permit, border-crossing card, or alienregistration receipt card – required for entry into or as evidence of an authorized stay or employment in the United States – that has been forged, counterfeited, altered, or falsely made. To “use” a document is to show it to someone else. 358 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 385 of 677 [An “act of international terrorism” means a criminal act that’s dangerous to human life and apparently intended to intimidate or coerce a civilian population, influence the policy of a government by intimidation or coercion, or affect the conduct of a government by assassination or kidnapping. The act must occur outside the United States or transcend national boundaries and affect the United States because of the way it’s carried out, the people targeted, or the place where the perpetrator operates or seeks asylum.] [A “drug-trafficking crime” means any felony punishable under the Controlled Substances Act, 21 U.S.C. § 801 et seq.] ANNOTATIONS AND COMMENTS d we 18 U.S.C. § 1546(a) (first paragraph) provides: e , vi 226 017 7/2 7/2 0 Whoever knowingly . . . utters, uses [or] attempts to use . . . 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, knowing it to be forged, counterfeited, altered, or falsely made, or to have been procured by means of any false claim or statement [shall be guilty of an offense against the United States]. 4 16. No Maximum Penalty: Twenty-Five (25) years imprisonment and applicable fine if committed to facilitate international terrorism; twenty (20) years imprisonment and applicable fine if committed to facilitate a drug trafficking crime; ten (10) years and applicable fine for first or second offense. The optional Third element is included in order to comply with Apprendi where the indictment alleges facts triggering the enhanced penalty under the statute. The definition of “act of intentional terrorism” is taken from 18 U.S.C. § 2331. The definition of “drug trafficking crime” is taken from 18 U.S.C. § 929. 359 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 386 of 677 62 Involuntary Servitude and Peonage 18 U.S.C. §§ 1581 and 1584 It’s a Federal crime to wilfully hold another person in involuntary servitude. The Defendant can be found guilty of this crime only if all the following facts are proved beyond a reasonable doubt: (1) the Defendant kept [person’s name] in a condition of involuntary servitude; (2) Defendant kept that person for a substantial or significant amount of time; [and] (3) the Defendant acted knowingly and willfully[.] [; and] 017 7/2 labor or service for 2 “Involuntary servitude" means forced or compulsory 07/ d someone else’s benefit that a person unwillingly performs because of the use we e , vi legal process, or because of the use or threat of coercion through law or the 226 4 or threat of physical. restraint or physical injury. 16No It makes no difference whether the person initially voluntarily agreed to [(4) the Defendant compelled the involuntary servitude in order to satisfy a real or imagined debt. perform the work or service. And it doesn’t matter whether a person is paid a salary or a wage. What matters is whether the person did the work willingly at all times. If a person begins work willingly and later wants to stop but is forced to continue because another person uses or threatens to use some kind of coercion or restraint or cause physical injury, the service becomes involuntary. So even if the person is paid, the service is involuntary if the person is 360 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 387 of 677 forced to work against the person’s will by the use of threats or coercion. But the Government must prove that the Defendant knowingly and willfully used or threatened to use coercion and caused the person to reasonably believe that there was no way to avoid continuing to work. Legally, servitude becomes involuntary when coercion is sufficient to completely overcome the will of an ordinary person who has the same general station in life as the victim and causes the victim to believe that there is no reasonable means of escape and no choice but to continue working for the Defendant. 017 7/2 7/2 To decide whether a person reasonably believed there was no way to avoid continued service, you must consider: • • • • d we 0 the method or form of coercion threatened or used in relation to the person’s particular circumstances and conditions; e , vi 226 4 16o. Nthe person’s the person’s physical and mental condition; age, education, experience, and intelligence; and training, any reasonable means or chances the person may have had to escape. The Government must also prove that the person was forced to work for some significant or substantial amount of time. It doesn’t have to be a specific length of time, just some length that is more than trivial. 361 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 388 of 677 ANNOTATIONS AND COMMENTS 18 U.S.C. §§ 1581 and 1584 provide: Whoever holds or returns any person to a condition of peonage [shall be guilty of an offense against the United States]. (§ 1581) Whoever knowingly and willfully holds to involuntary servitude . . . any other person for any term [shall be guilty of an offense against the United States]. (§ 1584) Maximum Penalty: Twenty (20) years imprisonment, a fine under Title 18, or both (as to each section). If the offense results in death or involves kidnapping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill, the penalty is enhanced to life imprisonment under both sections. The reference to compulsion "by the use or threatened use of physical or legal coercion" incorporates the United States Supreme Court's holding in United States v. Kozminski, 487 U.S. 931 (1988). 017 7/2 /2 The committee believes that the general definition of 07 “willfully” in Basic Instruction 9.1A d would usually apply to this crime. we ie If the indictment alleges one of the 6, v that would enhance the possible maximum factors 2 punishment applicable to the offense, that factor should be stated as an additional element -42 of Apprendi v. New Jersey, 530 U.S. 466 (2000). In in the instructions under the principle . 16 such case it may also be appropriate to give a lesser included offense instruction, Special No Instruction 10. 362 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 389 of 677 63 Sex Trafficking of Children or by Force, Fraud, or Coercion 18 U.S.C. § 1591(a)(1) It’s a Federal crime for anyone, in or affecting commerce, to [recruit] [entice] [harbor] [transport] [provide] [obtain] or [maintain] by any means a person, knowing or in reckless disregard of the fact that [means of force, threats of force, fraud, or coercion will be used to cause the person to engage in a commercial sex act] [the person has not attained the age of 18 years and will be caused to engage in a commercial sex act]. The Defendant can be found guilty of this crime only if all the following 017 7/2 the Defendant knowingly [recruited] [enticed] 2 [harbored] [transported] [provided] [obtained] or 07/ named in d [maintained] by any means [individual we the indictment]; e , vi that the Defendant did so knowing or in reckless 226 4 disregard of the fact that [means of force, 16- of force, fraud, coercion, or any o. Nthreats combination of such means would be used to facts are proved beyond a reasonable doubt: (1) (2) cause the person to engage in a commercial sex act] [the person had not attained the age of 18 years and would be caused to engage in a commercial sex act]; and (3) that the Defendant’s acts were in or affected [interstate] [foreign] commerce. “Commercial sex act” means any sex act, on account of which anything of value is given to or received by any person. In determining whether the Defendant’s conduct was “in or affected interstate or foreign commerce,” you may consider whether the Defendant 363 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 390 of 677 used means or facilities of interstate commerce, such as telephones, the internet, or hotels that serviced interstate travelers, or whether his conduct substantially affected interstate commerce by virtue of the fact that he purchased items that had moved in interstate commerce. [If the Government proves beyond a reasonable doubt that the defendant had a reasonable opportunity to observe the person recruited, enticed, harbored, transported, provided, obtained, or maintained, then the Government does not have to prove that the defendant knew that the person had not attained the age of 18 years.] 017 7/2 (A) threats of serious harm to or physical 2 restraint against any person; 07/ d we intended to (B) any scheme, plan, or pattern vie cause a person, to believe that failure to 6 perform an 2 would result in serious 2 act harm 6-4 physical restraint against any to or . 1 or o Nperson; [“Coercion” means: (C) the abuse or threatened abuse of law or the 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.] [“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 364 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 391 of 677 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.] ANNOTATIONS AND COMMENTS 18 U.S.C. § 1591(a) provides: Whoever knowingly–(1) In or affecting interstate or foreign commerce, or within the special maritime and territorial jurisdiction of the United States, recruits, entices, harbors, transports, provides, obtains, or maintains by any means a person; . . . knowing, or in reckless disregard of the fact, that means of force, threats of force, fraud, coercion described in subsection (e)(2), or any combination of such means will be used to cause the person to engage in a commercial sex act, or that the person has not attained the age of 18 years and will be caused to engage in a commercial sex act, shall be punished as provided in subsection (b). d we 017 7/2 7/2 0 Maximum Penalty: Life imprisonment and applicable fine. Minimum sentence is fifteen (15) years imprisonment and applicable fine if offense involves a child under age of 14 or force, fraud, or coercion. Minimum sentence is ten (10) years imprisonment and applicable fine if offense involves a child between the ages of 15 and 17. 18 U.S.C. § 3559 provides for a mandatory life sentence for repeated sex offenses against children. e , vi 226 4 16. No 18 U.S.C. § 2260A provides for an enhanced sentence for persons required to register as sex offenders. 18 U.S.C. § 3559 provides for mandatory life imprisonment for repeated sex offenses against children. 18 U.S.C. § 1594(a) provides that whoever attempts to violate Section 1591 shall be punishable in the same manner as a completed violation of that section. 18 U.S.C. § 1594(c) provides that whoever conspires with another to violate Section 1591 shall be fined or sentenced to a term of imprisonment of any term of years or for life. 18 U.S.C. § 1591(c) states: “In a prosecution under subsection (a)(1) in which the defendant had a reasonable opportunity to observe the person so recruited, enticed, harbored, transported, provided, obtained or maintained, the Government need not prove that the defendant knew that the person had not attained the age of 18 years.” The term “coercion” is defined at 18 U.S.C. § 1591(e)(2). 365 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 392 of 677 See United States v. Roberts, 174 Fed. Appx. 475, 478-79 (11th Cir. 2006) (sufficient evidence that defendant’s activities were "in or affecting interstate commerce" based upon defendant’s use of a credit card to pay for his trip with the travel agency, his decision to meet the prostitutes at a hotel that served interstate travelers, and the fact that the prostitutes were supposed to move in international commerce). See United States v. Strevell, 185 Fed. Appx. 841, 845 (11th Cir. 2006) (sufficient evidence that defendant’s activities were “in or affecting interstate and foreign commerce” based upon defendant’s use of two means of interstate commerce in attempting to obtain and entice a minor for sex: “[h]e made numerous phone calls from Philadelphia to Miami to order to arrange his sexual encounter in Costa Rica [and] . . . he attempted to board a plane from Miami to Costa Rica in order to meet one, if not two, 14-year-old prostitutes.”). See United States v. Evans, 476 F.3d 1176, 1179 (11th Cir. 2007) (the defendant’s "conduct substantially affected interstate commerce" based on his "use of hotels that served interstate travelers and distribution of condoms that traveled in interstate commerce"). d we e , vi 226 4 16. No 366 0 017 7/2 7/2 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 393 of 677 64 False Declaration Before a Grand Jury 18 U.S.C. § 1623(a) It’s a Federal crime [to make a false statement under oath] [to use a false document] while appearing as a witness before a Federal grand jury. The Defendant can be found guilty of this crime only if all the following facts are proved beyond a reasonable doubt: (1) the Defendant [gave testimony] [used the described record or document] while under oath as a witness before a Grand Jury of this Court; (2) the [testimony] [record or document] was false in one or more of the ways charged and concerned some material matter in the Grand Jury proceedings; and (3) the Defendant knew that [the testimony was false] [record or document was false] when it was [made] [used]. 017 7/2 7/2 0 ed knows it is untrue when given.] [Testimony is false if the person giving it w vie [A statement contained within a document is false if it is untrue when the 26, -42 using it knows it is untrue.] document is used and the person . 16 No statement] [Using a false document] isn’t a crime unless [Making a false the falsity concerns a material fact. A "material fact" is an important fact – not some unimportant or trivial detail. It must have the capacity or natural tendency to influence the Grand Jury's decision-making process or otherwise disrupt or impair the Grand Jury’s functioning. But the Government doesn’t have to prove that the Grand Jury was actually misled or influenced in any way by the false [statement] [record or 367 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 394 of 677 document]. You must consider the allegedly false [testimony] [record or document] in the context of the series of questions asked and answers given. The words used should be given their common and ordinary meaning unless the context clearly shows that both the questioner and the witness understood that a word or phrase had a different meaning. If a particular question could be understood in two different but reasonable ways, and that the Defendant truthfully answered the question in one of those ways, then the answer wouldn’t be false. Similarly, if the question 017 7/2 ways, and at least one way would be truthful, then the answer wouldn’t be 2 07/ d false. we e , vi 226 4 16. ANNOTATIONS AND COMMENTS No was clear, but the answer could be understood in two different but reasonable 18 U.S.C. § 1623(a) provides: Whoever under oath . . . in any proceeding before [any] grand jury of the United States knowingly makes any false material declaration or makes or uses any other information, including any book, paper, document, record, recording, or other material, knowing the same to contain any false material declaration [shall be guilty of an offense against the United States]. Maximum Penalty: Five (5) years imprisonment, applicable fine, or both. The materiality instruction is required by United States v. Gaudin, 515 U.S. 506, 115 S. Ct. 2310, 132 L. Ed. 2d 444 (1995) and United States v. Kramer, 73 F.3d 1067, 1074 (11th Cir. 1996). 368 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 395 of 677 65 Obstruction of Correspondence – Taking of Mail 18 U.S.C. § 1702 It’s a Federal crime for anyone to obstruct the delivery of mail by taking or removing it from the United States mail. The Defendant can be found guilty of this crime only if all the following facts are proved beyond a reasonable doubt: (1) the Defendant knowingly took mail [out of a post-office] [out of an authorized depository for mail matter] [from a letter or mail carrier] [that had been in the custody of any letter or mail carrier] before it was delivered to the person to whom it was addressed; and (2) the Defendant acted knowingly and intended to obstruct delivery. 017an authorized Mail is in the United States mail if it’s in a post-office, in 7/2 2 07/ depository, with a mail carrier, or if it has been in the custody of a mail carrier. d we "authorized depository for mail e A private mail box or receptacle is an , vi 226 matter." Mail hasn’t been-delivered until it has been taken from the depository 4 16 . by the addressee o someone acting for the addressee. N or To "obstruct delivery” is to take mail to prevent it from being delivered to the addressee. ANNOTATIONS AND COMMENTS 18 U.S.C. § 1702 provides: Whoever takes any letter, postal card, or package out of any postoffice or any authorized depository for mail matter, or from any letter or mail carrier, or which has been in any post-office or authorized depository, or in the custody of any letter or mail carrier, before it has been delivered to the person to whom it was directed, with design to obstruct the correspondence [shall be 369 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 396 of 677 guilty of an offense against the United States]. Maximum Penalty: Five (5) years imprisonment, applicable fine, or both. d we e , vi 226 4 16. No 370 0 017 7/2 7/2 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 397 of 677 66.1 Theft of Mail 18 U.S.C. § 1708 (First Paragraph) It’s a Federal crime to steal mail from the United States mail. The Defendant can be found guilty of this crime only if all the following facts are proved beyond a reasonable doubt: (1) the [letter] [package] [mail matter] described in the indictment was [in the United States mail] [in a post-office or post-office station] [in a letter box] [in a mail receptacle] [in a mail route] [in an authorized depository for mail matter] [with a letter or mail carrier]; and (2) the Defendant knowingly stole the mail. 017 of a mail depository, with a mail carrier, or if it has been placed in 2 custody 7/ the 2 07/ carrier. ed wis an "authorized depository for mail e A private mail box or mail receptacle , vi 26 matter." Mail hasn’t been-42 delivered until it has been taken from the depository 16 . someone acting for the addressee. by the addressee o N or Mail is in the United States mail if it’s in a post-office, in an authorized The word "steal" includes any act by which a person purposely takes property belonging to someone else without the owner's permission and with the intent to keep the property for that person’s own use or for any person other than the true owner. ANNOTATIONS AND COMMENTS 18 U.S.C. § 1708 (first paragraph) provides: Whoever steals, takes, or abstracts . . . from or out of any mail, post371 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 398 of 677 office, or station thereof, letter box, mail receptacle, or any mail route or other authorized depository for mail matter, or from a letter or mail carrier, any letter, postal card, package, bag, or mail [shall be guilty of an offense against the United States]. Maximum Penalty: Five (5) years imprisonment, applicable fine, or both. d we e , vi 226 4 16. No 372 0 017 7/2 7/2 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 399 of 677 66.2 Possession of Stolen Mail 18 U.S.C. § 1708 (Third Paragraph) It’s a Federal crime to possess stolen mail while knowing it is stolen. The Defendant can be found guilty of this crime only if all the following facts are proved beyond a reasonable doubt: (1) the [letter] [mail matter] described in the indictment was stolen from [the United States mail] [a post-office or post-office station] [a letter box] [a mail receptacle] [a mail route] [an authorized depository for mail matter] [a letter or mail carrier]; (2) the Defendant possessed the [letter] [mail matter] after it was stolen; and (3) the Defendant knew that the [letter] [mail matter] was stolen. d we 017 7/2 7/2 0 Mail is in the United States mail if it’s in a post-office, an authorized e , vi 226 depository, with a mail carrier, or if it has been in the custody of a mail carrier. 4 16. Mail hasn’to N been delivered until it has been taken from the depository A private mail box or mail receptacle is an "authorized depository for mail." by the addressee or a person acting on behalf of the addressee. Mail matter is "stolen" when it has been purposefully taken from [the United States mail] [a post-office or post-office station] [a letter box] [a mail receptacle] [a mail route] [an authorized depository for mail matter] [a letter or mail carrier] without permission and when the person taking the mail intends to keep it for that person’s own use of for any other person other than the mail’s addressee. The heart of the crime is the intentional possession of stolen mail. The 373 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 400 of 677 Government doesn’t have to prove who stole the mail. It also doesn’t have to prove whether the Defendant knew that the mail was stolen before it was delivered to the addressee. The Government only has to prove that the Defendant possessed the mail and knew it was stolen. ANNOTATIONS AND COMMENTS 18 U.S.C. § 1708 (third paragraph) provides: Whoever . . . unlawfully has in his possession, any letter . . . or mail, or any article or thing contained therein, which has been . . . stolen, taken, embezzled, or abstracted [from or out of any mail, post-office or station thereof, letter box, mail receptacle, or any mail route or other authorized depository for mail matter, or from a letter or mail carrier], knowing the same to have been stolen, taken, embezzled or abstracted [shall be guilty of an offense against the United States]. d we 017 7/2 7/2 0 Maximum Penalty: Five (5) years imprisonment, applicable fine, or both. e , vi 226 United States v. Hall, 632 F.2d 500 (5th Cir. 1980), the Government does not have to prove that the Defendant knew the mail matter had been stolen from the mail, only that it had been stolen. 4 16. No 374 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 401 of 677 67 Theft of Mail Matter by Postal Service Employee 18 U.S.C. § 1709 It’s a Federal crime for any Postal Service employee to embezzle any mail. The Defendant can be found guilty of this crime only if all the following facts are proved beyond a reasonable doubt: (1) the Defendant was a Postal Service employee at the time stated in the indictment; (2) the Defendant was entrusted with, or came into possession of, the mail matter described in the indictment, and that matter was intended to be conveyed by the United States mail; and 017 7if/2 reasonable person Mail matter is "intended to be conveyed by 7/2 a mail" 0 d who saw the item would think it was we something intended to be delivered e , vi through the mail. 226 4 [It doesn’t matter 6the item was a "decoy" that wasn’t actually meant to 1if . No as a reasonable person who saw the item would think it go anywhere as long (3) the Defendant knowingly embezzled the mail matter. was something intended to be delivered through the mail.] To "embezzle" means to wrongfully take someone else’s property after lawfully taking possession or control of it. ANNOTATIONS AND COMMENTS 18 U.S.C. § 1709 provides: Whoever, being a Postal Service officer or employee, embezzles any letter, postal card, package, bag, or mail, or any article or thing contained 375 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 402 of 677 therein entrusted to him or which comes into his possession intended to be conveyed by mail [shall be guilty of an offense against the United States]. Maximum Penalty: Five (5) years imprisonment, applicable fine, or both. d we e , vi 226 4 16. No 376 0 017 7/2 7/2 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 403 of 677 68.1 Providing Contraband to a Federal Prisoner 18 U.S.C. § 1791(a)(1) It’s a Federal crime to knowingly provide a prohibited object to a Federal prisoner. The Defendant can be found guilty of this crime only if all the following facts are proved beyond a reasonable doubt: (1) [inmate’s name] was an inmate of a Federal prison or correctional facility at the time stated in the indictment; (2) the Defendant knowingly provided or attempted to provide a prohibited object to [inmate’s name]; and (3) providing or attempting to provide the object to [inmate’s name] violated [a statute] [a rule or order issued under a statute]. d we 017 7/2 7/2 0 To "provide" an object to a person is to knowingly deliver or transfer the e , vi 226 object to another person directly or by indirect means. 4 16. (d)(1) of the statute]. No A "prohibited object" is [describe the object as enumerated in subsection The knowing transfer, delivery, or provision of [describe the object as enumerated in subsection (d)(1) of the statute] to a Federal prisoner at the time stated in the indictment would have violated [a statute] [a rule or order issued under a statute]. ANNOTATIONS AND COMMENTS (See Annotations and Comments following Offense Instruction 68.2, infra.) Maximum Penalty: Imprisonment, a fine, or both. The length of imprisonment depends on 377 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 404 of 677 the nature of the “prohibited conduct.” Twenty (20) years imprisonment is the maximum length of time and results from a conviction of the statute if the object is a narcotic drug, methamphetamine, its salts, isomers, and salts of its isomers, lysergic acid diethylamide, or phencyclidine. If the violation involves a controlled substance, the punishment imposed must be consecutive to any other sentence imposed by the court for an offense Involving such a controlled substance. In the case of such a violation by an inmate, punishment imposed must be consecutive to the sentence being served by the inmate at the time of the violation. The term “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. 18 U.S.C. § 1791(d)(4). 017 7/2 7/2 [Note: As amended Jan. 5, 2006.] d we e , vi 226 4 16. No 378 0 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 405 of 677 68.2 Possession of Contraband by a Federal Prisoner 18 U.S.C. § 1791(a)(2) It’s a Federal crime for a Federal prisoner to knowingly [make] [possess] [get] certain forbidden objects. The Defendant can be found guilty of this crime only if all the following facts are proved beyond a reasonable doubt: (1) the Defendant was an inmate of a Federal prison or correctional facility at the time stated in the indictment; (2) at the time, the Defendant knowingly [made] [possessed] [acquired] the object described in the indictment; and 1 0as 7 A "forbidden object" is [describe the relevant object /2 enumerated in /27 7 subsection (d)(1) of the statute]. d0 e ew , vi 226 ANNOTATIONS AND COMMENTS 4 16. 18 U.S.C. § 1791 No provides: (3) the object was a forbidden object. (a) Offense. - - Whoever - (1) in violation of a statute or a rule or order issued under a statute, provides to an inmate of a prison a prohibited object, or attempts to do so; or (2) being an inmate of a prison, makes, possesses, or obtains, or attempts to make or obtain, a prohibited object [shall be guilty of an offense against the United States]. (d) * * * * * Definitions. - - As used in this section - - (1) the term "prohibited object" means - (A) a firearm or destructive device or a controlled substance in 379 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 406 of 677 schedule I or II, other than marijuana or a controlled substance referred to in subparagraph (C) of this subsection; (B) marijuana or a controlled substance in schedule III, other than a controlled substance referred to in subparagraph (C) of this subsection, ammunition, a weapon (other than a firearm or destructive device), or an object that is designed or intended to be used as a weapon or to facilitate escape from a prison; (C) a narcotic drug, methamphetamine, its salts, isomers, and salts of its isomers, lysergic acid diethylamide, or phencyclidine; (D) a controlled substance (other than a controlled substance referred to in subparagraph (A), (B), or (C) of this subsection) or an alcoholic beverage; (E) any United States or foreign currency; and 017 7/2 /2 Maximum Penalty: Imprisonment, a fine, or both. The 07 of imprisonment depends on length d the nature of the “prohibited conduct.” years we length of time Twenty (20) from a imprisonment is the maximum and results ie , statute if the object is a narcotic drug, conviction of the v methamphetamine, its salts, isomers, and salts of its isomers, lysergic 226 4 acid diethylamide, or phencyclidine. 16o. NIf the violation involves a controlled substance, the punishment (F) any other object that threatens the order, discipline, or security of a prison, or the life, health, or safety of an individual. imposed must be consecutive to any other sentence imposed by the court for an offense involving such a controlled substance. In the case of such a violation by an inmate, punishment imposed must be consecutive to the sentence being served by the inmate at the time of the violation. The term “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. 18 U.S.C. § 1791(d)(4). [Note: As amended Jan. 5, 2006.] In United States v. Allen, 190 F.3d 1208 (11th Cir. 1999), the Court held that where the indictment alleged that the “prohibited object” was “an object that is designed or intended to be used as a weapon” as proscribed by § 1791(d)(1)(B), rather than simply alleging 380 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 407 of 677 possession of “a weapon,” the requisite intent was an essential element of the offense to be submitted to the jury. In United States v. Gonzalez, 244 Fed. Appx. 316 (11th Cir. 2007), the Court, in an unpublished opinion, held that a defendant may be indicted and convicted under both subsection 1791(a)(1) and subsection 1791(a)(2). d we e , vi 226 4 16. No 381 0 017 7/2 7/2 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 408 of 677 69 False Statement Regarding Federal Workers' Compensation Benefits 18 U.S.C. § 1920 It’s a Federal crime to knowingly and willfully make a false statement in connection with an application for, or receipt of, Federal Workers' Compensation Benefits. The Defendant can be found guilty of this crime only if all the following facts are proved beyond a reasonable doubt: (1) the Defendant knowingly and willfully made a false statement or report to the Department of Labor, Office of Workers' Compensation Programs; (2) the false statement or report was made in connection with an application for or receipt of Federal Workers' Compensation benefits; and (3) the false statement or report related to a material fact. d we 017 7/2 7/2 0 ie , vif it is untrue when made and the person A statement or report is "false" 226 4 making it knows it is untrue. 16. No is an important fact, not some unimportant or trivial A "material fact" detail, that could influence a decision of the Department of Labor, Office of Workers' Compensation Programs. The heart of the crime is attempting to influence the Office of Workers’ Compensation Programs by willfully making a false statement or report concerning a material fact. The Government does not have to prove that anyone was actually influenced or misled. 382 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 409 of 677 ANNOTATIONS AND COMMENTS 18 U.S.C. § 1920 provides: Whoever knowingly and willfully falsifies, conceals, or covers up a material fact, or makes a false, fictitious, or fraudulent statement or representation, or makes or uses a false statement or report knowing the same to contain any false, fictitious, or fraudulent statement or entry in connection with the application for or receipt of compensation or other benefit, or payment under subchapter I or III of chapter 81 of title 5 [shall be guilty of an offense against the United States]. Maximum Penalty: Five (5) years imprisonment and applicable fine. The materiality instruction is required by United States v. Gaudin, 515 U.S. 506, 115 S. Ct. 2310, 132 L. Ed.444 (1995). The committee believes that the general definition of “willfully” in Basic Instruction 9.1A would usually apply to this crime. d we e , vi 226 4 16. No 383 0 017 7/2 7/2 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 410 of 677 70.1 Interference with Commerce by Extortion Hobbs Act: Racketeering (Force or Threats of Force) 18 U.S.C. § 1951(a) It’s a Federal crime to extort something from someone else and in doing so to obstruct, delay, or affect interstate commerce. The Defendant can be found guilty of this crime only if all the following facts are proved beyond a reasonable doubt: (1) the Defendant caused [person’s name] to part with property; (2) the Defendant did so knowingly by using extortion; and 017 2 (3) the extortionate transaction delayed,7/ interrupted, 2 or affected interstate commerce./ 07 d we things of value, and intangible “Property" includes money, other tangible e , vi rights that are a source or part of income or wealth. 226 4 16. “Extortion” means obtaining property from a person who consents to give No it up because of the wrongful use of actual or threatened force, violence, or fear. “Fear" means a state of anxious concern, alarm, or anticipation of harm. It includes the fear of financial loss as well as fear of physical violence. “Interstate commerce” is the flow of business activities between one state and anywhere outside that state. The Government doesn’t have to prove that the Defendant specifically intended to affect interstate commerce in any way. But it must prove that the 384 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 411 of 677 natural consequences of the acts described in the indictment would be to somehow delay, interrupt, or affect interstate commerce. If you decide that there would be any effect at all on interstate commerce, then that is enough to satisfy this element. The effect can be minimal. ANNOTATIONS AND COMMENTS 18 U.S.C. § 1951(a) provides: Whoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce . . . by extortion [shall be guilty of an offense against the United States]. Maximum Penalty: Twenty (20) years imprisonment and applicable fine. 017 7/2 7/2 In United States v. Blanton, 793 F.2d 1553 (11th Cir. 1986), the Eleventh Circuit upheld the District Court's refusal to instruct the jury that the Defendant must cause or threaten to cause the force, violence or fear to occur. The Court explained that the Defendant need only be aware of the victim's fear and intentionally exploit that fear to the Defendant's own possible advantage. d we 0 e , vi In United States v. Kaplan, 171 F.3d 1351, 1356-58 (11th Cir. 1999), the Eleventh Circuit 226 4 held that under § 1951 the need not be adverse. The 16 affect on commerce of the United States. See, e.g.effect on . commerce can involve activities that occur outside Kaplan, No 171 F.3d at 1355-58 (use of interstate communication facilities and claimed travel to carry out extortion scheme’s object, which was the movement of substantial funds from Panama to Florida, constituted sufficient affect under § 1951). The commerce nexus for an attempt or conspiracy under § 1951 can be shown by evidence of a potential impact on commerce or by evidence of an actual, de minimis impact on commerce. Kaplan, 171 F.3d at 1354 (citations omitted). In the case of a substantive offense, the impact on commerce need not be substantial; it can be minimal. See id.; see also United States v. Le, 256 F.3d 1229 (11th Cir. 2001); U. S. v. Verbitskaya, 405 F.3d 1324 (11th Cir. 2005)(jurisdictional element can be met simply by showing this crime had a minimal effect on commerce); U.S. v. White, No. 07-11793, 2007 U.S. App. LEXIS 27819 (11th Cir. Nov. 29, 2007)(jurisdictional element can be met simply by showing this crime had a minimal effect on commerce); U.S. v. Mathis, 186 Fed. Appx. 971 (11th Cir. 2006); U.S. v. Stamps, 201 Fed. Appx. 759 (11th Cir. 2006). In U.S. v. Taylor, 480 F.3d 1025 (11th Cir. 2007), the Eleventh Circuit held that the 385 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 412 of 677 jurisdictional element is met even when the object of a planned robbery (i.e. drugs in a sting operation) or its victims are fictional. d we e , vi 226 4 16. No 386 0 017 7/2 7/2 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 413 of 677 70.2 Interference with Commerce by Extortion Hobbs Act: Racketeering (Color of Official Right) 18 U.S.C. § 1951(a) It’s a Federal crime to extort something from someone else and in doing so to obstruct, delay, or affect interstate commerce. The Defendant can be found guilty of this crime only if all the following facts are proved beyond a reasonable doubt: (1) the Defendant caused [person’s name] to part with property; (2) the Defendant did so knowingly by using extortion under color of official right; and 017 7/2 and intangible 2 “Property" includes money, other tangible things of value, 07/ d rights that are a source or element of income or wealth. we e , viright" is the wrongful taking or receipt of “Extortion under color of26 2 official -4 money or property by16 a public officer who knows that the money or property . No in return for [doing] [not doing] official acts. It does not was taken or received (3) the extortionate transaction delayed, interrupted, or affected interstate commerce. matter whether or not the public officer employed force threats or fear. “Wrongful" means to get property unfairly and unjustly because the person has no lawful claim to it. “Interstate commerce" is the flow of business activities between one state and anywhere outside of that state. The Government doesn’t have to prove that the Defendant specifically intended to affect interstate commerce in any way. But it must prove that the 387 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 414 of 677 natural consequences of the acts described in the indictment would be to somehow delay, interrupt, or affect interstate commerce. If you decide that there would be any effect at all on interstate commerce, then that is enough to satisfy this element. The effect can be minimal. ANNOTATIONS AND COMMENTS 18 U.S.C. § 1951(a) provides: (a) Whoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, . . . by extortion [shall be guilty of an offense against the United States]. 18 U.S.C. § 1951 (b)(2) provides: 017 7/2 7/2 The term "extortion" means the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right. d we 0 Maximum Penalty: Twenty (20) years imprisonment and applicable fine. e , vi 226 In United States v. Martinez, 14 F.3d 543 (11th Cir. 1994), the Eleventh Circuit acknowledged that a Hobbs Act conviction for extortion under color of official right requires proof of a quid pro quo. See Evans v. United States, 504 U.S. 255, 112 S. Ct. 1881, 119 L. Ed. 2d 57 (1992); McCormick v. United States, 500 U.S. 257, 111 S. Ct. 1807, 114 L. Ed. 2d 307 (1991). Fulfillment of the quid pro quo is not an element of the offense. 4 16. No In United States v. Kaplan, 171 F.3d 1351, 1356-58 (11th Cir. 1999), the Eleventh Circuit held that under § 1951 the affect on commerce need not be adverse. The effect on commerce can involve activities that occur outside of the United States. See, e.g., Kaplan, 171 F.3d at 1355-58 (use of interstate communication facilities and claimed travel to carry out extortion scheme’s object, which was the movement of substantial funds from Panama to Florida, constituted sufficient affect under § 1951). The commerce nexus for an attempt or conspiracy under § 1951 can be shown by evidence of a potential impact on commerce or by evidence of an actual, de minimis impact on commerce. Kaplan, 171 F.3d at 1354 (citations omitted). In the case of a substantive offense, the impact on commerce need not be substantial; it can be minimal. See id.; see also United States v. Le, 256 F.3d 1229 (11th Cir. 2001); U.S. v. Verbitskaya, 405 F.3d 1324 (11th Cir. 2005)(jurisdictional element can be met simply by showing this crime had a minimal effect on commerce); U.S. v. White, No. 07-11793, 2007 U.S. App. LEXIS 27819 (11th Cir. Nov. 29, 2007)(jurisdictional element can be met simply by showing this crime had 388 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 415 of 677 a minimal effect on commerce); U.S. v. Mathis, 186 Fed. Appx. 971 (11th Cir. 2006); U.S. v. Stamps, 201 Fed. Appx. 759 (11th Cir. 2006). In U.S. v. Taylor, 480 F.3d 1025 (11th Cir. 2007), the Eleventh Circuit held that the jurisdictional element is met even when the object of a planned robbery (i.e. drugs in a sting operation) or its victims are fictional. d we e , vi 226 4 16. No 389 0 017 7/2 7/2 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 416 of 677 70.3 Interference with Commerce by Robbery Hobbs Act - Racketeering (Robbery) 18 U.S.C. § 1951(a) It’s a Federal crime to acquire someone else’s property by robbery and in doing so to obstruct, delay, or affect interstate commerce. The Defendant can be found guilty of this crime only if all the following facts are proved beyond a reasonable doubt. (1) the Defendant knowingly acquired someone else’s personal property; (2) the Defendant took the property against the victim's will, by using actual or threatened force, or violence, or causing the victim to fear harm, either immediately or in the future; and (3) the Defendant's actions obstructed, delayed, or affected interstate commerce. d we 017 7/2 7/2 0 e , vi “Property" includes money, tangible things of value, and intangible rights 226 4 16- of income or wealth. that are a source o.element N or “Fear" means a state of anxious concern, alarm, or anticipation of harm. It includes the fear of financial loss as well as fear of physical violence. “Interstate commerce” is the flow of business activities between one state and anywhere outside that state. The Government doesn’t have to prove that the Defendant specifically intended to affect interstate commerce. But it must prove that the natural consequences of the acts described in the indictment would be to somehow delay, interrupt, or affect interstate commerce. If you decide that there would 390 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 417 of 677 be any effect at all on interstate commerce, then that is enough to satisfy this element. The effect can be minimal. ANNOTATIONS AND COMMENTS 18 U.S.C. § 1951(a) provides: Whoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery [shall be guilty of an offense against the United States]. Maximum Penalty: Twenty (20) years imprisonment and applicable fine. In United States v. Thomas, 8 F.3d 1552, 1562-63 (11th Cir. 1993), the Eleventh Circuit suggested that the Government need not prove specific intent in order to secure a conviction for Hobbs Act robbery. See also United States v. Gray, 260 F.3d 1267, 1283 (11th Cir. 2001) (noting that the Court in Thomas suggested that specific intent is not an element under § 1951). d we 017 7/2 7/2 0 In United States v. Kaplan, 171 F.3d 1351, 1356-58 (11th Cir. 1999), the Eleventh Circuit held that under § 1951 the affect on commerce need not be adverse. The effect on commerce can involve activities that occur outside of the United States. See, e.g., Kaplan, 171 F.3d at 1355-58 (use of interstate communication facilities and claimed travel to carry out extortion scheme’s object, which was the movement of substantial funds from Panama to Florida, constituted sufficient affect under § 1951). e , vi 226 4 16. No The commerce nexus for an attempt or conspiracy under § 1951 can be shown by evidence of a potential impact on commerce or by evidence of an actual, de minimis impact on commerce. Kaplan, 171 F.3d at 1354 (citations omitted). In the case of a substantive offense, the impact on commerce need not be substantial; it can be minimal. See id.; see also United States v. Le, 256 F.3d 1229 (11th Cir. 2001); U.S. v. Verbitskaya, 405 F.3d 1324 (11th Cir. 2005)(jurisdictional element can be met simply by showing this crime had a minimal effect on commerce); U.S. v. White, No. 07-11793, 2007 U.S. App. LEXIS 27819 (11th Cir. Nov. 29, 2007)(jurisdictional element can be met simply by showing this crime had a minimal effect on commerce); U.S. v. Mathis, 186 Fed. Appx. 971 (11th Cir. 2006); U.S. v. Stamps, 201 Fed. Appx. 759 (11th Cir. 2006). In U.S. v. Taylor, 480 F.3d 1025 (11th Cir. 2007), the Eleventh Circuit held that the jurisdictional element is met even when the object of a planned robbery (i.e. drugs in a sting operation) or its victims are fictional. 391 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 418 of 677 71 Interstate Travel in Aid of Racketeering 18 U.S.C. § 1952(a)(3) It’s a Federal crime for anyone to travel in [interstate] [foreign] commerce in order to carry on certain unlawful activities. The Defendant can be found guilty of this crime only if all the following facts are proved beyond a reasonable doubt: (1) the Defendant traveled in [interstate] [foreign] commerce on or about the dates and between the places described in the indictment; (2) the Defendant traveled with the specific intent to promote, manage, establish or carry on an unlawful activity; and (3) while traveling, the Defendant knowingly committed an act to promote, manage, establish, or carry on an unlawful activity. d we 017 7/2 7/2 0 [The term "interstate commerce" means travel, transportation, or e , vi 226 movement between one state and another state.] 4 16. between some No within the United States and some place outside the place [The term "foreign commerce" means travel, transportation, or movement United States.] The Government must prove that the Defendant traveled in [interstate commerce] [foreign commerce] and specifically intended to promote, manage, establish, or carry on an unlawful activity. But the Government does not have to prove that the unlawful activity was the only or even primary reason the Defendant traveled. “Unlawful activity" includes any business enterprise involving [describe the unlawful activity, e.g., gambling that violates a state law where it takes 392 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 419 of 677 place]. [Under [state’s name] law [quote description of unlawful conduct] is unlawful.] A "business enterprise" is a continuous course of conduct or series of transactions to make a profit, not a casual, sporadic, or isolated activity. For this crime, the term includes illegal activities. It doesn’t matter whether the illegal activity lasted for a particular length of time or was or was not the Defendant’s primary occupation. What the Government must prove beyond a reasonable doubt is that the Defendant was involved in a business enterprise, as just defined, rather than casual, sporadic, or isolated activities. 017 carry on an commerce] with the intent to promote, manage, establish, and 7/2 2 07/ unlawful activity. The statute lists various ways or methods that violate the d we that any one method or way of e law. So if you find beyond a reasonable doubt , vi 226 violating the law occurred, that’s sufficient. But you must all agree on the 4 16. particular way involved. No The crime charged is traveling in [interstate commerce] [foreign ANNOTATIONS AND COMMENTS 18 U.S.C. § 1952(a)(3) provides: (a) Whoever travels in interstate or foreign commerce or uses the mail or any facility in interstate or foreign commerce, with intent to - - (3) . . . promote, manage, establish, carry on, or facilitate the promotion, management, establishment, or carrying on, of any unlawful activity, and thereafter performs or attempts to perform any of the acts specified in subparagraph . . . (3) [shall be guilty of an offense against the United States]. (b) As used in this section "unlawful activity" means (1) any business 393 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 420 of 677 enterprise involving gambling, liquor on which the Federal excise tax has not been paid, narcotics or controlled substances (as defined in section 102(6) of the Controlled Substances Act), or prostitution offenses in violation of the laws of the State in which they are committed or of the United States, (2) extortion, bribery, or arson in violation of the laws of the State in which they are committed or of the United States, or (3) any act which is indictable under subchapter II of chapter 53 of title 31, United States Code, or under section 1956 or 1957 of this title . . . Maximum Penalty: Five (5) years imprisonment and applicable fine. A conviction under this statute does not require the Government to prove that the Defendant knew or intended that interstate facilities be used in the commission of the offense. See United States v. Broadwell, 870 F.2d 594 (11th Cir. 1989). d we e , vi 226 4 16. No 394 0 017 7/2 7/2 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 421 of 677 72 Interstate Transportation of Wagering Paraphernalia (Bookmaking) 18 U.S.C. § 1953 It’s a Federal crime to carry or send bookmaking materials in interstate commerce. The Defendant can be found guilty of this crime only if all the following facts are proved beyond a reasonable doubt: (1) the Defendant carried, sent, or caused to be sent in interstate commerce the items described in the indictment; (2) the items carried or sent were used or intended to be used in "bookmaking"; and 017 between "Interstate commerce" means business, trade, or2 7/ movement 2 07/ one state and another. It includes travel, trade, transportation, and d we mail. e communication between states, including the , vi 226 “Bookmaking" means the business of setting terms or conditions, usually 4 16. called a “line” or “odds,” on the outcome of a specified event and accepting No (3) the Defendant acted knowingly. bets from customers in order to make a profit. The profit does not come from the bets themselves but from an additional payment, sometimes called a “percentage” or “commission,” collected from the customers who place bets. In short, bookmaking is a gambling business. ANNOTATIONS AND COMMENTS 18 U.S.C. § 1953 provides: Whoever . . . knowingly carries or sends in interstate . . . commerce 395 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 422 of 677 any record, paraphernalia, ticket, certificate, bills, slip, token, paper, writing or other device used, or to be used, . . . in bookmaking [shall be guilty of an offense against the United States]. Maximum Penalty: Five (5) years imprisonment and applicable fine. d we e , vi 226 4 16. No 396 0 017 7/2 7/2 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 423 of 677 73 Illegal Gambling Business 18 U.S.C. § 1955 It’s a Federal crime to conduct an illegal gambling business. An "illegal gambling business" is a gambling business that: (1) violates the law of the state where the business operates; and (2) involves five or more people who conduct, finance, manage, supervise, direct, or own all or part of the business; and (3) has been or remains in substantially continuous operation for at least 30 days or has gross revenue of at least $2,000 in any single day. The Defendant can be found guilty of this crime only if all the following 017 7/2 2 At least five people, including the Defendant, 07/ knowingly conducted, financed, managed, d supervised, directed, we or owned all or part of a gambling business;ie 6, v 2 the gambling business violated the laws of -42 and [name of state]; . 16 No facts are proved beyond a reasonable doubt: (1) (2) (3) the gambling business was in substantially continuous operation for at least 30 days or had gross revenue of at least $2,000 on any one day. “Bookmaking" means the business of setting terms or conditions, usually called a “line” or “odds,” on the outcome of a specified event and accepting bets from customers in order to make a profit. The profit does not come from the bets themselves but from an additional payment, sometimes called a “percentage” or “commission,” collected from the customers who place bets. In short, bookmaking is a gambling business. 397 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 424 of 677 You are instructed that bookmaking is unlawful in the state of [state name]. To “conduct a business” is to work for the business, especially as an employee of the business, with or without a voice in management or a share in the profits. But a customer who merely places a bet does not participate in the conduct of the business. The Government must prove that at least five people conducted, financed, or supervised an illegal gambling business that was in substantially continuous operation for at least 30 days, or had gross revenue of at least 017 7/2 But it doesn’t matter whether five or more people have been charged 2 07/ people – including the with a crime; nor whether those same fived more we or e , vi Defendant – conducted, financed, or owned the business. It doesn’t matter 226 4 whether the Defendant even knew the identities of others involved in the 16o. Ndoesn’t matter whether bets were accepted every day over business. And it $2,000 on any single day. a 30-day period; nor whether accepting bets was the Defendant’s primary business or employment. ANNOTATIONS AND COMMENTS 18 U.S.C. § 1955 provides: Whoever conducts, finances, manages, supervises, directs, or owns all or part of an illegal gambling business [shall be guilty of an offense against the United States]. 398 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 425 of 677 Maximum Penalty: Five (5) years imprisonment and applicable fine. For purposes of the statute, one "conducts" an illegal gambling business by performing any necessary function in the gambling operation, other than that of mere bettor. Thus, a Defendant's proposed instruction that "[a] person who took bets on five or six occasions over a year's time could not be considered [a] participant in conduct[ing] [a] gambling business" was properly refused where the evidence established that the Defendant, in addition to taking bets, collected gambling debts and forwarded them to another participant. United States v. Miller, 22 F.3d 1075 (11th Cir. 1994). See United States v. Herring, 955 F.2d 703 (11th Cir. 1992) (discussing "layoff bets"). d we e , vi 226 4 16. No 399 0 017 7/2 7/2 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 426 of 677 74.1 Money Laundering: Promoting Unlawful Activity 18 U.S.C. § 1956 (a)(1)(A)(i) It’s a Federal crime to knowingly engage in certain kinds of financial transactions commonly known as money laundering. The Defendant can be found guilty of this crime only if all the following facts are proved beyond a reasonable doubt: (1) the Defendant knowingly conducted or tried to conduct, a financial transaction; (2) the Defendant knew that the money or property involved in the transaction were the proceeds of some kind of unlawful activity; (3) the money or property did come from an unlawful activity, specifically [describe the specified unlawful activity alleged in the indictment]; and 017 7/2 7/2 0 ed in the financial (4) the Defendant was involved w transaction with vie intent to promote the the carrying on of 6, specified unlawful activity. 22 that 4 To "conduct a transaction” means to start or finish a transaction, or to 16. No participate in a transaction at any point. A "transaction" means a purchase, sale, loan, promise, gift, transfer, delivery, or other disposition of money or property. [A transaction with a financial institution also includes a deposit, withdrawal, transfer between accounts, exchange of currency, loan, extension of credit, use of a safe deposit box, or purchase or sale of any stock, bond, certificate of deposit, or other monetary instrument.] A "financial transaction" means – 400 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 427 of 677 [a transaction that in any way or to any degree affects interstate or foreign commerce by sending or moving money by wire or other means.] or [a transaction that in any way or to any degree affects interstate or foreign commerce by involving one or more "monetary instruments." The phrase “monetary instruments” includes coins or currency of any country, travelers or personal checks, bank checks or money orders, or investment securities or negotiable instruments in a form that allows ownership to transfer on delivery.] or 17 0property, vehicle, foreign commerce by involving the transfer of title to any /2 7 real 2 07/ vessel, or aircraft.] d we e , vior 226 [a transaction involving the use of a financial institution that is involved 4 16. in interstate orNo foreign commerce, or whose activities affect interstate or [a transaction that in any way or to any degree affects interstate or foreign commerce, in any way or degree. The phrase "financial institution: includes [give appropriate reference from 31 U.S.C. § 5312(a)(2) or the regulations promulgated under it]]. “Interstate or foreign commerce" means trade and other business activity between people or businesses in at least two states or between people or businesses in the United States and people or businesses outside the United States. To "know that the money or property involved in the transaction came 401 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 428 of 677 from some kind of unlawful activity" is to know that the money or property came from an activity that’s a felony under state, federal, or foreign law. The term “proceeds” means any property derived from or obtained or retained, directly or indirectly, through some form of unlawful activity, including the gross receipts of the activity. The term "specified unlawful activity" means [describe the specified unlawful activity listed in subsection (c)(7) of the statute and alleged in the indictment]. The term “with the intent to promote the carrying on of specified unlawful activity” means that the Defendant must have [conducted] [attempted to 017 to bring about the “specified unlawful activity” as just defined. 7/2 2 07/ d we e ANNOTATIONS AND COMMENTS , vi 26 18 U.S.C. § 1956(a)(1) provides:2 4 16. Whoever, knowing that the property involved in a financial transaction No proceeds of some form of unlawful activity, conducts or represents the conduct] the financial transaction for the purpose of making easier or helping attempts to conduct such a financial transaction which in fact involves the proceeds of specified unlawful activity - (A)(i) with the intent to promote the carrying on of specified unlawful activity [shall be guilty of an offense against the United States]. Maximum Penalty: Twenty (20) years imprisonment and applicable fine. In United States v. Cancelliere, 69 F.3d 1116 (11th Cir. 1995), the Court held that although proof of willfulness is not a statutory element of money laundering, where the indictment expressly charged willfulness, the District Court erred in not giving the usual instruction on willfulness (Basic Instruction 9.1A). The term “proceeds” in 18 U.S.C. § 1956 was expressly defined by the Fraud Enforcement 402 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 429 of 677 and Recovery Act of 2009 (“FERA”), Pub. L. No. 111-21, effective May 20, 2009. The FERA expanded the concept of monetary proceeds, for purposes of enforcing prohibitions against money laundering, to include gross receipts. See 18 U.S.C. § 1956(c)(9). The FERA was a direct response to United States v. Santos, 128 S. Ct. 2020 (2008). In Santos, a plurality of the U.S. Supreme Court held that the definition of the term “proceeds” in 18 U.S.C. § 1956(a)(1)(A)(i) refers to “profits” rather than “receipts” when applied to a prosecution arising from an illegal stand-alone gambling operation. Until the FERA, the definition of “proceeds” in the money laundering statute remained unclear. The Eleventh Circuit has construed the fragmented Santos opinion narrowly. In United States v. Demarest, 570 F.3d 1232 (11th Cir. 2009), a case in which the trial took place prior to the FERA’s enactment, the Court noted: Santos has limited precedential value . . . . The narrow holding in [the case], at most, was that the gross receipts of an unlicensed gambling operation were not ‘proceeds’ under section 1956 . . . . Id. at 1242. d we e , vi 226 4 16. No 403 0 017 7/2 7/2 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 430 of 677 74.2 Money Laundering: Concealing Proceeds of Specified Unlawful Activity or Avoiding Transaction Reporting Requirement 18 U.S.C. § 1956(a)(1)(B)(i) and (ii) It’s a Federal crime to knowingly engage in certain kinds of financial transactions commonly known as money laundering. The Defendant can be found guilty of this crime only if all the following facts are proved beyond a reasonable doubt: (1) the Defendant knowingly conducted or tried to conduct financial transactions; (2) the Defendant knew that the money or property involved in the transaction were the proceeds of some kind of unlawful activity; (3) money or property did come from an unlawful activity, specifically [describe the specified unlawful activity alleged in the indictment]; and [(4) d we e , vi 226 017 7/2 7/2 0 4 16. No the Defendant knew that the transaction was designed, in whole or in part, to conceal or disguise the nature, location, source, ownership, or the control of the proceeds.] or [(4) the Defendant participated in the transaction to avoid a transaction-reporting requirement under state or Federal law.] To "conduct a transaction” means to start or finish a transaction, or to participate in a transaction at any point. A "transaction" means a purchase, sale, loan, promise, gift, transfer, delivery, or other disposition of money or property. [A transaction with a 404 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 431 of 677 financial institution also includes a deposit, withdrawal, transfer between accounts, exchange of currency, loan, extension of credit, use of a safe deposit box, or purchase or sale of any stock, bond, certificate of deposit, or other monetary instrument.] A "financial transaction" means – [a transaction that in any way or to any degree affects interstate or foreign commerce by sending or moving money by wire or other means.] or [a transaction that in any way or to any degree affects interstate or 017 2 phrase “monetary instruments” includes coins or 27/ currency of any country, 07/ orders, or investment travelers or personal checks, bank checks d money we or e , ini securities or negotiable instrumentsv a form that allows ownership to transfer 226 4 on delivery.] 16. No or foreign commerce by involving one or more "monetary instruments." The [a transaction that in any way or to any degree affects interstate or foreign commerce by involving the transfer of title to any real property, vehicle, vessel or aircraft.] or [a transaction involving the use of a financial institution that is involved in interstate or foreign commerce, or whose activities affect, interstate or foreign commerce in any way or degree. The phrase "financial institution” 405 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 432 of 677 includes [give appropriate reference from 31 U.S.C. § 5312(a)(2) or the regulations thereunder]]. “Interstate or foreign commerce" means trade and other business activity between people or businesses in at least two states or between people or businesses in the United States and people or businesses outside the United States. To know “that the money or property involved in the transaction came from some kind of unlawful activity" is to know that the money or property came from an activity that’s a felony under state, Federal, or foreign law. 017 7/2 retained, directly or indirectly, through some form of unlawful activity, including 2 07/ d the gross receipts of the activity. we e , vi The phrase "specified unlawful activity" means [describe the specified 226 4 unlawful activity listed in 16 subsection (c)(7) of the statute and alleged in the . No indictment]. The term “proceeds” means any property derived from or obtained or [A "transaction-reporting requirement" means a legal requirement that a domestic financial institution must report any transaction involving a payment, receipt, or transfer of United States coins or currency totaling more than $10,000. But personal or cashier’s checks, wire transfers, or transactions involving other monetary instruments do not have to be reported.] [A "transaction-reporting requirement" means a legal requirement that a person who causes or attempts to cause the transportation, mailing, or 406 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 433 of 677 shipment of currency [or [description of other reportable instruments from the indictment]] totaling more than $10,000 at one time from a place inside the United States to a place outside the United States or from a place outside the United States to a place inside the United States.] [A “transaction reporting requirement” means a legal requirement that a person engaged in a trade or business who in the course of that trade or business receives currency totaling more than $10,000 in a single transaction or in two or more related transactions must file a report with the Internal Revenue Service.] ANNOTATIONS AND COMMENTS 18 U.S.C. § 1956(a)(1) provides: d we e , vi 226 017 7/2 7/2 0 Whoever, knowing that the property involved in a financial transaction represents the proceeds of some form of unlawful activity, conducts or attempts to conduct such a financial transaction which in fact involves the proceeds of specified unlawful activity - - 4 16. No (B) knowing that the transaction is designed in whole or in part (i) to conceal or disguise the nature, the location, the source, the ownership, or the control of the proceeds of specified unlawful activity; or (ii) to avoid a transaction reporting requirement under State or Federal law [shall be guilty of an offense against the United States]. Maximum Penalty: Twenty (20) years imprisonment and applicable fine. In United States v. Cancelliere, 69 F.3d 1116 (11th Cir. 1995), the Court held that although proof of willfulness is not a statutory element of money laundering, where the indictment expressly charged willfulness, the District Court erred in not giving the usual instruction on willfulness (Basic Instruction 9.1A). 407 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 434 of 677 The term “proceeds” in 18 U.S.C. § 1956 was expressly defined by the Fraud Enforcement and Recovery Act of 2009 (“FERA”), Pub. L. No. 111-21, effective May 20, 2009. The FERA expanded the concept of monetary proceeds, for purposes of enforcing prohibitions against money laundering, to include gross receipts. See 18 U.S.C. § 1956(c)(9). The FERA was a direct response to United States v. Santos, 128 S. Ct. 2020 (2008). In Santos, a plurality of the U.S. Supreme Court held that the definition of the term “proceeds” in 18 U.S.C. § 1956(a)(1)(A)(i) refers to “profits” rather than “receipts” when applied to a prosecution arising from an illegal stand-alone gambling operation. Until the FERA, the definition of “proceeds” in the money laundering statute remained unclear. The Eleventh Circuit has construed the fragmented Santos opinion narrowly. In United States v. Demarest, 570 F.3d 1232 (11th Cir. 2009), a case in which the trial took place prior to the FERA’s enactment, the Court noted: Santos has limited precedential value . . . . The narrow holding in [the case], at most, was that the gross receipts of an unlicensed gambling operation were not ‘proceeds’ under section 1956 . . . . 017 7/2 /2 In Cuellar v. United States, 128 S. Ct. 1994 (2008), the07 Supreme Court held that although the Government doesn’t need to show that the defendant attempted to make illegal funds ed wdefendant did more than merely hide the appear legitimate, it is required to show thate i the funds during transport. To sustain 6, v a conviction, the Government must prove that the defendant knew that a purpose of 2 transportation was to conceal or disguise the illicit -42 the funds’ nature, locations, source, ownership, or control. . 16 No Id. at 1242. 408 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 435 of 677 74.3 Money Laundering: International Transportation of Monetary Instruments 18 U.S.C. § 1956(a)(2)(A) It’s a Federal crime to knowingly engage in certain kinds of financial transactions commonly known as money laundering. The Defendant can be found guilty of this crime only if all the following facts are proved beyond a reasonable doubt: (1) the Defendant knowingly [transported] [transmitted] [transferred] a monetary instrument or money [from a place in the United States to or through a place outside the United States] [to a place in the United States from or through a place outside the United States] [or attempted to do so]; and (2) the Defendant acted with the intent to promote the carrying on of specified unlawful activity. d we 017 7/2 7/2 0 To “transport, transmit, or transfer” includes all means to carry, send, e , vi 226 mail, ship, or move money. It includes any physical means of transferring or 4 16. No transporting funds, and also electronic transfer by wire or computer or other means. It doesn’t matter whether the monetary instrument or money involved in this case was derived from criminal activity. It could be legitimately earned income [even money provided by a government agent in the course of an undercover operation]. A "monetary instrument" includes the coin or currency of any country, travelers or personal checks, bank checks or money orders, or investment securities or negotiable instruments in a form that allows ownership to transfer on delivery. 409 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 436 of 677 The term "specified unlawful activity" means [describe the specified unlawful activity listed in subsection (c)(7) of the statute and alleged in the indictment]. The term “with the intent to promote the carrying on of specified unlawful activity” means that the Defendant must have [conducted] [attempted to conduct] the financial transaction for the purpose of making easier or helping to bring about the “specified unlawful activity” as just defined. [To “attempt” an act means to intentionally take some substantial step toward accomplishing the act so that the act will occur unless something 017 7/2 7/2 happens to interrupt or frustrate it.] ANNOTATIONS AND COMMENTS e , vi 226 18 U.S.C. § 1956(a)(2) provides: d we 0 4 16. No Whoever transports, transmits, or transfers, or attempts to 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 the United States from or through a place outside the United States - (A) with the intent to promote the carrying on of specified unlawful activity [shall be guilty of an offense against the United States]. Maximum Penalty: Twenty (20) years imprisonment and applicable fine. In United States v. Cancelliere, 69 F.3d 1116 (11th Cir. 1995), the Court held that although proof of willfulness is not a statutory element of money laundering, where the indictment expressly charged willfulness, the District Court erred in not giving the usual instruction on willfulness (Basic Instruction 9.1A). In Cuellar v. U.S., 128 S. Ct.1994 (2008)), the Supreme Court held that although the Government does not need to show that the defendant attempted to make illegal funds 410 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 437 of 677 appear legitimate, it is required to show that the defendant did more than merely hide the funds during transport; to sustain a conviction, the Government must prove that the defendant knew that a purpose of the transportation was to conceal or disguise the illicit funds’ nature, location, source, ownership, or control. d we e , vi 226 4 16. No 411 0 017 7/2 7/2 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 438 of 677 74.4 Money Laundering Sting 18 U.S.C. § 1956(a)(3)(A) or (a)(3)(B) or (a)(3)(C) It’s a Federal crime to knowingly engage in certain kinds of financial transactions commonly known as money laundering. The Defendant can be found guilty of this offense only if all the following facts are proved beyond a reasonable doubt: (1) the Defendant knowingly [conducted] [attempted to conduct] a financial transaction; (2) the [attempted] transaction involved property that [a law-enforcement officer represented as coming from a specified unlawful activity] [was used to carry out or make it easier to carry out specified unlawful activity]; and [(3) the Defendant engaged in the [attempted] transaction with the intent to promote the carrying on of specified unlawful activity. (3) d or [(a)(3)(B)] we e , vi 6 017 7/2 7/2 0 2 -42 16 the Defendant engaged in the [attempted] transaction with the intent to conceal or disguise the nature, location, source, ownership, or control of property believed to be the proceeds of specified unlawful activity.] . No or [(a)(3)(C)] [(3) the Defendant engaged in the [attempted] transaction with the intent to avoid a transactionreporting requirement under state or federal law.] The Government alleges that the property involved in the financial transaction [was represented as coming from] [was used to carry out or to make easier to carry out] [describe the specified unlawful activity alleged in the indictment]. For purposes of this case [describe the specified unlawful activity 412 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 439 of 677 alleged in the indictment] is a kind of specified unlawful activity. [(a)(3)(A) or (a)(3)(B)] [The government also alleges that the Defendant was involved in the the [attempted] transaction with the intent [to promote the carrying on of] [to conceal or disguise the nature, location, source, ownership, or control of property believed to be the proceeds of] [describe specified unlawful activity that the Defendant allegedly intended to promote], which I remind you is a kind of specified unlawful activity. [A “representation” is any communication made by a law-enforcement 017 72 official authorized to investigate or prosecute violations/ of this law.] 2 07/ finish a transaction or to To "conduct" a transaction means to d or westart vie participate in a transaction at any,point. 226 4 A "transaction" 16means a purchase, sale, loan, promise, gift, transfer, . No delivery, or other disposition of money or property. [A transaction with a officer or by another person directed by, or with the approval of, a federal financial institution also includes a deposit, withdrawal, transfer between accounts, exchange of currency, loan, extension of credit, use of a safe deposit box, or purchase or sale of any stock, bond, certificate of deposit, or other monetary instrument.] A "financial transaction" means – [a transaction that in any way or to any degree affects interstate or foreign commerce by sending or moving money by wire or other means.] 413 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 440 of 677 or [a transaction that in any way or to any degree affects interstate or foreign commerce by involving one or more "monetary instruments." the phrase “monetary instruments” includes coins or currency of any country, travelers or personal checks, bank checks or money orders, or investment securities or negotiable instruments in a form that allows ownership to transfer on delivery.] or [a transaction that in any way or to any degree affects interstate or 017 7/2 7/2 foreign commerce by involving the transfer of title to any real property, vehicle, vessel, or aircraft.] or d we e , vi 226 0 [a transaction involving the use of a financial institution that is involved 4 16. No in any way or degree. foreign commerce, in interstate or foreign commerce, or whose activities affect interstate or The phrase "financial institution: includes [give appropriate reference from 31 U.S.C. § 5312(a)(2) or the regulations promulgated under it].] The term “with the intent to promote the carrying on of specified unlawful activity” means that the defendant must have [conducted] [attempted to conduct] the financial transaction for the purpose of making easier or helping to bring about the specified unlawful activity. 414 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 441 of 677 ANNOTATIONS AND COMMENTS 18 U.S.C. § 1956(a)(3)(A), (B) and (C) provides: (3) Whoever, with the intent - (A) to promote the carrying on of specified unlawful activity; (B) to conceal or disguise the nature, location, source, ownership, or control of property believed to be the proceeds of specified unlawful activity; or (C) to avoid a transaction reporting requirement under State or Federal law, conducts or attempts 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, shall be fined under this title or imprisoned for not more than 20 years, or both. For purposes of this paragraph and paragraph (2), the term ‘represented’ means any representation made by a law enforcement officer or by another person at the direction of, or with the approval of, a Federal official authorized to investigate or prosecute violations of this section. d we e , vi 226 017 7/2 7/2 0 Maximum Penalty: Twenty (20) years and applicable fine. 4 16. No In United States v. Starke, 62 F.3d 1374, 1382 (11th Cir. 1995), the Eleventh Circuit held that, to satisfy the representation element of section 1956(a)(3), “the Government need only prove that a law enforcement officer or other authorized person made the defendant aware of circumstances from which a reasonable person would infer that the property” was proceeds from the specified unlawful activity. The court explained that there is no requirement of any particular statement by the officer regarding the source of the property. In Cuellar v. United States, 128 S. Ct. 1994 (2008), the Supreme Court held that although the Government doesn’t need to show that the defendant attempted to make illegal funds appear legitimate, it is required to show that the defendant did more than merely hide the funds during transport. To sustain a conviction, the Government must prove that the defendant knew that a purpose of the transportation was to conceal or disguise the illicit funds’ nature, locations, source, ownership, or control. 415 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 442 of 677 74.5 Money Laundering Conspiracy 18 U.S.C. § 1956(h) It’s a Federal crime to conspire to engage in money laundering or transactions involving the proceeds of specified unlawful activity that violates Title 18, United States Code, Section [1956 or 1957]. [Describe the elements of the relevant provision of 18 U.S.C. § 1956 (money laundering) or 18. U.S.C. §1957 (transactions involving the proceeds of specified unlawful activity] A “conspiracy” is an agreement by two or more persons to commit an unlawful act. In other words, it is a kind of partnership for criminal purposes. 017 7/2 7/2 Every member of the conspiracy becomes the agent or partner of every other member. d we 0 The Government does not have to prove that all the people named in the e , vi 226 indictment were members of the plan, or that those who were members made 4 16. unlawful plan itself, so the Government does not have to prove No any kind of formal agreement. The heart of a conspiracy is the making of the that the conspirators succeeded in carrying out the plan. The Defendant can be found guilty of this crime only if all the following facts are proved beyond a reasonable doubt: (1) two or more people agreed to try to accomplish a common and unlawful plan to violate [18 U.S.C. Section 1956 or 1957]; and (2) the Defendant knew about the plan’s unlawful purpose and willfully joined in it. 416 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 443 of 677 A person may be a conspirator even without knowing all the details of the unlawful plan or the names and identities of all the other alleged conspirators. If the Defendant played only a minor part in the plan but had a general understanding of the unlawful purpose of the plan – and willfully joined in the plan on at least one occasion – that's sufficient for you to find the Defendant guilty. But simply being present at the scene of an event or merely associating with certain people and discussing common goals and interests doesn't establish proof of a conspiracy. Also a person who doesn't know about a 017 7/2 7/2 conspiracy but happens to act in a way that advances some purpose of one doesn't automatically become a conspirator. d we e , vi ANNOTATIONS AND COMMENTS 226 4 1618 U.S.C. § 1956(h) o. N provides: 0 (h) Any person who conspires to commit any offense defined in this section or section 1957 shall be subject to the same penalties as those prescribed for the offense the commission of which was the object of the conspiracy. Maximum Penalty: As stated above. In United States v. Cancelliere, 69 F.3d 1116, 1120 (11th Cir. 1995), the Eleventh Circuit held that proof of willfulness is not an element of the substantive offense of money laundering. As “willfully” is an essential element of conspiracy, however, the committee believes that the general definition of “willfully” in Basic Instruction 9.1A would usually apply to this crime. In Whitfield v. United States, 543 U.S. 209 (2005), the Supreme Court aff’d the Eleventh Circuit’s holding that 1956(h) does not require proof of an overt act in furtherance of the alleged conspiracy. The FERA was a direct response to United States v. Santos, 128 S. Ct. 2020 (2008). In 417 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 444 of 677 Santos, a plurality of the U.S. Supreme Court held that the definition of the term “proceeds” in 18 U.S.C. § 1956(a)(1)(A)(i) refers to “profits” rather than “receipts” when applied to a prosecution arising from an illegal stand-alone gambling operation. Until the FERA, the definition of “proceeds” in the money laundering statute remained unclear. The Eleventh Circuit has construed the fragmented Santos opinion narrowly. In United States v. Demarest, 570 F.3d 1232 (11th Cir. 2009), a case in which the trial took place prior to the FERA’s enactment, the Court noted: Santos has limited precedential value . . . . The narrow holding in [the case], at most, was that the gross receipts of an unlicensed gambling operation were not ‘proceeds’ under section 1956 . . . . Id. at 1242. In Cuellar v. United States, 128 S. Ct. 1994 (2008), the Supreme Court held that although the Government doesn’t need to show that the defendant attempted to make illegal funds appear legitimate, it is required to show that the defendant did more than merely hide the funds during transport. To sustain a conviction, the Government must prove that the defendant knew that a purpose of the transportation was to conceal or disguise the illicit funds’ nature, locations, source, ownership, or control. d we e , vi 226 4 16. No 418 0 017 7/2 7/2 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 445 of 677 74.6 Money Laundering 18 U.S.C. § 1957 It’s a Federal crime for anyone to engage in certain kinds of financial transactions commonly known as money laundering. The Defendant can be found guilty of this offense only if all the following are proved beyond a reasonable doubt; (1) the Defendant knowingly engaged or attempted to engage in a monetary transaction; (2) the Defendant knew the transaction involved property or funds that were the proceeds of some criminal activity; (3) (4) (5) 017 7/2 /2 the property was in fact proceeds of [describe 07alleged in the d the specified unlawful activity we indictment]; and ie 6, v 2 the transaction took place in [the United -42 special maritime and territorial States][in the . 16 jurisdiction of the United States] [outside the o NUnited States but the Defendant was a United the property had a value of more than $10,000; States person as defined by 18 U.S.C. § 3077 (excluding section (2)(D))]. The term “monetary transaction” means the [deposit] [withdrawal] [transfer] [exchange of funds or a monetary instrument] by, through, or to a financial institution in a way that affects interstate commerce. [The term does not include any transaction necessary to preserve a person’s right to representation as guaranteed by the Sixth Amendment to the Constitution.] A “financial institution” means [identify type of institution listed in 31 U.S.C § 5312 as alleged in the indictment]. The term “proceeds” means any property derived from or obtained or 419 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 446 of 677 retained, directly or indirectly, through some form of unlawful activity, including the gross receipts of the activity. It doesn’t matter whether the Defendant knew the precise nature of the crime or that the property came from committing [unlawful activity alleged in indictment]. But the Government must prove that the Defendant knew that the property involved in the monetary transaction was obtained or derived from committing some crime. Also it doesn’t matter whether all the property involved was derived from a crime. The Government only has to prove that $10,000 worth of the property 017 7/2 7/2 was obtained or derived from committing a crime. d we 0 e , vi 18 U.S.C. § 1957(a) and (d) provide: 226 6-4 1Whoever, in any of the circumstances set forth in o. N(a) (d), knowingly engages or attempts to engage in a subsection ANNOTATIONS AND COMMENTS monetary transaction in criminally derived property of a value greater than $10,000 and is derived from specified unlawful activity, shall be punished as provided in subsection (b). * * * * (d) The circumstances referred to in subsection (a) are - (1) that the offense under this section takes place in the United States or in the special maritime and territorial jurisdiction of the United States; or (2) that the offense under this section takes place outside the United States and such special jurisdiction, but the defendant is a United States person (as defined in section 3077 of this title, but excluding the class described in paragraph (2)(D) of such section). Maximum Penalty: Ten (10) years and applicable fine. 420 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 447 of 677 United States v. Adams, 74 F.3d 1093, 1101 (11th Cir. 1996), the Eleventh Circuit recommended that district courts make clear in the jury instruction that at least $10,000 of the property at issue must be criminally derived. In United States v. Christo, 129 F.3d 578, 580 (11th Cir. 1997), the Eleventh Circuit held that the predicate crime must be completed before the offense of money laundering can occur under section 1957. The term “proceeds” as used in both 18 U.S.C. § 1956 and § 1957 was expressly defined by the Fraud Enforcement and Recovery Act of 2009 (“FERA”), Pub. L. No. 111-21, effective May 20, 2009. The FERA expanded the concept of monetary proceeds, for purposes of enforcing prohibitions against money laundering, to include gross receipts. See 18 U.S.C. § 1956(c)(9). The FERA was a direct response to United States v. Santos, 128 S. Ct. 2020 (2008). In Santos, a plurality of the U.S. Supreme Court held that the definition of the term “proceeds” in 18 U.S.C. § 1956(a)(1)(A)(i) refers to “profits” rather than “receipts” when applied to a prosecution arising from an illegal stand-alone gambling operation. Until the FERA, the definition of “proceeds” in the money laundering statute remained unclear. 017 7/2 7/2 The Eleventh Circuit has construed the fragmented Santos opinion narrowly. In United 0case in which the trial took place d States v. Demarest, 570 F.3d 1232 (11th Cir. 2009), a we prior to the FERA’s enactment, the Court noted: e , vi Santos has limited precedential value . . . . The narrow holding in [the case], 226 4 at most, was that the 6- receipts of an unlicensed gambling operation were 1 gross 1956 . . . . not ‘proceeds’o. N under section Id. at 1242. See United States v. Velez, 586 F.3d 875 (11th Cir. 2009) (holding that the plain language of § 1957(f)(1) clearly exempts criminally derived proceeds used to secure legal representation to which an accused is entitled to under the Sixth Amendment). 421 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 448 of 677 75.1 RICO - Substantive Offense 18 U.S.C. § 1962(c) It’s a Federal crime to knowingly participate in conducting the activities of an enterprise whose activities involve or affect interstate commerce through a pattern of racketeering activity. An "enterprise" includes legal entities such as any partnership, corporation, or association. It also includes a nonlegal entity that is a group of people associated for a common purpose of engaging in a course of conduct. 017 7/2 statute(s), e.g., Title 18 of the United States Code relating to mail fraud 2 07/ d (section 1341) and wire fraud (Section 1343)]. we vie A "pattern of racketeering ,activity" means that at least two acts of 226 4 racketeering activity were-committed within ten years. At least one of the acts 16 . No after October 15, 1970. must have occurred “Racketeering activity" includes any acts that violate [cite relevant Count ___ of the indictment charges that beginning on or about ____ and continuing through [date indictment was filed], the named Defendants participated in conducting the activities of an enterprise, whose activities use or affect interstate commerce, “through a pattern of racketeering activity.” To establish that a Defendant named in count ___ committed the crime charged in that count, five specific facts must be proved beyond a reasonable doubt: (1) the Defendant enterprise; was 422 associated with an Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 449 of 677 (2) the Defendant knowingly committed, or aided and abetted in committing, at least two acts of racketeering activity; (3) the two acts of racketeering activity were connected by a common scheme, plan, or motive constituting a pattern of criminal activity, and not just a series of separate, isolated, or disconnected acts; (4) by committing the two or more connected acts, the Defendant participated in conducting the enterprise's affairs; and (5) the enterprise was involved in or affected interstate commerce. For the first specific fact, you must find that the Defendant was 017 7/2 2 something’s general existence. So the Government must prove beyond a 07/ d we reasonable doubt that the Defendantie aware of the general existence of was ,v the enterprise described in the indictment. 226 6-4 1specific fact, the Government must prove beyond a . For the second No associated with the enterprise. “Associated” means having an awareness of reasonable doubt that the Defendant knowingly committed, or aided and abetted in committing, at least two acts of racketeering activity specifically described in the indictment [under the headings "Racketeering Act One and "Racketeering Act Two."] [in Counts through .] But if you find that the Defendant was involved in at least two acts of racketeering activity, you must all agree on exactly which two acts of racketeering activity the Defendant committed or aided and abetted in committing. It isn’t enough for you to agree that the Defendant committed two acts if you can’t agree on the same two acts. 423 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 450 of 677 For the fourth specific fact, “participating in conduct” means having some inside role in managing or operating the enterprise at some level. It doesn’t matter whether the Defendant had primary responsibility for anything or a managerial position. But “participating in conduct” doesn’t include being an outsider and helping out in some way. So the Government must prove beyond a reasonable doubt that the Defendant had some inside role in managing or operating the enterprise, and that the Defendant was not an outsider helping the enterprise. For the fifth specific fact, “interstate commerce” means business, trade, 017 7/2 beyond a reasonable doubt that in conducting the affairs of the enterprise the 2 07/ commerce by [describe d Defendant was involved in or affected interstate we ie interstate commerce activity 6, v indictment; e.g. using interstate from 2 -42making long-distance phone calls; by traveling communications facilities by . 16 No from one state to another; by sending funds by mail or wire from one state to or movement between one state and another. The Government must prove another]. If you find that these transactions or events occurred, and that they occurred or were done in the course of or as a direct result of conducting the enterprise’s affairs, then the required involvement in or effect on interstate commerce is established, But if you don’t so find, then the required effect on interstate commerce is not established. ANNOTATIONS AND COMMENTS 18 U.S.C. § 1962(c) provides: It shall be unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of 424 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 451 of 677 such enterprise's affairs through a pattern of racketeering activity . . . . Maximum Penalty: Twenty (20) years imprisonment and applicable fine, and forfeiture of certain property. Life imprisonment if the violation is based on racketeering activity for which the maximum penalty includes life imprisonment. (The jury must find that defendant committed such a predicate act beyond a reasonable doubt. See United States v. Nguyen, 255 F.3d 1335 (11th Cir. 2001) (applying Apprendi v. New Jersey, 530 U.S. 466 (2000)). In United States v. Kotvas, 941 F.2d 1141 (11th Cir. 1991), the Eleventh Circuit held that this pattern instruction properly instructed the jury on the continuity requirement discussed by the United States Supreme Court in H. J., Inc. v. Northwestern Bell Telephone Co., 492 U.S. 229 (1989). In United States v. Browne, 505 F.3d 1229 (11th Cir. 2007), the Eleventh Circuit reaff’d this holding. In Reves v. Ernst & Young, 507 U.S. 170, 113 S. Ct. 1163, 122 L. Ed. 2d 525 (1993), the Supreme Court held that a Defendant participates in the conduct of an enterprise's affairs by participating in the "operation or management" of the enterprise. The Eleventh Circuit has held that Reves, a civil RICO action, applies to criminal proceedings as well. See United States v. Starrett, 55 F.3d 1525 (11th Cir. 1995). Starrett nevertheless upheld the district court's refusal to give a proposed instruction that the Defendant must have occupied a "leadership" position in the enterprise. d we e , vi 226 017 7/2 7/2 0 In Boyle v. United States, 129 S. Ct. 2237 (2009), the Supreme Court held that an association-in-fact enterprise under RICO, 18 U.S.C. § 1961, et seq., “must have at least three structural features: a purpose, relationships among those associated with the enterprise, and longevity sufficient to permit these associations to pursue the enterprise’s purpose” but the enterprise “need not have a hierarchical structure or a ‘chain of command.’” Id. at 2244 - 45. The Boyle Court reiterated that an association-in-fact enterprise under RICO is a “group of persons associated for a common purpose of engaging in a course of conduct.” Id. at 2244 (citing United States v. Turkette, 452 U.S. 576, 583 (1981)). 4 16. No If the indictment seeks a forfeiture of property under § 1963(a), see Trial Instruction No. 5 With regard to the second element, “RICO does not contain any separate mens rea or scienter elements beyond those encompassed in its predicate acts.” United States v. Pepe, 747 F.2d 632, 675-76 (11th Cir. 1984). Thus, in the second essential element, the jury instruction should conform to the mental state required by the predicate act(s). 425 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 452 of 677 75.2 RICO - Conspiracy Offense 18 U.S.C. § 1962(d) It’s a Federal crime for anyone associated with an enterprise whose activities involve or affect interstate commerce to participate in conducting the activities of the enterprise through a pattern of racketeering activity. The meaning of certain terms and an explanation of what the Government must prove for this crime are in the instructions covering Count ____ of the indictment. The Defendants named in Count ___ of the indictment – the conspiracy count – are not charged with violating Section 1962(c). They are charged with 017 7/2 7/2 willfully and knowingly conspiring to violate that law. Conspiracy is a separate crime, and violates Section 1962(d). d we 0 A "conspiracy" is an agreement by two or more persons to commit an e , vi 226 unlawful act. In other words, it is a kind of partnership for criminal purposes. 4 16. No Every member of the conspiracy becomes the agent or partner of every other member. The Government does not have to prove that all the people named in the indictment were members of the plan, or that those who were members made any kind of formal agreement. The heart of a conspiracy is the making of the unlawful plan itself, so the Government does not have to prove that the conspirators succeeded in carrying out the plan. The Defendant can be found guilty only if all the following facts are proved beyond a reasonable doubt: (1) two or more people agreed to try to accomplish an unlawful plan to engage in a pattern of racketeering activity; 426 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 453 of 677 (2) the Defendant knowingly and willfully joined in the conspiracy; and (3) when the Defendant joined in the agreement, the Defendant had the specific intent either to personally participate in committing at least two other acts of racketeering, or else to participate in the enterprise’s affairs, knowing that other members of the conspiracy would commit at least two other acts of racketeering and intending to help them as part of a pattern of racketeering activity. A person may be a conspirator even without knowing all the details of the unlawful plan or the names and identities of all the other alleged conspirators. 017 2 understanding of the unlawful purpose of the plan –27/ willfully joined in the and 7 0for/you to find the Defendant d plan on at least one occasion – that's sufficient e ew , vi guilty. 226 4 But simply being present at the scene of an event or merely associating 16. No and discussing common goals and interests doesn't with certain people If the Defendant played only a minor part in the plan but had a general establish proof of a conspiracy. Also a person who doesn't know about a conspiracy but happens to act in a way that advances some purpose of one doesn't automatically become a conspirator. ANNOTATIONS AND COMMENTS 18 U.S.C. § 1962(d) provides: It shall be unlawful for any person to conspire to violate any of the provisions of subsections (a), (b) or (c) of this section. Maximum Penalty: Twenty (20) years imprisonment and applicable fine, and forfeiture of certain property. Life imprisonment if the violation is based on 427 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 454 of 677 racketeering activity for which the maximum penalty includes life imprisonment. (The jury must find that defendant committed such a predicate act beyond a reasonable doubt. See United States v. Nguyen, 255 F.3d 1335 (11th Cir. 2001) (applying Apprendi v. New Jersey, 530 U.S. 466 (2000)). United States v. To, 144 F.3d 737 (11th Cir. 1998) (discusses ‘single objective’ and ‘overall objective’ RICO conspiracy theories); see also United States v. Beale, 921 F.2d 1412 (11th Cir. 1991) (discusses the alternate methods of proving a RICO conspiracy). Salinas v. United States, 522 U.S. 52, 63, 118 S. Ct. 469, 476 139 L. Ed. 2d 352 (1997) (finding that no overt act is required under the RICO conspiracy statute); see also United States v. Starrett, 55 F.3d 1525 (11th Cir. 1995) (observing that no overt act is required under § 1962(d)). The committee believes that the general definition of “willfully” in Basic Instruction 9.1A would usually apply to this crime. d we e , vi 226 4 16. No 428 0 017 7/2 7/2 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 455 of 677 76.1 Bank Robbery 18 U.S.C. § 2113(a) (Subsection (a) Only) It’s a Federal crime to take [or to attempt to take] from or in the presence of another person [by force and violence] [by intimidation] any property or money possessed by a federally insured [bank] [credit union] [savings-andLoan association]. This crime is called bank robbery. The Defendant can be found guilty of this crime only if all the following facts are proved beyond a reasonable doubt: (1) the Defendant knowingly took [or attempted to take] money or property possessed by a federally insured [bank] [credit union] [savingsand-loan association] from or in the presence of the person described in the indictment; and 017 2 7/force and (2) the Defendant did so [by means2 of 07/ violence] [by means of intimidation]. d webank whose deposits are insured e [A "federally insured bank" means any , vi 226 by the Federal Deposit Insurance Corporation.] 4 16. [A "federallyo N insured credit union" means any Federal credit union and any State-chartered credit union whose accounts are insured by the National Credit Union Administration Board.] [A "federally insured savings and loan association" means any savingsand-loan association whose deposits are insured by the Federal Savings-andLoan Insurance Corporation.] [To take "by means of intimidation" is to say or do something in a way that would make an ordinary person fear bodily harm. The heart of the crime is taking money or property by using intimidation. It doesn’t matter whether the victim was actually scared or whether the 429 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 456 of 677 Defendant’s behavior was violent enough to cause terror, panic, or hysteria as long as an ordinary person in the victim’s position would have felt a threat of bodily harm by the Defendant’s conduct.] d we e , vi 226 4 16. No 430 0 017 7/2 7/2 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 457 of 677 ANNOTATIONS AND COMMENTS 18 U.S.C. § 2113(a) provides: Whoever, by force and violence, or by intimidation, takes, or attempts to take, from the person or presence of another . . . any property or money . . . belonging to . . . or in the possession of, any bank, credit union, or any savings-and-loan association [shall be guilty of an offense against the United States]. Maximum Penalty: Twenty (20) years imprisonment and applicable fine. The statute creates various modes of committing the offense (force and violence or intimidation) (assault or use of a dangerous weapon) and care must be taken in adapting the instruction to the allegations of the indictment. See United States v. Bizzard, 615 F.2d 1080 (5th Cir. 1980). In Carter v. United States, 530 U.S. 255, 120 S. Ct. 2159 (2000), the court held that the bank larceny provision of § 2113(b) is not a lesser included offense of § 2113(a). In United States v. King, 178 F.3d 1376 (11th Cir. 1999), the court held, in a prosecution under § 2113(b), that money being transferred in a contractor’s armored vehicle from a bank to the Federal Reserve was money still “in the care, custody, control, management or possession” of the bank because the bank retained legal title to the funds. d we 017 7/2 7/2 0 In United States v. Mitchell, 146 F.3d 1338 (11th Cir. 1998), the court upheld arguably inconsistent verdicts finding the Defendant guilty under §2113(d) (armed bank robbery), but acquitting him under § 924(c) (carrying a firearm during a crime of violence). e , vi in the teller's position reasonably could infer “Intimidation” occurs “when an ordinary person 226 acts.” United States v. Kelley, 412 F.3d 1240, a threat of bodily harm from the defendant's -4 1244 (11th Cir. 2005). 16 “Whether a particular act constitutes intimidation is viewed objectively.” Id. Theo. N defendant need not intend for the act to be intimidating. Id. A taking “from the person or in the presence of another” occurs when the money or property is “so within [the victim's] reach, inspection, observation or control, that [the victim] could if not overcome by violence or prevented by fear, retain his possession of it.” " United States v. Kelley, 412 F.3d 1240, 1246 (11th Cir. 2005). 431 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 458 of 677 76.2 Bank Robbery 18 U.S.C. § 2113(a) and (d) (Subsections (a) and (d) Alleged in Separate Counts) It’s a Federal crime to take [or to attempt to take] from or in the presence of another person [by force and violence] [by intimidation] any property or money possessed by a federally [insured bank] [insured credit union] [insured savings-and-loan association]. This crime is called bank robbery. The Defendant can be found guilty of this crime as charged in Count ___ of the indictment, only if all the following facts are proved beyond a reasonable doubt: (1) the Defendant knowingly took [or attempted to take] money or property possessed by a federally insured [bank] [credit union] [savingsand-loan association] from or in the presence of the person described in the indictment; and 017 7/2 7/2 0 ed (2) the Defendant did sow means of force and [by i of violence] [by means e intimidation]. 6, v 2 [A "federally insured 42 means any bank whose deposits are insured - bank" . 16 by the Federal Deposit Insurance Corporation.] No [A "federally insured credit union" means any Federal credit union and any State-chartered credit union whose accounts are insured by the National Credit Union Administration Board.] [A "federally insured savings-and-loan association" means any savingsand-loan association whose deposits are insured by the Federal Savings-andLoan Insurance Corporation.] [To take "by means of intimidation" is to say or do something in a way that would make an ordinary person fear bodily harm. The heart of the crime is taking money or property by using intimidation. 432 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 459 of 677 It doesn’t matter whether the victim was actually scared or whether the Defendant’s behavior was violent enough to cause terror, panic, or hysteria as long as an ordinary person in the victim’s position would have felt a threat of bodily harm by the Defendant’s conduct.] Under Federal law, it’s a more serious federal crime [to assault] [to put in jeopardy the life of any person by the use of a dangerous weapon or device] while committing bank robbery. The Defendant can be found guilty of the more serious crime charged in Count [subsection (d) count] if the Government proves the two facts necessary 017 7/2 7/2 for the crime in count [subsection (a) count) and proves this third fact beyond a reasonable doubt, namely: (3) d we 0 that the Defendant knowingly [assaulted a person] [put the life of a person in jeopardy by using a dangerous weapon or device] while stealing property or money from the [bank] [credit union] [savings-and-loan association]. e , vi 226 4 16. No may be committed without actually touching or hurting [An "assault" another person. An assault occurs when a person intentionally attempts or threatens to hurt someone else, and has an apparent and immediate ability to carry out the threat, such as by pointing or brandishing a dangerous weapon or device.] [A "dangerous weapon or device" includes any object that a person can readily use to inflict serious bodily harm on someone else.] [So to "put someone’s life in jeopardy by using a dangerous weapon or device" means to expose someone else to a risk of death by using a dangerous weapon or device.] 433 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 460 of 677 ANNOTATIONS AND COMMENTS 18 U.S.C. § 2113(a) and (d) provide: (a) Whoever, by force and violence, or by intimidation, takes, or attempts to take, from the person or presence of another, . . . any property or money . . . belonging to . . . or in the possession of any bank, credit union, or any savings-and-loan association [shall be guilty of an offense against the United States]. (d) Whoever, in committing, or attempting to commit, any offense defined in subsection (a) . . . of this section, assaults any person, or puts in jeopardy the life of any person by the use of a dangerous weapon or device [shall be punished as provided by law. Maximum Penalty: Twenty (20) years imprisonment and applicable fine as to subsection (a); and Twenty-five (25) years imprisonment and applicable fine as to subsection (d). The statute creates various modes of committing the offense (force and violence or intimidation) (assault or use of a dangerous weapon) and care must be taken in adapting the instruction to the allegations of the indictment. See United States v. Blizzard, 615 F.2d 1080 (5th Cir. 1980). 017 7/21678, 90 L. Ed. 2d 15 In McLaughlin v. United States, 476 U.S. 16, 19, 106 S. Ct.2 1677, (1986) the Supreme Court held that an unloaded gun is a dangerous weapon. One of the 07/ the Court characterized as three reasons given for this conclusion, eached which of "independently sufficient," was that the display of a gun instills fear in the average citizen ew and creates an immediate danger of a violent response. Id. , vi 6 22Circuit held that a toy gun should be considered a 4 Citing to McLaughlin, the Eleventh dangerous weapon under § 2113(d). United States v. Garrett, 3 F.3d 390, 391 (11th Cir. 16. 1993). No In United States v. King, 178 F.3d 1376 (11th Cir. 1999), the court held, in a prosecution under § 2113(b), that money being transferred in a contractor’s armored vehicle from a bank to the Federal Reserve was money still “in the care, custody, control, management or possession” of the bank because the bank retained legal title to the funds. In United States v. Mitchell, 146 F.3d 1338 (11th Cir. 1998), the court upheld arguably inconsistent verdicts finding the Defendant guilty under §2113(d) (armed bank robbery), but acquitting him under § 924(c) (carrying a firearm during a crime of violence). “Intimidation” occurs “when an ordinary person in the teller's position reasonably could infer a threat of bodily harm from the defendant's acts.” United States v. Kelley, 412 F.3d 1240, 1244 (11th Cir. 2005). “Whether a particular act constitutes intimidation is viewed objectively.” Id. The defendant need not intend for the act to be intimidating. Id. A taking “from the person or in the presence of another” occurs when the money or property is “so within [the victim's] reach, inspection, observation or control, that [the victim] could if not overcome by violence or prevented by fear, retain his possession of it.” " Id. at 1246. 434 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 461 of 677 76.3 Bank Robbery 18 U.S.C. § 2113)(a) And (d) (Subsections (a) and (d) Alleged in the Same Count) It’s a Federal crime to take [or attempt to take] from or in the presence of another person [by force and violence] [by intimidation] any property or money possessed by a federally insured [bank] [credit union] [saving and loan association], and while doing so to [assault any person] [put the life of any person in jeopardy by using a dangerous weapon or device]. The Defendant can be found guilty of this crime only if all the following facts are proved beyond a reasonable doubt: (1) the Defendant knowingly took money or property possessed by a federally insured [bank] [credit union] [savings-and-loan association] from or in the presence of the person described in the indictment; 017 7/2 7/2 (2) (3) 0 ed the Defendant did sow means of force and [by i of violence] [by means e intimidation]; and 6, v 2 the Defendant [assaulted someone] [put -42 in jeopardy by using a dangerous someone’s life . 16 or device] while stealing the property or o Nweapon money. [A "federally insured bank" means any bank whose deposits are insured by the Federal Deposit Insurance Corporation.] [A "federally insured credit union" means any Federal credit union and any State-chartered credit union whose accounts are insured by the National Credit Union Administration Board.] [A "federally insured savings-and-loan association" means any savingsand-loan association whose deposits are insured by the Federal Savings-andLoan Insurance Corporation.] 435 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 462 of 677 [To take "by means of intimidation" is to say or do something in a way that would make an ordinary person fear bodily harm. The heart of the crime is taking money or property by using intimidation. It doesn’t matter whether the victim was actually scared or whether the Defendant’s behavior was violent enough to cause terror, panic, or hysteria as long as an ordinary person in the victim’s position would have felt a threat of bodily harm by the Defendant’s conduct.] [An "assault" may be committed without actually touching or hurting another person. An assault occurs when a person intentionally attempts or 017 72 carry out the threat, such as by pointing or brandishing /a dangerous weapon 2 07/ d or device.] we e , vi [A "dangerous weapon or device" includes any object that a person can 226 4 readily use to inflict serious bodily harm on someone else.] 16o. Nsomeone’s life in jeopardy by using a dangerous weapon or [So to "put threatens to hurt someone else, and has an apparent and immediate ability to device" means to expose someone else to a risk of death by using a dangerous weapon or device.] In some cases, the law that a Defendant is charged with breaking actually covers two separate crimes. One is less serious than the other, and is generally called a "lesser-included offense." So, if you all find the Defendant "Not Guilty" of the crime charged in count ___ of the indictment, you must then determine whether the Defendant is guilty or not guilty of the lesser-included offense. The crime of bank robbery combined with [an assault] [using a 436 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 463 of 677 dangerous weapon or device and putting someone’s life in jeopardy] includes the lesser offense of bank robbery without [an assault] [using a dangerous weapon or device and putting in someone’s life in jeopardy]. So if you find the Defendant not guilty of the crime charged in count ___ of the indictment, then you must decide whether the Defendant is guilty or not guilty of the lesser-included offense of bank robbery without [committing an assault] [endangering another by using a dangerous weapon or device]. ANNOTATIONS AND COMMENTS 017 (a) Whoever, by force and violence, or by intimidation, takes, or 7/2 any property or 2 attempts to take, from the person or presence of another, . . . 07/ bank, credit union, or money . . . belonging to . . . or in the possession of any d any savings-and-loan association [shall be guilty of an offense against the we e United States]. , vi 6 (d) Whoever, in committing, or attempting to commit, any offense 22of this section, assaults any person, or puts in 4 defined in subsection (a) . . . 16-person by the use of a dangerous weapon or device jeopardy the life.of any [shall be punished as provided by law]. No 18 U.S.C. § 2113(a) and (d) provide: Maximum Penalty: Twenty (20) years imprisonment and applicable fine as to subsection (a); and Twenty-five (25) years imprisonment and applicable fine as to subsection (d). The statute creates various modes of committing the offense (force and violence or intimidation) (assault or use of a dangerous weapon) and care must be taken in adapting the instruction to the allegations of the indictment. See United States v. Blizzard, 615 F.2d 1080 (5th Cir. 1980). In McLaughlin v. United States, 476 U.S. 16, 19, 106 S. Ct. 1677, 1678, 90 L. Ed. 2d 15 (1986), the Supreme Court held that an unloaded gun is a dangerous weapon. One of the three reasons given for this conclusion, each of which the Court characterized as "independently sufficient," was that the display of a gun instills fear in the average citizen and creates an immediate danger of a violent response. Id. Citing to McLaughlin, the Eleventh Circuit held that a toy gun should be considered a dangerous weapon under § 2113(d). United States v. Garrett, 3 F.3d 390, 391 (11th Cir. 1993). In United States v. King, 178 F.3d 1376 (11th Cir. 1999), the court held, in a prosecution 437 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 464 of 677 under § 2113(b), that money being transferred in a contractor’s armored vehicle from a bank to the Federal Reserve was money still “in the care, custody, control, management or possession” of the bank because the bank retained legal title to the funds. In United States v. Mitchell, 146 F.3d 1338 (11th Cir. 1998), the court upheld arguably inconsistent verdicts finding the Defendant guilty under §2113(d) (armed bank robbery), but acquitting him under § 924(c) (carrying a firearm during a crime of violence). “Intimidation” occurs “when an ordinary person in the teller's position reasonably could infer a threat of bodily harm from the defendant's acts.” United States v. Kelley, 412 F.3d 1240, 1244 (11th Cir. 2005). “Whether a particular act constitutes intimidation is viewed objectively.” Id. The defendant need not intend for the act to be intimidating. Id. A taking “from the person or in the presence of another” occurs when the money or property is “so within [the victim's] reach, inspection, observation or control, that [the victim] could if not overcome by violence or prevented by fear, retain his possession of it.” " Id. at 1246. d we e , vi 226 4 16. No 438 0 017 7/2 7/2 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 465 of 677 76.4 Bank Robbery 18 U.S.C. § 2113(e) (Subsection (e) Only – Alleged in a Separate Count) It’s a separate Federal crime for anyone while [committing the crime described in Count ____ of the indictment] [avoiding or attempting to avoid being arrested for committing the crime described in Count ____ of the indictment] to force any person to accompany [him] [her] without the person’s consent. So if you find beyond a reasonable doubt that the Defendant [committed the bank robbery as described in Count ___] [avoided or attempted to avoid being arrested for committing the crime described in Count___], you may find the Defendant guilty of this crime also if all the following facts are 017 7/2 (1) while [committing the bank robbery] [attempting 7/2 to avoid being arrested ford 0 committing the bank e robbery], the Defendant forced at least one ew [her]; and person to accompany [him] , vi 226 (2) the other person or people did not voluntarily 4 consent to accompany the Defendant. 16. No person to do something without "voluntary consent" is To force another proved beyond a reasonable doubt: to compel the person to act against his or her will through the use of intimidation or threats of harm. To force a victim to "accompany" the Defendant is to force the victim to move with the defendant from place to place rather than being forced to move alone or with someone other than the Defendant. The crime requires a forced movement of some substance or significance in the company of the Defendant, more than some small or trivial movement. But a substantial or significant movement doesn’t have to involve 439 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 466 of 677 leaving the premises, covering a particular distance, lasting a particular amount of time, or producing any particular level of fear in the victim. What the Government must prove beyond a reasonable doubt is that the victim’s forced movement in the Defendant’s company was of some substance or significance and not a trivial or insignificant movement. ANNOTATIONS AND COMMENTS 18 U.S.C. § 2113 (e) provides: (e) Whoever, in committing any offense defined in this section, or in avoiding or attempting to avoid apprehension for the commission of such offense, or in freeing himself from arrest or confinement for such offense . . . forces any person to accompany him [or her] without the consent of such person [shall be guilty of an offense against the United States]. 017 7/2 2 Maximum Penalty: Mandatory minimum of ten (10) years imprisonment. If death results, then the maximum penalty is death. 7 0 / d we of things that need not be proved, The definition of "accompany," including theienumeration ve is derived from United States v. Bauer, 956 F.2d 239 (11th Cir. 1992), cert. denied 506 U.S. ,(1992). 976, 113 S. Ct. 469, 121 L. Ed. 2d 26 376 -42 . 16 No 440 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 467 of 677 77 Armed Postal/U.S. Property Robbery 18 U.S.C. § 2114(a) It’s a Federal crime to take or attempt to take mail matter, money, or property from a person in lawful custody of mail matter or of money or other property of the United States, if in so doing the [person is wounded] [person’s life is jeopardized by the use of a dangerous weapon]. The Defendant can be found guilty of this crime only if all the following facts are proved beyond a reasonable doubt: (1) (2) (3) the Defendant intentionally [took] [attempted to take] from the person or the presence of the person described in the indictment any mail matter or any other money or any other property of the United States then in the lawful charge, control or custody of that person; 017 7/2 the 2 the Defendant took the property against 07/ victim’s will, [by means of force and violence] [by d means of intimidation]; and we e , vi[attempting to commit] the while [committing] 26 robbery, 42 Defendant [wounded the person the described in the indictment] [jeopardized the life 16o. Nof theaperson described in the indictment by using dangerous weapon]. The Government is not required to prove that the Defendant knew the money or other property was property of the United States. To take "by means of intimidation" is to say or do something in a way that would cause an ordinary person to fear bodily harm. It doesn’t matter whether the alleged victim was actually frightened, or whether the Defendant was so violent that it was likely to cause terror, panic, or hysteria. The heart of the crime is the taking of mail matter, money, or property and the Defendant’s intentional intimidation of the alleged victim. 441 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 468 of 677 [A "dangerous weapon" includes anything capable of being readily operated or wielded by one person to inflict severe bodily harm or injury upon another person. To "put in jeopardy" the life of a person "by the use of a dangerous weapon" means, then, to expose someone else to a risk of death by using a dangerous weapon or device.] ANNOTATIONS AND COMMENTS 18 U.S.C. § 2114(a) provides: 017 7/2 7/2 A person who assaults any person having lawful charge, control, or custody of any mail matter or of any money or other property of the United States, with intent to rob, steal, or purloin such mail matter, money, or other property of the United States, or robs or attempts to rob any such person of mail matter, or of any money, or other property of the United States, shall, for the first offense, be imprisoned not more than ten years; and if in effecting or attempting to effect such robbery he wounds the person having custody of such mail, money, or other property of the United States, or puts his life in jeopardy by the use of a dangerous weapon, or for a subsequent offense, shall be imprisoned not more than twenty-five years. d we e , vi 226 0 4 16. No Maximum Penalty: Ten (10) years imprisonment for the first offense (without wounding the person with control of the property or putting that person’s life in jeopardy by use of a dangerous weapon); and Twenty-five (25) years imprisonment for a subsequent offense or for wounding the person with control of the property or putting that person’s life in jeopardy by use of a dangerous weapon in robbing or attempting to rob the property. This instruction is designed for the offense of armed postal robbery which requires a finding that the Defendant wounded or jeopardized the life of a postal employee by using a dangerous weapon. If the Defendant is not charged with armed postal robbery, then the third essential element should not be included in the instruction. The defendant need not know that the property he is stealing is property of the United States. United States v. Smithen, 213 F.3d 1342, 1344 (11th Cir. 2000). Section 2114 is not limited to robbery of “postal” money or property; it extends to “any money or other property of the United States.” Garcia v. United States, 469 U.S. 70, 80, 105 S. Ct. 479, 485 (1985) (finding that robbery of Secret Service agent’s “flash money” fell within § 2114's prohibitions). 442 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 d we e , vi 226 4 16. No Pg: 469 of 677 443 0 017 7/2 7/2 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 470 of 677 78 Motor Vehicles: "Carjacking" 18 U.S.C. § 2119 It’s a Federal crime for anyone to take or attempt to take a motor vehicle that has been transported, shipped, or received in interstate or foreign commerce from or in the presence of another person, [by force and violence] [by intimidation] with the intent to cause death or serious bodily harm. The Defendant can be found guilty of this crime only if all the following facts are proved beyond a reasonable doubt: (1) the Defendant [took] [attempted to take] a motor vehicle from or in the presence of another; (2) the Defendant did so [by force and violence] [by intimidation]; (3) (4) [(5) 017 the motor vehicle had previously been 7/2 or transported, shipped, or received/in interstate 72 foreign commerce; and d 0 e ew to cause death or the Defendant intended , vi when the Defendant took serious bodily6 22 harm the motor vehicle[.] [; and] 4 16o. bodily injury] N[death] [seriousthe offense.] resulted from the commission of “By force and violence" means the use of actual physical strength or actual physical violence. To take “by intimidation" is to say or do something that would make an ordinary person fear bodily harm. It doesn’t matter whether the victim in this case actually felt fear. To "transport, ship, or receive” a vehicle in interstate or foreign commerce means to move the vehicle between any two states or between the United States and a foreign country. It doesn’t matter whether the Defendant 444 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 471 of 677 knew that the vehicle had moved in interstate or foreign commerce. The Government only has to prove that the vehicle actually moved in interstate or foreign commerce. To decide whether the Defendant "intended to cause death or serious bodily harm," you must objectively judge the Defendant’s conduct as shown by the evidence and from what someone in the victim’s position might reasonably conclude. [The Government contends that the Defendant intended to cause death or serious bodily harm if the victim refused to turn over the car. If you find 017 2 Government has proved this element of the crime.]27/ 07/ involves [a substantial [“Serious bodily injury” means physicald we harm that ie risk of death] [extreme physical6, v [obvious and long-term or permanent pain] 2 4 permanent loss or impairment of the function of -or2 disfigurement] [long-term . 16 No a bodily member, organ, or mental faculty]. It also includes knowingly beyond a reasonable doubt that the Defendant had that intent, then the compelling another person to perform a sexual act by using force against that person] [or describe the other mode of sexual abuse in violation of § 2241 or § 2242 as alleged in the indictment.] ANNOTATIONS AND COMMENTS 18 U.S.C. § 2119 provides: Whoever, with the intent to cause death or serious bodily harm takes a motor vehicle that has been transported, shipped, or received in interstate or foreign commerce from the person or presence of another by force and violence or by intimidation, or attempts to do so, shall [violate this section]. 445 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 472 of 677 Maximum Penalty varies depending on injury to victim. 1) When no serious bodily injury or death results, the maximum penalty is imprisonment for not more than 15 years and applicable fine. 2) When serious bodily injury results, the maximum penalty is imprisonment for not more than 25 years and applicable fine. 3) When death results, the maximum penalty is death and applicable fine. In the context of a violation of 18 U.S.C. § 113(c) - - assault with a dangerous weapon with intent to do bodily harm - - "[t]he intent of the defendant `is not to be measured by the secret motive of the actor, or some undisclosed purpose merely to frighten, not to hurt,' but rather `is to be judged objectively from the visible conduct of the actor and what one in the position of the victim might reasonably conclude.'" United States v. Guilbert, 692 F.2d 1340, 1344 (11th Cir. 1982), cert. denied, 103 S. Ct. 1260 (1983) (quoting Shaffer v. United States, 308 F.2d 654, 655 (5th Cir. 1962) (per curiam)). See United States v. Gibson, 896 F.2d 206, (6th Cir. 1990) (citing United States v. Guilbert and explaining that "[a] defendant's state of mind is a question of fact, often determined by objective evaluation of all the surrounding facts and circumstances"). 017 7/2 7/2 If the victim turns over the car without the Defendant attempting to inflict (or actually inflicting) serious bodily harm, the “intent to cause . . .” requirement is satisfied if the Government proves that the Defendant would have attempted to harm or kill the victim had the victim offered resistance. Holloway v. United States, 526 U.S. 1, 11-12, 119 S. Ct. 966 (1999); accord United States v. Douglas, 489 F.3d 1117, 1127 (11th Cir. 2007). 0 ed “We decline to interpret section w United States v. Lumley, 135 F.3d 758 (11th Cir. 1998). vie to cause death or serious bodily harm’ only 2119 to require a perpetrator to have ‘the intent as to the person from whom the perpetrator takes the motor vehicle.” (The Defendant shot 26, then ordered a victim out of her truck and drove at an armed guard while fleeing a robbery, -42 off in the vehicle.) . 16 No The Fifth element should be included under the principle of Apprendi if the indictment triggers the enhanced maximum sentences provided by the statute in cases resulting in serious bodily injury or death. The court may give an instruction on the lesser included offense of simple carjacking if the evidence supports such an instruction, but such an instruction is not appropriate if the defendant causes serious bodily harm to the victim and the question for the jury is therefore whether there is a nexus between the force used and the taking of the car. United States v. LeCroy, 441 F.3d 914, 923 (11th Cir. 2006). 446 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 473 of 677 79.1 Aggravated Sexual Abuse: by Force or Threat 18 U.S.C. § 2241(a) It’s a Federal crime in [the special maritime jurisdiction of the United States] [the territorial jurisdiction of the United States] [a Federal prison] to sexually abuse another person by using force or threats. The Defendant can be found guilty of this crime only if all the following facts are proved beyond a reasonable doubt: (1) the Defendant caused [victim’s name] to participate in a sexual act; (2) the Defendant used force against [victim’s name] or threatened [him] [her] or caused [him] [her] to believe that [he] [she] or any other person would be killed, suffer serious bodily injury, or be kidnapped; 017 7/2 and 2 (3) the Defendant did these acts knowingly; 07/ d (4) the acts occurred within [the special maritime weStates] [the territorial jurisdiction of the vie , United States] [a Federal jurisdiction of 6 2 the United prison].-42 . 16 means: The term No "sexual act" • contact between the penis and the vulva, or the penis and the anus, involving penetration however slight; or • contact between the mouth and the penis, the mouth and the vulva, or the mouth and the anus; or • the penetration – however slight – of another person’s anal or genital opening by a hand, finger, or any object, with an intent to abuse, humiliate, harass, or degrade the person, or to arouse or gratify the sexual desire of the Defendant or any other person[.] [;or] • [an intentional touching – not through the clothing – of the genitalia of a person younger than 16 years old, with the intent to abuse, humiliate, harass, or degrade the person, or to arouse or gratify the sexual desire of the Defendant or any other person.] 447 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 474 of 677 “Serious bodily injury" means physical harm that involves a substantial risk of death, unconsciousness, extreme physical pain, obvious and long-term or permanent disfigurement, or long-term or permanent loss or impairment of the function of a bodily member, organ, or mental faculty. [If you find beyond a reasonable doubt that the crime occurred at the location described in the indictment, that location is [within the [special maritime] [territorial] jurisdiction of the United States] [within a federal prison]. ANNOTATIONS AND COMMENTS 18 U.S.C. § 2241(a) provides: 017 7/2 7/2 Whoever, in the special maritime and territorial jurisdiction of the United States or in a Federal prison, knowingly causes another person to engage in a sexual act - - d we 0 (1) by using force against that other person; or (2) by threatening or placing that other person in fear that any person will be subjected to death, serious bodily injury, or kidnapping; e , vi 226 4 16- be fined under this title, imprisoned for any term of or attempts too. so, shall do years or life, or both. N Maximum Penalty: Life in prison and applicable fine. 448 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 475 of 677 79.2 Aggravated Sexual Abuse: Crossing a State Line with the Intent to Engage in a Sexual Act with Child Under 12 18 U.S.C. § 2241(c) It’s a Federal crime for anyone to cross a State line with the intent to engage in a sexual act with a person younger than 12 years old. The Defendant can be found guilty of this crime only if all the following facts are proved beyond a reasonable doubt: (1) the Defendant crossed a State line with the intent to engage in a sexual act; and (2) the [victim] was less than 12 years old. The term "State" includes a State of the United States, the District of 017 7/2 7/2 Columbia, and any commonwealth, territory, or possession of the United States. • 0 vie , the penis and the vulva, or the penis and contact between 226 the anus, involving penetration however slight; or 4 16o. mouth penis, Ncontact between theand theand theor the mouth and the vulva, or the mouth anus; The term "sexual act" means: • d we • the penetration – however slight – of another person’s anal or genital opening by a hand, finger, or any object, with an intent to abuse, humiliate, harass, or degrade the person, or to arouse or gratify the sexual desire of the Defendant or any other person[.] [;or] • [an intentional touching – not through the clothing – of the genitalia of a person, with the intent to abuse, humiliate, harass, or degrade the person, or to arouse or gratify the sexual desire of the Defendant or any other person.] It doesn’t matter whether the Defendant’s sole or even primary purpose in crossing the state line was to engage in a sexual act with a person under the age of 12. The Government must show that the intent was at least one of 449 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 476 of 677 the motives or purposes for the Defendant’s travel. In other words, the Government must show that the Defendant’s criminal purpose was not merely incidental to the travel. [In this case, the alleged victim was a fictitious person appearing to be younger than 12 years old. The Government doesn’t have to prove that the intended victim actually existed, but it must prove beyond a reasonable doubt that the Defendant believed that the intended victim was a person younger than 12 years old.] ANNOTATIONS AND COMMENTS 017 /2 Whoever crosses a State line with intent to engage27 sexual act with a in a / person who has not attained the age of 12 years .7shall be fined under this 0 . life. If the defendant has title and imprisoned for not less than 30 years or for ed previously been convicted of another ew Federal offense under this subsection, or of a State offense that would have been an offense under either such , viin a Federal prison, unless the death provision had the offense occurred 26 penalty is imposed, the 42 defendant shall be sentenced to life in prison. 16- minimum of thirty (30) years for first offense; maximum Maximum Penalty: Mandatory o. Nterm of life in prison and applicable fine. For a subsequent offense of 18 U.S.C. § 2241(c) provides, in relevant part: § 2241(c), the sentence is life in prison. 18 U.S.C. § 2260A provides for an enhanced sentence for persons required to register as sex offenders. 18 U.S.C. § 2241(c) provides for a life sentence if the defendant was previously convicted of another offense under § 2241(c). 18 U.S.C. § 2247 provides that the maximum sentence for a repeat offender under chapter 109A is twice the term otherwise provided by the chapter. 18 U.S.C. § 3559 provides for mandatory life imprisonment for repeated sex offenses against children. The defendant’s dominant purpose in crossing a State line or traveling in foreign commerce need not be to engage in a sexual act with a child. However, to meet the intent requirement the Government must prove that one of the defendant’s motives was to engage in a sexual act with a child. United States v. Garcia-Lopez, 234 F.3d 217, 220 (5th Cir. 2000) (construing intent requirement of 18 U.S.C. § 2423 and affirming district court’s refusal to give instruction that illicit activity must have been “dominant purpose” for defendant’s trip). Cf. United States v. Hoschouer, 224 Fed. Appx. 923, 925 (2007) (finding that intent requirement of § 2423(a) was met when defendant brought child on interstate trip and evidence supported the conclusion that he did so to facilitate his sexual relationship with her). The object of the sexual act need not actually exist for the defendant to be convicted of a 450 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 477 of 677 violation of § 2241(c). United States v. Grossman, 233 Fed. Appx. 963, 965 (11th Cir. 2007). d we e , vi 226 4 16. No 451 0 017 7/2 7/2 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 478 of 677 79.3 Aggravated Sexual Abuse: Sexual Act with a Child Under 12 18 U.S.C. § 2241(c) It’s a Federal crime for anyone within [the special maritime jurisdiction of the United States] [the territorial jurisdiction of the United States] [a Federal prison] to engage in a sexual act with a person younger than 12 years old. The Defendant can be found guilty of this crime only if all the following facts are proved beyond a reasonable doubt: (1) the Defendant knowingly engaged in a sexual act with [victim’s name]; 017 7/2 2 (3) the acts occurred [within the special maritime 07/ [within the jurisdiction of the UniteddStates] e territorial jurisdictionew United States] [in a of the i Federal prison]. , v 226 4 The Government61 doesn’t have to prove that the Defendant knew that . No younger than 12 years old. [victim’s name] was (2) at the time, [the victim’s name] was younger than 12 years old; and The term "sexual act" means: • contact between the penis and the vulva, or the penis and the anus, involving penetration however slight; or • contact between the mouth and the penis, the mouth and the vulva, or the mouth and the anus; or • the penetration – however slight – of another person’s anal or genital opening by a hand, finger, or any object, with an intent to abuse, humiliate, harass, or degrade the person, or to arouse or gratify the sexual desire of the Defendant or any other person[.] [;or] • [an intentional touching – not through the clothing – of the genitalia of a person, with the intent to abuse, humiliate, harass, degrade the person, or to arouse or gratify the 452 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 479 of 677 sexual desire of the Defendant or any other person.] [If you find beyond a reasonable doubt that the offense occurred at the location alleged and described in the indictment, you are instructed that the location would be [within the [special maritime] [territorial] jurisdiction of the United States] [in a Federal prison.] ANNOTATIONS AND COMMENTS 18 U.S.C. § 2241(c) provides, in relevant part: Whoever . . . in the special maritime and 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, knowingly engages in a sexual act with another person who has not attained the age of 12 years, or attempts to do so, shall be fined under this title and imprisoned for not less than 30 years or for life. If the defendant has previously been convicted of another Federal offense under this subsection, or of a State offense that would have been an offense under either such provision had the offense occurred in a Federal prison, unless the death penalty is imposed, the defendant shall be sentenced to life in prison. d we e , vi 226 017 7/2 7/2 0 4 16. No Maximum Penalty: Mandatory minimum of thirty (30) years for first offense; maximum term of life in prison and applicable fine. For a subsequent offense of § 2241(c), the sentence is life in prison. “In a prosecution under subsection (c) of this section, the Government need not prove that the defendant knew that the other person engaging in the sexual act had not attained the age of 12 years.” 18 U.S.C. § 2241(d). Mistake as to the victim’s age is not a defense if the victim is under the age of 12. United States v. Juvenile Male, 211 F.3d 1169, 1171 (9th Cir. 2000). 18 U.S.C. § 2260A provides for an enhanced sentence for persons required to register as sex offenders. 18 U.S.C. § 2241(c) provides for a life sentence if the defendant was previously convicted of another offense under § 2241(c). 18 U.S.C. § 2247 provides that the maximum sentence for a repeat offender under chapter 109A is twice the term otherwise provided by the chapter. 18 U.S.C. § 3559 provides for mandatory life imprisonment for repeated sex offenses against children. Whether the crime alleged occurred at a particular location is a question of fact. Whether the location is within the special maritime and territorial jurisdiction of the United States or a federal prison is a question of law. 453 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 480 of 677 79.4 Aggravated Sexual Abuse: Sexual Act with Child Between 12 and 16 18 U.S.C. § 2241(c) It’s a Federal crime for anyone [within the special maritime jurisdiction of the United States] [within the territorial jurisdiction of the United States] [in a Federal prison] to force a person who is at least 12 years old but younger than 16 years old to engage in a sexual act by using force or threats when the victim is at least four years younger than the person using force or threats. The Defendant can be found guilty of this crime only if all the following facts are proved beyond a reasonable doubt: (1) the Defendant knowingly engaged in a sexual act with [victim’s name or initials]; 7 01[the the Defendant did so by [using force against /2 7person] in 2 person]] [threatening or placing [the 07/ fear that [the person], or any other person, d would be subjected to e bodily w death, seriousperson] ie injury, or kidnapping] [rendering [the v unconscious] 6, [administering to [the person] a 2 drug, intoxicant, or similar substance that -42 impaired the ability of [the person] substantially 16 .appraise or control [his] [her] own conduct]; o Nto (2) (3) at the time, [the person with whom Defendant engaged in the sexual act] was at least 12 years old but less than 16 years old; (4) at the time, [the person with whom Defendant engaged in such sexual act] was at least four years younger than the Defendant; and (5) the acts occurred [within the special maritime jurisdiction of the United States] [within the territorial jurisdiction of the United States] [in a Federal prison]. The term "sexual act" means: • contact between the penis and the vulva, or the penis and the anus, involving penetration however slight; or 454 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 481 of 677 • contact between the mouth and the penis, the mouth and the vulva, or the mouth and the anus; or • the penetration – however slight – of another person’s anal or genital opening by a hand, finger, or any object, with an intent to abuse, humiliate, harass, or degrade the person, or to arouse or gratify the sexual desire of the Defendant or any other person[.] [;or] • [an intentional touching – not through the clothing – of the genitalia of a person, with the intent to abuse, humiliate, harass, or degrade the person, or to arouse or gratify the sexual desire of the Defendant or any other person.] “Serious bodily injury" means physical harm that involves a substantial risk of death, unconsciousness, extreme physical pain, obvious and long-term 017 7/2 2 the function of a bodily member, organ, or mental / 07faculty. d we that the crime occurred at the [If you find beyond a reasonable doubt e , vi location described in the indictment, that location is [within the [special 226 4 16. maritime] [territorial] jurisdiction of the United States].] [in a federal prison.] No or permanent disfigurement, or long-term or permanent loss or impairment of ANNOTATIONS AND COMMENTS 18 U.S.C. § 2241(c) provides, in relevant part: Whoever . . . in the special maritime and 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 . . . knowingly engages in a sexual act under the circumstances described in subsections (a) and (b) with another person who has attained the age of 12 years but has not attained the age of 16 years (and is at least 4 years younger than the person so engaging), or attempts to do so, shall be fined under this title and imprisoned for not less than 30 years or for life. If the defendant has previously been convicted of another Federal offense under this subsection, or of a State offense that would have been an offense under either such 455 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 482 of 677 provision had the offense occurred in a Federal prison, unless the death penalty is imposed, the defendant shall be sentenced to life in prison. Maximum Penalty: Mandatory minimum of thirty (30) years for first offense; maximum term of life in prison and applicable fine. For a subsequent offense of § 2241(c), the sentence is life in prison. Whether the crime alleged occurred at a particular location is a question of fact. Whether the location is within the special maritime and territorial jurisdiction of the United States or a federal prison is a question of law. 18 U.S.C. § 2260A provides for an enhanced sentence for persons required to register as sex offenders. 18 U.S.C. § 2241(c) provides for a life sentence if the defendant was previously convicted of another offense under § 2241(c). 18 U.S.C. § 2247 provides that the maximum sentence for a repeat offender under chapter 109A is twice the term otherwise provided by the chapter. 18 U.S.C. § 3559 provides for mandatory life imprisonment for repeated sex offenses against children. d we e , vi 226 4 16. No 456 0 017 7/2 7/2 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 483 of 677 80 Sexual Abuse of a Minor 18 U.S.C. § 2243(a) It’s a Federal crime for anyone [within the special maritime jurisdiction of the United States] [within the territorial jurisdiction of the United States] [in a Federal prison] to engage in a sexual act with a person who is at least 12 years old but younger than 16 years old, and who is at least four years younger than the person engaging in the conduct. The Defendant can be found guilty of this crime only if all the following facts are proved beyond a reasonable doubt: (1) the Defendant knowingly engaged in a sexual act with [the person named in the indictment]; (2) at the time, [the person with whom Defendant engaged in the sexual act] was at least 12 years old but less than 16 years old; 017 7/2 7/2 0 ed whom Defendant at the time, [the person with w engaged in the sexual act] was at least four vie years younger6, the defendant; and 22 than -4 the 16 occurred [within the special maritime acts o. States] [within the Njurisdiction of the United United States] [in a territorial jurisdiction of the (3) (4) Federal prison]. The Government does not need to prove that the Defendant knew the victim’s age or knew what the requisite age difference was. The term "sexual act" means: • contact between the penis and the vulva, or the penis and the anus, involving penetration however slight; or • contact between the mouth and the penis, the mouth and the vulva, or the mouth and the anus; or • the penetration – however slight – of another person’s anal or genital opening by a hand, finger, or any object, with an intent to abuse, humiliate, harass, or degrade the person, or 457 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 484 of 677 to arouse or gratify the sexual desire of the Defendant or any other person[.] [;or] • [an intentional touching – not through the clothing – of the genitalia of a person younger, with the intent to abuse, humiliate, harass, or degrade the person, or to arouse or gratify the sexual desire of the Defendant or any other person.] [If you find beyond a reasonable doubt that the crime occurred at the location described in the indictment, that location is [within the [special maritime] [territorial] jurisdiction of the United States] [in a federal prison]. [The defense asserts that although the Defendant may have committed the acts charged in the indictment, the Defendant [reasonably believed that 017 7/2 2 acts charged in the indictment] [and that [he] [she]/and [the person named in 07 d we The Defendant has to prove, by the indictment] were married to each ie other]. ,v a preponderance of the evidence, that [he] [she] [reasonably believed that [the 226 4 16. person named in the indictment] was 16 years or older at the time of the acts No [the person named in the indictment] was 16 years or older at the time of the charged in the indictment [and that [he] [she] and [the person named in the indictment] were married to each other at the time of the acts charged in the indictment]. This is sometimes called the burden of proof or burden of persuasion. A preponderance of the evidence simply means an amount of evidence that is enough to persuade you that the Defendant's claim is more likely true than not true. If you find that the Defendant has met this burden of proof, then you should find the Defendant not guilty of Count _____, Sexual Abuse of a Minor.] 458 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 485 of 677 ANNOTATIONS AND COMMENTS 18 U.S.C. § 2243(a) provides: Whoever, in the special maritime and 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, knowingly engages in a sexual act with another person who– (1) has attained the age of 12 years but has not attained the age of 16 years; and (2) is at least four years younger than the person so engaging; or attempts to do so, shall be fined under this title, imprisoned not more than 15 years, or both. Maximum Penalty: Fifteen (15) years. For repeat offenders, the maximum is thirty (30) years. 18 U.S.C. § 2247. For registered sex offenders, the sentence is enhanced by ten (10) years. 18 U.S.C. § 2260A. 017 7/2 7/2 Whether the crime alleged occurred at a particular location is a question of fact. Whether the location is within the special maritime and territorial jurisdiction of the United States or a federal prison is a question of law. d we 0 18 U.S.C. § 2260A provides for an enhanced sentence for persons required to register as sex offenders. 18 U.S.C. § 2247 provides that the maximum sentence for a repeat offender under chapter 109A is twice the term otherwise provided by the chapter. e , vi 226 4 16. No The government does not need to prove that the defendant knew the victim’s age or that the requisite age difference existed. 18 U.S.C. § 2243(d). United States v. Wilcox, 487 F.3d 1163, 1174 (8th Cir. 2007) (finding no error where trial court so instructed the jury). Mistake of age is a defense if the defendant reasonably believed that the other person was 16 or older. 18 U.S.C. § 2243(c). The defendant must prove that defense by a preponderance of the evidence. 459 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 486 of 677 81.1 Abusive Sexual Contact 18 U.S.C. § 2244(a)(3) It’s a Federal crime for anyone within [the special maritime jurisdiction of the United States] [the territorial jurisdiction of the United States] [a Federal prison] [ a detention facility] to [engage in sexual contact with a person who is at least 12 years old but younger than 16 and is at least four years younger than the person engaging in the conduct] [cause sexual contact with or by a person who is at least 12 years old but younger than 16 and is at least four years younger than the person causing the contact]. The Defendant can be found guilty of this crime only if all the following 017 the Defendant [knowingly engaged /2 sexual 7 inin the contact with [the person 7/2 named 0 indictment]] [knowingly caused sexual contact d with or by [the person named in the indictment]]; we e , vi named in the indictment] at the time, [the person 226 was at least 12 years old but less than 16 years -4 old; 16 . No facts are proved beyond a reasonable doubt: (1) (2) (3) (4) at the time, [the person named in the indictment] was at least four years younger than the defendant; and the acts occurred [within the special maritime jurisdiction of the United States] [within the territorial jurisdiction of the United States] [in a Federal prison] [in a prison, institution, or facility in which people are held in custody by direction of or under a contract or agreement with the head of any Federal department or agency]. The Government does not need to prove that the Defendant knew the victim’s age or knew what the requisite age difference was. The term "sexual act" means: 460 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 487 of 677 • contact between the penis and the vulva, or the penis and the anus, involving penetration however slight; or • contact between the mouth and the penis, the mouth and the vulva, or the mouth and the anus; or • the penetration – however slight – of another person’s anal or genital opening by a hand, finger, or any object, with an intent to abuse, humiliate, harass, or degrade the person, or to arouse or gratify the sexual desire of the Defendant or any other person[.] [;or] • [an intentional touching – not through the clothing – of the genitalia of a person younger than 16 years old, with the intent to abuse, humiliate, harass, or degrade the person, or to arouse or gratify the sexual desire of the Defendant or any other person.] 017 72 location alleged and described in the indictment, that /location is within the 7/2 0United States.] [in a Federal [special maritime] [territorial] jurisdiction of d wethe ie prison.] [in a detention facility.] 6, v 2 -42 of mistake of age or marriage see Instruction [For the affirmative defense . 16 No 80.] [If you find beyond a reasonable doubt that the offense occurred at the ANNOTATIONS AND COMMENTS 18 U.S.C. § 2244(a)(3) provides: Whoever, in the special maritime and 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, knowingly engages in or causes sexual contact with or by another person, if so to do would violate . . . subsection (a) of section 2243 of this title had the sexual contact been a sexual act, shall be fined under this title, imprisoned not more than two years, or both. Maximum Penalty: Two (2) years. For repeat offenders, the maximum is four (4) years. 18 U.S.C. § 2247. For registered sex offenders, the sentence is enhanced by ten (10) years. 18 U.S.C. § 2260A. Whether the crime alleged occurred at a particular location is a question of fact. Whether the location is within the special maritime and territorial jurisdiction of the United States or 461 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 488 of 677 a federal prison is a question of law. 18 U.S.C. § 2260A provides for an enhanced sentence for persons required to register as sex offenders. 18 U.S.C. § 2247 provides that the maximum sentence for a repeat offender under chapter 109A is twice the term otherwise provided by the chapter. The government does not need to prove that the defendant knew the victim’s age or that the requisite age difference existed. 18 U.S.C. § 2243(d). United States v. Wilcox, 487 F.3d 1163, 1174 (8th Cir. 2007) (finding no error where trial court so instructed the jury). Mistake of age is a defense if the defendant reasonably believed that the other person was 16 or older. 18 U.S.C. § 2243(c). The defendant must prove that defense by a preponderance of the evidence. See the pattern instruction on 18 U.S.C. § 2243(a) for an instruction on this defense. d we e , vi 226 4 16. No 462 0 017 7/2 7/2 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 489 of 677 81.2 Abusive Sexual Contact: Sexual Contact with Child Under 12 18 U.S.C. §§ 2244(a)(3) and 2244(c) It’s a Federal crime for anyone [within the special maritime jurisdiction of the United States] [within the territorial jurisdiction of the United States] [in a Federal prison] [in a prison, institution, or facility in which people are held in custody by direction of or under a contract or agreement with the head of any Federal department or agency] to [engage in sexual contact with a person who is less than 12 years old] [cause sexual contact with or by a person who is less than 12 years old]. The Defendant can be found guilty of this crime only if all the following facts are proved beyond a reasonable doubt: 017 7/2 7/2 (1) d we 0 the Defendant [knowingly engaged in sexual contact with [the person named in the indictment]] [knowingly caused sexual contact with or by [the person named in the indictment]]; e , vi 226 4 16. No (2) at the time, [the person named in the indictment] was less than 12 years old; and (3) the acts occurred [within the special maritime jurisdiction of the United States] [within the territorial jurisdiction of the United States] [in a Federal prison] [in a prison, institution, or facility in which people are held in custody by direction of or under a contract or agreement with the head of any Federal department or agency]. The Government does not need to prove that the Defendant knew the victim’s age. The term "sexual act" means: • contact between the penis and the vulva, or the penis and the anus, involving penetration however slight; or 463 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 490 of 677 • contact between the mouth and the penis, the mouth and the vulva, or the mouth and the anus; or • the penetration – however slight – of another person’s anal or genital opening by a hand, finger, or any object, with an intent to abuse, humiliate, harass, or degrade the person, or to arouse or gratify the sexual desire of the Defendant or any other person[.] [;or] • [an intentional touching – not through the clothing – of the genitalia of a person, with the intent to abuse, humiliate, harass, or degrade the person, or to arouse or gratify the sexual desire of the Defendant or any other person.] [If you find beyond a reasonable doubt that the offense occurred at the location alleged and described in the indictment, you are instructed that the 017 7/2 2 United States.] [in a Federal prison.] [in a prison, institution, or facility in which 07/ d we under a contract or agreement people are held in custody by direction of or e , vi with the head of any Federal department or agency.] 226 4 16. No location would be within the [special maritime] [territorial] jurisdiction of the ANNOTATIONS AND COMMENTS 18 U.S.C. § 2244(a)(3) provides: Whoever, in the special maritime and 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, knowingly engages in or causes sexual contact with or by another person, if so to do would violate . . . subsection (a) of section 2243 of this title had the sexual contact been a sexual act, shall be fined under this title, imprisoned not more than two years, or both. 18 U.S.C. § 2244(c) provides: If the sexual contact that violates [§2244(a)(3)] is with an individual who has not attained the age of 12 years, the maximum term of imprisonment that may be imposed for the offense shall be twice that otherwise provided in this section. 464 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 491 of 677 Maximum Penalty: Four (4) years. For repeat offenders, the maximum is eight (8) years. 18 U.S.C. § 2247. For registered sex offenders, the sentence is enhanced by ten (10) years. 18 U.S.C. § 2260A. Whether the crime alleged occurred at a particular location is a question of fact. Whether the location is within the special maritime and territorial jurisdiction of the United States or a federal prison is a question of law. 18 U.S.C. § 2260A provides for an enhanced sentence for persons required to register as sex offenders. 18 U.S.C. § 2247 provides that the maximum sentence for a repeat offender under chapter 109A is twice the term otherwise provided by the chapter. The government does not need to prove that the defendant knew the victim’s age. 18 U.S.C. § 2243(d). United States v. Wilcox, 487 F.3d 1163, 1174 (8th Cir. 2007) (finding no error where trial court so instructed the jury). d we e , vi 226 4 16. No 465 0 017 7/2 7/2 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 492 of 677 82 Sexual Exploitation of Children Producing Child Pornography 18 U.S.C. § 2251(a) It’s a Federal crime for any person [to employ, use, persuade, induce, entice, or coerce a minor to engage in sexually explicit conduct for the purpose of producing a visual depiction of the conduct] [to have a minor assist any other person to engage in sexually explicit conduct for the purpose of producing a visual depiction of the conduct] [to transport any minor in interstate or foreign commerce, or in any Territory or Possession of the United 017 purpose of producing any visual depiction of the conduct], if [the person knows 7/2 /2 07be transported in interstate or has reason to know that the visual depiction will d we ie or foreign commerce or mailed] , v visual depiction was produced using [the 226 shipped, or transported in interstate or materials that have been4 16- mailed, . No any means, including by computer] [the visual depiction foreign commerce by States, with the intent that the minor engage in sexually explicit conduct for the has been transported in interstate or foreign commerce, or mailed]. The Defendant can be found guilty of this crime only if all the following facts are proved beyond a reasonable doubt: (1) an actual minor, that is, a real person who was less than 18 years old, was depicted; (2) the Defendant [employed] [used] [persuaded] [induced] [enticed] [coerced] the minor to engage in sexually explicit conduct for the purpose of producing a [visual depiction, e.g., video tape] of the conduct; OR 466 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 493 of 677 the Defendant had the minor assist any other person to engage in sexually explicit conduct for the purpose of producing a [visual depiction, e.g., video tape] of the conduct; OR the Defendant transported the minor [in interstate commerce] [in foreign commerce] [in any Territory or Possession of the United States], with the intent that such minor engage in sexually explicit conduct for the purpose of producing a [visual depiction, e.g., video tape] of the conduct; and (3) either (a) the Defendant knew or had reason to know that the [visual depiction, e.g., video tape] would be mailed or transported in interstate or foreign commerce; (b) the [visual depiction, e.g., video tape] was produced using materials that had been mailed, shipped, or transported in interstate or foreign commerce by any means, including by computer; or (c) the [visual depiction, e.g., video tape] was mailed or actually transported in interstate or foreign commerce. d we e , vi 226 017 7/2 7/2 0 4 16. No one state to another state or from one state to another person or property from The term “interstate or foreign commerce” means the movement of a country. The term “State” includes a State of the United States, the District of Columbia, and any commonwealth, territory, or possession of the United States. [It is not necessary for the Government to prove that the Defendant knew that the [visual depiction] [materials used to produce the visual depiction] had moved in interstate or foreign commerce.] The term “minor” means any person who is less than 18 years old. The term “producing” means producing, directing, manufacturing, issuing, publishing, or advertising. [The term "computer" means an electronic, magnetic, optical, 467 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 494 of 677 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 that device, but the term does not include an automated typewriter or typesetter, a portable hand-held calculator, or similar devices that are limited in function to only word-processing or mathematical calculations.] The term “visual depiction” includes undeveloped film and videotape, and data stored on a computer disk or by any other electronic means that can be converted into a visual image. 017 7/2 sexual intercourse, including genital-genital, oral-genital, 2 anal-genital, or oral-anal, whether 07/ between persons of the d same or opposite sex; we e , vi bestiality; 226 4 masturbation;16 . No or masochistic abuse; or sadistic The term “sexually explicit conduct” means actual or simulated: • • • • • lascivious exhibition of the genitals or pubic area of any person. “Lascivious exhibition" means indecent exposure of the genitals or pubic area, usually to incite lust. Not every exposure is a lascivious exhibition. To decide whether a visual depiction is a lascivious exhibition, you must consider the context and setting in which the genitalia or pubic area is being displayed. Factors you may consider include: • the overall content of the material; • whether the focal point of the visual depiction is on the minor's genitalia or pubic area; 468 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 495 of 677 • whether the setting of the depiction appears to be sexually inviting or suggestive – for example, in a location or in a pose associated with sexual activity; • whether the minor appears to be displayed in an unnatural pose or in inappropriate attire; • whether the minor is partially clothed or nude; • whether the depiction appears to convey sexual coyness or an apparent willingness to engage in sexual activity; and • whether the depiction appears to have been designed to elicit a sexual response in the viewer. 017 7/2 7/2 ANNOTATIONS AND COMMENTS 18 U.S.C. § 2251(a) provides: d we 0 Any person who employs, uses, persuades, induces, entices, or coerces any minor to engage in, or who has a minor assist any other person to engage in, or who transports 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, any sexually explicit conduct for the purpose of producing any visual depiction of such conduct, shall be punished as provided under subsection (e), if such person knows or has reason to know that such visual depiction will be transported in interstate or foreign commerce or mailed, if that visual depiction was produced using materials that have been mailed, shipped, or transported in interstate or foreign commerce by any means, including by computer, or if such visual depiction has actually been transported in interstate or foreign commerce or mailed. e , vi 226 4 16. No Maximum Penalty: Thirty (30) years and applicable fine. Minimum sentence is fifteen (15) years. For those who have previously been convicted of specified sex crimes, the maximum is fifty (50) years and the minimum is twentyfive(25) years. 18 U.S.C. § 2251(e). For registered sex offenders, the sentence is enhanced by ten (10) years. 18 U.S.C. § 2260A. Note that 1998 amendment to § 2252 added subsection (c) allowing certain affirmative defenses. Definition of the relevant terms is taken from 18 U.S.C. § 2256. 18 U.S.C. § 2260A provides for an enhanced sentence for persons required to register as sex offenders. 18 U.S.C. § 2251(e) provides for an enhanced sentence for those individuals who have previously been convicted of certain specified sex crimes. 18 U.S.C. § § 3559 provides for mandatory life imprisonment for repeated sex offenses against children. 469 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 496 of 677 Neither knowledge of the age of the minor nor knowledge of the interstate nexus is a required element of the crime. United States v. Deverso, 518 F.3d 1250, 1257 (11th Cir. 2008); United States v. Smith, 459 U.S. 1276, 1289 (11th Cir. 2006). In Deverso, the Eleventh Circuit found that the trial court did not err in declining to give a “mistake of age defense” jury instruction. Deverso, 518 F.3d at 1257. In Unites States v. Smith, 459 F.3d 1276, 1296 n.17 (11th Cir. 2006), the Eleventh Circuit noted that the district court instructed the jury that answering the question whether conduct was “lascivious exhibition” involved consideration of “whether the setting of the depiction is such as to make it appear to be sexually inviting or suggestive, for example in a location or in a pose associated with sexual activity . . . and whether the depiction has been designed to elicit a sexual response in the viewer.” The Eleventh Circuit quoted the dictionary definition of “lascivious” as “exciting sexual desires; salacious.” United States v. Williams, 444 F.3d 1286, 1299 (11th Cir. 2006), rev’d on other grounds, 553 U.S. 285, 128 S. Ct. 1830 (2008). The court also noted: “What exactly constitutes a forbidden “lascivious exhibition of the genitals or pubic area” and how that differs from an innocuous photograph of a naked child (e.g. a family photograph of a child taking a bath, or an artistic masterpiece portraying a naked child model) is not concrete . . . While the pictures needn't always be “dirty” or even nude depictions to qualify, screening materials through the eyes of a neutral fact finder limits the potential universe of objectionable images.” Id. The court further noted that most lower courts have embraced the six-factor “lascivious exhibition” test articulated in United States v. Dost, 636 F. Supp. 828, 832 (S.D. Cal. 1986): d we 017 7/2 7/2 0 1) whether the focal point of the visual depiction is on the child's genitalia or pubic area; e , vi 226 2) whether the setting of the visual depiction is sexually suggestive, i.e., in a place or pose generally associated with sexual activity; 4 16. No 3) whether the child is depicted in an unnatural pose, or in inappropriate attire, considering the age of the child; 4) whether the child is fully or partially clothed, or nude; 5) whether the visual depiction suggests sexual coyness or a willingness to engage in sexual activity; 6) whether the visual depiction is intended or designed to elicit a sexual response in the viewer. The Dost court also observed that “a visual depiction need not involve all of these factors to be a ‘lascivious exhibition of the genitals or pubic area.” The determination will have to be made based on the overall content of the visual depiction, taking into account the age of the minor.’” Id. 470 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 497 of 677 83.1 Transporting or Shipping Material Involving Sexual Exploitation of Minors 18 U.S.C. § 2252(a)(1) It’s a Federal crime to knowingly [transport] [ship] [mail] in interstate or foreign commerce by any means [including by computer] any visual depiction produced by using a minor engaging in sexually explicit conduct and depicting the conduct. The Defendant can be found guilty of this crime only if all the following facts are proved beyond a reasonable doubt: (1) (2) (3) (4) the Defendant knowingly [transported] [shipped] [mailed] a visual depiction in interstate or foreign commerce by any means [including by computer]; 017 a producing the visual depiction involved using 7/2 minor engaged in sexually explicit2 conduct; 07/ d the depiction shows a minor engaged in sexually we explicit conduct; ande , vi 226 the Defendant knew that at least one performer -4 in .the6 1 visual depiction was a minor and knew o Nthat the depiction showed the minor engaged in sexually explicit conduct. The term "interstate or foreign commerce" is the movement of property between those located in different states or between those located in the United States and those located outside of the United States. The term "State" means a State of the United States, the District of Columbia, and any commonwealth, territory, or possession of the United States. [The term "computer" includes any high-speed data-processing device that can perform logical, arithmetic, or storage functions, including any data- 471 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 498 of 677 storage facility or communications facility that is directly related to or operates in conjunction with the device. It doesn’t include an automated typewriter or typesetter, a portable hand-held calculator, or other similar device that is limited in function to only word-processing or mathematical calculations.] The term "sexually explicit conduct" means actual or simulated: • sexual intercourse, including genital-genital, oral-genital, analgenital, or oral-anal contact, whether between persons of the same or opposite sex; • bestiality; • masturbation; 017 7/2 • lascivious exhibition of the genitals or pubic area of any person. 2 07/ of the genitals or pubic d “Lascivious exhibition" means indecent exposure we ie area, usually to incite lust. Not 6, v exposure is a lascivious exhibition. every 2 -42 depiction is a lascivious exhibition, you must To decide whether a visual . 16 No consider the context and setting in which the genitalia or pubic area is being • sadistic or masochistic abuse; or displayed. Factors you may consider include: • the overall content of the material; • whether the focal point of the visual depiction is on the minor's genitalia or pubic area; • whether the setting of the depiction appears to be sexually inviting or suggestive – for example, in a location or in a pose associated with sexual activity; • whether the minor appears to be displayed in an unnatural pose or in inappropriate attire; • whether the minor is partially clothed or nude; • whether the depiction appears to convey sexual coyness or an 472 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 499 of 677 apparent willingness to engage in sexual activity; and • whether the depiction appears to have been designed to elicit a sexual response in the viewer. A visual depiction need not have all these factors to be a lascivious exhibition. [The term "visual depiction" includes undeveloped film and videotape, and data stored on computer media or by other electronic means that can be converted into a visual image.] A "minor" is any person younger than 18 years old. ANNOTATIONS AND COMMENTS 017 7/2 7/2 18 U.S.C. § 2252(a)(1) provides: d we 0 ie , vin interstate or foreign commerce by any knowingly transports or 6 2 ships means including 42 by computer . . . any visual depiction, if - 16- the producing of such visual depiction involves the o. a minor Nuse of (A) engaging in sexually explicit conduct; and Any person who - - (B) such visual depiction is of such conduct; shall be punished as provided in subsection (b) of this section. Maximum Penalty: Twenty (20) years (minimum of five (5) years) and applicable fine when Defendant has no prior conviction. Minimum of fifteen (15) and maximum of forty (40) years when the Defendant has previously been convicted of specified sex crimes. Definition of the relevant terms is taken from 18 U.S.C. § 2256. See United States v. X-citement Video, Inc., 513 U.S. 64, 115 S. Ct. 464, 471-72 (1994), setting out the scienter requirement. The explanation of the term "lascivious exhibition" is derived from United States v. Dost, 636 F. Supp. 828, 832 (S.D. Ca. 1986), a decision that has been cited with approval by three circuits and many other district courts. In United States v. Smith, 459 F.3d 1276, 1296 n.17 (11th Cir. 2006), the Eleventh Circuit noted that the district court instructed the jury that answering the question whether conduct was “lascivious exhibition” involved consideration of “whether the setting of the depiction is 473 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 500 of 677 such as to make it appear to be sexually inviting or suggestive, for example in a location or in a pose associated with sexual activity . . . and whether the depiction has been designed to elicit a sexual response in the viewer.” The Eleventh Circuit quoted the dictionary definition of “lascivious” as “exciting sexual desires; salacious.” United States v. Williams, 444 F.3d 1286, 1299 (11th Cir. 2006), rev’d on other grounds, 553 U.S. 285, 128 S. Ct. 1830 (2008). The court also noted: “What exactly constitutes a forbidden “lascivious exhibition of the genitals or pubic area” and how that differs from an innocuous photograph of a naked child (e.g. a family photograph of a child taking a bath, or an artistic masterpiece portraying a naked child model) is not concrete . . . While the pictures needn't always be “dirty” or even nude depictions to qualify, screening materials through the eyes of a neutral factfinder limits the potential universe of objectionable images.” Id. The court further noted that most lower courts have embraced the six-factor “lascivious exhibition” test articulated in United States v. Dost, 636 F. Supp. 828, 832 (S.D. Cal. 1986): 1) whether the focal point of the visual depiction is on the child's genitalia or pubic area; 2) whether the setting of the visual depiction is sexually suggestive, i.e., in a place or pose generally associated with sexual activity; 017 7/2 7/2 3) whether the child is depicted in an unnatural pose, or in inappropriate attire, considering the age of the child; 0 ed coyness or a willingness to w 5) whether the visual depiction suggests sexual vie engage in sexual activity; 26,is intended or designed to elicit a sexual 6) whether the visual -42 depiction response in the viewer. 16 o. Nobserved that “a visual depiction need not involve all of these factors The Dost court also 4) whether the child is fully or partially clothed, or nude; to be a ‘lascivious exhibition of the genitals or pubic area.” The determination will have to be made based on the overall content of the visual depiction, taking into account the age of the minor.’” Id. 474 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 501 of 677 83.2 Receiving and Distributing Material Involving Sexual Exploitation of Minors 18 U.S.C. § 2252(a)(2) It’s a Federal crime to knowingly receive or distribute any visual depiction [that has been mailed] [that has been shipped or transported in interstate or foreign commerce by any means] [including by computer] when the visual depiction was produced by using a minor engaging in sexually explicit conduct and depicts the conduct. The Defendant can be found guilty of this crime only if all the following facts are proved beyond a reasonable doubt: (1) (2) (3) (4) (5) the Defendant knowingly [received] [distributed] a visual depiction; 017or the depiction [was mailed] [was shipped 7/2 by transported in interstate or foreign 2 commerce 07/ any means] [including computer]; d we involved using a producing the visuale , vi depiction conduct; minor engaged in sexually explicit 226 -4 the 16 depiction is of a minor engaged in sexually o. Nexplicit conduct; and the Defendant knew that at least one performer in the visual depiction was a minor and knew that the depiction showed the minor engaged in sexually explicit conduct. [To “distribute” something simply means to deliver or transfer possession of it to someone else, with or without any financial interest in the transaction.] [To “receive” something simply means knowingly to accept or take possession of something. Receipt does not require proof of ownership.] "Minor" means any person younger than 18 years old. "Interstate or foreign commerce" is the movement of property between 475 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 502 of 677 different states or between the United States and anyplace outside the United States. The term "State" means a State of the United States, the District of Columbia, and any commonwealth, territory, or possession of the United States. [The term "computer" includes any high-speed data-processing device that can perform logical, arithmetic, or storage functions, including any datastorage facility or communications facility that is directly related to or operates in conjunction with the device. It doesn’t include an automated typewriter or 017 7/2 in function to word-processing or mathematical calculations.] /2 07actual or simulated: The term "sexually explicit conduct" ed w means ie • sexual intercourse, 6, v including genital-genital, oral-genital, anal2 genital, or oral-anal contact, whether between persons of the same -42 or opposite 6 sex; .1 No • bestiality; typesetter, a portable hand-held calculator, or similar devices which are limited • masturbation; • sadistic or masochistic abuse; or • lascivious exhibition of the genitals or pubic area of any person. “Lascivious exhibition" means indecent exposure of the genitals or pubic area, usually to incite lust. Not every exposure is a lascivious exhibition. To decide whether a visual depiction is a lascivious exhibition, you must consider the context and setting in which the genitalia or pubic area is being displayed. Factors you may consider include: • the overall content of the material; 476 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 503 of 677 • whether the focal point of the visual depiction is on the minor's genitalia or pubic area; • whether the setting of the depiction appears to be sexually inviting or suggestive – for example, in a location or in a pose associated with sexual activity; • whether the minor appears to be displayed in an unnatural pose or in inappropriate attire; • whether the minor is partially clothed or nude; • whether the depiction appears to convey sexual coyness or an apparent willingness to engage in sexual activity; and • whether the depiction appears to have been designed to elicit a sexual response in the viewer. 017 7/2 7/2 A visual depiction need not have all these factors to be a lascivious d0 eundeveloped film and videotape, w [The term "visual depiction" includes vie 26, or by other electronic means that can be and data stored on computer media -42 . 16 converted into a visual image.] No exhibition. ANNOTATIONS AND COMMENTS 18 U.S.C. § 2252(a)(2) provides: Any person who - knowingly receives, or distributes, any visual depiction that has been mailed, or has been shipped or transported in interstate or foreign commerce, or which contains materials which have been mailed or so shipped or transported, by any means including by computer, . . . if - (A) the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct; and (B) such visual depiction is of such conduct; shall be punished as provided in subsection (b) of this section. Maximum Penalty: Twenty (20) years (minimum of five (5) years) and applicable fine when Defendant has no prior conviction. Minimum of fifteen (15) and 477 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 504 of 677 maximum of forty (40) years when the Defendant has previously been convicted of specified sex crimes. Definition of the relevant terms is taken from 18 U.S.C. § 2256. See United States v. X-citement Video, Inc., 513 U.S. 64, 115 S. Ct. 464, 471-72 (1994) (setting out scienter requirement). In United States v. Smith, 459 F.3d 1276, 1296 n.17 (11th Cir. 2006), the Eleventh Circuit noted that the district court instructed the jury that answering the question whether conduct was “lascivious exhibition” involved consideration of “whether the setting of the depiction is such as to make it appear to be sexually inviting or suggestive, for example in a location or in a pose associated with sexual activity . . . and whether the depiction has been designed to elicit a sexual response in the viewer.” The Eleventh Circuit quoted the dictionary definition of “lascivious” as “exciting sexual desires; salacious.” United States v. Williams, 444 F.3d 1286, 1299 (11th Cir. 2006), rev’d on other grounds, 553 U.S. 285, 128 S. Ct. 1830 (2008). The court also noted: “What exactly constitutes a forbidden “lascivious exhibition of the genitals or pubic area” and how that differs from an innocuous photograph of a naked child (e.g. a family photograph of a child taking a bath, or an artistic masterpiece portraying a naked child model) is not concrete . . . While the pictures needn't always be “dirty” or even nude depictions to qualify, screening materials through the eyes of a neutral factfinder limits the potential universe of objectionable images.” Id. The court further noted that most lower courts have embraced the six-factor “lascivious exhibition” test articulated in United States v. Dost, 636 F. Supp. 828, 832 (S.D. Cal. 1986): 017 7/2 7/2 0 ed is on the child's genitalia or w 1) whether the focal point of the visual depiction vie pubic area; 26, depiction is sexually suggestive, i.e., in a 2) whether the setting of the visual -42 place or pose generally associated with sexual activity; . 16 No 3) whether the child is depicted in an unnatural pose, or in inappropriate attire, considering the age of the child; 4) whether the child is fully or partially clothed, or nude; 5) whether the visual depiction suggests sexual coyness or a willingness to engage in sexual activity; 6) whether the visual depiction is intended or designed to elicit a sexual response in the viewer. The Dost court also observed that “a visual depiction need not involve all of these factors to be a ‘lascivious exhibition of the genitals or pubic area.” The determination will have to be made based on the overall content of the visual depiction, taking into account the age of the minor.’” Id. 478 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 505 of 677 83.3A Child Pornography Transporting or Shipping (Visual Depiction of Actual Minor) 18 U.S.C. § 2252A(a)(1) It’s a Federal crime to knowingly [transport] [ship] [mail] any child pornography in interstate or foreign commerce [including by computer]. The Defendant can be found guilty of this crime only if all the following facts are proved beyond a reasonable doubt: (1) the Defendant knowingly [transported] [shipped] [mailed] [by computer] in interstate or foreign commerce an item or items of child pornography, as charged; and (2) when the Defendant [transported] [shipped] [mailed] [by computer] the item[s], the Defendant believed the item[s] [was] [were] child pornography. d we 017 7/2 7/2 0 “Interstate or foreign commerce” is the movement of property between e , vi 226 those located in different states or between the United States and any place 4 16. The termNo “State” means a State of the United States, the District of outside the United States. Columbia, and any commonwealth, territory, or possession of the United States. [The term "computer" includes any high-speed data-processing device that can perform logical, arithmetic, or storage functions, including any data storage facility or communications facility that is directly related to or operates in conjunction with the device. It doesn’t include an automated typewriter or typesetter, a portable hand-held calculator, or similar devices which are limited in function to word-processing or mathematical calculations.] The term “child pornography” means any visual depiction, including any 479 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 506 of 677 photograph, film, video, picture or computer or computer-generated image or picture made or produced by electronic, mechanical, or other means, of sexually explicit conduct where [the visual depiction’s production involves using a minor engaging in sexually explicit conduct] [the visual depiction has been created, adapted, or modified to appear that an identifiable minor is engaging in sexually explicit conduct]. A “minor” is a person younger than 18 years old. [An “identifiable minor” is a person [who was a minor when the visual depiction was created, adapted, or modified] [whose image as a minor was 017 7/2 recognizable as an actual person by the person’s face, likeness, or other 2 07/ or other recognizable d distinguishing characteristic, such as a unique birthmark we ie feature. The government does6, vhave to prove the actual identity of the not 2 -42 identifiable minor.] 16 . No depiction" includes undeveloped film and videotape, [The term "visual used in creating, adapting, or modifying the visual depiction] and who is and data stored on computer media or by other electronic means that can be converted into a visual image.] The term "sexually explicit conduct" means actual or simulated: • sexual intercourse, including genital-genital, oral-genital, analgenital, or oral-anal contact, whether between persons of the same or opposite sex; • bestiality; • masturbation; • sadistic or masochistic abuse; or • lascivious exhibition of the genitals or pubic area of any person. 480 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 507 of 677 “Lascivious exhibition" means indecent exposure of the genitals or pubic area, usually to incite lust. Not every exposure is a lascivious exhibition. To decide whether a visual depiction is a lascivious exhibition, you must consider the context and setting in which the genitalia or pubic area is being displayed. Factors you may consider include: • the overall content of the material; • whether the focal point of the visual depiction is on the minor's genitalia or pubic area; • whether the setting of the depiction appears to be sexually inviting or suggestive – for example, in a location or in a pose associated with sexual activity; • whether the minor appears to be displayed in an unnatural pose or in inappropriate attire; • whether the minor is partially clothed or nude; • whether the depiction appears to convey sexual coyness or an apparent willingness to engage in sexual activity; and • d we e , vi 226 017 7/2 7/2 0 -4 16depiction appears to have been designed to elicit a whether. the No sexual response in the viewer. A visual depiction need not have all these factors to be a lascivious exhibition. 481 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 508 of 677 ANNOTATIONS AND COMMENTS 18 U.S.C. § 2252A(a)(1) provides: (a) any person who - - (1) knowingly mails, or transports or ships in interstate or foreign commerce by any means, including computer any child pornography [shall be guilty of an offense against the United States]. Maximum Penalty: Twenty (20) years (minimum of five (5) years) and applicable fine when Defendant has no prior conviction. Minimum of fifteen (15) and maximum of forty (40) years when the Defendant has previously been convicted of specified sex crimes. For cases where the alleged pornography consists of a digital or computer image that appears indistinguishable from an actual minor but may not be an actual person, see instruction 83.3B. Definition of the relevant terms is taken from 18 U.S.C. § 2256. The key term “child pornography” is limited to the definitions given in 18 U.S.C. § 2256(8)(A) and (C). Subsection (B) was modified (and Subsection (D) was repealed) after the Supreme Court found the term to be “overbroad and unconstitutional” in Ashcroft v. Free Speech Coalition, 535 U.S. 234, 122 S. Ct. 1389 (2002). The modified Subsection (B) provides that “child pornography” includes a digital or computer-generated image that is “indistinguishable” from that of a minor engaging in sexually explicit conduct, and “sexually explicit conduct” for purposes of Subsection (B) is defined by modifying the general “sexually explicit conduct” definition to require that the sexually explicit conduct be “graphic.” 18 U.S.C. § 2256(2)(B), (8)(B). Thus, Congress sought to address the Supreme Court’s concern in Free Speech Coalition that former Subsection (B) prohibited speech that was not obscene, recorded no crime and created no victims through its production. See United States v. Williams, 444 F.3d 1286, 1295-96 (11th Cir. 2006), rev’d on other grounds, 553 U.S. 285, 128 S. Ct. 1830 (2008). d we e , vi 226 017 7/2 7/2 0 4 16- § 2252A added subsections (c) and (d) allowing certain . Note that 1998 amendment to No affirmative defenses. United States v. X-Citement Video, Inc., 513 U.S. 64, 111 S. Ct. 464 (1992) held that 18 U.S.C. § 2252(a)(1) and (2) requires proof of scienter as to the age of the performer. While the structure of § 2252A(a)(1) and (2) is different (using “child pornography” instead of “visual depiction involving the use of a minor”), § 2252A(a)(1) and (2) also contains as an element scienter the age of the performer. See United States v. Acheson, 195 F.3d 645, 653 (11th Cir. 1999), overruled on other grounds by Ashcroft v. Free Speech Coalition, 535 U.S. 234, 122 S. Ct. 1389 (2002) (the government must show not only that the individual received or distributed the material, but that he did so believing that the material was sexually explicit in nature and that it depicted a person who appeared to him to be, or that he anticipated would be, under 18 years of age). Knowledge of the interstate nexus is not a required element of the crime. United States v. Smith, 459 F.3d 1276, 1289 (11th Cir. 2006). In United States v. Smith, 459 F.3d 1276, 1296 n.17 (11th Cir. 2006), the Eleventh Circuit noted that the district court instructed the jury that answering the question whether conduct was “lascivious exhibition” involved consideration of “whether the setting of the depiction is such as to make it appear to be sexually inviting or suggestive, for example in a location or in a pose associated with sexual activity . . . and whether the depiction has been designed to elicit a sexual response in the viewer.” 482 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 509 of 677 The Eleventh Circuit quoted the dictionary definition of “lascivious” as “exciting sexual desires; salacious.” United States v. Williams, 444 F.3d 1286, 1299 (11th Cir. 2006), rev’d on other grounds, 553 U.S. 285, 128 S. Ct. 1830 (2008). The court also noted: “What exactly constitutes a forbidden “lascivious exhibition of the genitals or pubic area” and how that differs from an innocuous photograph of a naked child (e.g. a family photograph of a child taking a bath, or an artistic masterpiece portraying a naked child model) is not concrete . . . While the pictures needn't always be “dirty” or even nude depictions to qualify, screening materials through the eyes of a neutral fact finder limits the potential universe of objectionable images.” Id. The court further noted that most lower courts have embraced the six-factor “lascivious exhibition” test articulated in United States v. Dost, 636 F. Supp. 828, 832 (S.D. Cal. 1986): 1) whether the focal point of the visual depiction is on the child's genitalia or pubic area; 2) whether the setting of the visual depiction is sexually suggestive, i.e., in a place or pose generally associated with sexual activity; 3) whether the child is depicted in an unnatural pose, or in inappropriate attire, considering the age of the child; 17 0willingness to 5) whether the visual depiction suggests sexual coyness /2a or engage in sexual activity; /27 7 d0 6) whether the visual depiction is intended or designed to elicit a sexual e response in the viewer. ew , videpiction need not involve all of these factors The Dost court also observed that 26 “a visual to be a ‘lascivious exhibition of42 genitals or pubic area.” The determination will have to the - content of the visual depiction, taking into account the age be made based on the overall . 16 of the minor.’” Id. No 4) whether the child is fully or partially clothed, or nude; 483 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 510 of 677 83.3B Child Pornography Transporting or Shipping (Computer or Digital Image that Appears Indistinguishable from Actual Minor but may not be of an Actual Person ) 18 U.S.C. § 2252A(a)(1) It’s a Federal crime to knowingly [transport] [ship] [mail] any child pornography in interstate or foreign commerce [including by computer]. The Defendant can be found guilty of this crime only if all the following facts are proved beyond a reasonable doubt: (1) the Defendant knowingly [transported] [shipped] [mailed] [by computer] in interstate or foreign commerce an item or items of child pornography, as charged; and 017 72 (2) when the Defendant [transported] /[shipped] 2 [mailed] [by computer] the item[s],/the Defendant 07 [were] child d believed the item[s] e[was] w pornography. e , vi “Interstate or foreign commerce” is the movement of property between 226 4 16-states or between the United States and any place . those located in different No outside the United States. The term “State” means a State of the United States, the District of Columbia, and any commonwealth, territory, or possession of the United States. [The term "computer" includes any high-speed data-processing device that can perform logical, arithmetic, or storage functions, including any data storage facility or communications facility that is directly related to or operates in conjunction with the device. It doesn’t include an automated typewriter or typesetter, a portable hand-held calculator, or similar devices which are limited 484 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 511 of 677 in function to word-processing or mathematical calculations.] The term “child pornography” means any visual depiction, including any photograph, film, video, picture or computer or computer-generated image or picture made or produced by electronic, mechanical, or other means, of sexually explicit conduct where 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. A “minor” is a person younger than 18 years old. [An “identifiable minor” is a person [who was a minor when the visual 017 2 used in creating, adapting, or modifying the visual7/ depiction] and who is 2 07/ face, likeness, or other recognizable as an actual person by theed w person’s vie distinguishing characteristic, such,as a unique birthmark or other recognizable 226 4 feature. The government does not have to prove the actual identity of the 16. No identifiable minor.] depiction was created, adapted, or modified] [whose image as a minor was [The term “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 term does not include drawings, cartoons, sculptures, or paintings.] The term "sexually explicit conduct" means actual or simulated: • graphic sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal contact, whether between persons of the same or opposite sex, or lascivious simulated sexual intercourse where the genitals, breast, or pubic hair of any person is exhibited; • graphic or simulated bestiality; 485 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 512 of 677 • graphic or simulated masturbation; • graphic or simulated sadistic or masochistic abuse; or • graphic or simulated lascivious exhibition of the genitals or pubic area of any person. “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.” “Lascivious exhibition" means indecent exposure of the genitals or pubic area, usually to incite lust. Not every exposure is a lascivious exhibition. To decide whether a visual depiction is a lascivious exhibition, you must 017 7/2 7/2 consider the context and setting in which the genitalia or pubic area is being 0 ed w the overall content of the imaterial; ve 26, of the visual depiction is on the minor's whether the focal point 42 genitalia or 6pubic area; 1 o.the setting of the depiction appears to be sexually inviting N whether displayed. Factors you may consider include: • • • or suggestive – for example, in a location or in a pose associated with sexual activity; • whether the minor appears to be displayed in an unnatural pose or in inappropriate attire; • whether the minor is partially clothed or nude; • whether the depiction appears to convey sexual coyness or an apparent willingness to engage in sexual activity; and • whether the depiction appears to have been designed to elicit a sexual response in the viewer. A visual depiction need not have all these factors to be a lascivious exhibition. 486 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 513 of 677 ANNOTATIONS AND COMMENTS 18 U.S.C. § 2252A(a)(1) provides: (a) any person who - - (1) knowingly mails, or transports or ships in interstate or foreign commerce by any means, including computer any child pornography [shall be guilty of an offense against the United States]. Maximum Penalty: Twenty (20) years (minimum of five (5) years) and applicable fine when Defendant has no prior conviction. Minimum of fifteen (15) and maximum of forty (40) years when the Defendant has previously been convicted of specified sex crimes. The Supreme Court struck down as unconstitutional former 18 U.S.C. § 2256(8)(B) in Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002). In response, Congress revised the definition of “sexually explicit conduct” for those cases where the depiction of such conduct 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.” See 18 U.S.C. §§ 2256 (1)(B) and (8)(B); see also United States v. Williams, 444 F.3d 1286, 1295-96 (11th Cir. 2006), rev’d on other grounds, 553 U.S. 285, 128 S. Ct. 1830 (2008). The Committee has incorporated those changes in this instruction and recommends giving this instruction in those cases where the alleged digital/computer pornography may not depict an actual person. For all other cases, the Committee recommends that Instruction 82.3A be given. 017 7/2 (d) allowing certain 2 Note that 1998 amendment to § 2252A added subsections (c) and affirmative defenses. 07/ d we64, 111 S. Ct. 464 (1992) held that 18 United States v. X-Citement Video, Inc., 513 U.S. e U.S.C. § 2252(a)(1) and (2) requires proofv scienter as to the age of the performer. While ,is ofi the structure of § 2252A(a)(1) and (2) different (using “child pornography” instead of 2of 6minor”), § 2252A(a)(1) and (2) also contains as an 4 2 “visual depiction involving the-use a element scienter the age16 performer. See United States v. Acheson, 195 F.3d 645, of the 653 (11th Cir. 1999), o. overruled on other grounds by Ashcroft v. Free Speech Coalition, 535 N U.S. 234, 122 S. Ct. 1389 (2002) (the government must show not only that the individual received or distributed the material, but that he did so believing that the material was sexually explicit in nature and that it depicted a person who appeared to him to be, or that he anticipated would be, under 18 years of age). Knowledge of the interstate nexus is not a required element of the crime. United States v. Smith, 459 F.3d 1276, 1289 (11th Cir. 2006). In United States v. Smith, 459 F.3d 1276, 1296 n.17 (11th Cir. 2006), the Eleventh Circuit noted that the district court instructed the jury that answering the question whether conduct was “lascivious exhibition” involved consideration of “whether the setting of the depiction is such as to make it appear to be sexually inviting or suggestive, for example in a location or in a pose associated with sexual activity . . . and whether the depiction has been designed to elicit a sexual response in the viewer.” The Eleventh Circuit quoted the dictionary definition of “lascivious” as “exciting sexual desires; salacious.” United States v. Williams, 444 F.3d 1286, 1299 (11th Cir. 2006), rev’d on other grounds, 553 U.S. 285, 128 S. Ct. 1830 (2008). The court also noted: “What exactly constitutes a forbidden “lascivious exhibition of the genitals or pubic area” and how that differs from an innocuous photograph of a naked child (e.g. a family photograph of a child taking a bath, or an artistic masterpiece portraying a naked child model) is not concrete . . . While the pictures needn't always be “dirty” or even nude depictions to qualify, 487 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 514 of 677 screening materials through the eyes of a neutral fact finder limits the potential universe of objectionable images.” Id. The court further noted that most lower courts have embraced the six-factor “lascivious exhibition” test articulated in United States v. Dost, 636 F. Supp. 828, 832 (S.D. Cal. 1986): 1) whether the focal point of the visual depiction is on the child's genitalia or pubic area; 2) whether the setting of the visual depiction is sexually suggestive, i.e., in a place or pose generally associated with sexual activity; 3) whether the child is depicted in an unnatural pose, or in inappropriate attire, considering the age of the child; 4) whether the child is fully or partially clothed, or nude; 5) whether the visual depiction suggests sexual coyness or a willingness to engage in sexual activity; 6) whether the visual depiction is intended or designed to elicit a sexual response in the viewer. 017 7/2 7/2 The Dost court also observed that “a visual depiction need not involve all of these factors to be a ‘lascivious exhibition of the genitals or pubic area.” The determination will have to be made based on the overall content of the visual depiction, taking into account the age of the minor.’” Id. d we e , vi 226 4 16. No 488 0 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 515 of 677 83.4A Child Pornography Receiving, Possessing, Distributing (Visual Depiction of Actual Minor) 18 U.S.C. § 2252A(a)(2)(A) and (5)(B) It’s a Federal crime to knowingly [receive] [possess] [distribute] any child pornography that has been [transported] [shipped] [mailed] in interstate or foreign commerce [including by computer]. The Defendant can be found guilty of this crime only if all the following facts are proved beyond a reasonable doubt: (1) the Defendant knowingly [received] [possessed] [distributed] an item or items of child pornography; (2) the item[s] of child pornography had been [transported] [shipped] [mailed] in interstate or foreign commerce [including by computer]; and (3) when the Defendant [received] [possessed] [distributed] the item[s], the Defendant believed the item[s] [was] [were] [contained] child pornography. d we e , vi 226 017 7/2 7/2 0 4 16. No or without any money involved in the transaction.] to someone else, with [To “distribute” something means to deliver or transfer possession of it [To “receive” something simply means knowingly to accept or take possession of something. Receipt does not require proof of ownership.] The term “interstate or foreign commerce” is the movement of property between different states or between the United States and any place outside the United States. The term “State” means a State of the United States, the District of Columbia, and any commonwealth, territory, or possession of the United States. It doesn’t matter whether the Defendant knew the child pornography 489 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 516 of 677 had moved in interstate or foreign commerce. The Government only has to prove that the child pornography actually did move in interstate or foreign commerce. [The term “computer” includes any high-speed data-processing device that can perform logical, arithmetic, or storage functions, including any data storage facility or communications facility that is directly related to or operates in conjunction with the device. It doesn’t include an automated typewriter or typesetter, portable hand-held calculator, or similar devices that are solely capable of word-processing or arithmetic calculations.] 017 7/2 photograph, film, video, picture, or computer or computer generated image or 2 07/ d picture, made or produced by electronic, mechanical, or other means, of we e , vi sexually explicit conduct where [the visual depiction’s production involves 226 4 using a minor engaging in sexually explicit conduct] [the visual depiction has 16. No been created, adapted, or modified to appear that an identifiable minor is The term “child pornography” means any visual depiction including any engaging in sexually explicit conduct]. “Minor” is any person under 18 years old. [An “identifiable minor” is a person [who was a minor when the visual depiction was created, adapted, or modified] [whose image as a minor was used in creating, adapting, or modifying the visual depiction] and 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. The Government does not have to prove the actual identity of the identifiable minor.] 490 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 517 of 677 The term “visual depiction” includes undeveloped film and videotape, and data stored on computer media or by other electronic means that can be converted into a visual image. The term "sexually explicit conduct" means actual or simulated: • sexual intercourse, including genital-genital, oral-genital, analgenital, or oral-anal contact, whether between persons of the same or opposite sex; • bestiality; • masturbation; • sadistic or masochistic abuse; or 017 7/2 “Lascivious exhibition" means indecent exposure of the genitals or pubic 7/2 0is a lascivious exhibition. d area, usually to incite lust. Not every exposure we e , vi To decide whether a visual depiction is a lascivious exhibition, you must 226 4 consider the context and 16 setting in which the genitalia or pubic area is being . No you may consider include: displayed. Factors • lascivious exhibition of the genitals or pubic area of any person. • the overall content of the material; • whether the focal point of the visual depiction is on the minor's genitalia or pubic area; • whether the setting of the depiction appears to be sexually inviting or suggestive – for example, in a location or in a pose associated with sexual activity; • whether the minor appears to be displayed in an unnatural pose or in inappropriate attire; • whether the minor is partially clothed or nude; • whether the depiction appears to convey sexual coyness or an apparent willingness to engage in sexual activity; and 491 Appeal: 16-4226 Doc: 48-2 • Filed: 07/27/2017 Pg: 518 of 677 whether the depiction appears to have been designed to elicit a sexual response in the viewer. A visual depiction need not have all these factors to be a lascivious exhibition. ANNOTATIONS AND COMMENTS 18 U.S.C. § 2252A(a)(2)(A) and (5)(B) provides: (a) any person who - (2) knowingly receives or distributes - (A) any child pornography that has been mailed, or shipped or transported in interstate or foreign commerce by any means, including by computer; or * * * * (5) either - - d we e , vi 226 017 7/2 7/2 0 * * * * (B) knowingly possess any book, magazine, periodical, film, videotape, computer disk, or any other material that contains an image of child pornography that has been mailed, or shipped or transported in interstate or foreign commerce by any means, including by computer, or that was produced using materials that have been mailed, or shipped or transported in interstate or foreign commerce by any means, including by computer, [shall be guilty of an offense against the United States]. 4 16. No Maximum Penalty: Twenty (20) years (minimum of five (5) years) and applicable fine when Defendant has no prior conviction. Minimum of fifteen (15) and maximum of forty (40) years when the Defendant has previously been convicted of specified sex crimes. Note: conviction under 18 U.S.C. § 2252A(a)(5) only carries a maximum ten (10) year sentence and applicable fine for a first offender, mandatory minimum ten (10) years/maximum twenty (20) years for repeat offenders. For cases where the alleged pornography consists of a digital or computer image that appears indistinguishable from an actual minor but may not be an actual person, see instruction 83.4B. Definition of the relevant terms is taken from 18 U.S.C. § 2256. The key term “child pornography” is limited to the definitions given in 18 U.S.C. § 2256(8)(A) and (C). Subsection (B) was modified (and Subsection (D) was repealed) after the Supreme Court found the term to be “overbroad and unconstitutional” in Ashcroft v. Free Speech Coalition, 535 U.S. 234, 122 S. Ct. 1389 (2002). The modified Subsection (B) provides that “child pornography” includes a digital or computer-generated image that is “indistinguishable” from that of a minor engaging in sexually explicit conduct, and “sexually explicit conduct” for 492 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 519 of 677 purposes of Subsection (B) is defined by modifying the general “sexually explicit conduct” definition to require that the sexually explicit conduct be “graphic.” 18 U.S.C. § 2256(2)(B), (8)(B). Thus, Congress sought to address the Supreme Court’s concern in Free Speech Coalition that former Subsection (B) prohibited speech that was not obscene, recorded no crime and created no victims through its production. See United States v. Williams, 444 F.3d 1286, 1295-96 (11th Cir. 2006), rev’d on other grounds, 553 U.S. 285, 128 S. Ct. 1830 (2008). Note that 1998 amendment to § 2252A added subsections (c) and (d) allowing certain affirmative defenses. United States v. X-Citement Video, Inc., 513 U.S. 64, 111 S. Ct. 464 (1992) held that 18 U.S.C. § 2252(a)(1) and (2) requires proof of scienter as to the age of the performer. While the structure of § 2252A(a)(1) and (2) is different (using “child pornography” instead of “visual depiction involving the use of a minor”), § 2252A(a)(1) and (2) also contains as an element scienter the age of the performer. See United States v. Acheson, 195 F.3d 645, 653 (11th Cir. 1999), overruled on other grounds by Ashcroft v. Free Speech Coalition, 535 U.S. 234, 122 S. Ct. 1389 (2002) (the government must show not only that the individual received or distributed the material, but that he did so believing that the material was sexually explicit in nature and that it depicted a person who appeared to him to be, or that he anticipated would be, under 18 years of age). 017 7/2 7/2 Knowledge of the interstate nexus is not a required element of the crime. United States v. Smith, 459 F.3d 1276, 1289 (11th Cir. 2006). d we 0 In United States v. Smith, 459 F.3d 1276, 1296 n.17 (11th Cir. 2006), the Eleventh Circuit noted that the district court instructed the jury that answering the question whether conduct was “lascivious exhibition” involved consideration of “whether the setting of the depiction is such as to make it appear to be sexually inviting or suggestive, for example in a location or in a pose associated with sexual activity . . . and whether the depiction has been designed to elicit a sexual response in the viewer.” e , vi 226 4 16-the dictionary definition of “lascivious” as “exciting sexual o. The Eleventh Circuit quoted NUnited States v. Williams, 444 F.3d 1286, 1299 (11th Cir. 2006), rev’d desires; salacious.” on other grounds, 553 U.S. 285, 128 S. Ct. 1830 (2008). The court also noted: “What exactly constitutes a forbidden “lascivious exhibition of the genitals or pubic area” and how that differs from an innocuous photograph of a naked child (e.g. a family photograph of a child taking a bath, or an artistic masterpiece portraying a naked child model) is not concrete . . . While the pictures needn't always be “dirty” or even nude depictions to qualify, screening materials through the eyes of a neutral factfinder limits the potential universe of objectionable images.” Id. The court further noted that most lower courts have embraced the six-factor “lascivious exhibition” test articulated in United States v. Dost, 636 F. Supp. 828, 832 (S.D. Cal. 1986): 1) whether the focal point of the visual depiction is on the child's genitalia or pubic area; 2) whether the setting of the visual depiction is sexually suggestive, i.e., in a place or pose generally associated with sexual activity; 3) whether the child is depicted in an unnatural pose, or in inappropriate attire, considering the age of the child; 4) whether the child is fully or partially clothed, or nude; 493 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 520 of 677 5) whether the visual depiction suggests sexual coyness or a willingness to engage in sexual activity; 6) whether the visual depiction is intended or designed to elicit a sexual response in the viewer. The Dost court also observed that “a visual depiction need not involve all of these factors to be a ‘lascivious exhibition of the genitals or pubic area.” The determination will have to be made based on the overall content of the visual depiction, taking into account the age of the minor.’” Id. d we e , vi 226 4 16. No 494 0 017 7/2 7/2 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 521 of 677 83.4B Child Pornography Receiving, Possessing, Distributing (Computer or Digital Image that Appears Indistinguishable from Actual Minor but may not be of an Actual Person) 18 U.S.C. § 2252A(a)(2)(A) and (5)(B) It’s a Federal crime to knowingly [receive] [possess] [distribute] any child pornography that has been [transported] [shipped] [mailed] in interstate or foreign commerce [including by computer]. The Defendant can be found guilty of this crime only if all the following facts are proved beyond a reasonable doubt: (1) (2) (3) the Defendant knowingly [received] [possessed] [distributed] an item or items of child pornography; 017 7/2 /2 the item[s] of child pornography had been 07in interstate or d [transported] [shipped] [mailed] we by computer]; and foreign commerce [including e , vi 6 when the 22 Defendant [received] [possessed] [distributed] the item[s], the Defendant believed 6-4 1item[s] [was] [were] [contained] child o. Nthe pornography. [To “distribute” something means to deliver or transfer possession of it to someone else, with or without any money involved in the transaction.] [To “receive” something simply means knowingly to accept or take possession of something. Receipt does not require proof of ownership.] The term “interstate or foreign commerce” is the movement of property between different states or between the United States and any place outside the United States. The term “State” means a State of the United States, the District of Columbia, and any commonwealth, territory, or possession of the United 495 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 522 of 677 States. It doesn’t matter whether the Defendant knew the child pornography had moved in interstate or foreign commerce. The Government only has to prove that the child pornography actually did move in interstate or foreign commerce. [The term “computer” includes any high-speed data-processing device that can perform logical, arithmetic, or storage functions, including any data storage facility or communications facility that is directly related to or operates in conjunction with the device. It doesn’t include an automated typewriter or typesetter, portable hand-held calculator, or similar devices that are solely 017 2 The term “child pornography” means any visual7/ depiction including any 2 07/ photograph, film, video, picture, or computerd computer generated image or we or ie picture, made or produced by 6, v electronic, mechanical, or other means, of 2 -42 the visual depiction is a digital image, sexually explicit conduct where . 16 No computer image, or computer-generated image that is, or is indistinguishable capable of word-processing or arithmetic calculations.] from, that of a minor engaging in sexually explicit conduct. “Minor” is any person under 18 years old. [An “identifiable minor” is a person [who was a minor when the visual depiction was created, adapted, or modified] [whose image as a minor was used in creating, adapting, or modifying the visual depiction] and 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. The Government does not have to prove the actual identity of the identifiable minor.] 496 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 523 of 677 [The term “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 term does not include drawings, cartoons, sculptures, or paintings.] The term "sexually explicit conduct" means actual or simulated: • graphic sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal contact, whether between persons of the same or opposite sex, or lascivious simulated sexual intercourse where the genitals, breast, or pubic hair of any person is exhibited; • graphic or simulated bestiality; • graphic or simulated masturbation; • graphic or simulated sadistic or masochistic abuse; or 017 7/2 2 • graphic or simulated lascivious exhibition of the genitals or pubic 07/ d we area of any person. e , vi 6 “Graphic” means that 22 a viewer can observe any part of the genitals or 4 16- person or animal during any part of the time that pubic area of anyo. N depicted the sexually explicit conduct is being depicted.” “Lascivious exhibition" means indecent exposure of the genitals or pubic area, usually to incite lust. Not every exposure is a lascivious exhibition. To decide whether a visual depiction is a lascivious exhibition, you must consider the context and setting in which the genitalia or pubic area is being displayed. Factors you may consider include: • the overall content of the material; • whether the focal point of the visual depiction is on the minor's genitalia or pubic area; • whether the setting of the depiction appears to be sexually inviting 497 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 524 of 677 or suggestive – for example, in a location or in a pose associated with sexual activity; • whether the minor appears to be displayed in an unnatural pose or in inappropriate attire; • whether the minor is partially clothed or nude; • whether the depiction appears to convey sexual coyness or an apparent willingness to engage in sexual activity; and • whether the depiction appears to have been designed to elicit a sexual response in the viewer. A visual depiction need not have all these factors to be a lascivious exhibition. ANNOTATIONS AND COMMENTS d we e 18 U.S.C. § 2252A(a)(2)(A) and (5)(B) provides: (a) any person who - - , vi 226 017 7/2 7/2 0 4 16. (A) any child pornography that has been mailed, or shipped or No transported in interstate or foreign commerce by any means, including by (2) knowingly receives or distributes - - computer; or * * * * (5) either - * * * * (B) knowingly possess any book, magazine, periodical, film, videotape, computer disk, or any other material that contains an image of child pornography that has been mailed, or shipped or transported in interstate or foreign commerce by any means, including by computer, or that was produced using materials that have been mailed, or shipped or transported in interstate or foreign commerce by any means, including by computer, [shall be guilty of an offense against the United States]. Maximum Penalty: Twenty (20) years (minimum of five (5) years) and applicable fine when Defendant has no prior conviction. Minimum of fifteen (15) and maximum of forty (40) years when the Defendant has previously been convicted of specified sex crimes. Note: conviction under 18 U.S.C. § 2252A(a)(5) only carries a maximum ten (10) year sentence and 498 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 525 of 677 applicable fine for a first offender, mandatory minimum ten (10) years/maximum twenty (20) years for repeat offenders. The Supreme Court struck down as unconstitutional former 18 U.S.C. § 2256(8)(B) in Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002). In response, Congress revised the definition of “sexually explicit conduct” for those cases where the depiction of such conduct 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.” See 18 U.S.C. §§ 2256 (1)(B) and (8)(B); see also United States v. Williams, 444 F.3d 1286, 1295-96 (11th Cir. 2006), rev’d on other grounds, 553 U.S. 285, 128 S. Ct. 1830 (2008). The Committee has incorporated those changes in this instruction and recommends giving this instruction in those cases where the alleged digital/computer pornography may not depict an actual person. For all other cases, the Committee recommends that Instruction 82.4A be given. Note that 1998 amendment to § 2252A added subsections (c) and (d) allowing certain affirmative defenses. United States v. X-Citement Video, Inc., 513 U.S. 64, 111 S. Ct. 464 (1992) held that 18 U.S.C. § 2252(a)(1) and (2) requires proof of scienter as to the age of the performer. While the structure of § 2252A(a)(1) and (2) is different (using “child pornography” instead of “visual depiction involving the use of a minor”), § 2252A(a)(1) and (2) also contains as an element scienter the age of the performer. See United States v. Acheson, 195 F.3d 645, 653 (11th Cir. 1999), overruled on other grounds by Ashcroft v. Free Speech Coalition, 535 U.S. 234, 122 S. Ct. 1389 (2002) (the government must show not only that the individual received or distributed the material, but that he did so believing that the material was sexually explicit in nature and that it depicted a person who appeared to him to be, or that he anticipated would be, under 18 years of age). d we e , vi 226 017 7/2 7/2 0 Knowledge of the interstate nexus is not a required element of the crime. United States v. Smith, 459 F.3d 1276, 1289 (11th Cir. 2006). 4 16. No In United States v. Smith, 459 F.3d 1276, 1296 n.17 (11th Cir. 2006), the Eleventh Circuit noted that the district court instructed the jury that answering the question whether conduct was “lascivious exhibition” involved consideration of “whether the setting of the depiction is such as to make it appear to be sexually inviting or suggestive, for example in a location or in a pose associated with sexual activity . . . and whether the depiction has been designed to elicit a sexual response in the viewer.” The Eleventh Circuit quoted the dictionary definition of “lascivious” as “exciting sexual desires; salacious.” United States v. Williams, 444 F.3d 1286, 1299 (11th Cir. 2006), rev’d on other grounds, 553 U.S. 285, 128 S. Ct. 1830 (2008). The court also noted: “What exactly constitutes a forbidden “lascivious exhibition of the genitals or pubic area” and how that differs from an innocuous photograph of a naked child (e.g. a family photograph of a child taking a bath, or an artistic masterpiece portraying a naked child model) is not concrete . . . While the pictures needn't always be “dirty” or even nude depictions to qualify, screening materials through the eyes of a neutral fact finder limits the potential universe of objectionable images.” Id. The court further noted that most lower courts have embraced the six-factor “lascivious exhibition” test articulated in United States v. Dost, 636 F. Supp. 828, 832 (S.D. Cal. 1986): 1) whether the focal point of the visual depiction is on the child's genitalia or pubic area; 2) whether the setting of the visual depiction is sexually suggestive, i.e., in a place or pose generally associated with sexual activity; 499 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 526 of 677 3) whether the child is depicted in an unnatural pose, or in inappropriate attire, considering the age of the child; 4) whether the child is fully or partially clothed, or nude; 5) whether the visual depiction suggests sexual coyness or a willingness to engage in sexual activity; 6) whether the visual depiction is intended or designed to elicit a sexual response in the viewer. The Dost court also observed that “a visual depiction need not involve all of these factors to be a ‘lascivious exhibition of the genitals or pubic area.” The determination will have to be made based on the overall content of the visual depiction, taking into account the age of the minor.’” Id. d we e , vi 226 4 16. No 500 0 017 7/2 7/2 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 527 of 677 84 Transportation of Explosive, Biological, Chemical or Radioactive or Nuclear Materials 18 U.S.C. § 2283(a) It’s a Federal crime to knowingly transport aboard any vessel [within the Admiralty and Maritime jurisdiction of the United States] [outside the United States and on the high seas] an explosive or incendiary device, a biological agent, a chemical weapon, or radioactive or nuclear material, knowing that the item is intended to be used to commit [the offense of: specify offense(s) listed in 18 U.S.C. § 2332b(g)(5)(B), e.g., act of terrorism transcending national boundaries as defined in 18 U.S.C. § 2332b]. 017 7/2 7/2 The Defendant can be found guilty of this crime only if all the following 0 ed transported [an w the Defendant knowingly vie device] [a biological explosive or 6, 2 incendiary agent] [a 2 4 chemical weapon] [radioactive or nuclearmaterial]; . 16 o Nthe Defendant transported the [explosive or facts are proved beyond a reasonable doubt: (1) (2) incendiary device] [biological agent] [chemical weapon] [radioactive or nuclear material] aboard a vessel [within the United States and on waters subject to the jurisdiction of the United States] [outside the United States and on the high seas]; and (3) the Defendant knew that the [explosive or incendiary device] [biological agent] [chemical weapon] [radioactive or nuclear material] was intended to be used to commit [the offense of: specify offense listed in 18 U.S.C. § 2332b(g)(5)(B)]. The term “vessel” means any watercraft or other contrivance used or designed for transportation or navigation on, under, or immediately above 501 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 528 of 677 water. [The term “biological agent” means any biological agent, toxin, or vector, including [a biological agent, such as a bacteria capable of causing death or disease in a human, animal, plant, or other living organism]]. [The term “chemical weapon” means [a munition or device specifically designed to cause death or other harm by using a toxic chemical that would be released when the munition or device was used]]. [The term “explosive or incendiary device” means [any explosive bomb, grenade, missile or similar device]]. 017 2 uranium, enriched uranium, or uranium 233. It does 27/ not include uranium in the 07/ of isotopes as occurring form of ore or ore residue that contains the d we mixture e , vi in nature.] 226 4 [The term “radioactive material” includes [source material such as 16. No etc.] and special nuclear material such as [plutonium, [uranium, thorium, [The term “nuclear material” means material containing any plutonium, uranium 233, etc.], but does not include natural or depleted uranium] [nuclear by-product material such as [the tailings or wastes produced by extracting or concentrating uranium from any ore processed primarily for the uranium content]] [material that was made radioactive by bombardment in an accelerator] [all refined isotopes of radium]]. If you find beyond a reasonable doubt that the vessel was in the location alleged and described in the indictment, you are instructed that the location is [within the United States and on waters subject to the jurisdiction of the United States] [outside the United States and on the high seas]. 502 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 529 of 677 ANNOTATIONS AND COMMENTS 18 U.S.C. § 2283(a) provides: Whoever knowingly transports aboard any vessel within the United States and on waters subject to the jurisdiction of the United States or any vessel outside the United States and on the high seas or having United States nationality an explosive or incendiary device, biological agent, chemical weapon, or radioactive or nuclear material, knowing that any such item is intended to be used to commit an offense listed under section 2332b(g)(5)(B), shall be fined under this title or imprisoned for any term of years or for life, or both. Maximum Penalty: Life in prison and applicable fine. Note: if a person causes the death of a person by engaging in conduct prohibited by § 2283(a), then the person may be punished by death. 18 U.S.C. § 2283(b). Of course, an instruction on this additional element should be given if necessary. 017 7/2 7/2 Definitions of materials derived from various statutes as specified in 18 U.S.C. § 2283(c); definition of “vessel” is from 18 U.S.C. § 2311. For additional definitions, see 18 U.S.C. § 178 (providing definitions of biological agents). 0 editems outside the United States and w The statute also prohibits transporting the prohibited vieis charged, an additional instruction defining having United States nationality. If this offense 26, “United States nationality” and how nationality is determined will be necessary. -42 . 16 No 503 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 530 of 677 85 Transportation of Terrorists 18 U.S.C. § 2284(a) It’s a Federal crime to knowingly and intentionally transport aboard any vessel [within the United States and on waters subject to the jurisdiction of the United States] [outside the United States and on the high seas] a terrorist. The Defendant can be found guilty of this crime only if all the following facts are proved beyond a reasonable doubt: (1) the Defendant knowingly and intentionally transported [person described in the indictment as a terrorist]; (2) the Defendant transported [person described in the indictment as a terrorist] aboard a vessel [within the United States and on waters subject to the jurisdiction of the United States] [outside the United States and on the high seas]; and (3) d we 017 7/2 7/2 0 the Defendant knew that [person described in the indictment as a terrorist] was a terrorist. ie , vwatercraft or other contrivance used or The term “vessel” means 6 22 any 4 designed for transportation or navigation on, under, or immediately above 16. No water. The term “terrorist” means a person who intends to commit, or is avoiding capture after committing, the offense[s] of [specify offense(s) listed in 18 U.S.C. § 2332b(g)(5)(B), e.g., act of terrorism transcending national boundaries as defined in 18 U.S.C. § 2332b]. If you find beyond a reasonable doubt that the vessel was in the location alleged and described in the indictment, you are instructed that the location is [within the United States and on waters subject to the jurisdiction of the United States] [outside the United States and on the high seas]. 504 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 531 of 677 ANNOTATIONS AND COMMENTS 18 U.S.C. § 2284(a) provides: Whoever knowingly and intentionally transports any terrorist aboard any vessel within the United States and on waters subject to the jurisdiction of the United States or any vessel outside the United States and on the high seas or having United States nationality, knowing that the transported person is a terrorist, shall be fined under this title or imprisoned for any term of years or for life, or both. Maximum Penalty: Life in prison and applicable fine. The definition of “vessel” is from 18 U.S.C. § 2311. The statute also prohibits transporting the prohibited items outside the United States and having United States nationality. If this offense is charged, an additional instruction defining “United States nationality” and how nationality is determined will be necessary. d we e , vi 226 4 16. No 505 0 017 7/2 7/2 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 532 of 677 86 Interstate Transportation of a Stolen Motor Vehicle 18 U.S.C. § 2312 It’s a Federal crime to transport, or cause to be transported, a stolen motor vehicle in interstate commerce. The Defendant can be found guilty of this crime only if all the following facts are proved beyond a reasonable doubt: (1) the Defendant [transported a stolen motor vehicle] [caused a stolen motor vehicle to be transported] in interstate commerce; and (2) the Defendant knew the vehicle had been stolen 7 01and benefits of vehicle with the intent to deprive the owner of the rights 7/2 2 07/ ownership. d we or cause it to be transported e The offense is to transport a motor vehicle , vi 226 in interstate commerce with knowledge that it had been stolen. It doesn’t 4 16. matter whether No Defendant or someone else stole the vehicle. the The word "stolen" includes any wrongful and dishonest taking of a motor “Interstate or foreign commerce" is the movement of property between different states or between the United States and anyplace outside of the United State. A “state” is a State of the United States, the District of Columbia, and any commonwealth, territory, or possession of the United States. If a vehicle is driven under its own power or otherwise transported across state lines from one state to another it has been transported in interstate commerce. 506 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 533 of 677 ANNOTATIONS AND COMMENTS 18 U.S.C. § 2312 provides: Whoever transports in interstate . . . commerce a motor vehicle . . . knowing the same to have been stolen, [shall be guilty of an offense against the United States]. Maximum Penalty: Ten (10) years imprisonment and applicable fine. Definition of State taken from 18 U.S.C. § 2313(b), also referred to in definition of interstate commerce 18 U.S.C. § 10. See 18 U.S.C. § 2312 (crime not limited simply to person driving the car across state lines). d we e , vi 226 4 16. No 507 0 017 7/2 7/2 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 534 of 677 87 Sale or Receipt of a Stolen Motor Vehicle 18 U.S.C. § 2313 It’s a Federal crime [to receive] [to possess] [to conceal] [to store] [to sell] [to dispose of] any [motor vehicle] [aircraft] that has crossed a State or United States boundary after it was stolen, knowing it is stolen. The Defendant can be found guilty of this crime only if all the following facts are proved beyond a reasonable doubt: (1) the [motor vehicle] [aircraft] described in the indictment was stolen; (2) after the [motor vehicle] [aircraft] was stolen, it crossed a [State] [United States] boundary. (3) after the stolen [motor vehicle] [aircraft] crossed a [State] [United States] boundary, the Defendant [received] [possessed] [concealed] [stored] [sold] [disposed of] it. (4) when the Defendant [received] [possessed] [concealed] [stored] [sold] [disposed of] the stolen [motor vehicle] [aircraft], Defendant knew it had been stolen. d we e , vi 226 017 7/2 7/2 0 4 16-wrongful and dishonest taking of [a motor vehicle] . “Stolen" means the No [an aircraft], with the intent to deprive the owner of the rights and benefits of ownership. It doesn’t matter whether the Defendant or someone else stole the [vehicle] [aircraft], or whether the Defendant knew that the [vehicle] [aircraft] had crossed a State or United States boundary after it had been stolen. The Government must prove beyond a reasonable doubt that the Defendant knew that the [vehicle] [aircraft] was stolen. The word "State" includes a State of the United States, the District of Columbia, and any commonwealth, territory, or possession of the United 508 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 535 of 677 States. d we e , vi 226 4 16. No 509 0 017 7/2 7/2 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 536 of 677 ANNOTATIONS AND COMMENTS 18 U.S.C. § 2313 provides: Whoever receives, possesses, conceals, stores, . . . sells or disposes of any motor vehicle . . . which has crossed a State or United States boundary after being stolen, knowing the same to have been stolen, [shall be guilty of an offense against the United States]. Maximum Penalty: Ten (10) years imprisonment and applicable fine. An indictment often alleges that the defendant “received, possessed, concealed, sold, and disposed of” a particular motor vehicle. It is not necessary for the government to prove that all of these acts were in fact committed because any one of them is a violation of the statute. The Fifth Circuit held, however, that the statute describes two conceptual types of wrongdoing—housing of the vehicle and marketing of the vehicle—and the jury must agree unanimously upon which way the offense was committed. United States v. Gipson, 553 F.2d 453 (5th Cir.1977). A plurality of the Supreme Court criticized the reasoning of Gipson in Schad v. Arizona, 501 U.S. 624, 111 S. Ct. 2491 (1991), and the Eleventh Circuit has questioned Gipson’s validity in light of Schad. United States v. Verbitskaya, 406 F.3d 1324, 1334 n.12 (11th Cir. 2005) (declining to follow Gipson and finding that the district court did not need to require a unanimous verdict on the government’s four alternative theories on how interstate commerce was affected by extortion). 017 7/2 811 (5th Cir. 1976) 2 Where "concealment" is an issue, see United States v. Casey, 540 F.2d ("Although the term ‘conceal' as used in § 2313 is not limited to physically secreting the 07/ to sustain a conviction for d vehicle, all of the cases which have found sufficient evidence weact on the part of the Defendant. For concealment have involved some overt physical ie example, this Circuit, as others, has held v acts such as altering title papers, changing that , license plates, or making false statements on title vehicle identification numbers, changing 226 of the term."). 4 applications, fall within the broad definition 16-U.S.C. § 2313(b). . See definition of "State" at 18 No 510 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 537 of 677 88.1 Interstate Transportation of Stolen Property 18 U.S.C. § 2314 (First Paragraph) It’s a Federal crime to transport, or to cause to be transported in interstate commerce, property that has been [stolen] [converted] [taken by fraud] and has a value of at least $5,000. The Defendant can be found guilty of this crime only if all the following facts are proved beyond a reasonable doubt: (1) the Defendant [transported] [transmitted] [transferred] or caused to be [transported] [transmitted] [transferred] in interstate commerce property that was [stolen] [converted] [taken by fraud] as described in the indictment; 017 2 7/items the (3) when the Defendant transported/2 the 07 Defendant knew that thedproperty had been e [stolen] [converted] [taken by fraud]. ew , vi or dishonestly take property with the [To “steal” property is to 26 2 wrongfully 4 intent to deprive someone of the rights and benefits of owning it.] 16. No (2) the property had a value of at least $5,000; and [To "convert" property is to take control over the property without permission and to control it in a way that interferes with the owner's rights.] [To “take by fraud” is to deceive or cheat someone out of property by false or fraudulent pretenses, representations, or promises.] [The "value" of something is the greater of either (1) its face, par, or market value, or (2) its cost price, either wholesale or retail.] It doesn’t matter whether the Defendant [stole the property] [converted the property] [took the property by fraud] or someone else did, but to find the Defendant guilty, you must find that the Defendant knew it had been [stolen] 511 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 538 of 677 [converted] [taken by fraud]. “Interstate commerce" includes any movement or transportation of goods, wares, merchandise, securities or money from one state into another state, the District of Columbia, and any commonwealth, territory, or possession of the United States. ANNOTATIONS AND COMMENTS 18 U.S.C. § 2314 (first paragraph) provides: Whoever transports, transmits, or transfers in interstate or foreign commerce any goods, wares, merchandise, securities or money, of the value of $5,000 or more, knowing the same to have been stolen, converted or taken by fraud [shall be guilty of an offense against the United States]. 017 Maximum Penalty: Ten (10) years imprisonment and applicable 2 7/ fine. /2 the The language "or caused to be transported," although not 7 the 0 found in 755first paragraph ofCir. statute, has been expressly allowed by United States v. Block, F.2d 770 (11th d e 1985). ew vi ,1027, 1035 (11th Cir. 1992), the Eleventh Circuit In United States v. LaSpesa, 956 F.2d 226 held that 18 U.S.C. § 2314 prohibits interstate wire transfers of stolen money. 4 16- 605, 614 (11th Cir. 1994), the Eleventh Circuit held that In United States v. Baker, 19 F.3d o. N"stolen or taken by fraud" for "stolen" in the jury instructions was the substitution of allowable under the statute, where the property in question was taken by fraud. The definition of State taken from 18 U.S.C. § 2313(b). 512 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 539 of 677 88.2 Causing Interstate Travel in Execution of a Scheme to Defraud 18 U.S.C. § 2314 (Second Paragraph) It’s a Federal crime for anyone to transport someone or induce someone to travel in interstate commerce for the purpose of carrying out a scheme to defraud that person of money or property. The Defendant can be found guilty of this crime only if all the following facts are proved beyond a reasonable doubt: (1) the Defendant transported or caused to be transported, or induced travel by [victim’s name] in interstate commerce; 017 /2 7fraudulent 2 (3) the Defendant knew the scheme was 07/ and acted with intent to defraud [victim’s name]; d and we e , vi (4) the purpose 26 scheme to defraud was to get 2of the money or property worth at least $5,000 from the 4 victim. 16. No something is the greater of either (1) its face, par or The "value" of (2) the purpose of the travel was to carry out or conceal a scheme to defraud [him] [her]; market value, or (2) its cost or price, either wholesale or retail. “Interstate commerce" includes any movement or transportation of goods, wares, merchandise, securities or money from one state into another state, the District of Columbia, and any commonwealth, territory, or possession of the United States. A "scheme" includes any plan or course of action intended to deceive or cheat someone. A statement or representation is "false" or "fraudulent" if it relates to a 513 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 540 of 677 material fact and the speaker knows it is untrue or makes it with reckless indifference to its truth and, it is made with the intent to defraud. A statement or representation may also be "false" or "fraudulent" when it is a half-truth, or effectively conceals a material fact, and is made with intent to defraud. A "material fact" is an important fact, not some unimportant or trivial detail, that a reasonable person would use to decide whether or not to do a particular thing. To act with "intent to defraud" means to do something with the specific intent to deceive or cheat someone, usually for personal financial gain or to 017 7/2 7/2 cause financial loss to someone else. d we 0 e , vi 18 U.S.C. § 2314 (second paragraph) provides: 226 4 Whoever, having devised or intending to devise any scheme or artifice 16- money or property by means of false or fraudulent . to defraud, or for obtaining No pretenses, representations, or promises, transports or causes to be ANNOTATIONS AND COMMENTS transported, or induces any person to travel in, or to be transported in interstate or foreign commerce in the execution or concealment of a scheme or artifice to defraud that person or those persons of money or property having a value of $5,000 or more [shall be guilty of an offense against the United States]. Maximum Penalty: Ten (10) years imprisonment and applicable fine. 514 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 541 of 677 89 Sale or Receipt of Stolen Property 18 U.S.C. § 2315 (First Paragraph) It’s a Federal crime to knowingly [receive] [possess] [conceal] [store] [barter] [sell] [dispose of] stolen property worth at least $5,000 that has crossed a State or United States boundary after it was stolen, taken, or unlawfully converted. The Defendant can be found guilty of this crime only if all the following facts are proved beyond a reasonable doubt: (1) (2) (3) (4) the Defendant [received] [possessed] [concealed] [stored] [bartered] [sold] [disposed of] stolen property as described in the indictment; 017 7/2 States 2 the property crossed a State or /United 07 boundary after it was unlawfully converted, or d unlawfully taken; we vie ,knew the property had been the Defendant 226 stolen, unlawfully converted, or taken; and 4 16o. Nthe property had a value of at least $5,000. The law specifies several different ways in which this crime may be committed. The indictment alleges that the Defendant received, possessed, concealed, stored, sold, and disposed of certain property. The Government does not have to prove all of these; it only has to prove beyond a reasonable doubt that the Defendant received or possessed or concealed or stored or sold or disposed of the stolen property. But to find the Defendant guilty, you must unanimously agree upon which of those things the Defendant did. The Government must prove beyond a reasonable doubt that the Defendant knew the property had been stolen. But it doesn’t matter whether 515 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 542 of 677 the Defendant knew the property had crossed a State or United States boundary after it was stolen. A "State" is a State of the United States, the District of Columbia, and any commonwealth, territory, or possession of the United States. The "value" of something is the greater of either (1) its face, par, or market value, or (2) its cost or price, either wholesale or retail. ANNOTATIONS AND COMMENTS 18 U.S.C. § 2315 (first paragraph) provides: 017 7/2 7/2 Whoever receives, possesses, conceals, stores, barters, sells, or disposes of any goods, wares, merchandise, securities or money of the value of $5,000 or more, . . . which have crossed a State or United States boundary after being stolen, unlawfully converted, or taken, the same to have been stolen, unlawfully converted, or taken [shall be guilty of an offense against the United States]. d we 0 e , vi and applicable fine. Maximum Penalty: Ten (10) years26 imprisonment -421255, 1256 (11th Cir. 1996) (reciting the elements of the See United States v. King, 87 F.3d 16 . instruction). offense as stated in this No 516 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 543 of 677 90 Use of Weapons of Mass Destruction Against Person or Property in the United States 18 U.S.C. § 2332a(a)(2) It’s a Federal crime for anyone without lawful authority to use, threaten, or attempt or conspire to use, a weapon of mass destruction against any person or property within the United States, and [use the mail or any facility of interstate or foreign commerce to further the offense] [use the property in interstate or foreign commerce or in an activity that affects interstate or foreign commerce] [for any perpetrator to travel in or cause another to travel in interstate or foreign commerce to further the offense] [the offense, or the results of the offense, affect interstate or foreign commerce] [the offense would 017 /2 7only if all the following 2 The Defendant can be found guilty of this crime 07/ d facts are proved beyond a reasonable doubt: we e , vi (1) the Defendant [used] [threatened to use] 26 [attempted2 use] [conspired to use] a weapon to 4 of . mass destruction against any person or 16o Nproperty within the United States; have affected interstate or foreign commerce]. (2) the Defendant did not have lawful authority to use the weapon of mass destruction; and (3) [the mail or any facility of interstate or foreign commerce was used to further the offense] [the property was used in interstate or foreign commerce or in an activity that affects interstate or foreign commerce] [any perpetrator traveled in or caused another to travel in interstate or foreign commerce to further the offense] [the offense, or the results of the offense, affected interstate or foreign commerce] [the offense would have affected interstate or foreign commerce]. The term “weapon of mass destruction” means [a destructive device, 517 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 544 of 677 including any explosive, incendiary, or poison-gas bomb, grenade (insert device as defined under 18 U.S.C. § 921)] [any weapon that is designed or intended to cause death or serious bodily injury through the release, dissemination, or effect of toxic or poisonous chemicals, or their precursors] [any weapon involving a biological agent, toxin, or vector, including a microorganism capable of causing death or disease in a human, animal, plant, or other living organism] [any weapon that is designed to release radiation or radioactivity at a level dangerous to human life]. [The term "interstate commerce" includes any movement or 017 2 from one state into another state, the District 27/Columbia, and any of 07/ States. commonwealth, territory, or possession ofed United w the e , vi [The term “facility of interstate commerce” includes means of 226 4 transportation and communication.] 16. NoCOMMENTS ANNOTATIONS AND transportation of persons, goods, wares, merchandise, securities or money 18 U.S.C. § 2332(a)(2) provides: A person who, without lawful authority, uses, threatens, or attempts or conspires to use, a weapon of mass destruction . . . against any person or property within the United States, and (A) the mail or any facility of interstate or foreign commerce is used in furtherance of the offense; (B) such property is used in interstate or foreign commerce or in an activity that affects interstate or foreign commerce; (C) any perpetrator travels in or causes another to travel in interstate or foreign commerce in furtherance of the offense; or (D) the offense, or the results of the offense, affect interstate or foreign commerce, or, in the case of a threat, attempt, or conspiracy, would have affected interstate or foreign commerce; 518 Appeal: 16-4226 Doc: 48-2 Maximum sentence: Filed: 07/27/2017 Pg: 545 of 677 Life in prison. If death results, this offense may be punished by death. Of course, an instruction on this additional element should be given if necessary. The term “facility of interstate commerce” is defined in 18 U.S.C. § 1958(b)(2). For additional definitions, see 18 U.S.C. § 178 (providing definitions of biological agents). d we e , vi 226 4 16. No 519 0 017 7/2 7/2 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 546 of 677 91.1 Providing Material Support to Terrorists 18 U.S.C. § 2339A It’s a Federal crime for anyone to provide material support or resources, knowing or intending that they are to be used [to prepare for, or to carry out, a violation of (insert section), which prohibits (insert summary of prohibition)] [to prepare for, or to carry out, covering up an escape after violating (insert section), which prohibits (insert summary of prohibition)]. The Defendant can be found guilty of this crime only if all the following facts are proved beyond a reasonable doubt: 017 7/2 7/2 (1) the Defendant provided material support or resources to [person(s) described in the indictment]; and (2) the Defendant did so knowing or intending that the material support or resources were to be used [to prepare for, or to carry out, a violation of (insert section), which prohibits (insert summary of prohibition)] [to prepare for, or to carry out, covering up an escape after violating (insert section), which prohibits (insert summary of prohibition)]. d we e , vi 226 0 4 16. No The term “material support or resources” means any property, tangible or intangible, or service, including currency or monetary instruments or financial securities, financial services, lodging, [training], [expert advice or assistance], safehouses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel (one or more individuals who may be or include oneself), and transportation. Medicine or religious materials are not included. 520 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 547 of 677 ANNOTATIONS AND COMMENTS 18 U.S.C. § 2339A provides: Whoever provides material support or resources or conceals or disguises the nature, location, source, or ownership of material support or resources, knowing or intending that they are to be used in preparation for, or in carrying out, a violation of section 32, 37, 81, 175, 229, 351, 831, 842(m) or (n), 844(f) or (i), 930(c), 956, 1114, 1116, 1203, 1361, 1362, 1363, 1366, 1751, 1992, 2155, 2156, 2280, 2281, 2332, 2332a, 2332b, 2332f, or 2340A of this title, section 236 of the Atomic Energy Act of 1954 (42 U.S.C. 2284), section 46502 or 60123(b) of title 49, or any offense listed in section 2332b(g)(5)(B) (except for sections 2339A and 2339B) or in preparation for, or in carrying out, the concealment of an escape from the commission of any such violation, or attempts or conspires to do such an act, shall be fined under this title, imprisoned not more than 15 years, or both, and, if the death of any person results, shall be imprisoned for any term of years or for life. A violation of this section may be prosecuted in any Federal judicial district in which the underlying offense was committed, or in any other Federal judicial district as provided by law. Maximum sentence: 017 7/2 7/2 Fifteen (15) years and applicable fine. If death results, this offense may be punished by life in prison. Of course, an instruction on this additional element should be given if necessary. 0 ed or resources” (training and expert The bracketed terms in the definition of “material support ew advice or assistance) have been found iimpermissibly vague by the Ninth Circuit. vF.3d 1122, 1134-36 (9th Cir. 2007). In addition, Humanitarian Law Project v. Mukasey, 509 26, the term “service” was found to be impermissibly vague because it encompasses training -42 and expert advice or assistance. Id. at 1136. . 16Mukasey, 509 F.3d 1122 (9th Cir. 2007), superseded on other Humanitarian LawNo Project v. grounds by 552 F.3d 916 (9th Cir. 2009), cert. granted, 130 S. Ct. 48 (2009). 521 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 548 of 677 91.2 Providing Material Support or Resources to Designated Foreign Terrorist Organizations 18 U.S.C. § 2339B It’s a Federal crime for anyone to knowingly provide material support or resources to a foreign terrorist organization, knowing that the organization [is a designated terrorist organization] [has engaged or engages in terrorist activity] [has engaged or engages in terrorism]. The Defendant can be found guilty of this crime only if all the following facts are proved beyond a reasonable doubt: (1) the Defendant knowingly provided material support or resources to [organization described in the indictment]; and (2) the Defendant did so knowing that the organization [was a designated terrorist organization] [engaged or engages in terrorist activity] [engaged or engages in terrorism]. d we e , vi 226 017 7/2 7/2 0 The term “material support or resources” means any property, tangible 4 16. financial securities, financial services, lodging, [training], [expert advice or No or intangible, or service, including currency or monetary instruments or assistance], safehouses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel (one or more individuals who may be or include oneself), and transportation. Medicine or religious materials are not included. [The term “designated terrorist organization” means an organization designated by the Secretary of State as a foreign terrorist organization, as provided in 8 U.S.C. § 1189.] [The term “engage in terrorist activity” means [describe activity engaged in by the organization that is proscribed by 8 U.S.C. § 1182(a)(3)(B)(iv), e.g., 522 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 549 of 677 to commit terrorist activity, which means any activity that is unlawful under the laws of the place where it is committed (or which, if it had been committed in the United States, would be unlawful under the laws of the United States or any State) and that involves, for example, the highjacking or sabotage of an aircraft, vessel, or vehicle.] [The term “terrorism” means premeditated, politically motivated violence perpetrated against noncombatant targets by subnational groups or clandestine agents.] 017 7/2 7/2 ANNOTATIONS AND COMMENTS 18 U.S.C. § 2339B provides: d we 0 Whoever knowingly provides material support or resources to a foreign terrorist organization, or attempts or conspires to do so, shall be fined under this title or imprisoned not more than 15 years, or both, and, if the death of any person results, shall be imprisoned for any term of years or for life. To violate this paragraph, a person must have knowledge that the organization is a designated terrorist organization (as defined in subsection (g)(6)), that the organization has engaged or engages in terrorist activity (as defined in section 212(a)(3)(B) of the Immigration and Nationality Act), or that the organization has engaged or engages in terrorism (as defined in section 140(d) (2) of the Foreign Relations Authorization Act, Fiscal Years 1988 and 1989). e , vi 226 4 16. No Maximum sentence: Fifteen (15) years and applicable fine. If death results, this offense may be punished by life in prison. Of course, an instruction on this additional element should be given if necessary. “Terrorism” is defined in 22 U.S.C. § 2656f(d)(2). An additional instruction will be necessary if the material support or resources is the provision of personnel: the provision of personnel is unlawful if the personnel are provided “to work under [the] terrorist organization's direction or control or to organize, manage, supervise, or otherwise direct the operation of [the] organization.” 18 U.S.C. § 2339B(h) The bracketed terms in the definition of “material support or resources” (training and expert advice or assistance) have been found impermissibly vague by the Ninth Circuit. Humanitarian Law Project v. Mukasey, 509 F.3d 1122, 1134-36 (9th Cir. 2007). In addition, the term “service” was found to be impermissibly vague because it encompasses training and expert advice or assistance. Id. at 1136. 523 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 550 of 677 The mens rea requirement is met if the government proves that the donor defendant knew that the organization was a designated terrorist organization, that the organization engaged in terrorist activity, or that the organization engaged in terrorism. Id. at 1130. d we e , vi 226 4 16. No 524 0 017 7/2 7/2 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 551 of 677 92.1 Inducement of Juvenile to Travel to Engage in Criminal Sexual Activity 18 U.S.C. § 2422(a) It’s a Federal crime to [persuade] [induce] [entice] [coerce] an individual to travel in interstate or foreign commerce with the intent that the individual engage in [prostitution] [sexual activity for which any person can be charged with a criminal offense]. The Defendant can be found guilty of this crime only if all the following facts are proved beyond a reasonable doubt: (1) the Defendant knowingly [persuaded] [induced] [enticed] [coerced] [person named in indictment] to travel in [interstate] [foreign] commerce; (2) at the time the travel commenced, the Defendant intended that [person named in indictment] would engage in [prostitution] [any sexual activity for which any person can be charged with a criminal offense]. d we [It is not necessary 017 7/2 7/2 0 ie , vGovernment for the 226 to prove anyone actually 4 16. No Government must prove beyond a reasonable doubt is What the engaged in any prostitution or other illegal sexual activity after traveling across state lines. that a person was [persuaded] [induced] [enticed] [coerced] to travel across state lines by the Defendant, and that the Defendant intended at the time for the person to engage in prostitution or other illegal sexual activity, even if the person who traveled did not have the same intention to engage in such activity.] The Government must prove that, if the intended sexual activity had occurred, [the Defendant] [one or more of the individuals engaging in the sexual activity] could have been charged with a criminal offense under the 525 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 552 of 677 laws of [state]. As a matter of law the following acts are crimes under [state] law. [Describe the applicable state law]. [The term “sexual activity for which any person can be charged with a criminal offense” includes the production of child pornography.] [As used in this instruction, the term “prostitution” means engaging in or agreeing or offering to engage in any lewd act with or for another person in exchange for money or other consideration.] [As used in this instruction, "induce" means to stimulate the occurrence of or to cause.] 017 7/2 another. The term "State" includes a State of the United States, the District 2 07/possession of the United d of Columbia, and any commonwealth, territory, or we ie , that the Defendant knew that state lines States. It is not necessary to showv 226 4 were being crossed, 16-the Government must prove that state lines were but . No crossed. To “travel in interstate commerce” means to move from one state to ANNOTATIONS AND COMMENTS 18 U.S.C. § 2423(a) provides: Whoever knowingly persuades, induces, entices, or coerces any individual to travel in interstate or foreign commerce . . . to engage in prostitution, or in any sexual activity for which any person can be charged with a criminal offense, or attempts to do so, shall be fined under this title or imprisoned not more than 20 years, or both. Maximum Penalty: Twenty (20) years imprisonment and applicable fine. 18 U.S.C. § 3559 provides for a mandatory life sentence for repeated sex offenses against children. 18 U.S.C. § 2260A provides for an enhanced sentence for persons required to register as sex offenders. 18 U.S.C. § 2426 provides that the maximum sentence for a repeat offender under chapter 117 is twice the term otherwise provided by the chapter. 18 U.S.C. § 3559 526 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 553 of 677 provides for mandatory life imprisonment for repeated sex offenses against children. The defendant’s sole or dominant purpose in transporting the person in interstate or foreign commerce need not be for the person to engage in prostitution or illegal sexual activity. However, to meet the intent requirement, the Government must prove that one of the defendant’s motives was for the traveler to do so, even if the traveler did not know of the plan or intend to engage in such activity. See United States v. Drury, 582 F.2d 1181, 1184 (8th Cir.1978); United States v. Rashkovski, 301 F.3d 1133 (9th Cir. 2002) (finding that intent requirement of § 2422(a) was met when defendant offered to pay for tickets for two Russian women to travel to the United States to engage in prostitution, even though women were eager to travel to the United States and had no intention of actually engaging in prostitution upon their arrival); cf. United States v. Hoschouer, 224 Fed. Appx. 923, 925 (11th Cir. 2007) (finding that intent requirement of § 2423(a) was met when defendant brought child on interstate trip and evidence supported the conclusion that he did so to facilitate his sexual relationship with her). If the “sexual activity for which any person can be charged with a criminal offense” is an offense involving a minor, the jury should be instructed that the Government is not required to prove that the defendant knew the child’s age. See U.S. v. Cox, 577 F.3d 833 (7th Cir. 2009) (holding that 18 U.S.C. § 2423(a) does not require the Government to prove that the Defendant knew that the victim was under the age of 18). 017 7/2 7/2 The term “prostitution” is not defined in Title 18. The Supreme Court has defined the term 0hire.” Cleveland v. United States, as the “offering of the body to indiscriminate lewdness for ed 329 U.S. 14, 17 (1946). The term should not ew be defined by reference to state law, as doing so would make the term superfluous, since the statute already punishes “any sexual activity , vai criminal offense.” for which any person can be charged6 22 with 4 18 U.S.C. § 2427 provides that the term “sexual activity for which any person can be 16- includes the production of child pornography, as defined . charged with a criminal offense” No the charged unlawful sexual activity is the production of child in section 2256(8). If pornography, the definitions in section 2256(8) should be included in the instructions to the jury. 527 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 554 of 677 92.2 Coercion and Enticement of a Minor to Engage in Sexual Activity 18 U.S.C. § 2422(b) It’s a Federal crime for anyone, using [the mail or] any facility [or means] of interstate or foreign commerce [including transmissions by computer on the Internet], to [persuade] [induce] [entice] [coerce] anyone under 18 years old to engage in [prostitution] [any sexual activity for which any person could be charged with a criminal offense]. The Defendant can be found guilty of this crime only if all the following facts are proved beyond a reasonable doubt: (1) (2) (3) 017 7/2 7/2 the Defendant knowingly persuaded, induced, enticed, or coerced [individual named in the indictment] to engage in [prostitution] [sexual activity], as charged; d we e , vi 226 0 the Defendant used [the mail] [a computer] [describe other interstate facility as alleged in indictment] to do so; 4 16o. Nwhen the Defendant did these acts, [individual named in the indictment] was less than 18 years old; and (4) one or more of the individual(s) engaging in the sexual activity could have been charged with a criminal offense under the law of [identify the state]. So the Government must prove that one or more of the individuals engaging in the sexual activity could have been charged with a criminal offense under the laws of [state]. As a matter of law the following acts are crimes under [state] law. [Describe the applicable state law]. 528 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 555 of 677 [As used in this instruction, “induce” means to stimulate the occurrence of or to cause.] [As used in this instruction, the term “prostitution” means engaging in or agreeing or offering to engage in any lewd act with or for another person in exchange for money or other consideration.] [[A telephone] [A cellular telephone] [The Internet] is a facility of interstate commerce.] ANNOTATIONS AND COMMENTS 017 2 Whoever, using the mail or any facility or means of 7/ interstate or foreign /2 commerce, or within the special maritime and 07 territorial jurisdiction of the United States knowingly persuades, induces, entices, or coerces any ed w18 years, to engage in prostitution individual who has not attained the age of e , vi or any sexual activity for which any person can be charged with a criminal offense, or attempts to do so, shall be fined under this title and imprisoned not 226 4 less than 10 years or for life. 16o. NLife imprisonment and applicable fine. Minimum sentence is ten (10) Maximum Penalty: 18 U.S.C. § 2422(b) provides: years imprisonment and applicable fine. 18 U.S.C. § 3559 provides for a mandatory life sentence for repeated sex offenses against children. A defendant can also be guilty if he willfully attempts, via the mail or a facility of interstate commerce, to persuade, induce, entice or coerce anyone under eighteen years of age to engage in prostitution or sexual activity. In that circumstance, the court should give the appropriate charge on attempt. 18 U.S.C. § 2260A provides for an enhanced sentence for persons required to register as sex offenders. 18 U.S.C. § 2426 provides that the maximum sentence for a repeat offender under chapter 117 is twice the term otherwise provided by the chapter. 18 U.S.C. § 3559 provides for mandatory life imprisonment for repeated sex offenses against children. The defendant need not communicate directly with the minor; it is sufficient if the defendant induces (or attempts to induce) the minor via an adult intermediary. United States v. Hornaday, 392 F.3d 1306, 1310-11 (11th Cir. 2004); United States v. Murrell, 368 F.3d 1283, 1287 (11th Cir. 2004). In Murrell, the Eleventh Circuit also approved “to stimulate the occurrence of; cause” as the definition of “induce.” 529 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 556 of 677 The Internet is an instrumentality of interstate commerce. United States v. Hornaday, 392 F.3d 1306, 1311 (11th Cir. 2004). Telephones and cellular telephones are instrumentalities of interstate commerce, even when they are used intrastate. United States v. Evans, 476 F.3d 1176, 1180-81 (11th Cir. 2007). United States v. Evans, 476 F.3d 1176 (11th Cir. 2007) involved a defendant who did not induce the minor into having sex with him; rather, he induced the minor into being a prostitute, and he was her pimp. The jury instructions as written contemplate a fact situation where the defendant attempts to induce a minor to have sex with him, and they would need to be rewritten for a case like Evans. See also United States v. Murrell, 368 F.3d 1283, 1286 (11th Cir. 2004) (noting that § 2422(b) prohibits a person from persuading a minor to engage in sexual conduct, with himself or with a third party). In some cases, the government may proceed under an “aiding and abetting” theory. 18 U.S.C. § 2 “permits one to be found guilty as a principal for aiding or procuring someone else to commit the offense.” United States v. Hornaday, 392 F.3d 1306, 1312-13 (11th Cir. 2004) (noting that indictment need not mention 18 U.S.C. § 2). In those cases, it is appropriate to give an instruction on aiding and abetting. However, it is not appropriate to give such an instruction if the theory is that an undercover agent acted as an intermediary to offer up a fictitious minor to the defendant. Id. at 1314. 017 7/2 7/2 See U.S. v. Cox, 577 F.3d 833 (7th Cir. 2009) (holding that 18 U.S.C. § 2423(a), a statute which the Committee finds to be substantively similar, does not require the Government to prove that the Defendant knew that the victim was under the age of 18). d we 0 The term “prostitution” is not defined in Title 18. The Supreme Court has defined the term as the “offering of the body to indiscriminate lewdness for hire.” Cleveland v. United States, 329 U.S. 14, 17 (1946). The term should not be defined by reference to state law, as doing so would make the term superfluous, since the statute already punishes “any sexual activity for which any person can be charged with a criminal offense.” e , vi 226 4 16. No 530 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 557 of 677 93.1 Transportation with Intent to Engage in Criminal Sexual Activity 18 U.S.C. § 2423(a) It’s a Federal crime to transport an individual under 18 years old in interstate or foreign commerce with the intent that the individual engage in [prostitution] [sexual activity for which any person can be charged with a criminal offense]. The Defendant can be found guilty of this crime only if all the following facts are proved beyond a reasonable doubt: (1) the Defendant knowingly transported [person named in indictment] in [interstate] [foreign] commerce; (2) at the time of the transportation, [person named in indictment] was less than 18 years old; and (3) at the time of the transportation, Defendant intended that [person named in indictment] would engage in prostitution or other unlawful sexual activity. d we e , vi 226 017 7/2 7/2 0 4 16. No engaged in illegal sexual activity after being transported across state lines. [It is not necessary for the Government to prove anyone actually The Government must prove beyond a reasonable doubt that a person under 18 years old was knowingly transported across state lines by the Defendant and that the Defendant intended at the time for the person under 18 to engage in prostitution or other illegal sexual activity.] The Government must prove that [if the intended sexual activity had occurred, the Defendant] [one or more of the individuals engaging in the sexual activity] could have been charged with a criminal offense under the laws of [state]. 531 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 558 of 677 Under [state] law [Describe the applicable state law] is a crime. [As used in this instruction, the term “prostitution” means engaging in or agreeing or offering to engage in any lewd act with or for another person in exchange for money or other consideration.] To “transport in interstate commerce” means to move or carry someone, or cause someone to be moved or carried, from one state to another. The term "State" includes a State of the United States, the District of Columbia, and any commonwealth, territory, or possession of the United States. It is not necessary to show that the Defendant knew that state lines were being 017 7/2 7/2 crossed, but the Government must prove that state lines were crossed. ANNOTATIONS AND COMMENTS 18 U.S.C. § 2423(a) provides: d we e , vi 226 0 4 16. No A person who knowingly transports an individual who has not attained the age of 18 years in interstate or foreign commerce, or in any commonwealth, territory or possession of the United States, with intent that the individual engage in prostitution, or in any sexual activity for which any person can be charged with a criminal offense, shall be fined under this title and imprisoned not less than 10 years or for life. Maximum Penalty: Life imprisonment and applicable fine. Minimum sentence is ten (10) years imprisonment and applicable fine. 18 U.S.C. § 3559 provides for a mandatory life sentence for repeated sex offenses against children. 18 U.S.C. § 2260A provides for an enhanced sentence for persons required to register as sex offenders. 18 U.S.C. § 2426 provides that the maximum sentence for a repeat offender under chapter 117 is twice the term otherwise provided by the chapter. 18 U.S.C. § 3559 provides for mandatory life imprisonment for repeated sex offenses against children. The defendant’s dominant purpose in transporting the child in interstate or foreign commerce need not be to engage in a sexual act with a child. However, to meet the intent requirement the Government must prove that one of the defendant’s motives was to engage in a sexual act with a child. See United States v. Hoschouer, 224 Fed. Appx. 923, 925 (2007) (finding that intent requirement of § 2423(a) was met when defendant brought child 532 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 559 of 677 on interstate trip and evidence supported the conclusion that he did so to facilitate his sexual relationship with her). The statute contemplates a situation where a person transports a minor for the purpose of engaging in illegal sexual activity with a third party. The jury instructions as written contemplate a fact situation where the defendant intends for the minor to engage in illegal sexual activity with him, and they would need to be rewritten for a case where the defendant transported the minor intending that the minor engage in illegal sexual activity with a third party. See U.S. v. Cox, 577 F.3d 833 (7th Cir. 2009) (holding that 18 U.S.C. § 2423(a) does not require the Government to prove that the Defendant knew that the victim was under the age of 18). The term “prostitution” is not defined in Title 18. The Supreme Court has defined the term as the “offering of the body to indiscriminate lewdness for hire.” Cleveland v. United States, 329 U.S. 14, 17 (1946). The term should not be defined by reference to state law, as doing so would make the term superfluous, since the statute already punishes “any sexual activity for which any person can be charged with a criminal offense.” d we e , vi 226 4 16. No 533 0 017 7/2 7/2 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 560 of 677 93.2 Travel with Intent to Engage in Illicit Sexual Conduct 18 U.S.C. § 2423(b) It’s a Federal crime to knowingly [travel in interstate commerce] [travel into the United States] [travel in foreign commerce] for the purpose of engaging in illicit sexual conduct. The Defendant can be found guilty of this crime only if all the following facts are proved beyond a reasonable doubt: (1) the Defendant traveled in [interstate] [foreign] commerce; (2) the Defendant traveled for the purpose of engaging in illicit sexual conduct. 017 7/2 [causing a person under 18 years of age to engage in a sexual act by using 2 07/ d force or placing that person in fear that any person will be subjected to death, we ve , [aisexual act with a person under 18 years serious bodily injury, or kidnapping] 226 -4 of age after rendering6 1 that person unconscious or administering a drug, . Nosubstance that substantially impairs that person] [a sexual intoxicant, or other For purposes of this offense, the term “illicit sexual conduct” means act with a person who is under 16 years of age and is at least four years younger than the defendant] [a commercial sex act with a person under 18 years of age]. [The term "sexual act" means: • contact between the penis and the vulva, or the penis and the anus, involving penetration however slight; or • contact between the mouth and the penis, the mouth and the vulva, or the mouth and the anus; or • the penetration – however slight – of another person’s anal or genital opening by a hand, finger, or any object, with an 534 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 561 of 677 intent to abuse, humiliate, harass, or degrade the person, or to arouse or gratify the sexual desire of the Defendant or any other person[.] [;or] • [an intentional touching – not through the clothing – of the genitalia of a person younger than 16 years old, with the intent to abuse, humiliate, harass, or degrade the person, or to arouse or gratify the sexual desire of the Defendant or any other person.]] [“Commercial sex act” means any sex act, for which anything of value is given to or received by any person.] The Government does not have to show that the Defendant’s only purpose in traveling in [interstate] [foreign] commerce was to engage in illicit 017 7/2 or purposes for the travel. In other words, the Government must show that the 2 07/ to the travel. d Defendant’s criminal purpose was not merely incidental we e , vi [“Interstate or foreign commerce" is the movement or transportation of 226 4 a person from one state-to another state or from a place within the United 16 . No States to a place outside the United States.] sexual conduct, but the Government must show that it was one of the motives [The defense asserts that although the Defendant may have committed the acts charged in the indictment, the Defendant reasonably believed that [the person named in the indictment] was 18 years or older at the time of the acts charged in the indictment. If you find that the Government has proven beyond a reasonable doubt both elements of the offense, then you should consider whether the Defendant has come forward and presented sufficient evidence to prove this defense. The Defendant has to prove, by a preponderance of the evidence, that [he] [she] reasonably believed that [the person named in the indictment] was 18 years or older at the time of the acts charged in the 535 Appeal: 16-4226 Doc: 48-2 indictment. Filed: 07/27/2017 Pg: 562 of 677 This is sometimes called the burden of proof or burden of persuasion. A preponderance of the evidence simply means an amount of evidence that is enough to persuade you that the Defendant's claim is more likely true than not true. If you find that the Defendant has met this burden of proof, then you should find the Defendant not guilty of Count _____, Travel With Intent To Engage In Illicit Sexual Conduct.]1 ANNOTATIONS AND COMMENTS 18 U.S.C. § 2423(b) provides: 017 7/2 7/2 A person who travels in interstate commerce or travels into the United States, or a United States citizen or an alien admitted for permanent residence in the United States who travels in foreign commerce, for the purpose of engaging in any illicit sexual conduct with another person shall be fined under this title or imprisoned not more than 30 years, or both. d we 0 e , vi Maximum Penalty: Thirty (30) years imprisonment and applicable fine. 18 U.S.C. § 2426 226 4 provides -that the maximum sentence for a repeat offender under 16117 is twice the term otherwise provided by the chapter. 18 o. Nchapter§ 3559 provides for a mandatory life sentence for repeated sex U.S.C. offenses against children. 18 U.S.C. § 2260A provides for an enhanced sentence for persons required to register as sex offenders. 18 U.S.C. § 2426 provides that the maximum sentence for a repeat offender under chapter 117 is twice the term otherwise provided by the chapter. 18 U.S.C. § 3559 provides for mandatory life imprisonment for repeated sex offenses against children. Note: to be convicted of this section for traveling in foreign commerce, the defendant must be a U.S. citizen or permanent resident. This additional element should be included if applicable. The statute does provide for a defense if the defendant reasonably believed that the person with whom the defendant engaged in a commercial sex act was 18 or older. 18 U.S.C. § 2423(g). The defendant has the burden to prove this defense by a preponderance of the evidence. Pursuant to 18 U.S.C. § 2423(g), this affirmative defense applies only if the “illicit sexual conduct” charged in the Indictment is “any commercial sex act with a person under 18 years of age.” 536 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 563 of 677 The defendant may be convicted of attempting to travel with intent to engage in illicit sexual conduct even if the other person is fictitious. United States v. Vance, 494 F.3d 985 (11th Cir. 2007). The defendant’s dominant purpose in crossing a State line or traveling in foreign commerce need not be to engage in illicit sexual conduct. However, to meet the intent requirement the Government must prove that one of the defendant’s motives was to engage in illicit sexual conduct. United States v. Garcia-Lopez, 234 F.3d 217, 220 (5th Cir. 2000) (construing intent requirement of 18 U.S.C. § 2423 and affirming district court’s refusal to give instruction that illicit activity must have been “dominant purpose” for defendant’s trip). Cf. United States v. Hoschouer, 224 Fed. Appx. 923, 925 (2007) (finding that intent requirement of § 2423(a) was met when defendant brought child on interstate trip and evidence supported the conclusion that he did so to facilitate his sexual relationship with her). It is not necessary for the Government to prove that prostitution is illegal in the country to which Defendant traveled. United States v. Clarke, 159 Fed. Appx. 128, 130 (11th Cir. 2005). d we e , vi 226 4 16. No 537 0 017 7/2 7/2 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 564 of 677 93.3 Engaging in Illicit Sexual Conduct in a Foreign Place 18 U.S.C. § 2423(c) It’s a Federal crime for [a United States citizen] [permanent resident alien of the United States] to travel in foreign commerce and engage in any illicit sexual conduct with another person. The Defendant can be found guilty of this crime only if all the following facts are proved beyond a reasonable doubt: (1) the Defendant is [a United States citizen] [an alien admitted to the United States for permanent residence]; 017 2 (2) the Defendant traveled in foreign 7/ commerce; 2 and 07/ d we in the foreign place, [he][she] (3) while the Defendant was ie engaged in illicit , v sexual conduct with another person, that is, [person named in indictment]. 226 4 16-commerce” means that the defendant moved from To “travel ino. N foreign a place within the United States to a place outside the United States. For purposes of this offense, the term “illicit sexual conduct” means [causing a person under 18 years of age to engage in a sexual act by using force or placing that person in fear that any person will be subjected to death, serious bodily injury, or kidnapping] [a sexual act with a person under 18 years of age after rendering that person unconscious or administering a drug, intoxicant, or other substance that substantially impairs that person] [a sexual act with a person who is under 16 years of age and is at least four years younger than the defendant] [a commercial sex act with a person under 18 538 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 565 of 677 years of age]. [The term "sexual act" means: • contact between the penis and the vulva, or the penis and the anus, involving penetration however slight; or • contact between the mouth and the penis, the mouth and the vulva, or the mouth and the anus; or • • 017 7/2 or genital opening by a hand, finger, or any object, with an 2 07/ or degrade the person, or d intent to abuse, humiliate, harass, we e , vi to arouse or gratify the sexual desire of the Defendant or any 226 4 other 61 person[.] [;or] . No the penetration – however slight – of another person’s anal [an intentional touching – not through the clothing – of the genitalia of a person younger than 16 years old, with the intent to abuse, humiliate, harass, or degrade the person, or to arouse or gratify the sexual desire of the Defendant or any other person.]] It is not necessary for the Government to prove that the illicit sexual conduct violated the laws of the foreign country where it occurred or that the Defendant intended to engage in the illicit sexual conduct at the time he 539 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 566 of 677 departed the United States. [“Commercial sex act” means any sex act, for which anything of value is given to or received by any person.] [The defense asserts that although the Defendant may have committed the acts charged in the indictment, the Defendant reasonably believed that [the person named in the indictment] was 18 years or older at the time of the acts charged in the indictment. If you find that the Government has proven beyond a reasonable doubt all three elements of the offense, then you should consider whether the Defendant has come forward and presented sufficient evidence 017 72 evidence, that [he] [she] reasonably believed that [the /person named in the 2 07/ the acts charged in the d indictment] was 18 years or older at the time of we vie indictment. This is sometimes ,called the burden of proof or burden of 226 4 persuasion. A preponderance of the evidence simply means an amount of 16. No to persuade you that the Defendant's claim is more evidence that is enough to prove this defense. The Defendant has to prove, by a preponderance of the likely true than not true. If you find that the Defendant has met this burden of proof, then you should find the Defendant not guilty of Count _____, Engaging in Illicit Sexual Conduct in a Foreign Place.]2 ANNOTATIONS AND COMMENTS 18 U.S.C. § 2423(c) provides: Pursuant to 18 U.S.C. § 2423(g), this affirmative defense applies only if the “illicit sexual conduct” charged in the Indictment is “any commercial sex act with a person under 18 years of age.” 540 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 567 of 677 Any United States citizen or alien admitted for permanent residence who travels in foreign commerce, and engages in any illicit sexual conduct with another person shall be fined under this title or imprisoned not more than 30 years, or both. Maximum Penalty: Thirty (30) years imprisonment and applicable fine. 18 U.S.C. § 2426 provides that the maximum sentence for a repeat offender under chapter 117 is twice the term otherwise provided by the chapter. 18 U.S.C. § 3559 provides for a mandatory life sentence for repeated sex offenses against children. 18 U.S.C. § 2260A provides for an enhanced sentence for persons required to register as sex offenders. 18 U.S.C. § 2426 provides that the maximum sentence for a repeat offender under chapter 117 is twice the term otherwise provided by the chapter. 18 U.S.C. § 3559 provides for mandatory life imprisonment for repeated sex offenses against children. The statute does provide for a defense if the defendant reasonably believed that the person with whom the defendant engaged in a commercial sex act was 18 or older. 18 U.S.C. § 2423(g). The defendant has the burden to prove this defense by a preponderance of the evidence. 017 7/2 7/2 The defendant may be convicted of attempting to travel with intent to engage in illicit sexual conduct even if the other person is fictitious. United States v. Strevell, 185 Fed. Appx. 841 (11th Cir. 2006); United States v. Clarke, 159 Fed. Appx. 128 (11th Cir. 2005); 18 U.S.C. § 2423(e). 0 edthe Defendant intended to engage in w It is not necessary for the Government to prove that vie the United States. See United States v. illegal sexual conduct at the time he departed Clark, 435 F.3d 1100, 1105 (9th Cir. 2006) (“The conference report accompanying the 26, PROTECT Act explains that Congress removed the intent requirement from § 2423(c) so -42 to prove that the defendant engaged in illicit sexual that ‘the government would6 only have o. 1 conduct with a minor while in a foreign country.’ H.R.Rep. No. 108-66 at 51; see also N H.R.Rep. No. 107-525, at 2 (same statement in report for failed 2002 bill). Consequently, for § 2423(c) to apply, the two key determinations are whether the defendant ‘travel[ed] in foreign commerce’ and ‘engages in any illicit sexual conduct.’”). It is not necessary for the Government to prove that prostitution is illegal in the country to which Defendant traveled. United States v. Clarke, 159 Fed. Appx. 128, 130 (11th Cir. 2005). 541 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 568 of 677 93.4 Facilitating Travel of Another to Engage in Illicit Sexual Conduct 18 U.S.C. § 2423(d) It’s a Federal crime to [arrange] [induce] [procure] [facilitate] the travel of another person knowing that such a person is traveling in interstate or foreign commerce for the purpose of engaging in illicit sexual conduct and to do so for the purpose of commercial advantage or private financial gain. The Defendant can be found guilty of this crime only if all the following facts are proved beyond a reasonable doubt: 017 7/2 7/2 (1) the Defendant [arranged] [induced] [procured] [facilitated] the travel of [person named in indictment], in interstate or foreign commerce; (2) the Defendant knew that [person named in indictment] was traveling for the purpose of engaging in illicit sexual conduct; and (3) d we e , vi 226 0 4 16. No the Defendant did so for the purpose of commercial advantage or private financial gain. [As used in this instruction, “induce” means to stimulate the occurrence of or to cause.] To “travel in interstate or foreign commerce” means to move from one State to another or to move from within the United States to a place outside the United States. The term “State” includes a State of the United States, the District of Columbia, and any commonwealth, territory, or possession of the United States. It is not necessary to show that the Defendant knew that state or international lines were being crossed, but the Government must prove that such lines were crossed. 542 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 569 of 677 It is no defense to the crime charged in Count __ that the intended illicit sexual conduct was not accomplished. In other words, it is not necessary for the Government to prove that anyone, in fact, engaged in any illicit sexual activity after being transported in interstate or foreign commerce. Instead, the offense is complete if the Government proves, beyond a reasonable doubt, that, for purposes of commercial advantage or private financial gain, the Defendant facilitated the travel of the person named in the indictment, and that the Defendant knew at that time that the traveler intended to engage in illicit sexual conduct. 017 7 a2 [causing a person under 18 years of age to engage in / sexual act by using 2 07/will be subjected to death, d force or placing that person in fear that any person we e , vi serious bodily injury, or kidnapping] [a sexual act with a person under 18 years 226 4 of age after rendering6- person unconscious or administering a drug, 1 that . Nosubstance that substantially impairs that person] [a sexual intoxicant, or other For purposes of this offense, the term “illicit sexual conduct” means act with a person who is under 16 years of age and is at least four years younger than the defendant] [a commercial sex act with a person under 18 years of age]. [The term "sexual act" means: • contact between the penis and the vulva, or the penis and the anus, involving penetration however slight; or • contact between the mouth and the penis, the mouth and the vulva, or the mouth and the anus; or • the penetration – however slight – of another person’s anal or genital opening by a hand, finger, or any object, with an intent to abuse, humiliate, harass, or degrade the person, or 543 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 570 of 677 to arouse or gratify the sexual desire of any person[.] [;or] • [an intentional touching – not through the clothing – of the genitalia of a person younger than 16 years old, with the intent to abuse, humiliate, harass, or degrade the person, or to arouse or gratify the sexual desire of any person.]] It is not necessary for the Government to prove that the illicit sexual conduct violated the laws of the foreign country to which the other person was traveling. [“Commercial sex act” means any sex act, for which anything of value is given to or received by any person.] [The defense asserts that although the Defendant may have committed 017 7/2 2 person named in the indictment] traveled to engage in illicit sexual conduct 07/ d we time of the acts charged in the with a person who was 18 years or older at the e , vi 6 indictment. If you find that the2 2 Government has proven beyond a reasonable -4 16of the offense, then you should consider whether the . doubt all three elements No the acts charged in the indictment, the Defendant reasonably believed that [the Defendant has come forward and presented sufficient evidence to prove this defense. The Defendant has to prove, by a preponderance of the evidence, that [he] [she] reasonably believed that [the person named in the indictment] intended to engage in illicit sexual conduct with a person 18 years or older at the time of the acts charged in the indictment. This is sometimes called the burden of proof or burden of persuasion. A preponderance of the evidence simply means an amount of evidence that is enough to persuade you that the Defendant's claim is more likely true than not true. If you find that the Defendant has met this burden of proof, then you should find the Defendant 544 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 571 of 677 not guilty of Count _____, Facilitating the Travel of Another to Engage in Illicit Sexual Conduct.]3 ANNOTATIONS AND COMMENTS 18 U.S.C. § 2423(d) provides: Whoever, for the purpose of commercial advantage or private financial gain, arranges, induces, procures, or facilitates the travel of a person knowing that such a person is traveling in interstate commerce or foreign commerce for the purpose of engaging in illicit sexual conduct shall be fined under this title, imprisoned not more than 30 years, or both. Maximum Penalty: Thirty (30) years imprisonment and applicable fine. 18 U.S.C. § 2426 provides that the maximum sentence for a repeat offender under chapter 117 is twice the term otherwise provided by the chapter. 18 U.S.C. § 3559 provides for a mandatory life sentence for repeated sex offenses against children. 017 /2 18 U.S.C. § 2260A provides for an enhanced sentence for /27 required to register as persons 7 sex offenders. 18 U.S.C. § 2426 provides that the maximum sentence for a repeat offender under chapter 117 is twice the term otherwise provided by the chapter. 18 U.S.C. § 3559 d0 e provides for mandatory life imprisonment for repeated sex offenses against children. ew ,the idefendant reasonably believed that the person 6 v The statute does provide for a defense if 2 with whom the intended traveler2 engaged in a -4 has the burdencommercial sex act wasa18 or older. 18 U.S.C. § 2423(g). The defendant to prove this defense by preponderance . 16 of the evidence. No As with other sections of the Mann Act, the violation of Section 2423(d) is completed upon the facilitation of the travel, even if the traveler never engages in the illicit sexual conduct. Cf. Cleveland v. United States, 329 U.S. 14, 20 (1946) (“guilt under the Mann Act turns on the purpose which motivates the transportation, not on its accomplishment”) (citing Wilson v. United States, 232 U.S. 563, 570-71 (1914)); Reamer v. United States, 318 F.2d 43, 49 (8th Cir.), cert. denied, 375 U.S. 869 (1963) (“If the necessary intent is present and there is knowing interstate transportation, it is immaterial whether the immoral act took place or whether there was consummation. Actual fulfillment of the purpose is not necessary.”) (citing Cleveland and Wilson). The traveler’s sole or dominant purpose for traveling in interstate or foreign commerce need not be for the person to engage in illegal sexual activity. However, to meet the intent requirement, the Government must prove that the Defendant knew that one of the traveler’s motives was to engage in such activity. Cf. United States v. Hoschouer, 224 Fed. Appx. 923, 925 (11th Cir. 2007) (finding that intent requirement of § 2423(a) was met when defendant brought child on interstate trip and evidence supported the conclusion that he did Pursuant to 18 U.S.C. § 2423(g), this affirmative defense applies only if the “illicit sexual conduct” charged in the Indictment is “any commercial sex act with a person under 18 years of age.” 545 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 572 of 677 so to facilitate his sexual relationship with her). The defendant may be convicted of facilitating the travel of another to engage in illicit sexual conduct even if the intended victim is fictitious. Cf. United States v. Strevell, 185 Fed. Appx. 841 (11th Cir. 2006); United States v. Clarke, 159 Fed. Appx. 128 (11th Cir. 2005); 18 U.S.C. § 2423(e). It is not necessary for the Government to prove that the illicit sexual conduct is illegal in the country to which the traveler visited. Cf. United States v. Clarke, 159 Fed. Appx. 128, 130 (11th Cir. 2005). d we e , vi 226 4 16. No 546 0 017 7/2 7/2 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 573 of 677 94 Failure to Appeal: Bail Jumping 18 U.S.C. § 3146 It’s a Federal crime for anyone who has been released on bail from this Court to knowingly fail to [appear when required to do so] [surrender to serve a sentence under court order]. The Defendant can be found guilty of this crime only if all the following facts are proved beyond a reasonable doubt: (1) the Defendant was released on bail by order of a judge or magistrate of this court; (2) after being released, the Defendant knowingly failed to [appear before a judge or magistrate of this court as required] [surrender to serve a sentence under a court order]; and 017 7/2 7/2 0 ed with a crime (3) the Defendant was w ie charged punishable by , av term of [state maximum punishment applicable in charged offense] when 226 4 released on bail. 16. No should be excused from Failure to Appear if he proves The Defendant by a preponderance of the evidence: • uncontrollable circumstances prevented the Defendant from appearing in court; • the Defendant didn’t create the circumstances or contribute to their creation in reckless disregard of the requirement to appear; and • the Defendant appeared as soon as the circumstances ceased to exist. A preponderance of the evidence is enough evidence to persuade you that the Defendant’s claim is more likely true than not true. 547 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 574 of 677 ANNOTATIONS AND COMMENTS While 18 U.S.C. § 3146(c) provides for an affirmative defense, it does not address the burden of production or persuasion. In the context of this statute which only requires that a defendant act “knowingly,” and in the absence of any authority to the contrary, the Committee believes that the burdens rest with the defendant who relies upon the exception. See Dixon v. United States, 548 U.S. 1, 126 S. Ct. 2437 (2006) (jury instructions do not run afoul of the Due Process Clause when they place the burden on the defendant to establish the defense of duress by a preponderance of the evidence). See also Dixon, 548 U.S. at 18, 126 U.S. at 2449 (“the facts needed to prove or disprove the defense lie peculiarly in the knowledge of the defendant”)(Kennedy, J. concurring)(internal quotations and citations omitted). See also Dixon, 548 U.S. at 13-14, 126 S.Ct. at 2446 (“ . . . Congress was familiar with both the long-established common-law rule and the rule applied in McKelvey and that it would have expected federal courts to apply a similar approach to any affirmative defense that might me asserted as a justification or excuse for violating the new law.” See McKelvey v. United States, 260 U.S. 353, 357, 43 S.Ct. 132, 67 L.Ed. 301(1922). d we e , vi 226 4 16. No 548 0 017 7/2 7/2 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 575 of 677 95 Unlawful Possession of Food Stamps 7 U.S.C. § 2024(b) It’s a Federal crime for anyone to knowingly [transfer] [acquire] [alter] [possess] United States Department of Agriculture benefits in any manner not authorized by law or Department regulations where the benefits have a value of $100 [$5,000] or more. The Defendant can be found guilty of this crime only if all the following facts are proved beyond a reasonable doubt: (1) the Defendant [transferred] [acquired] [altered] [possessed] benefits in a manner not authorized by law or Department of Agriculture regulations; (2) the Defendant knew that [he] [she] was acting unlawfully and intended to violate the law; and 017sell or purchase No law or Department of Agriculture regulation allows anyone to 7/2 2 benefits for cash [to use [transfer] [acquire] benefits in exchange for clothes, drugs, 07/ d we Government need not show that the cigarettes, liquor, or [describe other violation]]. The e , vi or regulation, only that [he] [she] knew that Defendant had knowledge of the specific law 226 4 [his] [her] conduct was unlawful. 16. Nobenefits are their face value.] [The “value” of (3) the benefits had a value of at least $100 [$5,000]. 549 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 576 of 677 ANNOTATIONS AND COMMENTS 7 U.S.C. § 2024(b)(1) provides: . . . whoever knowingly uses, transfers, acquires, alters, or possesses benefits in any manner contrary to this chapter or the regulations issued pursuant to this chapter shall, if such benefits are of a value of $5,000 or more, be guilty of a felony and shall be fined not more than $250,000 or imprisoned for not more than twenty years, or both, and shall, if such benefits are of a value of $100 or more, but less than $5,000, or if the item used, transferred, acquired, altered, or possessed is a benefit that has a value of $100 or more, but less than $5,000, be guilty of a felony and shall, upon the first conviction thereof, be fined not more than$10,000 or imprisoned for not more than five years, or both, and, upon the second and any subsequent conviction thereof, shall be imprisoned for not less than six months nor more than five years and may also be fined not more than $10,000. Maximum Penalty: See above The third element, prompted by the Apprendi doctrine, is required when the indictment alleges a value that would result in an enhanced penalty. 017 7/2 7/2 If a disputed issue is whether the food stamp coupons had a value of $5,000 or more, the Court should consider giving the lesser included offense instruction. d we 0 The knowledge element of the statute has been analyzed in Liparota v. United States, 471 U.S. 419 (1985); see also United States v. Saldana, 12 F.3d 160, 162-63 (9th Cir. 1993). e , vi 226 4 16. No 550 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 577 of 677 96.1 Bringing Aliens into the United States 8 U.S.C. §1324(a)(1)(A)(i) It’s a Federal crime for anyone to [bring] [attempt to bring] an alien into the United States at a place other than a designated point of entry. The Defendant can be found guilty of this crime only if all the following facts are proved beyond a reasonable doubt: (1) the Defendant [brought] [attempted to bring] [alien’s name] into the United States; (2) [alien’s name] was an alien; 017 7/2 2 (4) the entry was not made at a designated port of 07/ d entry. we e , vi An “alien” is any person who isn’t a natural-born or naturalized citizen, 226 4 or a national of the United States. 16o. Nof the United States” includes any United States citizen and A “national (3) the Defendant knew [alien’s name] was an alien; and any noncitizen who owes permanent allegiance to the United States. ANNOTATIONS AND COMMENTS 8 U.S.C. § 1324 provides: (a)(1)(A) Any person who (i) knowing that a person is an alien, brings to or attempts to bring to the United States in any manner whatsoever such person at a place other than a designated port of entry or place other than as designated by the Commissioner, regardless of whether such alien has received prior official authorization to come to, enter, or reside in the United States and regardless of any future official action which may be taken with respect to such alien [shall be guilty of an offense against the United States]. Maximum Penalty: Ten (10) years and applicable fine. 551 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 578 of 677 The mens rea requirement for this crime is discussed in United States v. Zayas-Morales, 685 F.2d 1272, 1277 (11th Cir. 1982) (“By our decision in this case, we simply articulate that which is inherent in the prosecution of any serious crime-proof of a general intent to commit an illegal act.”). d we e , vi 226 4 16. No 552 0 017 7/2 7/2 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 579 of 677 96.2 Unlawfully Transporting Aliens 8 U.S.C. § 1324(a)(1)(A)(ii) It’s a Federal crime for anyone who [knows] [acts with reckless disregard of the fact] that an alien is in the United States illegally to transport the alien to further the alien’s illegal presence. The Defendant can be found guilty of this crime only if all the following facts are proved beyond a reasonable doubt: (1) an alien [entered] or [remained in] the United States in violation of law; (2) the Defendant knew or recklessly disregarded the fact that the alien was in the United States in violation of the law; [and] 017 7/2 2 (3) the Defendant transported the7/ alien 0 alien’swithin the United States to further d unlawful we the presence[.] [; and] ie 6, v motive was commercial 2 [(4) the Defendant’s -42 private financial gain.] advantage or . 16 No To act with “reckless disregard of the fact” means to be aware of but consciously and carelessly ignore facts and circumstances clearly indicating that the person transported was an alien who had entered or remained in the United States illegally. An alien is any person who isn’t a natural-born or naturalized citizen, or a national of the United States. A “citizen of the United States” is a person who was born within the United States or naturalized through judicial proceedings. A person who was born outside the United States is a citizen of the United States if both parents 553 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 580 of 677 were United States citizens and at least one of them had a residence in the United States before the birth. A “national of the United States” includes any United States citizen and any noncitizen who owes permanent allegiance to the United States. For transportation to further an alien’s unlawful presence, there must be a direct and substantial relationship between the Defendant’s act of transportation and the furthering of the alien’s presence in the United States. The act of transportation must be something more than merely incidental to furthering the alien’s presence. ANNOTATIONS AND COMMENTS 8 U.S.C. § 1324(a)(1)(A)(ii) provides: d we 017 7/2 7/2 0 vie ,disregard of the fact that an alien has come 6 (ii) knowing or in reckless 22United States in violation of law, transports, or 4 to, entered, or remains in the moves or attempts to transport or move such alien within the United States 16o. by means of transportation or otherwise, in furtherance of such violation of Nguilty of an offense against the United States]. law [shall be (1)(A) Any person who - - Maximum Penalty: Five (5) years and applicable fine. Though the word “willfully” does not appear in the statute, and therefore is not included in this jury charge, a number of circuits do include “willfully” as an element of the crime, such that the Defendant must be found to have transported the alien “willfully in furtherance” of his illegal presence in the United States. See United States v. Barajas-Chavez, 162 F.3d 1285, 1287 (10th Cir. 1999); United States v. Parmelee, 42 F.3d 387, 390 (7th Cir. 1994); United States v. Velasquez-Cruz, 929 F.2d 420, 422 (8th Cir. 1991); United States v. 1982 Ford Pick-Up, 873 F.2d 947, 951 (6th Cir. 1989); see also 2B Fed. Jury Prac. & Instr. § 61.06 (5th ed.). In United States v. Rivera, 879 F.2d 1247, 1251 (5th Cir. 1989). The Committee believes that the legislative history supports the conclusion that § 1324(a)(1)(A)(ii) only requires that the Defendant knew the alien was in the U.S. illegally, or recklessly disregarded that fact, and transported the alien in furtherance of the alien’s violation of law. See H.R. Rep. No. 682(I), 99th Cong., 2d Sess. 65 (1986), reprinted in 1986 U.S. Code Cong. and Adm. News, 5649 at 5669-70. The Circuits look to the purpose for which transportation is provided to an illegal alien to determine whether this law was violated. The Ninth Circuit reversed a conviction under Section 1324, where the evidence at trial showed the Defendant was transporting aliens “as part of the ordinary and required course of his employment as foreman” and noted as well 554 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 581 of 677 that the transporting of an undocumented alien to a hospital following an injury does not come within the confines of Section 1324. See United States v. Moreno, 561 F.2d 1321, 1322 n.3 (9th Cir. 1977). The Eighth Circuit uses the “incidental connection” test, which looks to whether the transportation of the alien has only an “incidental connection” to the furtherance of the violation of the law. United States v. Velasquez-Cruz, 929 F.2d 420, 42223 (8th Cir. 1991). The Sixth Circuit’s test is based on the purpose of the Defendant in transporting the alien. United States v. 1982 Ford Pick-Up, 873 F.2d 947, 951 (6th Cir. 1989). The Fifth, Seventh, and Tenth Circuits adopted a general approach that allowed the Government to prove the “in furtherance” element by reference to the facts and circumstances of each case. The fact finder can “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).” United States v. Barajas-Chavez, 162 F.3d 1285, 1289 (10th Cir. 1999); United States v. Parmelee, 42 F.3d 387, 391 (7th Cir. 1994); United States v. Williams, 132 F.3d 1055, 1062 (5th Cir. 1998); United States v. Merkt, 764 F.2d 266, 272 (5th Cir. 1985) (holding that the factfinder should “consider all of the evidence it finds credible about [the Defendant’s] intentions, direct as well as circumstantial”). See United States v. Zlatogur, 271 F.3d 1025, 1029 (11th Cir. 2001). See also United States v. Perez, 443 F.3d 772, 781 (11th Cir. 2006). 017 7/2 7/2 The statute describes aggravating factors raising the statutory maximum penalty which, under the principle of Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000), must be submitted as additional elements if charged in the indictment. These include: whether the offense was done for the purpose of commercial advantage or private gain, 8 U.S.C. § 1324(a)(1)(B)(i); whether the Defendant caused serious bodily injury (as defined in 18 U.S.C. § 1365) to a person or placed a person’s life in jeopardy (8 U.S.C. § 1324(a)(1)(B)(iii)); or whether death resulted (8 U.S.C. § 1324(a)(1)(B)(iv)). d we e , vi 226 4 16. No 555 0 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 582 of 677 96.3 Concealing or Harboring Aliens 8 U.S.C. §1324(a)(1)(A)(iii) It’s a Federal crime to [conceal][harbor] an alien [knowing] [in reckless disregard of the fact] that the alien [entered] [is in] the United States illegally. The Defendant can be found guilty of this crime only if all the following facts are proved beyond a reasonable doubt: (1) the alien [entered] [remained in] the United States illegally; (2) the Defendant knowingly [concealed the alien] [harbored the alien] [sheltered the alien from detection] within the United States; and 017 2 (3) the Defendant either knew or acted7/ reckless in 2 disregard of the fact that the alien [had entered] 07/in violation of d [remained in] the United States we law[.] [; and] e , vi [(4) the Defendant’s motive was commercial 226 4 advantage or private financial gain.] 16. No person who isn’t a natural-born or naturalized citizen, An “alien” is any or a national of the United States. A “citizen of the United States” is a person who was born within the United States or naturalized through judicial proceedings. A person who was born outside the United States is a citizen of the United States if both parents were United States citizens and at least one of them had a residence in the United States before the birth. A “national of the United States” includes any United States citizen and any noncitizen who owes permanent allegiance to the United States. 556 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 583 of 677 To act with “reckless disregard of the fact” means to be aware of but consciously and carelessly ignore facts and circumstances clearly indicating that the person transported was an alien who had entered or remained in the United States illegally. To [conceal] [harbor] [shield from detection] includes knowingly doing something to help the alien escape detection. ANNOTATIONS AND COMMENTS 8 U.S.C. § 1324(a)(1)(A)(iii) provides: (1)(A) Any person who 017 7/2 7/2 (iii) knowing or in reckless disregard of the fact that an alien has come to, entered, or remains in the United States in violation of law, conceals, harbors, or shields from detection, or attempts to conceal, harbor, or shield from detection, such alien in anyplace, including any building or any means of transportation [shall be guilty of an offense against the United States]. d we e , vi 226 0 The statute describes aggravating factors raising the statutory maximum penalty which, under the principle of Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000), must be submitted as additional elements if charged in the indictment. These include: whether the offense was done for the purpose of commercial advantage or private gain, 8 U.S.C. § 1324(a)(1)(B)(i); whether the Defendant caused serious bodily injury (as defined in 18 U.S.C. § 1365) to a person or placed a person’s life in jeopardy, 8 U.S.C. § 1324(a)(1)(B)(iii); or whether death resulted, 8 U.S.C. § 1324(a)(1)(B)(iv). 4 16. No See United States v. Zlatogur, 271 F.3d 1025, 1029 (11th Cir. 2001). See also United States v. Perez, 443 F.3d 772, 781 (11th Cir. 2006). 557 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 584 of 677 97 Illegal Entry by Deported Alien 8 U.S.C. § 1326 It’s a Federal crime for an alien to [enter] [be found in] the United States after the alien had been [deported] [excluded] [removed]. The Defendant can be found guilty of this crime only if all the following facts are proved beyond a reasonable doubt: (1) the Defendant was an alien at the time stated in the indictment; (2) the Defendant had been [deported] [excluded] [removed] from the United States; (3) afterward, the Defendant [knowingly reentered] [was found to be voluntarily back in] the United States; and (4) the Defendant did not have the consent of the [Attorney General of] [Secretary of Homeland Security for] the United States to apply for readmission to the United States. d we e , vi 226 017 7/2 7/2 0 6-4 1person who isn’t a natural-born or naturalized citizen, An “alien” iso. N any or a national of the United States. A “citizen of the United States” is a person who was born within the United States or naturalized through judicial proceedings. A person who was born outside the United States is a citizen of the United States if both parents were United States citizens and at least one of them had a residence in the United States before the birth. A “national of the United States” includes any United States citizen and any noncitizen who owes permanent allegiance to the United States. 558 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 585 of 677 ANNOTATIONS AND COMMENTS 8 U.S.C. § 1326(a) provides: any alien who (1) has been denied admission, excluded, deported, or removed or has departed the United States while an order of exclusion, deportation, or removal is outstanding, and thereafter (2) enters, attempts to enter, or is at any time found in, the United States, unless (A) prior to his reembarkation at a place outside the United States or his application for admission from foreign contiguous territory, the Attorney General has expressly consented to such alien’s reapplying for admission; or (B) with respect to an alien previously denied admission and removed, unless such alien shall establish that he was not required to obtain such advance consent under this chapter or any prior Act, shall be [guilty of an offense against the United States]. Maximum Penalty: Two years imprisonment and applicable fine. 017 . . . With respect to any function transferred by or under /this chapter 7 2commission, or 2 reference in any other Federal law to any department, agency or any officer or office the functions of which are so transferred shall 07/ or component of the d be deemed to refer to the Secretary, other official, we such function is so transferred. Department [of Homeland Security] iewhich v to ,unlawful reentry offense. United States v. Henry, Specific intent is not an element of26 the 111 F.3d 111, 114 (11th Cir. 1997). Therefore, there is no mistake of law defense available. -42 842 F.2d 1211, 1213 (10th Cir. 1988)(“Because a See United States v. Miranda-Enriquez, . 16 only if there is some mental state required to establish a mistake defense is possible No material element of the crime that the mistake can negate, a mistake instruction is required 6 U.S.C. § 557 provides: and a mistake defense is appropriate only if criminal intent plays a part in the crime charged.”) (internal citations and quotations omitted). An alien who approaches a port of entry and makes a false claim of citizenship or nonresident alien status has attempted to enter the United States. United States v. Cardenas-Alvarez, 987 F.2d 1129, 113233 (5th Cir. 1993). A violation of this section is a continuing offense that can run over a long period of time. The offense conduct begins when the alien illegally enters the United States and continues until the alien is actually “found” by immigration authorities. United States v. Scott, 447 F.3d 1365, 1369 (11th Cir. 2006). The phrase “found in” refers to the actions of federal immigration officials, not state law enforcement. United States v. Clarke, 312 F.3d 1343, 1348 (11th Cir. 2002). The alien is constructively “found” in the United States “when the Government either knows of or, with the exercise of diligence typical of law enforcement authorities, could have discovered the illegality of the alien’s presence.” Scott, 447 F.3d at 1369 (citations and internal quotations omitted). An indictment under this section may be dismissed if the Defendant makes a successful collateral attack on his prior deportation. United States v. Holland, 876 F.2d 1533, 1535-56 (11th Cir. 1989). He must show that: (i) he “exhausted any administrative remedies that may have been available to seek relief against the order; (ii) the deportation proceeding at 559 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 586 of 677 which the order was issued improperly deprived the alien of an opportunity for judicial review; and (iii) the entry of the order was fundamentally unfair.” United States v. Zelaya, 293 F.3d 1294, 1297 (11th Cir. 2002). “Fundamentally unfair” means, “at a minimum . . . that the outcome of the deportation proceeding would have been different but for a particular error.” Id. at 1298. Surreptitious reentry is not a prerequisite to prosecution of being “found” in the United States. United States v. Gay, 7 F.3d 200, 202 (11th Cir. 1993). See United States v. Barnes, 244 F.3d 331, 334 (2d Cir. 2001). An alien within the United States is not “found in” the United States if he or she approaches a recognized port of entry and produces his identity seeking admission. United States v. Jose Manuel Angeles-Mascote, 206 F.3d 529, 531 (5th Cir. 2000). Proof of the Defendant’s commission of an aggravated felony prior to deportation is not an element of the offense; rather it is a punishment provision used in addressing recidivism. Almendarez-Torres v. United States, 523 U.S. 224, 247-48, 118 S. Ct. 1219, 1232-33 (1998). The Eleventh Circuit speaks of the “non effect” of Apprendi and Booker on the Almendarez-Torres rule that the government is not required to prove prior convictions to a jury, beyond a reasonable doubt. United States v. Greer, 440 F.3d 1267, 1273-75 (11th Cir. 2006). d we e , vi 226 4 16. No 560 0 017 7/2 7/2 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 587 of 677 98 Controlled Substances – Possession with Intent to Distribute 21 U.S.C. §841(a)(1) It’s a Federal crime for anyone to possess a controlled substance with intent to distribute it. [substance] is a "controlled substance." The Defendant can be found guilty of this crime only if all the following facts are proved beyond a reasonable doubt: (1) the Defendant [substance]; knowingly possessed 017 7/2 2 (3) the weight of the [substance] Defendant 07/ possessed was more thand we [threshold]. ie To "intend to distribute" is6, plan to deliver possession of a controlled to v 2 -42 if nothing of value is exchanged. substance to someone 6 else, even .1 No [The Defendant[s] [is] [are] charged with [distributing] [possessing and (2) the Defendant intended to distribute the [substance]; and intending to distribute] at least [threshold] of [substance]. But you may find [the] [any] Defendant guilty of the crime even if the amount of the controlled substance[s] for which [he] [she] should be held responsible is less than [threshold]. So if you find [the] [any] Defendant guilty, you must also unanimously agree on the weight of [substance] the Defendant possessed and specify the amount on the verdict form.] ANNOTATIONS AND COMMENTS 21 U.S.C. § 841(a) provides: 561 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 588 of 677 . . . it shall be unlawful for any person knowingly or intentionally (1) to manufacture, distribute, or dispense, or possess with the intent to manufacture, distribute, or dispense, a controlled substance; or (2) to create, distribute, or dispense, or possess with intent to distribute or dispense, a counterfeit substance. The Committee has omitted the word “willfully” which was previously used in this instruction. “Willfully” is not used in the statute, and the essence of the offense is a knowing possession of a controlled substance with an intent to distribute it. The Committee recognizes and cautions that sentence enhancing factors subject to the principle of Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000), including weights of controlled substances under 21 U.S.C. § 841(b), are not necessarily “elements” creating separate offenses for purposes of analysis in a variety of contexts. See United States v. Sanchez, 269 F.3d 1250, 1278 n.51 (11th Cir. 2001), abrogated in part, United States v. Duncan, 400 F.3d 1297, 1308 (11th Cir. 2005); see also United States v. Underwood, 446 F.3d 1340, 1344-45 (11th Cir. 2006). Even so, the lesser included offense model is an appropriate and convenient procedural mechanism for purposes of submitting sentence enhancers to a jury when required by the principle of Apprendi. This would be especially true in simpler cases involving single Defendants. See Special Instruction 10 and the verdict form provided in the Annotations And Comments following that instruction. If the lesser included offense approach is followed, using Special Instruction 10 and its verdict form, then the bracketed language in this instruction explaining the significance of weights and the use of a special verdict form specifying weights, should be deleted. d we 017 7/2 7/2 0 Alternatively, in more complicated cases, if the bracketed language in this instruction concerning weights is made a part of the overall instructions, followed by use of the special verdict form below, then the Third element of the instructions defining the offense should be deleted. The following is a form of special verdict that may be used in such cases. e , vi 226 4 Special Verdict 16-find the Defendant [name of Defendant] __________ as o 1. We, the. Jury, charged in Count N [One] of the indictment. [Note: If you find the Defendant not guilty as charged in Count [One], you need not consider paragraph 2 below.] 2. We, the Jury, having found the Defendant guilty of the offense charged in Count [One], further find with respect to that Count that [he] [she] [distributed] [possessed with intent to distribute] [conspired to possess with intent to distribute] the following controlled substance[s] in the amount[s] shown (place an X in the appropriate box[es]): [(a)Marijuana (i)Weighing 1000 kilograms or more (ii)Weighing 100 kilograms or more (iii)Weighing less than 100 kilograms G G G] [(b)Cocaine (i)Weighing 5 kilograms or more (ii)Weighing 500 grams or more (iii)Weighing less than 500 grams G G G] [(c)Cocaine base (“crack” cocaine) (i)Weighing 50 grams or more G 562 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 589 of 677 G G] (ii)Weighing 5 grams or more (iii)Weighing less than 5 grams SO SAY WE ALL. Foreperson Date: Multiple sets of the two paragraphs in this Special Verdict form will be necessary in the event of multiple counts of drug offenses against the same Defendant. d we e , vi 226 4 16. No 563 0 017 7/2 7/2 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 590 of 677 99 Controlled Substances: Unlawful Use of Communications Facility 21 U.S.C. § 843(b) It’s a separate Federal crime for anyone to knowingly use a communication facility to commit or help commit another crime violating [Section 841(a)(1) such as the crime charged in Count __ ]. The Defendant can be found guilty of the offense of unlawful use of a communication facility as charged in Count ___ only if all the following facts are proved beyond a reasonable doubt: (1) the Defendant used a "communication facility"; (2) the Defendant used the facility while committing or helping to commit the crime charged in Count ___; and 017 7/2 7/2 0 ed and intentionally. (3) the Defendant actediew knowingly ,v The term "communication facility" includes all mail, telephone, wire, 226 4 16- communication systems. . radio, and computer-based No To "help to commit" a crime means to use a communication facility in a way that makes committing the crime easier or possible. It doesn’t matter whether the other crime was successfully carried out. ANNOTATIONS AND COMMENTS 21 U.S.C. § 843(b) provides: It shall be unlawful for any person knowingly or intentionally to use any communication facility in committing or in causing or facilitating the commission of any act or acts constituting a felony under any provision of this subchapter or subchapter II of this chapter. Maximum Penalty: Four (4) years imprisonment and applicable fine. §843(d)(1). 564 21 U.S.C. Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 591 of 677 "Each separate use of a communication facility shall be a separate offense under this subsection." 21 U.S.C. § 843(b). "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." 21 U.S.C. § 843(b). In addition to wire-based email (e.g. on the Internet), computers can now communicate via microwave, FM-frequency, infrared and by other non-wire based media. The statute, however, contemplates "any and all" forms of communication facilities. In United States v. Mertilus, 111 F.3d 870, 872 (11th Cir. 1997), the Eleventh Circuit elaborated on the proof requirements under this statute, saying “[t]o prove facilitation, the government must establish that the telephone communication made the narcotics offense easier or less difficult and, thereby, assisted or aided the crime. Where the charged underlying crime is a substantive narcotics offense, rather than an inchoate attempt or conspiracy, the government must prove the underlying offense. Section 843(b) does not require that the government prove that [the defendant] committed the facilitated, or underlying, offense; instead, the statute can be satisfied by showing his knowing, intentional use of a telephone to facilitate the commission of the underlying crime.” (internal citations omitted). 017 7/2 7/2 In a recent case, Abuelhawa v. United States, 129 S. Ct. 2102 (2009), the Supreme Court unanimously rejected the argument that a person using a phone to call his dealer to make a misdemeanor drug purchase “facilitates” the felony of drug distribution in violation of § 843(b). The Court stated that “[w]here a transaction like a sale necessarily presupposes two parties with specific roles, it would be odd to speak of one party as facilitating the conduct of the other.” Id. at 2105. The Court further explained that the “traditional law” is that where a statute treats one side of a bilateral transaction more leniently, such as it does with a drug purchaser and a drug distributor, “adding to the penalty of the party on that side for facilitating the action by the other would upend the calibration of punishment set by the legislature, a line of reasoning exemplified [in analogous cases].” Id. at 2106 (collecting and discussing cases). d we e , vi 226 4 16. No 565 0 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 592 of 677 100 Controlled Substances: Conspiracy 21 U.S.C. § 846 and/or 21 U.S.C. § 963 It’s a separate Federal crime for anyone to conspire to knowingly possess with intent to distribute or import [substance]. [Title 21 United States Code Section 841(a)(1) makes it a crime for anyone to knowingly possess [substance] with intent to distribute it.] [Title 21 United States Code Section 952 makes it a crime for anyone to knowingly import [substance] into the United States from some place outside the United States.] 017 7/2 unlawful act. In other words, it is a kind of partnership for criminal purposes. 2 07/ or partner of every other Every member of the conspiracy becomesed agent w the e , vi member. 226 4 The Government 6- not have to prove that all of the people named in 1 does . No members of the plan, or that those who were members the indictment were A “conspiracy” is an agreement by two or more persons to commit an made any kind of formal agreement. The heart of a conspiracy is the making of the unlawful plan itself, so the Government does not have to prove that the conspirators succeeded in carrying out the plan. The Defendant can be found guilty only if all the following facts are proved beyond a reasonable doubt: (1) two or more people in some way agreed to try to accomplish a shared and unlawful plan to possess or import [substance]; (2) the Defendant, knew the unlawful purpose of the plan and willfully joined in it; and 566 Appeal: 16-4226 Doc: 48-2 (3) Filed: 07/27/2017 Pg: 593 of 677 the object of the unlawful plan was to [possess with the intent to distribute] [import] more than [threshold] of [substance]. A person may be a conspirator even without knowing all the details of the unlawful plan or the names and identities of all the other alleged conspirators. If the Defendant played only a minor part in the plan but had a general understanding of the unlawful purpose of the plan – and willfully joined in the plan on at least one occasion – that's sufficient for you to find the Defendant guilty. But simply being present at the scene of an event or merely associating 017 7/2 establish proof of a conspiracy. Also a person who doesn't know about a 2 07/ some purpose of one conspiracy but happens to act in a way thatd we advances ie doesn't automatically become a6, v conspirator. 2 -42 charged with [distributing] [possessing and [The Defendant[s] [is] [are] . 16 No intending to distribute] at least [threshold] of [substance]. But you may find with certain people and discussing common goals and interests doesn't [the] [any] Defendant guilty of the crime even if the amount of the controlled substance[s] for which [he] [she] should be held responsible is less than [threshold]. So if you find [the] [any] Defendant guilty, you must also unanimously agree on the weight of [substance] the Defendant possessed and specify the amount on the verdict form.] ANNOTATIONS AND COMMENTS 21 U.S.C. § 846 provides: 567 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 594 of 677 Any person who attempts or conspires to commit any offense defined in this subchapter [Sections 801 through 904] [shall be guilty of an offense against the United States]. 21 U.S.C. § 963 provides: Any person who attempts or conspires to commit any offense defined in this subchapter [Sections 951 through 966] [shall be guilty of an offense against the United States]. This instruction was previously designated to be given for 21 U.S.C. § 955(c), as well. This statute has been transferred to 46 U.S.C. § 70506(b), which provides: A person attempting or conspiring to violate section 70503 of this title is subject to the same penalties as provided for violating section 70503. 46 U.S.C. § 70503 criminalizes the knowing or intentional manufacture or distributing of controlled substances on board a vessel subject to the jurisdiction of the United States or on board any vessel by an individual who is a citizen or resident alien of the U.S. This instruction can still be properly used (as adapted) for this statute. 017 /2 7need be alleged or proved Unlike 18 U.S.C. § 371 (general conspiracy statute), no overt2 act under either § 846 or § 963, United States v. Shabani, 513 U.S. 10, 15-16, 1155 S. Ct. 382, 07/(11th Cir. 2003); United States d 385-86 (1994); United States v. Harriston, 329 F.3d 779, 783 we does the absence of that requirement v. Jones, 765 F.2d 996, 1001 (11th Cir. 1985), nor e violate the constitution. United States v. Gibbs, 190 F.3d 188, 197 n.2 (3d Cir. 1999) (citing , viv. Pulido, 69 F.3d 192, 209 (7th Cir. 1995). Shabani, 513 U.S. at 15-16); United States 226 -4 Acts of concealment are 16part of the original conspiracy. United States v. Knowles, 66 not . F.3d 1146, 1155-56 n.17 (11th Cir. 1995). No Maximum Penalty: Each statute provides that the penalty shall bethe same as that prescribed for the offense which was the object of the conspiracy. “[T]he mere presence of a defendant with the alleged conspirators is insufficient to support a conviction for conspiracy.” United States v. Hernandez, 141 F.3d 1042, 1053 (11th Cir. 1998). However, “a conspiracy conviction will be upheld . . . when the circumstances surrounding a person's presence at the scene of conspiratorial activity are so obvious that knowledge of its character can fairly be attributed to him.” United States v. Calderon, 127 F.3d 1314, 1326 (11th Cir. 1997) (citations and internal quotations omitted). For comparative citations analyzing the “mere presence” and “mere association” concepts, see United States v. Lopez-Ramirez, 68 F.3d 438, 440-41 (11th Cir. 1995). “It is th[e] requirement of an agreement to participate in a criminal scheme that distinguishes conspiracy from the related offense, aiding and abetting.” United States v. Toler, 144 F.3d 1423, 1426 n.4 (11th Cir. 1998). See also United States v. Palazzolo, 71 F.3d 1233, 1237 (6th Cir. 1995). “[T]he mere fact of the purchase by a consumer of an amount of an illegal substance does not make of the seller and buyer conspirators under the federal [controlled substances] statutes.” United States v. Brown, 872 F.2d 385, 391 (11th Cir. 1989), cert. denied, 493 U.S. 898 (1989). This principle is commonly termed the “buyer-seller rule,” and is discussed in United States v. Ivy, 83 F.3d 1266, 1285-86 (10th Cir. 1996), cert. denied, 519 U.S. 901. 568 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 595 of 677 The lesser included offense model is an appropriate and convenient procedural mechanism for purposes of submitting sentence enhancers to a jury when required by the principle of Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 2362 -63 (2000) (“Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.”). This would be especially true in simpler cases involving single Defendants. See Special Instruction 10 and the verdict form provided in the Annotations And Comments following that instruction. If the lesser included offense approach is followed, using Special Instruction 10 and its verdict form, then the bracketed language in this instruction explaining the significance of weights and the use of a special verdict form specifying weights, should be deleted. Alternatively, in more complicated cases, if the bracketed language in this instruction concerning weights is made a part of the overall instructions, followed by use of the special verdict form below, then the Third element of the instructions defining the offense should be deleted. The following is a form of special verdict that may be used in such cases. Special Verdict 1. We, the Jury, find the Defendant [name of Defendant] _______________ as charged in Count [One] of the indictment. 017 not consider [Note: If you find the Defendant not guilty as charged in Count [One], you need 7/2 2 paragraph 2 below.] 07/ of the offense charged in d 2. We, the Jury, having found the Defendant guilty wethat [he] [she] [distributed] [possessed Count [One], further find with respect to that e vi Count with intent to distribute] [conspired to possess with intent to distribute] the following , shown (place an X in the appropriate box[es]): controlled substance[s] in the amount[s] 226 4 [(a)Marijuana6 1 - 1000 kilograms or more G o. N(i)Weighing 100 kilograms or more G (ii)Weighing (iii)Weighing less than 100 kilograms G] [(b)Cocaine (i) Weighing 5 kilograms or more (ii) Weighing 500 grams or more (iii) Weighing less than 500 grams G G G] [(c)Cocaine base (“crack” cocaine) (i) Weighing 50 grams or more (ii) Weighing 5 grams or more (iii) Weighing less than 5 grams G G G] Foreperson Date: Multiple sets of the two paragraphs in this Special Verdict form will be necessary in the event of multiple counts of drug offenses against the same Defendant. 569 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 596 of 677 101.1 Withdrawal as a Defense to Conspiracy – Quantity of Drugs If you find Defendant __________ guilty of the conspiracy, you must also make a finding about the amount or weight of the drugs attributable to [him [her]. Defendant, __________, has raised the defense that [he] [she] withdrew from the conspiracy before certain quantities of drugs became the object of the conspiracy. This can affect the Defendant’s sentence, but Defendant _______ has the burden of proving to you, by a preponderance of the evidence, that [he] [she] did in fact withdraw, and that [he] [she] did so before [a] certain event[s] involving a larger quantity of drugs took place. 017 7/2 2 that [he] [she] completely withdrew from the 07/ withdrawal is d agreement. A partial or temporary we not enough. e , vi that [he] [she] took some affirmative step to 226 4 renounce or defeat the purpose of the 16- An affirmative step would include an o. that is Nconspiracy.inconsistent with the purpose of the act To prove this defense, _______ must prove the following things: (1) (2) conspiracy. Just doing nothing, or just avoiding the other members of the group, would not be enough. (3) that [he] [she] [made a reasonable effort to communicate the affirmative act [he] [she] had taken to defeat the purpose of the conspiracy to the other members of the conspiracy] [disclosed the scheme to law enforcement authorities.] (4) that [he] [she] withdrew before any member of the group committed an act that increased the quantity of drugs attributable to the conspirators. If [he] [she] withdraws after that point, [he] [she] will be responsible for the increased amount. 570 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 597 of 677 If _______ proves all four elements, then you must find that [he] [she] is responsible for the lesser quantity of drugs associated with the conspiracy prior to his withdrawal. If [he] [she] proves the first three but does not prove the fourth, then you must find that [he] [she] is responsible for the greater quantity of drugs associated with the conspiracy for its duration. The fact that _______ has raised this defense does not relieve the Government of its burden of proving, beyond a reasonable doubt, the underlying conspiracy. 17 0appropriate because An instruction on withdrawal from a drug conspiracy is not generally /2 no overt act is required. See United States v. Nicoll, 664 F.2d7 1308, 1315 (5th Cir. Unit B 2 1982), overruled on other grounds by United States v. Henry, 749 F.2d 203 (5th Cir. 1984); 07/ (10th Cir. 2004) (“Because United States v. Williams, 374 F.3d 941, 949-50ed & nn.11-12 there is no overt act requirement under the drug conspiracy statute, withdrawal cannot w e relieve a defendant of criminal responsibility i a conspiracy charged under § 846.”); United , v for 1998) (discussing the “general rule that a States v. Grimmett, 150 F.3d 958, 26 (8th Cir. 2961 defendant may not raise withdrawal as an affirmative defense to a conspiracy charge where 4 no overt act is necessary”).61 . No v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000), a jury must However, under Apprendi ANNOTATIONS AND COMMENTS find beyond a reasonable doubt all facts that increase the penalty for a crime beyond the prescribed statutory maximum. Because the statutory sentence applicable to a drug conspiracy depends on the quantity of drugs involved, see 21 U.S.C. § 841, a withdrawal instruction may be necessary if there is evidence that the drug quantity attributable to the conspiracy at large increased after a particular defendant withdrew. In order to assert a withdrawal defense, a defendant must prove that he “(1) undertook affirmative steps, inconsistent with the objects of the conspiracy, to disavow or to defeat the conspiratorial objectives, and (2) either communicated those acts in a manner reasonably calculated to reach his co-conspirators or disclosed the illegal scheme to law enforcement authorities.” United States v. Aviles, 518 F.3d 1228, 1231 n.3 (11th Cir. 2008) (citation and internal quotations omitted); United States v. Odom, 252 F.3d 1289,1299 (11th Cir. 2001); United States v. Young, 39 F.3d 1561, 1571 (11th Cir. 1994). Where a defendant bears the burden of proof on an affirmative defense, such as this one, the burden of proof is preponderance of the evidence. See, e.g., Dixon v. United States, 548 U.S. 1, 17, 126 S. Ct. 2347, 2447 - 48 (2008). The Eleventh Circuit describes the defendant's burden on proving withdrawal from a conspiracy as "substantial." United States v. Westry, 524 F.3d 1198, 1216-17 (11th Cir. 2008). Neither arrest nor incarceration during the time frame of the conspiracy automatically triggers withdrawal from a conspiracy. United States v. Gonzalez, 940 F.2d 1413, 1427 (11th Cir. 1991). Also, "[a] mere cessation of 571 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 598 of 677 activity in the conspiracy is not sufficient to establish withdrawal." United States v. Finestone, 816 F.2d 583, 589 (11th Cir. 1987), cert. denied, 484 U.S. 948, 108 S. Ct. 338 (1987). d we e , vi 226 4 16. No 572 0 017 7/2 7/2 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 599 of 677 101.2 Withdrawal as a Defense to Conspiracy Based on the Statute of Limitations One of the Defendants, _______, has raised the defense that [he] [she] withdrew from the conspiracy before the date of _______, and that the statute of limitations ran out before the Government obtained an indictment charging [him [her] with the conspiracy. The statute of limitations is a law that puts a limit on how much time the Government has to obtain an indictment. This can be a defense, but _______ has the burden of proving to you that [he] [she] did in fact withdraw, and that 017 7/2 7/2 [he] [she] did so at least ______ years before the date [he] [she] was indicted on _________. d we 0 To prove this defense, _______ must establish each and every one of e , vi 226 the following things by a preponderance of the evidence: 4 16. No (1) That [he] [she] completely withdrew from the conspiracy. A partial or temporary withdrawal is not sufficient. (2) That [he] [she] took some affirmative step to renounce or defeat the purpose of the conspiracy. An affirmative step would include an act that is inconsistent with the purpose of the conspiracy and is communicated in a way that is reasonably likely to reach the other members. But some affirmative step is required. Just doing nothing, or just avoiding contact with the other members, would not be enough. (3) That [he] [she] withdrew before the date of _______. If ____________ proves each of these elements by a preponderance of the evidence, then you must find [him [her] not guilty. 573 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 600 of 677 The fact that _______ has raised this defense does not relieve the Government of its burden of proving, beyond a reasonable doubt, the underlying conspiracy. ANNOTATIONS AND COMMENTS An instruction on withdrawal from a drug conspiracy is not generally appropriate because no overt act is required. See United States v. Nicoll, 664 F.2d 1308, 1315 (5th Cir. Unit B 1982), overruled on other grounds by United States v. Henry, 749 F.2d 203 (5th Cir. 1984); United States v. Williams, 374 F.3d 941, 949-50 & nn.11-12 (10th Cir. 2004) (“Because there is no overt act requirement under the drug conspiracy statute, withdrawal cannot relieve a defendant of criminal responsibility for a conspiracy charged under § 846.”); United States v. Grimmett, 150 F.3d 958, 961 (8th Cir. 1998) (discussing the “general rule that a defendant may not raise withdrawal as an affirmative defense to a conspiracy charge where no overt act is necessary”). However, a withdrawal instruction may be proper when there is some evidence that a defendant withdrew from a conspiracy before the limiting date. limitations period.”) d we 0 017 7/2 7/2 “[I]f a conspirator establishes the affirmative defense of withdrawal, the statute of limitations will begin to run at the time of withdrawal.” United States v. Arias, 431 F.3d 1327, 1340 (11th Cir. 2005); see also United States v. Adams, 1 F.3d 1566, 1582 (11th Cir. 1993) (“For a conspiracy prosecution to be barred by the statute of limitations, the time between the conspiracy's end, or the defendant's affirmative withdrawal, and the indictment must be longer than the statutory limitations period.”); United States v. Reed, 980 F.2d 1568, 1584 (11th Cir. 1993) (where a defendant withdraws from a conspiracy, “the statute of limitations does not begin to run on a co-conspirator until the final act in furtherance of the conspiracy has occurred or until the co-conspirator withdraws from the conspiracy.”). e , vi 226 4 16. No 574 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 601 of 677 102.1 Controlled Substances: Continuing Criminal Enterprise 21 U.S.C. § 848 It’s a Federal crime for anyone to participate in a continuing criminal enterprise involving controlled substances. [Title 21 United States Code Section 841(a)(1) makes it a crime for anyone to knowingly possess [substance] with intent to distribute it.] [Title 21 United States Code Section 952 makes it a crime for anyone to knowingly import [substance] into the United States from some place outside the United States]. 017 7/2 7/2 The Defendant can be found guilty of this crime only if all the following 0 ed narcotics law[s] the Defendant violated the ew vi____; charged in count[s] 26, -42 the 1violation[s] [was] [were] a part of a . 6 continuing series of violations; No facts are proved beyond a reasonable doubt: (1) (2) (3) the Defendant participated in the continuing series of violations together with at least five other people for whom the Defendant was an organizer, supervisor, or manager; [and] (4) the Defendant got substantial income or resources from the continuing series of violations[.] [; and] [(5) the Defendant was a principal administrator, organizer, or leader of the enterprise, and [the weight of the [substance] involved in the crime was at least [threshold]] [the enterprise received at least $10 million in gross receipts in any 12month period of its existence].] 575 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 602 of 677 A “continuing series of violations” means proof of at least three related violations of the Federal controlled-substances laws, as charged in count[s] _____ of the indictment, plus proof that the violations were connected as related, ongoing activities rather than isolated or disconnected acts. And you must unanimously agree on which three [or more] violations the Defendant committed. The Government must prove that the Defendant engaged in the “continuing series of violations” with at least five other people. It doesn’t matter whether those persons are named in the indictment or whether the 017 7/2 7/2 same five or more people participated in each crime, or participated at different times. d we 0 The Government must also prove that the Defendant was an organizer, e , vi 226 supervisor, or manager, and either organized or directed the activities of the 4 16. No matter whether the Defendant was the only organizer fellow worker. It doesn’t others. In other words, the Defendant must have been more than a mere or supervisor or whether the Defendant delegated authority to a subordinate and didn’t have personal contact with each of the people whom [he] [she] organized, supervised, or managed through directions given to someone else. The Government must prove that the Defendant obtained “substantial income or resources” from the continuing series of violations. “Substantial income or resources” means significant sizes or amounts of money or property, but not necessarily any profit, that the Defendant received from the crimes, not some relatively insubstantial, insignificant, or trivial amounts or sizes. 576 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 603 of 677 ANNOTATIONS AND COMMENTS 21 U.S.C. § 848(c) provides: . . . a person is engaged in a continuing criminal enterprise if (1) he violates any provision of [sections 801 through 966] the punishment for which is a felony, and (2) such violation is a part of a continuing series of violations of [sections 801 through 966] (A) which are undertaken by such person in concert with five or more other persons with respect to whom such person occupies a position of organizer, a supervisory position, or any other position of management, and (B) resources. from which such person obtains substantial income or Maximum Penalty: Not less than thirty (30) years and up to life imprisonment, and applicable fine. 017 7/2 7/2 The Government must prove at least three felony narcotics violations to establish a continuing series of violations. Ross v. United States, 289 F.3d 677, 683 (11th Cir. 2002), cert. denied, 537 U.S. 1113 (2003); United States v. Alvarez-Moreno, 874 F.2d 1402, 140809 (11th Cir. 1989), cert. denied, 494 U.S. 1032 (1990). 0 ed crimes the defendant committed.” The jury “must agree unanimously about which three ew vi818 (1999) (emphasis added); Ross v. United Richardson v. United States, 526 U.S. 813, States, 289 F.3d 677, 683 (11th Cir. 2002). 26, -42 unanimity requirement has been held to be harmless Failure to instruct on the Richardson 16 . to give the instruction had a “substantial and injurious effect or error unless the failure No influence in determining the jury‘s verdict.” Ross v. United States, 289 F.3d 677, 683 (11th Cir. 2002) How “related” must the three violations be? See United States v. Maull, 806 F.2d1342-43 (8th Cir. 1986) (“A continuing offense is a continuous illegal act or series of acts driven by a single impulse and operated by an unintermittent force.”). 7th Cir. 1990), cited in 2B Fed. Jury Prac. & Instr. § 66.05 (5th ed. 2000). In any event, the use of unindicted offenses is permissible in obtaining a conviction under § 848. The violations need not be charged or even set forth as predicate acts in the indictment. Hence, the law only requires evidence that the defendant committed three substantive offenses to provide the predicate for a § 848 violation, regardless of whether such offenses were charged in counts of the indictment or in separate indictments. What is important is proof that there was indeed a farflung operation. Whether this has led to other convictions is all but irrelevant to the nature of the CCE offense. United States v. Alvarez-Moreno, 874 F.2d 1402, 140809 (11th Cir. 1989). The statute is “a carefully crafted prohibition,” which should be given a “common-sense reading,” Garrett v. United States, 471 U.S. 773, 781, 105 S. Ct. 2407, 2413 (1985). This language is designed “to reach the ‘top brass’ in the drug rings, not the lieutenants and foot solders.” Id. Hence, “[a] mere buyer-seller relationship does not satisfy § 848's management requirement.” United States v. Witek, 61 F.3d 819, 822 (11th Cir.1995), cert. 577 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 604 of 677 denied, Hubbard v. United States, 516 U.S. 1060, 116 S. Ct. 738 (1996). Rather, an organizer is one who arranges the activities of others into an orderly operation. Id. at 822-24. A defendant who supervises less than five persons who, in turn, supervise the activities of others, can be found to have supervised and managed “five or more other persons” under § 848, provided that the total number of persons is five or more. Thus, if “a defendant personally hires only the foreman, that defendant is still responsible for organizing the individuals hired by the foreman to work as the crew . . . . [M]ere delegation of authority does not detract from [the defendant’s] ultimate status as organizer.” United States v. Rosenthal, 793 F.2d 1214, 1226 (11th Cir. 1986), modified on other grounds, 801 F.2d 378 (11th Cir. 1986) acted in concert at the same time.” United States v. Boldin, 818 F.2d 771, 775-76 (11th Cir. 1987); see also United States v. Atencio, 435 F.3d 1222, 1234 (10th Cir. 2006) (“[A] defendant need not have had regular personal contact with the five persons she supervised.”); United States v. Mathison, 518 F.3d 935, 939 (8th Cir. 2008) (“The statute does not require that the defendant supervise all five people at the same time”). In contrast to the “three violation” requirement, the jury need not unanimously agree on which five persons the defendant organized, supervised, or managed. United States v. Moorman, 944 F.2d 801, 802-03 (11th Cir. 1991); United States v. Lewis, 476 F.3d 369, 382-83 (5th Cir. 2007); United States v. Stitt, 250 F.3d 878, 885-86 (4th Cir. 2001); Fifth Cir. Pattern Jury Instr. §2.90 at 265 (“note”) (2001) (collecting cases). 17 0resources from each A jury need not find that a defendant obtained substantial income2 / or violation, but only from the entire series of violations. United27 F.2d / States v. Gonzalez, 9401148, 1413, 1424 (11th Cir. 1991); see also United States v. Torres-Laranega, 476 F.3d 07 U.S. 813, 823 (1999)). 1158 (10th Cir. 2007)(citing Richardson v. Uniteded States, 526 ew jeopardy considerations addressed Jury instructions must be crafted in light of the double , vi 296307 (1996)., “a defendant cannot be in Rutledge v. United States, 51726 292, 2 U.S. cumulatively punished for violating both § 846 and § 848, because for purposes of the -4two statutes proscribe the same offense.” United States Double Jeopardy Clause, these . 16(7th Cir. 2004), cert. denied, 544 U.S. 1010, 125 S. Ct. 1966 v. Jeffers, 388 F.3d 289, 292 No (2005). A § 846 drug conspiracy is a lesser included offense of the CCE charge, so if the defendant is convicted under § 846, the “in concert” element of an § 848 conviction cannot rest on the same agreement as the § 846 conspiracy. Rutledge, 517 U.S. at 307; see also United States v. Harvey, 78 F.3d 501 (11th Cir. 1996) (prior conviction of drug conspiracy precluded subsequent prosecution for continuing criminal enterprise on double jeopardy grounds). However, there are exceptions to this rule. See United States v. Nyhuis, 8 F.3d 731 (11th Cir. 1993)(upholding both Section 846 conviction in Florida and 848 conviction in Michigan because court found 2 separate conspiracies); United States v. Maza, 983 F.2d 1004 (11th Cir. 1993)(applying the “due diligence” exception to the Fifth Amendment Double Jeopardy clause to uphold successive convictions under 21 U.S.C. § 846 and 21 U.S.C. § 848). 578 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 605 of 677 102.2 Controlled Substances: Continuing Criminal Enterprise - Murder 21 U.S.C. § 848(e) It’s a Federal crime to intentionally [kill] [order or otherwise cause the intentional killing] of someone while participating in or working to further a continuing criminal enterprise. The Defendant can be found guilty of this crime only if you find the Defendant guilty of engaging in a continuing criminal enterprise that existed as charged in count ___, and all the following facts are proved beyond a reasonable doubt: (1) (2) (3) 017 7/2 7/2 the Defendant intentionally [killed the victim] [ordered or otherwise caused the killing of the victim] as charged in Count ___ of the indictment; d we e , vi 226 0 the killing occurred because of and as part of the Defendant’s participating in or working to further the continuing criminal enterprise charged in Count __ of the indictment; and 4 16. No The Defendant intended that a killing would result. ANNOTATIONS AND COMMENTS 21 U.S.C. § 848(e)(1) provides: (A) any person engaging in or working in furtherance of a continuing criminal enterprise, or any person engaging in an offense punishable under section 841(b)(1)(A) of this title or section 960(b)(1) of this title who intentionally kills or counsels, commands, induces, procures, or causes the intentional killing of an individual and such killing results, shall be sentenced to any term of imprisonment, which shall not be less than 20 years, and which may be up to life imprisonment, or may be sentenced to death . . . . 21 U.S.C. § 848(e) is a separate, chargeable offense; conviction thereunder requires a connection between the underlying continuing criminal enterprise and the murder. United 579 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 606 of 677 States v. Chandler, 996 F.2d 1073, 109698 (11th Cir. 1993), cert. denied, 512 U.S. 1227 (1994). Courts have held that a person charged with murder in furtherance of a CCE “need not be charged with engaging in the CCE so long as the government is able to prove that a CCE existed and [the defendant] committed murder in furtherance of the CCE.” United States v. Ray, 238 F.3d 828, 833 (7th Cir. 2001). The Second Circuit has held that those who aid and abet the commission of drug-related murders are death-penalty eligible. United States v. Walker, 142 F.3d 103, 113 (2d Cir. 1998). d we e , vi 226 4 16. No 580 0 017 7/2 7/2 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 607 of 677 103 Possession of Controlled Substance Near Schools or Public Housing 21 U.S.C. § 860 It’s a Federal crime to be within 1,000 feet of [a school] [a housing facility owned by a public-housing authority] and possess a controlled substance with intent to distribute it. [substance] is a “controlled substance.” The Defendant can be found guilty of this crime only if all the following facts are proved beyond a reasonable doubt: (1) (2) (3) (4) the Defendant [substance]; knowingly possessed 017 2 the Defendant intended to 27/ distribute the [substance]; 07/ d we to distribute the the Defendant intended e , vi substance at some place within 1,000 feet of [a 6 school] [a 22 housing facility owned by a public4 housing authority]; and 16o. Nthe weight of the [substance] was more than [threshold]. To “intend to distribute” simply means to want or plan or prepare to deliver or transfer possession of a controlled substance to someone else, even if nothing of value is exchanged. ANNOTATIONS AND COMMENTS 21 § 860 provides: Any person who violates section 841(a)(1) of this title or section 856 of this title by distributing, possessing with intent to distribute, or manufacturing a controlled substance in or on, or within one thousand feet of, the real property comprising a public or private elementary, vocational, or secondary school or a public or private college, junior college, or university, or a 581 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 608 of 677 playground, or housing facility owned by a public housing authority [shall be guilty of an offense against the United States]. Maximum Penalty: U.S.C. § 841(b). Where the indictment alleges a factor that would enhance the possible maximum punishment applicable to the offense, that factor should be stated as an additional element in the instructions under the principle of Apprendi v. New Jersey, 530 U.S. 466, 490 (2000) (“Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.”). In such case it may also be appropriate to give a lesser included offense instruction, Special Instruction 10, or use a special verdict form (with associated instructions concerning the use of the verdict). (See also Annotations and Comments following Offense Instruction 98.) The Committee has omitted the word “willfully” which was previously used in this instruction. “Willfully” is not used in the statute, and the essence of the offense is a knowing possession of a controlled substance with an intent to distribute it. T d we e , vi 226 4 16. No 582 0 017 7/2 7/2 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 609 of 677 104 Controlled Substances: Importation 21 U.S.C. § 952(a) It’s a Federal crime to knowingly import any controlled substance into the United States. [Substance] is a “controlled substance.” The Defendant can be found guilty of this crime only if all the following facts are proved beyond a reasonable doubt: (1) the Defendant imported [substance] into the United States; (2) the Defendant did so knowingly; and (3) the weight of the [substance] imported by the Defendant was more than [threshold]. d we 017 7/2 7/2 0 To “import” a substance means to bring or transport that substance into e , vi 226 the United States from some place outside the United States. 4 16. NoCOMMENTS ANNOTATIONS AND 21 U.S.C. § 952(a) provides: It shall be unlawful to import into . . . the United States from anyplace outside thereof, any controlled substance . . . . Maximum Penalty: Varies depending upon weight and nature of substance involved. See 21 U.S.C. § 960. The Committee has omitted the word “willfully” which was previously used in this instruction. “Willfully” is not used in the statute, and the essence of the offense is a knowing possession of a controlled substance with an intent to distribute it. “Although knowledge that the substance imported is a particular narcotic need not be proven, 21 U.S.C. § 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, 527-29 (5th Cir. 1978); United States v. Gomez, 905 F.2d 1513, 1514 (11th Cir. 1990) (“[T]o sustain a conviction for possession with intent to distribute a controlled substance, it need not be proved that the defendant had knowledge of the particular drug involved, as long as he knew he was dealing with a controlled substance.”) (citing Restrepo-Granda, 575 F.2d 583 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 610 of 677 at 527); United States v. Hernandez, 218 F.3d 58, 65 (1st Cir. 2000) (“Knowledge of the particular controlled substance being imported or distributed is not necessary.”). Importation is a continuing crime and is not complete until the controlled substance reaches its final destination. United States v. Camargo-Vergaga, 57 F.3d 993, 1001 (11th Cir. 1995). The evidence may warrant a deliberate ignorance instruction. United States v. Arias, 984 F.2d 1139, 1143-44 (11th Cir. 1993). See Special Instruction 8. Where the indictment alleges a factor that would enhance the possible maximum punishment applicable to the offense, that factor should be stated as an additional element in the instructions under the principle of Apprendi v. New Jersey, 530 U.S. 466, 490 (2000) (“Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.”). In such case it may also be appropriate to give a lesser included offense instruction, Special Instruction 10, or use a special verdict form (with associated instructions concerning the use of the verdict). (See also Annotations And Comments following Offense Instruction 98.) d we e , vi 226 4 16. No 584 0 017 7/2 7/2 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 611 of 677 105 Possession or Transfer Of Non-Tax-Paid Distilled Spirits 26 U.S.C. §§ 5604(a)(1) and 5301(d) It’s a Federal crime to knowingly [transport] [possess] [buy] [sell] [transfer] any distilled spirits unless the spirits’ immediate container has a closure showing that it complies with the Internal Revenue laws. The Defendant can be found guilty of this crime only if all the following facts are proved beyond a reasonable doubt: (1) the Defendant knowingly [transported] [possessed] [bought] [sold] [transferred] distilled spirits; and 017 7/2 (2) the immediate containers of the distilled spirits 2 didn’t bear a closure or other 07/ required by device d law. we ie A "closure or other device 6, required by law" means a closure such as as v 2 -42 breaking in order to open the container and a seal that’s designed to require . 16 No was attached to the container when it was taken from bonded premises or from customs custody. [The indictment charges that the Defendant [transported] [and] [possessed] [and] [bought] [and] [sold] [and] [transferred] distilled spirits in an unlawful manner. The law specifies various ways in which the crime may occur. The Government doesn’t have to prove that the Defendant broke the law in all of those ways. It only has to prove beyond a reasonable doubt that the Defendant [transported] [or] [possessed] [or] [bought] [or] [sold] [or] [transferred] distilled spirits in an unlawful manner. But you must all agree on the way the Defendant broke the law. 585 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 612 of 677 ANNOTATIONS AND COMMENTS 26 U.S.C. § 5604(a) provides: Any person who shall - (1) transport, possess, buy, sell, or transfer any distilled spirits unless the immediate container bears the type of closure or other device required by section 5301(d) ["The immediate container of distilled spirits withdrawn from bonded premises, or from customs custody, on determination of tax shall bear a closure or other device which is designed so as to require breaking in order to gain assess to the contents of such container."], [shall be guilty of an offense against the United States.] Maximum Penalty: Five (5) years imprisonment and $250,000 fine. See 26 U.S.C. § 5604 and 18 U.S.C. § 3571. See U.S. v. Swann, 413 F.2d 271 (5th Cir.1969). d we e , vi 226 4 16. No 586 0 017 7/2 7/2 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 613 of 677 106.1 Possession of Unregistered Firearm 26 U.S.C. § 5861(d) It’s a Federal crime for anyone to possess certain kinds of firearms that are not properly registered to [him] [her] in the National Firearms Registration and Transfer Record. A "firearm" includes [describe firearm alleged in the indictment, e.g., a shotgun having a barrel less than 18 inches in length.] The Defendant can be found guilty of this crime only if all the following facts are proved beyond a reasonable doubt: (1) the Defendant possessed a firearm; [and] (2) the firearm was not registered to the Defendant in the National Firearms Registration and Transfer Record[.] [; and] [(3) the Defendant knew of the specific characteristics or features of the firearm that made it subject to registration under the National Firearms Registration and Transfer Record.] d we e , vi 226 017 7/2 7/2 0 4 16o. Nthe indictment was a firearm that must be legally registered. item described in The Government does not have to prove that the Defendant knew the The Government only has to prove beyond a reasonable doubt that the Defendant knew about the specific characteristics or features of the firearm that made it subject to registration, namely [describe essential feature]. ANNOTATIONS AND COMMENTS 26 U.S.C. § 5861(d) provides: It shall be unlawful for any person . . . to . . . possess a firearm which is not registered to him in the National Firearms Registration and Transfer Record. . . [Note: For the definition of "firearm" within the context of this statute, see 26 U.S.C. § 5845]. 587 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 614 of 677 Maximum Penalty: Ten (10) years imprisonment and $250,000 fine. See 26 U.S.C. § 5871 and 18 U.S.C. § 3571. In Staples v. United States, 511 U.S. 600, 114 S. Ct. 1793, 128 L. Ed. 2d 608 (1994), the Court held that in the case of firearms such as fully automatic as distinguished from semiautomatic weapons, where the essential difference between registrable and nonregistrable characteristics is not open and obvious, the Government must prove knowledge on the part of the Defendant with respect to those essential characteristics of the firearm in question. Thus, in such a case, the instruction to the jury must be expanded to so state. Still where the essential characteristics of the firearm making it registrable are known, it is not necessary for the Government to prove that the Defendant also knew that registration was required. United States v. Owens, 103 F.3d 953 (11th Cir. 1997). This instruction has been amended to provide the optional Third element in a case like Staples, and meets the suggestion made in United States v. Moore, 253 F.3d 607, 610 n. 2 (11th Cir. 2001). See also United States v. Hutchins, Fed. Appx. 842, 844 (11th Cir. 2008). d we e , vi 226 4 16. No 588 0 017 7/2 7/2 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 615 of 677 106.2 Possession of Firearm Having Altered or Obliterated Serial Number 26 U.S.C. § 5861(h) It’s a Federal crime to possess a firearm with an [altered] [obliterated] serial number. “Firearm" includes the kind of weapon described in the indictment. The Defendant can be found guilty of this crime only if all the following facts are proved beyond a reasonable doubt: (1) (2) (3) the Defendant knowingly possessed the firearm described in the indictment at the time and place charged in the indictment; 017 2 the firearm’s serial number 27/ had been [obliterated] [altered]; and 07/ d we serial number had the Defendant knewe the i that , [altered]. been [obliterated] v 226 4 16. No ANNOTATIONS AND COMMENTS 26 U.S.C. § 5861(h) provides: It shall be unlawful for any person . . . (h) to receive or possess a firearm having the serial number or other identification required by this chapter obliterated, removed, changed, or altered. [Note: For the definition of "firearm" within the context of this statute, see 26 U.S.C. § 5845.] Maximum Penalty: Ten (10) years imprisonment and $250,000 fine. See 26 U.S.C. § 5871 and 18 U.S.C. § 3571. 589 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 616 of 677 106.3 Possession or Receipt of Firearm Not Identified by a Serial Number 26 U.S.C. § 5861(i) It’s a Federal crime to possess or receive a firearm that does not have a serial number. “Firearm” includes the kind of weapon described in the indictment. The Defendant can be found guilty of this crime only if all the following facts are proved beyond a reasonable doubt; (1) the Defendant knowingly possessed the firearm described in the indictment at the time and place charged in the indictment; 017 (3) the Defendant knew that the firearm did not 7/2 2 have a serial number. 07/ d we e , vi ANNOTATIONS AND COMMENTS 6 2 -42 26 U.S.C. § 5861(i) provides: . 16 No It shall be unlawful for any person ... to receive or possess a firearm (2) the firearm did not have a serial number; and which is not identified by a serial number as required by this chapter. [Note: For the definition of “firearm” within the context of this statute, see 26 U.S.C. § 5845.] Maximum Penalty: Ten (10) years imprisonment and $250,000 fine. See 26 U.S.C. § 5871 and 18 U.S.C. § 3571. 590 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 617 of 677 107.1 Tax Evasion: General Charge 26 U.S.C. § 7201 It’s a Federal crime to willfully attempt to evade or defeat paying federal income taxes. The Defendant can be found guilty of this crime only if all the following facts are proved beyond a reasonable doubt: (1) the Defendant owed substantial income tax in addition to the amount declared on [his] [her] tax return; (2) the Defendant knew when [he] [she] filed that income tax return that [he] [she] owed substantially more taxes than the amount reported on [his] [her] return; and (3) the Defendant intended to evade paying taxes he knew he was required by law to pay. d we 017 7/2 7/2 0 e , vi The Government does2not have to prove the precise amount of 2 6 -4 16it must prove beyond a reasonable doubt that the additional tax due. . But No Defendant knowingly attempted to evade or defeat paying a substantial part of the additional tax. The word "attempt" indicates that the Defendant knew and understood that, during the particular tax year involved, [he] [she] had income that was taxable, and that [he] [she] had to report by law; but [he] [she] tried to evade or defeat paying the tax or a substantial portion of the tax on that income, by failing to report all of the income he knew he was required by law to report. Federal income taxes are levied upon income that comes from compensation for personal services of every kind and in whatever form paid, 591 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 618 of 677 whether it’s wages, commissions, or money earned for performing services. The tax is also levied on profits earned from any business, regardless of its nature, and from interest, dividends, rents, and the like. The income tax also applies to any gain from the sale of a capital asset. In short, the term "gross income" means all income from whatever source, unless it is specifically excluded by law. The law allows exemptions from income taxes for funds acquired from certain sources. The most common nontaxable sources are loans, gifts, inheritances, the proceeds of insurance policies, and funds received from 017 7/2 7/2 selling an asset to the extent that the amount received is the same or less than the asset’s cost. d we e , vi 226 0 4 16. 26 U.S.C. §7201 provides: No ANNOTATIONS AND COMMENTS Any person who willfully attempts in any manner to evade or defeat any tax imposed by this title [shall be guilty of an offense against the United States.] Maximum Penalty: Five (5) years imprisonment and $250,000 fine (or $500,000 in the case of a corporation), plus the costs of prosecution. See 26 U.S.C. § 7201 and 18 U.S.C. § 3571. Section 7201 requires willfulness. A willful violation of § 7201 has been defined as the voluntary intentional violation of a known legal duty. Since this instruction incorporates this definition of willfulness in its elements, the committee does not believe that it is necessary to also include Basic Instruction 9.1B for this offense. United States v. Carter, 721 F.2d 1514, (11th Cir. 1984), requires a detailed explanation to the jury concerning the Government's theory-of-proof (Net Worth, Bank Deposits or Cash Expenditures, Instruction Nos. 107.2, 107.3 and 107.4) and it is plain error not to give such an instruction, i.e., no request is necessary. Boulware v. United States, 552 U.S. 421, 128 S. Ct. 1168, 1178 (2008), requires proof of a tax deficiency as an essential element of tax evasion under 26 U.S.C. § 7201. 592 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 619 of 677 The Supreme Court has noted that there is a “good faith” exception under the federal criminal tax statutes. Cheek v. United States, 498 U.S. 192, 199-202, 111 S. Ct. 604 112 L. Ed. 2d. 617 (1991). According to this exception, if someone simply fails to understand that he has a duty to pay income taxes under the Internal Revenue Code, he cannot be guilty of “willfully” evading those taxes. Id. at 201-02, 111 S. Ct. 604. The term “willfulness” presupposes the existence of a legal duty and knowledge of that duty. Id. at 201, 111 S. Ct. 604. If, however, someone recognizes that he has a duty to pay taxes, but simply refuses to pay or to declare his income because he believes that the Code is unconstitutional, he is not acting in “good faith.” Id. at 204-07, 111 S. Ct. 604. When a defendant asserts a "good faith" defense, the defendant is entitled to the following charge: Good faith is a complete defense to the charges in the indictment since good faith on the part of the defendant is inconsistent with the charge of tax evasion and the elements of this crime. The Government must establish beyond a reasonable doubt each and every element of the offense. Therefore, if a defendant believes in good faith that he is acting within the law, he cannot be found guilty of the offense charged in the indictment. This is so even if the defendant’s belief was not objectively reasonable as long as he held the belief in good faith. Nevertheless, you may consider whether the defendant’s belief about the tax statutes was actually reasonable as a factor in deciding whether he held that belief in good faith. United States v. Dean, 487 F.3d 840 (11th Cir.2007). d we e , vi 226 4 16. No 593 0 017 7/2 7/2 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 620 of 677 107.2 Net-Worth Method In this case the Government relies upon the "net-worth method" of proving unreported income. Under this method of proof, a person's "net worth" is the difference between the person's total assets and total liabilities on a given date. In other words, it’s the difference between what the person owns and what the person owes. Until something is sold, the value of what the person owns is based on the cost rather than any increase in market value. The "net worth method" of proving unreported income involves comparing the Defendant's net worth at the beginning of the year and the 017 7/2 during a taxable 2 a reasonable doubt that the Defendant's net worth increased 07/ d year, then you may infer that the Defendante w received money or property during e , vi that year. 226 4 And if the evidence also proves that nontaxable sources don’t account 16. Nonet worth, then you may further infer that the money and for the increase in Defendant's net worth at the end of the year. If the evidence proves beyond property received were taxable income to the Defendant. In addition to the matter of the Defendant's net worth, if the evidence proves beyond a reasonable doubt that the Defendant spent money during the year on living expenses, taxes, or other expenses that didn’t add to the Defendant's net worth by the end of the year, then you may infer that those expenditures also came from funds received during the year. And, again, if the evidence proves that those funds used for expenses didn’t come from nontaxable sources, and those expenses would not be 594 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 621 of 677 deductible on the Defendant’s tax return, then you may further infer that those funds were also taxable income. As I said before, the "net worth method" of proving unreported income involves comparing the Defendant's net worth at the beginning of the year and the Defendant's net worth at the end of the year. So the result cannot be accepted as correct unless the starting net worth is reasonably accurate. If it’s proved that the assets owned by the Defendant at the starting point were insufficient, by themselves, to account for the later increases in the Defendant's net worth, then the proof does not have to show the exact value 017 2 So if you decide that the evidence doesn’t 7/ prove with reasonable 2 07/beginning of the year, you d certainty what the Defendant's net worth was at the we e , i must find the Defendant not guilty. v 226 4 To decide whether-the Defendant’s claimed net worth at the starting 16 . Noaccurate, you may consider whether Government agents point is reasonably of the assets owned at the starting point, only the reasonably certain value. sufficiently investigated all reasonable leads suggested to them by the Defendant or that otherwise surfaced during the investigation concerning the existence and value of other assets. If you find that the Government's investigation failed to reasonably follow up on or failed to refute: (1) plausible explanations advanced by the Defendant, (2) explanations that otherwise arose during the investigation concerning other assets the Defendant had at the beginning of the year, or (3) other nontaxable sources of income the Defendant had during the year, then you should find the Defendant not guilty. 595 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 622 of 677 But the Government’s obligation to reasonably investigate applies only to suggestions or explanations made by the Defendant, or to reasonable leads that otherwise turn up. The Government isn’t required to investigate every conceivable asset or source of nontaxable funds. If you decide that the evidence in the case proves beyond a reasonable doubt what was the maximum possible amount of the Defendant's net worth at the beginning of the tax year, and proves that any increase in the Defendant's net worth at the end of the year plus the amount of nondeductible expenditures made during the year was much more than the amount of income 017 7/2 a reasonable doubt 2 07/ reported on the Defendant's tax return for that year, you must then decide whether the evidence also proves beyond d e ew i that the additional funds are taxable income that the Defendant willfully attempted to evade paying taxes on. 6, v 22 4 16. No 596 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 623 of 677 107.3 Bank-Deposits Method In this case the Government relies upon the "bank-deposits method" of proving unreported income. Under this method of proof, when a taxpayer participates in an incomeproducing business or occupation and periodically deposits money in bank accounts under the taxpayer's name or control, an inference is created that the deposits represent taxable income unless it appears that the deposits were actually redeposits or transfers of funds between accounts, or that the deposits came from nontaxable sources such as gifts, inheritances, or loans. Similarly, when the taxpayer spends cash or currency from funds not 017 7/2 2 is created that the cash or currency is taxable income. 07/ d Because the "bank-deposits method" of proving unreported income we vie , deposits and cash expenditures that came involves reviewing the Defendant's 226 4 from taxable sources, the Government must establish an accurate 16. No for the beginning of the tax year. cash-on-hand figure deposited in any bank and not derived from a nontaxable source, an inference But the proof need not show the exact amount of the beginning cash-on-hand as long as it establishes that the Government's claimed cash-on-hand figure is reasonably accurate. So if you decide that the evidence doesn’t prove with reasonable certainty what the Defendant's cash-on-hand was at the beginning of the year, you must find the Defendant not guilty. To decide whether the Defendant’s claimed cash-on-hand at the starting point is reasonably accurate, you may consider whether Government agents 597 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 624 of 677 sufficiently investigated all reasonable leads suggested to them by the Defendant or that otherwise surfaced during the investigation concerning the existence of other funds. If you find that the Government's investigation failed to reasonably follow up on or failed to refute (1) plausible explanations advanced by the Defendant, or (2) explanations that otherwise arose during the investigation, concerning the Defendant's cash-on-hand at the beginning of the year, then you should find the Defendant not guilty. But the Government’s obligation to reasonably investigate applies only 017 7/2 that otherwise turn up. The Government isn’t required to investigate every 2 07/ conceivable source of nontaxable funds. ed iew vin the case proves beyond a reasonable If you decide that the evidence 26, -42 doubt that the Defendant's bank deposits plus the nondeductible cash . 16 No expenditures during the year were much more than the amount of income to suggestions or explanations made by the Defendant, or to reasonable leads reported on the Defendant's tax return for that year, you must then decide whether the evidence also proves beyond a reasonable doubt that the additional deposits and expenditures are from taxable income that the Defendant willfully attempted to evade paying taxes on. 598 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 625 of 677 107.4 Cash-Expenditures Method In this case the Government relies upon the "cash-expenditures method" of proving unreported income. Under this method of proof, if a taxpayer's expenditures for a particular taxable year plus any increase in net worth are more than the total of the taxpayer's reported income plus nontaxable receipts and available cash at the beginning of the year, then the taxpayer has understated [his] [her] income. The "cash-expenditures method" requires examining the Defendant's expenditures during the taxable year and examining the Defendant's "net worth" at the beginning and at the end of that year. 017 7/2difference between and total liabilities on a given date. In other words, it2 the is 07/ d what the person owns and what the person owes. Until something is sold, the we vie ,based on cost rather than on any increase value of what the person owns is 226 4 in market value. 16. No proves beyond a reasonable doubt that the Defendant's If the evidence A person's "net worth" is the difference between the person's total assets net worth increased during a taxable year, then you may infer that the Defendant received money or property during that year. And if the evidence also proves that nontaxable sources don’t account for the increase in net worth, then you may further infer that the money and property received were taxable income to the Defendant. In addition to the matter of the Defendant's net worth, if the evidence proves beyond a reasonable doubt that the Defendant spent money during the year on living expenses, taxes, and other expenses that didn’t add to the 599 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 626 of 677 Defendant's net worth by the end of the year, then you may infer that those expenditures also came from funds received during the year. And, again, if the evidence proves that those funds didn’t come from nontaxable sources, and those expenses would not be deductible on the Defendant’s tax return, then you may further infer that those funds were also taxable income. The "net worth method" of proving unreported income involves comparing the Defendant's net worth at the beginning of the year and the Defendant's net worth at the end of the year. So the result cannot be accepted 017 7/2 If it’s proved that the assets owned by the Defendant at the starting point 2 07/ later increases in the d were insufficient, by themselves, to account for the we ie Defendant's net worth, then the 6, v does not have to show the exact value proof 22 -4starting point, only the reasonably certain value. of the assets owned at 6 the .1 No So, if you decide that the evidence doesn’t prove with reasonable as correct unless the starting net worth is reasonably accurate. certainty what the Defendant's net worth was at the beginning of the year, you must find the Defendant not guilty. To decide whether the Defendant’s claimed net worth at the starting point is reasonably accurate, you may consider whether Government agents sufficiently investigated all reasonable "leads" suggested to them by the Defendant or that otherwise surfaced during the investigation concerning the existence and value of other assets. If you find that the Government's investigation failed to reasonably follow up on or failed to refute (1) plausible explanations advanced by the Defendant, 600 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 627 of 677 or (2) explanations that otherwise arose during the investigation concerning other assets the Defendant had at the beginning of the year, or (3) other nontaxable sources of income the Defendant had during the year, then you should find the Defendant not guilty. But the Government’s obligation to reasonably investigate applies only to suggestions or explanations made by the Defendant, or to reasonable leads that otherwise turn up. The Government isn’t required to investigate every conceivable asset or source of nontaxable funds. If you decide the evidence in the case proves beyond a reasonable 017 72 at the beginning of the tax year, and proves that /any increase in the 7/2 0the amount of nondeductible d Defendant's net worth at the end of the year plus we e , vi expenditures made during the year was much more than the amount of income 226 4 reported on the Defendant's tax return for that year, you must then decide 16. No also proves beyond a reasonable doubt that the whether the evidence doubt what was the maximum possible amount of the Defendant's net worth additional funds are taxable income that the Defendant willfully attempted to evade paying taxes on. 601 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 628 of 677 108 Failure to File a Tax Return 26 U.S.C. § 7203 It’s a Federal crime to willfully fail to file a federal income-tax return when required to do so by the Internal Revenue laws or regulations. The Defendant can be found guilty of this crime only if all the following facts are proved beyond a reasonable doubt: (1) the Defendant was required by law or regulation to file an income-tax return for the taxable year charged; (2) the Defendant failed to file a return when required by law; and (3) At the time the Defendant failed to file the return, he knew he was required by law to file a return. 7 01for any tax year A person is required to make a federal income-tax return 7/2 7/2 in which the person has gross income of more 0 than [threshold]. d we e "Gross income" includes the following: , vi 226 • [Compensation for services – including fees, commissions and 4 16. similar items; No • Gross income from business; • Gains from dealing in property; • Interest; • Rents; • Royalties; • Dividends; • Alimony and separate maintenance payments; • Annuities; • Income from life insurance and endowment contracts; 602 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 629 of 677 • Pensions; • Income from discharge of indebtedness; • Distributive share of partnership gross income; • Income in respect of a decedent; and • Income from an interest in an estate or trust.] The Defendant is a person required to file a return if the Defendant's gross income for any calendar year is more than [threshold] even though the Defendant may be entitled to deductions from that income and ultimately owe no taxes. So the Government is not required to prove that taxes were due and 017 7/2 Government only has to prove that the Defendant willfully failed to file the tax 2 07/ d return. we e , vi 226 ANNOTATIONS AND COMMENTS 4 16. 26 U.S.C. § 7203 provides: No unpaid, or that the Defendant intended to evade or defeat paying taxes. The Any person required [by law or regulation] to . . . make a return . . . who willfully fails to . . . make such return . . . at the time . . . required by law or regulations [shall be guilty of an offense against the United States]. Maximum Penalty: One (1) year imprisonment and $100,000 fine (or $200,000 in the case of a corporation), plus costs of prosecution. See 26 U.S.C. § 7203 and 18 U.S.C. § 3571. Section 7203 requires willfulness. A willful violation of § 7203 has been defined as the voluntary, intentional violation of a known legal duty. Since this instruction incorporates this definition of willfulness in its elements, the committee does not believe that it is necessary to also include Basic Instruction 9.1B for this offense. See U.S. v. Dean, 487 F.3d 840, 850 (11th Cir.2007)(“[t]he term ‘willfulness’ presupposes the existence of a legal duty and knowledge of that duty.” See also U.S. v. Ware, 2008 WL 4173845 (11th Cir.2008) (defining “willfully” as “a voluntary and intentional violation of a known legal duty.”). When a defendant asserts a "good-faith" defense, the defendant is entitled to the following charge: 603 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 630 of 677 Good-faith is a complete defense to the charges in the indictment since good faith on the part of the defendant is inconsistent with the charge of tax evasion and the elements of this crime. The Government must establish beyond a reasonable doubt each and every element of the offense. Therefore, if a defendant believes in good faith that he is acting within the law, he cannot be found guilty of the offense charged in the indictment. This is so even if the defendant’s belief was not objectively reasonable as long as he held the belief in good faith. Nevertheless, you may consider whether the defendant’s belief about the tax statutes was actually reasonable as a factor in deciding whether he held that belief in good faith. United States v. Dean, 487 F.3d 840 (11th Cir.2007). d we e , vi 226 4 16. No 604 0 017 7/2 7/2 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 631 of 677 109.1 Filing a False Tax-Related Document 26 U.S.C. § 7206(1) It’s a Federal crime to wilfully and knowingly prepare and file a false tax return or other tax-related documents. The Defendant can be found guilty of this crime only if all the following facts are proved beyond a reasonable doubt: (1) the Defendant made or caused to be made a [describe tax-related document in question] for the year [year]. (2) the [tax-related document] contained a written declaration that it was made under the penalty of perjury; (3) (4) (5) 017 7/2 when the Defendant made or helped to make 2 the [tax-related document], [he]/ [she] knew it 07 contained false material ed w information; e , vi when the Defendant did so, he intended to do 6 something22 [she] knew violated the law; [he] 4 16- matter in the [tax-related document] o. to Nthe false a material statement. related The government has the burden of proving each of these five elements beyond a reasonable doubt, for each of the years in question. A declaration is “false” if it is untrue when it is made and the person making it knows it is untrue. A declaration in a document is “false” if it is untrue when the document is used and the person using it knows it is untrue. A declaration is “material” if it concerns a matter of significance or importance, not a minor or insignificant or trivial detail. The Government does not have to show that any taxes were not paid because of the false return, or that any additional taxes are due. It only has 605 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 632 of 677 to prove that the Defendant intentionally helped to file a materially false return, which Defendant knew violated the law. A false matter is “material” if the matter was capable of influencing the Internal Revenue Service. ANNOTATIONS AND COMMENTS 26 U.S.C. § 7206(1) provides: Any person who willfully makes and subscribes any return, statement, or other document, which contains or is verified by a written declaration that it is made under the penalties of perjury, and which he does not believe to be true and correct as to every material matter. 017 7/2 7/2 Section 7206(1) requires willfulness. A willful violation of § 7206(1) has been defined as the voluntary, intentional violation of a known legal duty. Since this instruction incorporates this definition of willfulness in its elements, the committee does not believe that it is necessary to also include Basic Instruction 9.1B for this offense. d we e , vi 226 4 16. No 606 0 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 633 of 677 109.2 Aiding or Assisting in Preparation of False Documents Under Internal Revenue Laws 26 U.S.C. § 7206(2) It’s a Federal crime to willfully aid or assist to prepare under the Internal Revenue laws a document that is false or fraudulent as to any material matter. The Defendant can be found guilty of this crime only if all the following facts are proved beyond a reasonable doubt: (1) (2) (3) (4) (5) That the Defendant [aided in] [assisted in] [procured] [counseled] [advised on] the preparation [presentation] of [a return] [an affidavit] [a claim] arising under [in connection with any matter arising under] the Internal Revenue laws; and 017 2 this [return] [affidavit] [claim] falsely7/ stated that 2 ________ [state material matters/ asserted, e.g., 07income of $ _________ received ed wgross ________ during the year ________]; e , vi the defendant knew that the statement in the 226 4 [return] 16 [affidavit] [claim] was false; o. Nthe false statement was material; and the defendant did so with the intent to do something the defendant knew the law forbids. It is not necessary that the government prove that the falsity or fraud was with the knowledge or consent of the person authorized or required to present the [return] [claim] [affidavit] [document]. A declaration is "false" if it is untrue when it is made and the person making it knows it is untrue. A declaration contained within a document is "false" if it is untrue when the document is used and the person using it knows it is untrue. 607 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 634 of 677 A declaration is "material" if it relates to a matter of significance or importance as distinguished from a minor or insignificant or trivial detail. The Government does not have to show that it was deprived of any tax because of the false return, or that additional tax is due. It only has to prove that the Defendant aided and abetted the filing of a materially false return, which the Defendant knew violated the law. ANNOTATIONS AND COMMENTS 26 U.S.C. § 7206(2) provides: [Any person who] [w]illfully aids or assists in, or procures, counsels, or advises the preparation or presentation under, or in connection with any matter arising under, the Internal Revenue laws, of a return, affidavit, claim, or other document, which is fraudulent or is false as to any material matter, whether or not such falsity or fraud is within the knowledge or consent of the person authorized or required to present such return, affidavit, claim, or document [shall be guilty of an offense against the United States]. d we e , vi 226 017 7/2 7/2 0 Maximum Penalty: Three (3) years imprisonment and $250,000 fine (or $500,000 in the case of a corporation). See 26 U.S.C. § 7206 and 18 U.S.C. § 3571. 4 16. No Section 7206(2) requires willfulness. A willful violation of § 7206(2) has been defined as the voluntary, intentional violation of a known legal duty. Since this instruction incorporates this definition of willfulness in its elements, the committee does not believe that it is necessary to also include Basic Instruction 9.1B for this offense. The issue of "materiality" is for the jury, not the court. United States v. Gaudin, 515 U.S. 506, 115 S. Ct. 2310 (1995). 608 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 635 of 677 110 False Tax Return, List, Account, or Statement 26 U.S.C. § 7207 It’s a Federal crime to willfully and knowingly file a materially false Federal income-tax return. The Defendant can be found guilty of this crime only if all the following facts are proved beyond a reasonable doubt: (1) the Defendant filed an [income-tax return] [a list] [an account] [a statement] that was false in a material way as charged in the indictment; (2) when the Defendant filed the [return] [list] account] [statement], [he] [she] knew it was false; and (3) when the Defendant did so, he acted with the intent to do something [he] [she] knew the law forbids. d we 017 7/2 7/2 0 A declaration is "false" if it is untrue when made the person making it e , vi 226 knows it is untrue. A declaration contained within a document is "false" if it is 4 16. A declaration is "material" if it relates to a matter of significance or No untrue when the document is used and the person using it knows it is untrue. importance, not some minor, insignificant, or trivial detail. The Government does not have to show that any taxes were not paid because of the false return or that any additional taxes are due. It only has to show that the Defendant filed a materially false [return] [list] account] [statement], which Defendant knew violated the law. ANNOTATIONS AND COMMENTS 26 U.S.C. § 7207 provides: Any person who willfully delivers or discloses to the Secretary [of the Treasury] any list, return, account, statement, or other document, known by 609 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 636 of 677 him to be fraudulent or to be false as to any material matter, [shall be guilty of a crime against the United States]. Any person required pursuant to section 6047(b), section 6104(d), or subsection (i) or (j) of section 527 to furnish any information to the Secretary or any other person who willfully furnishes to the Secretary or such other person any information known by him to be fraudulent or to be false as to any material matter [shall be guilty of a crime against the United States]. Maximum Penalty: One (1) year imprisonment and $10,000 fine (or $50,000 in the case of a corporation). See 26 U.S.C. § 7207 and 18 U.S.C. § 3571. The issue of "materiality" is for the jury, not the Court. United States v. Gaudin, 515 U.S. 506, 115 S. Ct. 2310, 132 L. Ed. 2d 444 (1995). It is not necessary, however, for the Government to prove that any additional tax was due. Boulware v. United States, 552 U.S.421, 128 S. Ct. 1168, 1178 n. 2 (2008). When a defendant asserts a "good-faith" defense, the defendant is entitled to the following charge: Good-faith is a complete defense to the charges in the indictment since good faith on the part of the defendant is inconsistent with the charge of tax evasion and the elements of this crime. The Government must establish beyond a reasonable doubt each and every element of the offense. Therefore, if a defendant believes in good-faith that he is acting within the law, he cannot be found guilty of the offense charged in the indictment. This is so even if the defendant’s belief was not objectively reasonable as long as he held the belief in good-faith. Nevertheless, you may consider whether the defendant’s belief about the tax statutes was actually reasonable as a factor in deciding whether he held that belief in good faith. d we e , vi 226 017 7/2 7/2 0 4 16- A willful violation of § 7207 has been defined as the Section 7207 requires . No willfulness. voluntary, intentional violation of a known legal duty. Since this instruction incorporates this United States v. Dean, 487 F.3d 840 (11th Cir.2007). definition of willfulness in its elements, the committee does not believe that it is necessary to also include Basic Instruction 9.1B for this offense. 610 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 637 of 677 111 Impeding Internal Revenue Service 26 U.S.C. § 7212(a) It’s a federal crime to [corruptly] [forcibly] [try to intimidate or impede any officer or employee of the United States acting in an official capacity under the Internal Revenue laws] [try to obstruct or impede the proper administration of the Internal Revenue laws]. The Defendant can be found guilty of this crime only if all the following facts are proved beyond a reasonable doubt: (1) the Defendant knowingly tried to obstruct or impede the due administration of the Internal Revenue laws; and 017for a wrongful [To act “corruptly” means to act knowingly and dishonestly 7/2 2 07/ purpose.] d we [To act “forcibly” means to vie physical force or threats of force, , use 226 including any threatening-letter or other communication. 4 16 . “Threats of force” means threats of bodily harm to an Internal Revenue No (2) the Defendant did so [corruptly] [forcibly]. Officer or members of [his] [her] family.] To “try to obstruct or impede” is to consciously attempt to act, or to take some step to hinder, prevent, delay, or make more difficult the proper administration of the Internal Revenue laws. The Government does not have to prove that the administration of the Internal Revenue laws was actually obstructed or impeded. It only has to prove that the Defendant corruptly tried to do so. The indictment alleges multiple methods in which the crime can be committed but the Government doesn’t have to prove all of them. 611 The Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 638 of 677 Government only has to prove beyond a reasonable doubt that the Defendant used any one of those methods with the corrupt intent to obstruct and impede the proper administration of the Internal Revenue laws. But you must all agree on which method the Defendant corruptly used. ANNOTATIONS AND COMMENTS 26 U.S.C. § 7212(a) provides: Whoever corruptly or by force or threats of force (including any threatening letter or communication) endeavors to intimidate or impede any officer or employee of the United States acting in an official capacity under this title, or in any other way corruptly or by force or threats of force (including any threatening letter or communication) obstructs or impedes, or endeavors to obstruct or impede, the due administration of this title, [shall be guilty of an offense against the United States]. 017 Maximum Penalty: Three (3) years imprisonment and applicable fine. 7/2 2 07/ d we e , vi 226 4 16. No 612 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 639 of 677 112 Evading a Currency-Transaction Reporting Requirement (While Violating Another Law) by Structuring Transaction 31 U.S.C. §§ 5322(b) and 5324(a)(3) It’s a Federal crime under certain circumstances for anyone to knowingly evade a currency-transaction reporting requirement. Domestic financial institutions and banks (with specific exceptions) must file currency-transaction reports (Form 4789) with the Government. They must list all deposits, withdrawals, transfers, or payments involving more than $10,000 in cash or currency. The Defendant can be found guilty of this crime only if all the following 017 2 7/helped to 2 the Defendant knowingly structured or 07/ structure a currency transaction; d we transaction was to the purpose of thevie , structured requirements; evade the transaction-reporting 26 [and] -42 16 . structured transaction involved one or more o Nthe domestic financial institutions; and facts are proved beyond a reasonable doubt: (1) (2) (3) (4) the currency transaction with the domestic financial institutions furthered another Federal crime [as part of a pattern of illegal activity involving more than $100,000 in a 12-month period. To "structure" a transaction means to deposit, withdraw, or otherwise participate in transferring a total of more than $10,000 in cash or currency using a financial institution or bank by intentionally setting up or arranging a series of separate transactions, each one involving less than $10,000, in order 613 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 640 of 677 to evade the currency-reporting requirement that would have applied if fewer transactions had been made. ANNOTATIONS AND COMMENTS 31 U.S.C. § 5313(a) provides: (a) When a domestic financial institution is involved in a transaction for the payment, receipt, or transfer of United States coins or currency (or other monetary instruments the Secretary of the Treasury prescribes), in an amount, denomination, or amount and denomination, or under circumstances the Secretary prescribes by regulation, the institution and any other participant in the transaction the Secretary may prescribe shall file a report on the transaction at the time and in the way the Secretary prescribes. A participant acting for another person shall make the report as the agent or bailee of the person and identify the person for whom the transaction is being made. 017 7/2 (a) Domestic coin and currency transactions involving financial 2 institutions. - - No person shall for the purpose7 evading the reporting 0 of/ prescribed under requirements of section 5313(a) or 5325 or any regulation d any such section - we e , *vi* * * 226 4 (3) structure or assist in structuring, or attempt to structure or 16- any transaction with one or more domestic assist o.structuring, Nin financial institutions. 31 U.S.C. § 5324(a)(3) and (c)(2) provides: * * * * (c) Criminal penalty. - (1) In general. - - Whoever violates this section shall be fined in accordance with title 18 United States Code, imprisoned for not more than 5 years, or both. (2) Enhanced penalty for aggravated cases. - - Whoever violates this section while violating another law of the United States . . . shall be fined twice the amount provided in subsection (b)(3) (as the case may be) of section 3571 of title 18, United States Code, imprisoned for not more than 10 year, or both. In Ratzlaf v. United States, 510 U.S. 135, 114 S. Ct. 655, 126 L. Ed. 2d 615 (1994), the Court held that the Government must prove that the Defendant knew that the structuring was unlawful, but Congress then amended § 5324(c) eliminating the word “willfully.” Thus, willfulness is no longer an element of the offense. See Blakely v. United States, 276 F.3d 853, 875 n. 10 (6th Cir. 2002). 113 614 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 641 of 677 113 Knowing Discharge of a Pollutant in Violation of the Clean Water Act 33 U.S.C. § 1311(a) 33 U.S.C. § 1319(c)(2)(A) It is a Federal crime for any person to knowingly violate a permit condition or limitation or a National Pollutant Discharge Elimination System ("NPDES") permit issued by the federal Environmental Protection Agency or by an authorized state agency such as [name state agency]. Any person who knowingly discharges a pollutant in violation of a NPDES permit commits a crime. The defendant(s) here is (are) accused of 017 72 waterway], a water of the United States, in violation of/the defendant('s) (s’) 2 07/ d NPDES permit. we e , vi To find a defendant guilty of the Count(s) of the Indictment, you must find 226 4 each of the following 16- has been proved by the Government beyond a events . No reasonable doubt: knowingly discharging or causing the discharge of a pollutant into [name (1) That on or about the dates alleged in the indictment, the defendant knowingly discharged or caused a discharge of a pollutant that is specified in the applicable NPDES permit; (2) the defendant knew that the discharge contained the pollutant specified; (3) the discharge was into a water of the United States; that is, that [name waterway] was a navigable waterway or a stream or tributary that flowed directly or indirectly into a navigable waterway; (4) the discharge was in violation of the NPDES permit of the defendant. The Government does 615 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 642 of 677 not have to prove that the defendant knew the terms of the permit. For purposes of the Act, the term "navigable waterway" means a body of water that has a significant connection to waters that are or were navigable in fact or that could reasonably be made so. A "significant connection" is found when the discharge enters a water that, either alone or in combination with similarly situated lands in the region, significantly affects the chemical, physical, and biological integrity of other waters that are more readily navigable. The Government does not have to prove that the [name of waterway] that received the discharge is itself navigable in fact. 017 7/2 2 caused any harm to the waterway in order to prove a criminal offense. 07/ d we find that the defendant acted To convict the defendant, youemust , vi knowingly. An act is done “knowingly” if it is done purposely and voluntarily, 226 4 16- or accidentally. A person acts "knowingly" if that . as opposed to mistakenly No The Government does not have to prove that the discharge in question person acts consciously and with awareness and comprehension, and not because of ignorance, mistake, misunderstanding, or other similar reasons. Knowledge may be established by direct or circumstantial evidence. “Pollutant” is defined by the Clean Water Act to mean dredged soil, 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. 616 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 643 of 677 ANNOTATIONS AND COMMENTS 33 U.S.C. § 1311 (a) states: (a) Illegality of pollutant discharges except in compliance with law. Except as in compliance with this section and sections 1312, 1316, 1317, 1328, 1342, and 1344 of this title, the discharge of any pollutant by any person shall be unlawful. 33 U.S.C. § 1319(c)(2)(A) states: (c) Criminal penalties (2) Knowing violations Any person who– (A) knowingly violates section 1311, 1312, 1316, 1317, 1318, 1321(b)(3), 1328, or 1345 of this title, or any permit condition or limitation implementing any of such sections in a permit issued under section 1342 of this title by the Administrator or by a State, or any requirement imposed in a pretreatment program approved under section 1342(a)(3) or 1342(b)(8) of this title or in a permit issued under section 1344 of this title by the Secretary of the Army or by a State; d we 017 7/2 7/2 0 shall be punished by a fine of not less than $5,000 nor more than $50,000 per day of violation, or by imprisonment for not more than 3 years, or by both. If a conviction of a person is for a violation committed after a first conviction of such person under this paragraph, punishment shall be by a fine of not more than $100,000 per day of violation, or by imprisonment of not more than 6 years, or by both. e , vi 226 4 16- (11th Cir. 2007); citing Rapanos v. U.S., 547 U.S. 715, 126 U.S. v. Robison, 505 o. 1208 N F.3d S. Ct. 2208 (2006). 617 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 644 of 677 114 Fraudulent Receipt of V. A. Benefits 38 U.S.C. 6102(b) It’s a federal crime for anyone to get money from the Department of Veterans Affairs without being entitled to it and with intent to defraud the United States. The Defendant can be found guilty of this crime only if all the following facts are proved beyond a reasonable doubt: (1) the Defendant received money or a check without being entitled to receive it under the laws administered by the V.A.; and (2) the Defendant intended to defraud the United States. 017 /2 7personal financial gain 2 deceive or cheat someone or some agency, usually/for 07 d or to cause financial loss to someone else.e the Government doesn’t have w But e , vi to prove that anyone was actually defrauded. It only has to prove that the 226 4 Defendant intended. to defraud. 16No doesn’t have to prove the precise amount of the The Government To "intend to defraud" means to do something with the specific intent to pension benefits wrongfully received by the Defendant, but it must prove beyond a reasonable doubt that the Defendant knowingly received some substantial portion of the benefits. ANNOTATIONS AND COMMENTS 38 U.S.C. § 6102(b) provides: (b) Whoever obtains or receives any money or check under any of the laws administered by the Secretary without being entitled to it, and with intent to defraud the United States or any beneficiary of the United States, shall be fined in accordance with title 18, or imprisoned not more than one year, or both. 618 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 645 of 677 115 Falsely Representing a Social Security Number 42 U.S.C. § 408(a)(7)(B) It’s a Federal crime for anyone to intentionally deceive someone else by falsely representing a Social Security number to be the person’s own. The Defendant can be found guilty of this crime only if all the following facts are proved beyond a reasonable doubt: (1) the Defendant knowingly represented to someone that the Social Security number described in the indictment had been assigned to the Defendant by the Commissioner of Social Security; (2) at the time, the Social Security number had not been assigned to the Defendant; and (3) the Defendant intended to deceive someone in order to [state purpose as alleged in the indictment]. 017 7/2 7/2 d0 emeans to act deliberately for the To “act with intent to deceive” simply w vie purpose of misleading someone. , the Government does not have to prove 226But 4 that someone was actually misled or deceived. 16. No ANNOTATIONS AND COMMENTS 42 U.S.C. § 408(a)(7)(B) provides: Whoever - (B) with intent to deceive, falsely represents a number to be the social security account number assigned by the Commissioner of Social Security to him or to another person, when in fact such number is not the social security account number assigned by the Commissioner of Social Security to him or to such other person [shall be guilty of an offense against the United States]. Maximum Penalty: Five (5) years imprisonment and applicable fine. 619 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 646 of 677 116 Forceful Intimidation Because of Race: Occupancy of Dwelling (No Bodily Injury) 42 U.S.C. § 3631 It’s a Federal crime to use force or threats of force to willfully intimidate or interfere with another person because of that person’s race and because the person has been occupying any dwelling. The Defendant can be found guilty of this crime only if all the following facts are proved beyond a reasonable doubt: (1) the Defendant used force or threats of force to intimidate or interfere with, or to attempt to intimidate or interfere with, [the person or people named in the indictment]; (2) the Defendant did so because of the [victm’s] [victims’] race and because [he] [she] [they] [was] [were] occupying a dwelling; and (3) the Defendant did so knowingly and willfully. d we 017 7/2 7/2 0 e , vithe act was done voluntarily, for a bad The term “willfully” means6 22 that 4 purpose, and in disregard of the law. A person did not have to know the 16. No being violated, but must have acted with the intent to do specific law or rule something the law forbids. To use "force" means to do something that causes another person to act against the person’s will. To use a "threat of force" or to "intimidate" or "interfere with" means to intentionally say or do something that would cause a person of ordinary sensibilities under the same circumstances to be fearful of bodily harm if the person didn’t comply. A "dwelling" includes anyplace where people ordinarily live or reside. 620 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 647 of 677 ANNOTATIONS AND COMMENTS 42 U.S.C. § 3631 provides: Whoever, whether or not acting under color of law, by force or threat of force willfully injures, intimidates or interferes with . . . (a) any person because of his race . . . and because he is or has been . . . occupying . . . any dwelling [shall be guilty of an offense against the United States]. Maximum Penalty: One (1) year imprisonment and $100,000 fine without bodily injury; Ten (10) years imprisonment and $250,000 fine with bodily injury and/or use of a dangerous weapon, explosive, or fire; or any term of years up to life imprisonment and $250,000 fine if death results or if such acts include kidnapping, aggravated sexual assault or an attempt to kill. See 42 U.S.C. § 3631 and 18 U.S.C. § 3571. d we e , vi 226 4 16. No 621 0 017 7/2 7/2 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 648 of 677 117 Controlled Substances: Possession on United States Vessel 46 U.S.C. § 70503(a) It’s a Federal crime for anyone [on board a vessel of the United States] [on board a vessel subject to the jurisdiction of the United States] [who is a citizen of the United States or a resident alien of the United States on board any vessel] to knowingly possess a controlled substance with intent to distribute it. [Substance] is a controlled substance within the meaning of the law. The Defendant can be found guilty of this crime only if each of the following facts is proved beyond a reasonable doubt: (1) d we (2) (3) (4) 017 7/2 7/2 the Defendant [was on board a vessel of the United States] [was on board a vessel subject to the jurisdiction of the United States] [is a citizen of the United States or a resident alien of the United States and was on board any vessel]; 0 e , vi knowingly possessed the Defendant 226 [substance]; 4 16o. Nthe Defendant intended to distribute the [substance]; and the weight of the [substance] was more than [threshold]. A "vessel of the United States" means: • any vessel documented under the laws of the United States; • any vessel owned in whole or in part by a citizen or a corporation of the United States and not registered or documented by some foreign nation; or • a vessel that was once documented under the laws of the United States and was unlawfully sold to a noncitizen or placed under foreign registry or a foreign flag, whether or not the vessel has been granted the nationality of a foreign nation. 622 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 649 of 677 A "vessel subject to jurisdiction of the United States" includes: • any vessel without nationality: a vessel that purports to sail under the flags of two or more nations may be treated as a vessel without nationality; or • a vessel registered in a foreign nation that has consented or waived objection to the enforcement of U.S. law by the United States; or • a vessel located within the customs waters of the United States; or • a vessel located in the territorial waters of another nation that consents to the enforcement of U.S. law by the United States. [The term "customs waters of the United States" includes all water within 017 72 To "possess with intent to distribute" means/ to knowingly have 2 07/ someone else, even with d something while intending to deliver or transfer it to we e , vi no financial interest in the transaction. 226 4 [The Defendant[s] [is] [are] charged in the indictment with [distributing] 16o. Nintent to distribute] a certain quantity or weight of the alleged [possessing with 14 miles of the coast of the United States.] controlled substance[s]. But you may find [the] [any] Defendant guilty of the offense if the quantity of the controlled substance[s] for which [he] [she] should be held responsible is less than the amount or weight charged. Thus the verdict form prepared with respect to [the] [each] Defendant, as I will explain in a moment, will require that if you find [the] [any] Defendant guilty, you must specify on the verdict your unanimous finding concerning the weight of the controlled substance attributable to the Defendant]. 623 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 650 of 677 ANNOTATIONS AND COMMENTS 46 U.S.C. § 70503 provides: (a) Prohibitions – An individual may not knowingly or intentionally manufacture or distribute, or possess with intent to manufacture or distribute, a controlled substance on board -(1) a vessel of the United States or a vessel subject to the jurisdiction of the United States; or (2) any vessel if the individual is a citizen of the United States or a resident alien of the United States 19 U.S.C. § 1401(j) provides: (j) The term "customs 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 case of every other vessel, the waters within four leagues of the coast of the United States. d we e , vi 226 017 7/2 7/2 0 46 U.S.C. § 70503 was formerly codified at 46 U.S.C. § 1903 4 16. No "Vessel of the United States" means any vessel documented under the laws of the United States, or numbered as provided by the Federal Boat Safety Act of 1971, as amended, or owned in whole or in part by the United States or a citizen of the United States, or a corporation created under the laws of the United States, or any State, Territory, District, Commonwealth, or possession thereof, unless the vessel has been granted nationality by a foreign nation in accordance with article 5 of the Convention on the High Seas, 1958. 46 U.S.C. § 70503(b). Maximum Penalty: Varies depending upon nature and weight of substance involved. See 21 U.S.C. § 960. The offense of Possession of a Controlled Substance on a United States Vessel in Customs Waters, formerly codified at 21 U.S.C. § 955a(c) is now codified as part of 46 U.S.C. § 1903 by virtue of Congress including "a vessel located within the customs waters of the United States" as part of the definition for a "vessel subject to jurisdiction of the United States." 46 U.S.C. § 1903(c)(1)(D). Evidence may support a deliberate indifference instruction. See Special Instruction 8. Vessel sailing under the flag/authority of two or more states is a "vessel assimilated to a vessel without nationality." United States v. Matute, 767 F.2d 1511, 1512–13 (11th Cir.1985). 624 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 651 of 677 Where the indictment alleges a factor that would enhance the possible maximum punishment applicable to the offense, that factor should be stated as an additional element in the instructions under the principle of Apprendi v. New Jersey, 530 U.S. 466, 490 (2000). In such case it may also be appropriate to give a lesser included offense instruction, Special Instruction 10. The Committee has omitted the word “willfully” which was previously used in this instruction. “Willfully” is not used in the statute, and the essence of the offense is a knowing possession of a controlled substance with an intent to distribute it. The Committee has concluded that the use of the term “willfully” does not add clarity or certainty, and relying instead on the words “knowingly” and “intentionally” more closely comports with the legislative intent. The Committee recognizes - - and cautions - - that sentence enhancing factors subject to the principle of Apprendi, including weights of controlled substances under 21 U.S.C. § 841(b), are not necessarily “elements” creating separate offenses for purposes of analysis in a variety of contexts. See United States v. Sanchez, 269 F.3d 1250, 1278 n.51 (11th Cir. 2001), abrogated in part, United States v. Duncan, 400 F.3d 1297, 1308 (11th Cir. 2005); see also United States v. Underwood, 446 F.3d 1340, 1344-45 (11th Cir. 2006). Even so, the lesser included offense model is an appropriate and convenient procedural mechanism for purposes of submitting sentence enhancers to a jury when required by the principle of Apprendi. This would be especially true in simpler cases involving single Defendants. See Special Instruction 10 and the verdict form provided in the Annotations And Comments following that instruction. If the lesser included offense approach is followed, using Special Instruction 10 and its verdict form, then the bracketed language in this instruction explaining the significance of weights and the use of a special verdict form specifying weights, should be deleted. 017 7/2 7/2 0 ed w Alternatively, in more complicated cases, iif the bracketed language in this instruction v e instructions, followed by use of the special concerning weights is made a part of the overall verdict form below, then the Third element of the instructions defining the offense should 26, verdict that may be used in such cases. 42 be deleted. The following is a-form of special . 16 Special Verdict No 1. We, the Jury, find the Defendant [name of Defendant] as charged in Count [One] of the indictment. [Note: If you find the Defendant not guilty as charged in Count [One], you need not consider paragraph 2 below.] 2. We, the Jury, having found the Defendant guilty of the offense charged in Count [One], further find with respect to that Count that [he] [she] [distributed] [possessed with intent to distribute] [conspired to possess with intent to distribute] the following controlled substance[s] in the amount[s] shown (place an X in the appropriate box[es]): [(a) Marijuana - (i) Weighing 1000 kilograms or more (ii) Weighing 100 kilograms or more (iii) Weighing less than 100 kilograms G G G] [(b) Cocaine - (i) Weighing 5 kilograms or more (ii) Weighing 500 grams or more (iii) Weighing less than 500 grams G G G] [(c) Cocaine base (“crack” cocaine) - (i) Weighing 50 grams or more G 625 Appeal: 16-4226 Doc: 48-2 (ii) (iii) Filed: 07/27/2017 Pg: 652 of 677 G G] Weighing 5 grams or more Weighing less than 5 grams SO SAY WE ALL. Foreperson Date: Multiple sets of the two paragraphs in this Special Verdict form will be necessary in the event of multiple counts of drug offenses against the same Defendant. d we e , vi 226 4 16. No 626 0 017 7/2 7/2 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 653 of 677 118 Assaulting or Intimidating a Flight Crew of an Aircraft in United States: Without Dangerous Weapon 49 U.S.C. § 46504 It’s a Federal crime to [assault] [intimidate] a flight-crew member or attendant on an aircraft in flight in the United States. The Defendant can be found guilty of this crime only if all the following facts are proved beyond a reasonable doubt: (1) the Defendant was on an aircraft in flight in the United States; (2) the Defendant knowingly [assaulted] [intimidated] a flight-crew member or flight attendant of the aircraft; and (3) the [assault] [intimidation] interfered with or lessened the ability of the crew member or flight attendant to perform [his] [her] duties. d we 017 7/2 7/2 0 An aircraft is “in flight” from the moment all external doors are closed e , vi 226 after the passengers have boarded through the moment when one external 4 16. crime, an aircraft does not have to be airborne to be in flight. No door is opened to allow passengers to leave the aircraft. For purposes of this [An “assault” may be committed without actually touching or hurting another person. An assault occurs when a person intentionally attempts or threatens to hurt someone else and has an apparent and immediate ability to carry out the threat, such as by pointing or brandishing a dangerous weapon or device.] [To “intimidate” someone is to intentionally say or do something that would cause a person of ordinary sensibilities to fear bodily harm. It’s also to say or do something to make another person fearful or make that person 627 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 654 of 677 refrain from doing something that the person would otherwise do – or do something that the person would otherwise not do.] ANNOTATIONS AND COMMENTS 49 U.S.C. § 46504 provides: An individual on an aircraft in the special aircraft jurisdiction of the United States who, by assaulting or intimidating a flight crew member or flight attendant of the aircraft, interferes with the performance of the duties of the member or attendant or lessens the ability of the member or attendant to perform those duties, shall be fined under title 18, imprisoned for not more than 20 years, or both. Maximum Penalty: Twenty (20) years imprisonment and $250,000 fine. 017 7/2 7/2 “Aircraft in flight” and other definitions are set forth in 49 U.S.C. § 46501. Note that the definition of the “special aircraft jurisdiction of the United States” varies depending upon whether the aircraft is owned by the United States and whether the aircraft is in or outside the United States. This charge is based upon the aircraft not being owned by the United States but being in the United States. d we e , vi 226 0 This statute does not require any showing of specific intent. United States v. Grossman, 131 F.3d 1449 (11th Cir. 1997). 4 16. No If venue problems are raised, see United States v. Hall, 691 F.2d 48 (1st Cir. 1982). Further, this case held the offense was committed so long as the crew was responding to defendant’s behavior in derogation of their ordinary duties. 628 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 655 of 677 119 Attempting to Board Air Craft with Concealed Weapon or Explosive Device 49 U.S.C. § 46505(b) It’s a Federal crime to attempt to either (1) board an aircraft involved in air transportation while carrying a concealed deadly or dangerous weapon, or (2) have an explosive placed aboard an aircraft involved in air transportation. The Defendant can be found guilty of this crime only if all the following facts are proved beyond a reasonable doubt: (1) the Defendant attempted to board an aircraft; (2) the Defendant knowingly [had on or about [his] [her] person a concealed dangerous weapon that [he] [she] could have reached in flight if [he] [she] had boarded the aircraft] [attempted to have an explosive device placed aboard the aircraft ]. [and] [(3) d we 017 7/2 7/2 0 the Defendant acted willfully and with reckless disregard for the safety of human life.] ve , to iknowingly take some substantial step To "attempt" an act means 226 -4 toward accomplishing 6 act so the act will occur unless interrupted or 1 the . Noevent or condition. frustrated by some An item is "concealed" if it is hidden from ordinary view. The term “willfully” means that the act was done voluntarily, for a bad purpose, and in disregard of the law. A person did not have to know the specific law or rule being violated, but must have acted with the intent to do something the law forbids. “Reckless disregard for the safety of human life” means more than mere negligence or more than the failure to use reasonable care by the Defendant. Instead, the Government must prove that the defendant acted with gross 629 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 656 of 677 negligence and with the knowledge that his or her conduct was a threat to the life of another or with knowledge of such circumstances that would reasonably make it possible for the Defendant to foresee the peril that his or her act might create for another person. ANNOTATIONS AND COMMENTS 49 U.S.C. § 46505(b) provides: “[a]n individual shall be fined under title 18, imprisoned for not more than ten years, or both, if the individual - (1) when on, or attempting to get on, an aircraft in, or intended for operation in, air transportation, has on or about the individual or the property of the individual a concealed dangerous weapon that is or would be accessible to the individual in flight; 017 (2) has placed, attempted to place, or attempted to have placed a loaded 7/2 in flight; or firearm on that aircraft in property not accessible to /2 07passengers d (3) has on or about the individual, or we placed, attempted to place, or has e attempted to have placed on that aircraft, an explosive or incendiary device. , vi 6 Maximum Penalty: Ten years imprisonment and $250,000 fine. See 49 U.S.C. § 4605(b) 223571. If an individual violates subsection (b) “willfully and 186-4 § U.S.C. and 1 for the human . without regardsafety ofsafety of life, “thelife, or with reckless o maximum term of Ndisregard for isthe years and, ifhuman results to any person, any term imprisonment 20 death of imprisonment including life.” See 49 U.S.C. § 46505(c). The third element is in brackets because it is a sentencing issue. It should be included as an element only when charged in the indictment. 630 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 657 of 677 d we 0 017 7/2 7/2 TRIAL INSTRUCTIONS e , vi 226 4 16. No 631 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 658 of 677 INDEX TO TRIAL INSTRUCTIONS Instruction Number 1 2 3 4 5 6 Cautionary Instruction - Similar Acts Evidence (Rule 404(b), Fed. R. Evid.) 633 Explanatory Instruction - Prior Statement or Testimony of a Witness 635 Explanatory Instruction - Transcript Of Tape Recorded Conversation 636 017 Explanatory Instruction - Role of 7/2 2 Interpreters 07/ d we Modified Allen Charge e , vi 226 6-4 638 639 o. 1 Forfeiture Proceedings (To be given before supplemental N evidentiary proceedings or supplemental arguments of counsel) 632 642 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 659 of 677 1 Cautionary Instruction Similar Acts Evidence (Rule 404(b), Fed. R. Evid.) You have just heard evidence of acts of the Defendant that may be similar to those charged in the indictment, but were committed on other occasions. You must not consider this evidence to decide if the Defendant committed the acts charged in the indictment. But you may consider this evidence for other – very limited – purposes. If you find beyond a reasonable doubt from other evidence that 017 7/2 2 may consider evidence of similar acts allegedly committed on other 07/ d we occasions to decide whether: ie 6, v 2 • the Defendant had the state of mind or intent necessary to -42 commit the crime charged in the indictment; . 16 No the Defendant committed the acts charged in the indictment, then you • the Defendant had a motive or the opportunity to commit the acts charged in the indictment; • the Defendant acted according to a plan or in preparing to commit a crime; • the identity of the Defendant has been established as the perpetrator of the crime charged in the indictment; or • the Defendant committed the acts charged in the indictment by accident or mistake. 633 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 660 of 677 ANNOTATIONS AND COMMENTS Rule 404. [FRE] Character Evidence Not Admissible To Prove Conduct; Exceptions; Other Crimes * * * * * (b) Other crimes, wrongs, or acts. - - Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial. 017 denied, 440 United States v. Beechum, 582 F.2d 898 (5th Cir. 1978) en banc, cert. 7/2 length the tests to be U.S. 920, 99 S.Ct. 1244, 59 L.Ed.2d 472 (1979), discusses at 7/2 0under Rule 404(b); and, more applied in admitting or excluding evidence d specifically, the different standards that apply depending upon the purpose of the we e evidence, i.e., to show intent versusiidentity, for example. See id. at 911-12 n. 15. , vinstruction similar to this one. See note 23 at Beechum also approves a 26 limiting pages 917-18. -42 . 16 No 634 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 661 of 677 2 Witness’s Prior Statement or Testimony Explanatory Instruction Members of the Jury: If a witness is questioned about earlier statements or testimony the witness made, the questioning is permitted to aid you in evaluating the truth or accuracy of the witness's testimony at this trial. A witness’s earlier testimony or statements are not ordinarily offered or received as evidence of their truth or accuracy. They are pointed out 017 7/2 7/2 to give you a comparison and to help you decide whether you believe the witness's testimony. d we 0 Whether those prior statements are consistent or inconsistent with ve , is ientirely up to you. the witness’s trial testimony 226 6-4 1additional instructions at the end of the trial about a I’ll giveo. you N number of things you may consider to determine the credibility or believability of the witnesses and the weight to give their testimony. 635 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 662 of 677 3 Explanatory Instruction Transcript of Tape Recorded Conversation Members of the Jury: Exhibit has been identified as a typewritten transcript [and partial translation from Spanish into English] of the oral conversation heard on the tape recording received in evidence as Exhibit . [The transcript also purports to identify the speakers engaged in the conversation.] 017 7/2 2 helping you follow the content of the conversation as you listen to the 07/ ed wportions spoken in Spanish,] [ and tape recording [, particularly vie , those 6 22the speakers.] 4 also to help you identify 16. No are specifically instructed that whether the transcript But you I’ve admitted the transcript for the limited and secondary purpose of correctly reflects the content of the conversation [or the identity of the speakers] is entirely for you to decide based on [your own evaluation of the testimony you have heard about the preparation of the transcript, and from] your own examination of the transcript in relation to hearing the tape recording itself as the primary evidence of its own contents. If you determine that the transcript is in any respect incorrect or unreliable, you should disregard it to that extent. 636 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 663 of 677 ANNOTATIONS AND COMMENTS United States v. Nixon, 918 F.2d 895 (11th Cir. 1990), held that transcripts are admissible in evidence, including transcripts that purport to identify the speakers, and specifically approved the text of this instruction as given at the time the transcripts were offered and received. d we e , vi 226 4 16. No 637 0 017 7/2 7/2 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 664 of 677 4 Explanatory Instruction Role of the Interpreter We seek a fair trial for all regardless of what language they speak. We are going to have an interpreter assist us through these proceedings, and you should know what [she] can do and what [she] cannot do. Basically, the interpreter is here only to help us communicate during the proceedings. [She] is not a party in the case, has no interest in the case, and will be completely neutral. Accordingly, [she] is not working for either party. The interpreter's sole responsibility is to enable 017 7/2 as if the witness 2 Treat the interpreter of the witness's testimony 07/ d we was present. Do not allow the had spoken English and no interpreter e , vi 26 fact that testimony-is 2 given in a language other than English influence 4 16 . you in any way. No us to communicate with each other. If any of you understand the language of the witness, disregard completely what the witness says in [her] language. Consider as evidence only what is provided by the interpreter in English. If you think an interpreter has made a mistake, you may bring it to the attention of the Court, but you should make your deliberations on the basis of the official interpretation. 638 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 665 of 677 5 Modified Allen Charge Members of the Jury: I'm going to ask that you continue your deliberations in an effort to agree on a verdict and dispose of this case. And I have a few additional comments I’d like for you to consider as you do so. This is an important case. The trial has been expensive in time, effort, money, and emotional strain to both the defense and the 017 7/2 2 and may have to be tried again. Obviously, another trial would only 07/ d wethere is no reason to believe that increase the cost to both sides,e , vi and 226 the case can be-4 tried again by either side any better or more 16 . No than it has been tried before you. exhaustively prosecution. If you fail to agree on a verdict, the case will be left open Any future jury must be selected in the same manner and from the same source as you were chosen. There is no reason to believe that the case could ever be submitted to twelve people more conscientious, more impartial, or more competent to decide it – or that more or clearer evidence could be produced. If a substantial majority of you are in favor of a conviction, those of you who disagree should reconsider whether your doubt is a 639 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 666 of 677 reasonable one since it appears to make no effective impression upon the minds of the others. On the other hand, if a majority or even a smaller number of you are in favor of an acquittal, the rest of you should ask yourselves again – and most thoughtfully – whether you should accept the weight and sufficiency of evidence that fails to convince your fellow jurors beyond a reasonable doubt. Remember at all times that no juror is expected to give up an honest belief about the weight and effect of the evidence. But after fully 017 7/2 7/2 considering the evidence in the case you must agree upon a verdict if you can. d we e , vi 226 0 You must also remember that if the evidence fails to establish 4 16. No unanimous verdict of Not Guilty. guilt beyond a reasonable doubt, the Defendant must have your You should not be hurried in your deliberations and should take all the time you feel is necessary. I now ask that you retire once again and continue your deliberations with these additional comments in mind. Apply them in conjunction with all the other instructions I have previously given to you. ANNOTATIONS AND COMMENTS 640 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 667 of 677 United States v. Elkins, 885 F.2d 775, 783 (11th Cir. 1989), cert. denied, 494 U.S. 1005, 110 S.Ct. 1300, 108 L.Ed.2d 477 (1990). "This circuit allows the use of Allen charges." United States v. Chigbo, 38 F.3d 543, 544-545 (11th Cir. 1994),cert. denied, 516 U.S. 826, 116 S.Ct. 92, 133 L.Ed.2d 48 (1995) approved a charged substantively indistinguishable from this one. d we e , vi 226 4 16. No 641 0 017 7/2 7/2 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 668 of 677 6 Forfeiture Proceedings (To be given before supplemental evidentiary proceedings or supplemental arguments of counsel) Members Of The Jury: Your verdict in this case doesn’t complete your jury service as it would in most cases because there is another matter you must now consider. You must decide whether the Defendant[s], , should forfeit certain [money or] property to the United States as a part of the penalty for the crime charged in Count of the indictment. 017discussed or In a portion of the indictment not previously 7/2 2 07/ disclosed to you, it is alleged that the d Defendant[s] got certain [money we e , vi offense charged in Count . In view or] property from committing the 226 -4 of your verdict 16 finding the Defendant[s] guilty of that offense, you must . No also decide whether the [money or] property should be forfeited to the United States. To “forfeit” a thing is to be divested or deprived of the ownership of it as a part of the punishment allowed by the law for certain criminal offenses. To decide whether [money or] property should be forfeited, you should consider all the evidence you have already heard plus any 642 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 additional Pg: 669 of 677 evidence that will be presented to you after these instructions. A copy of the forfeiture allegations of the indictment will be given to you to consider during your supplemental deliberations. It describes in particular the[ money or] property allegedly subject to forfeiture to the United States. [List or summarize the items subject to forfeiture] 017 doubt] [by a Government must have proved [beyond a reasonable 7/2 2 07/ preponderance of the evidence]: ed w vie No. 1 26, Option -42 . 16(Forfeitures under 18 USC § 982) No To be entitled to the forfeiture of any of those items, the First: That the [money or] property to be forfeited constitutes the proceeds the Defendant obtained directly or indirectly as the result of the crime charged in Count of the indictment; OR Second: That the [money or] property to be forfeited [was derived from] [traceable to] the proceeds the Defendant obtained directly or indirectly as the result of the crime 643 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 670 of 677 charged in Count indictment. of the Option No. 2 (RICO - 18 USC § 1963(a)) First: That the [sum of money or proceeds] [property] sought to be forfeited constituted an interest acquired by the Defendant, as charged; Second: That the interest [was acquired by the Defendant as a result of the conduct of the enterprise’s affairs through the pattern of racketeering activity] [constituted or was derived from proceeds that the Defendant obtained, directly or indirectly, from racketeering activity] committed by the Defendants as charged in Count in violation of Title 18, United States Code, § 1962(c). d we e , vi 226 017 7/2 7/2 0 4 16. No Option No. 3 (Child Pornography - 18 USC § 2253) First: That the property to be forfeited is a visual depiction, or other matter containing a visual depiction, that was [produced] [transported] [received] in violation of [cite statutory offense of conviction]. OR 644 Appeal: 16-4226 Doc: 48-2 Second: Filed: 07/27/2017 Pg: 671 of 677 That the property to be forfeited constituted, or is traceable to, gross profits or other proceeds obtained from the offense Defendant was convicted of. OR Third: That the property to be forfeited was used or intended to be used to commit or to promote committing the offense Defendant was convicted of. 017 (Drug Offenses - 21 USC § 7/2 /2 853) 7 d 0 forfeited That the property to be e ew derived from, constitutes,vor was , i the Defendant the 26 2 proceeds or indirectly, as obtained, directly 6-4 Option No. 4 First: of committing the offense o. 1 the resultin Count N charged of the indictment, OR Second: That the property to be forfeited was used, or was intended to be used, in any manner or part, to commit or to help committ, the offense charged in Count of the indictment. [Before you can find that the Defendant must forfeit any property under either of those standards, you must unanimously agree upon 645 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 672 of 677 which of the two standards should be applied in forfeiting a particular asset.] [Proof “beyond a reasonable doubt” has the same meaning that I explained to you in my instructions at the end of the trial.] OR [A “preponderance of the evidence” simply means an amount of evidence that is enough to persuade you that a claim or contention is more likely true than not true.] 017 7/2 2 property under consideration must have 07/ formed or developed out been d we descended from that source.] e of the original source so as to be directly , vi 226to something means that the [money or] 4 [To be “traceable” 16. No consideration must have followed an ascertainable property under [To be “derived” from something means that the [money or] course or trail in successive stages of development or progress from the original source.] [To “facilitate” the commission of an offense means to aid, promote, advance, or make easier, the commission of the act or acts constituting the offense. There must be more than an incidental connection between the property and the offense for you to find that the property facilitated, or was intended to facilitate, committing the offense. 646 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 673 of 677 But the property doesn’t have to be essential to committing the offense, nor does the property have to have been used exclusively to commit the offense or as the exclusive means of committing the offense. Property used to facilitate an offense can be in virtually any form.] While deliberating concerning the issue of forfeiture you must not reexamine your previous determination regarding the Defendant’s guilt. But all the instructions previously given to you concerning your consideration of the evidence, the credibility of the witnesses, your duty 017 7/2 2 evidence without prejudice, bias, or sympathy, and the necessity of a 07/ d weapply during these supplemental e unanimous verdict, will continue to , vi 226 instructions I gave you earlier concerning deliberations. [The 4 specific 16. No and the definitions of the terms “enterprise” and “pattern Count to deliberate together, your duty to base your verdict solely on the of racketeering activity” also continue to apply.] ANNOTATIONS AND COMMENTS Federal Rule of Criminal Procedure 32.2 provides (a) Notice To The Defendant. A court shall not enter a judgment of forfeiture in a criminal proceeding unless the indictment or information contains notice to the defendant that the government will seek the forfeiture of property as part of any sentence in accordance with the applicable statute. * * * * (b)(4) Upon a party’s request in a case in which a jury returns a verdict of guilty, the jury shall determine whether the government 647 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 674 of 677 has established the requisite nexus between the property and the offense committed by the defendant. 18 USC § 982, entitled “Criminal Forfeiture,” is a general statute that provides for the forfeiture of property interests as a part of the sentence for a variety of offenses enumerated in the several subsections of the statute. The definition of the nexus that must be shown to exist between the offense and the property as a prerequisite to forfeiture differs slightly from one subsection to the next: 982(a)(1) “involved in such offense” “traceable to such property” 982(a)(2) “constituting or derived from proceeds. . . obtained directly or indirectly as the result” 982(a)(3) “which represents or is traceable to the gross receipts obtained directly or indirectly as a result” 017 982(a)(4) “obtained directly or indirectly, as a7/2 result” /2 7 982(a)(5) “which represents or is traceable to the d 0 directly or gross receipts we obtained vie indirectly as a result” 26, 982(a)(6) “any conveyance . . . vessel, vehicle or -42 . 16 or used” or “constitutes or isobtained o aircraft is traceable to proceeds derived from N directly or indirectly from” or “is used to facilitate” 982(a)(7) “constitutes or is derived directly or indirectly from gross proceeds traceable to” 982(a)(8) “used to facilitate” or “constituting, derived from or traceable to” Extreme care must be taken, therefore, in adapting and tailoring elements of proof as stated in this instruction to the standards stated in the specific subsection of § 982 applicable to the case. 18 USC § 1963 (a)(RICO) provides: 648 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 675 of 677 Whoever violates any provision of section 1962 of this chapter . . . shall forfeit to the United States (1) any interest the person has acquired or maintained in violation of section 1962; (2) any interest in; security of; claim against; or property or contractual right of any kind affording a source of influence over any enterprise which the person has established, operated, controlled, conducted, or participated in the conduct of, in violation of section 1962; and (3) any property constituting, or derived from, any proceeds which the person obtained, directly or indirectly, from racketeering activity . . . in violation of section 1962. 18 USC § 2253 (Child Pornography) provides: (a) Property subject to criminal forfeiture. - - A person who is convicted of an offense under this chapter [18 U.S.C.A. § 2251 et seq.] involving a visual depiction described in section 2251, 2251A, 2252, 2252A, or 2260 of this chapter, or who is convicted of an offense under section 2421, 2422, or 2423 of chapter 117 [18 U.S.C.A. § 2421 et seq.], shall forfeit to the United States such person’s interest in - - 017 7/2 2251A, or 2 (1) any visual depiction described in section 2251, 07/ 2252 of this chapter, or any book, magazine, periodical, film, d videotape, or other matter which contains any such visual depiction, we e which was produced, transported, mailed, shipped or received in , vi violation of this chapter; 226 4 16(2) any property, real or personal, constituting or traceable to . gross o Nprofits or other proceeds obtained from such offense; and (3) any property, real or personal, used or intended to be used to commit or to promote the commission of such offense. 21 USC § 853(a) (Drug Offenses) provides: Any person convicted of a violation of this subchapter of subchapter II of this chapter [21 USC §§ 951 et seq.] punishable by imprisonment for more than one year shall forfeit to the United States, irrespective of any provision of State law - (1) any property constituting, or derived from, any proceeds the person obtained, directly or indirectly, as the result of such violation; (2) any of the person's property used, or intended to be used, in any manner or part, to commit, or to facilitate the commission of, such violation; and 649 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 676 of 677 (3) in the case of a person convicted of engaging in a continuing criminal enterprise [the defendant forfeits any interest in the enterprise itself] With respect to forfeitures under 18 USC § 982, the preponderance of the evidence standard applies. United States v. Cabeza, 258 F.3d 1256 (11th Cir. 2001) (holding also that the principle of Apprendi does not apply to forfeiture proceedings.) With respect to the Government’s burden of proof under 18 USC § 1963 (RICO), the Eleventh Circuit has not squarely decided the issue. See United States v. Goldin Industries, Inc., 219 F.3d 1271, 1278 at note 10 (11th Cir. 2000) (“The government contends for the first time on appeal that the correct burden of proof is preponderance of the evidence rather than beyond a reasonable doubt. We have never decided this issue with respect to RICO’s forfeiture provision. We need not decide the issue here. . .”) Other Circuits, however, have held that the beyond a reasonable doubt standard applies. See United States v. Pelullo, 14 F.3d 881, 906 (3d Cir. 1994) (holding that government, in a criminal forfeiture proceeding under 18 USC § 1963(a), must prove beyond a reasonable doubt that the targeted property was derived from the defendant’s racketeering activity); United States v. Horak, 833 F.2d 1235, 1243 (7th Cir. 1987). See also United States v. Houlihan, 92 F.3d 1271, 1299 at note 33 (1st Cir. 1996) (affirming district court’s instruction that the government had the burden of proving entitlement to forfeiture pursuant to 18 USC § 1963(a) beyond a reasonable doubt, but noting that “the government may have conceded too much,” and that the question was open). d we e , vi 226 017 7/2 7/2 0 4 16In United States v. Anderson, 782 F.2d 908, 918 (11th Cir. 1986), the Eleventh . Circuit held that “[a] defendant’s conviction under the RICO statute subjects all of No his interest in the enterprise to forfeiture ‘regardless of whether those assets were themselves “tainted” by use in connection with the racketeering activity.’” With respect to forfeitures sought under 21 USC §853, the Eleventh Circuit has held that the preponderance of the evidence standard applies. United States v. Elgersma, 971 F.2d 690, 697 (11th Cir. 1992) (en banc) (holding that the preponderance standard applies in § 853(a)(1) forfeitures); United States v. Dicter, 198 F.3d 1284, 1289 (11th Cir. 1999) (the preponderance of the evidence standard governs forfeitures under § 853(a)(2)). 21 USC § 853(d) creates a rebuttable presumption that property is subject to forfeiture if the Government proves by a preponderance of the evidence that the drug offender (1) acquired the property during the period of time the offense of conviction was committed, or within a reasonable time thereafter, and (2) there was no likely source for such property other than the offense. 650 Appeal: 16-4226 Doc: 48-2 Filed: 07/27/2017 Pg: 677 of 677 With respect to forfeiture proceedings under 18 USC § 2253, the statute (subsection (e)) requires proof beyond a reasonable doubt. d we e , vi 226 4 16. No 651 0 017 7/2 7/2

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.


Why Is My Information Online?