5.12 Mere Presence

            Mere presence at the scene of a crime or mere knowledge that a crime is being committed is not sufficient to establish that the defendant committed the crime of [specify crime charged].  The defendant must be a participant and not merely a knowing spectator.  The defendant’s presence may be considered by the jury along with other evidence in the case.

Comment

            Such a “mere presence” instruction is unnecessary if the government’s case is not solely based on the defendant’s presence and the jury has been instructed on the elements of the crime. See United States v. Tucker, 641 F.3d 1110, 1122 (9th Cir. 2011); see also United States v. Gooch, 506 F.3d 1156, 1160 (9th Cir. 2007). 

Revised Sept. 2018