8.35 SMUGGLING OR ATTEMPTING TO SMUGGLE GOODS
(18 U.S.C. § 545)
The defendant is charged in [Count _______ of] the indictment with [smuggling] [attempting to smuggle] in violation of Section 545 of Title 18 of the United States Code. In order for the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:
First, the defendant knowingly [smuggled] [attempted to smuggle] merchandise into the United States without declaring the merchandise for invoicing as required by United States Customs law;
Second, the defendant knew that the merchandise was of a type that should have been declared; [and]
Third, the defendant acted willfully with intent to defraud the United States[.] [; and]
[Fourth, the defendant did something that was a substantial step toward committing the crime and that strongly corroborated the defendant’s intent to commit the crime.
Mere preparation is not a substantial step toward committing the crime. To constitute a substantial step, a defendant’s act or actions must unequivocally demonstrate that the crime will take place unless interrupted by independent circumstances.
Jurors do not need to agree unanimously as to which particular act or actions constituted a substantial step toward the commission of a crime.]
See Comment in 5.5 (Willfully).
This instruction may be used when the defendant is charged with the crime of smuggling goods or attempting to smuggle goods. The bracketed fourth element should be used when defendant is charged with an attempt to smuggle goods.
This instruction relates to the first clause of the first paragraph of 18 U.S.C. § 545. If the charge is based on the second clause of the first paragraph, use Instruction 8.36 (Passing False Papers Through Customhouse). Instructions 8.37 (Importing Merchandise Illegally) and 8.38 (Receiving, Concealing, Buying or Selling Smuggled Merchandise) concern violations of the second paragraph of § 545.
See United States v. Garcia-Paz, 282 F.3d 1212, 1214-15 (9th Cir. 2002) (court properly instructed jury that marijuana constitutes "merchandise" for purposes of 18 U.S.C. § 545).
The bracketed language stating an additional element applies only when the charge is an attempt. In attempt cases, "[t]o constitute a substantial step, a defendant’s actions must cross the line between preparation and attempt by unequivocally demonstrating that the crime will take place unless interrupted by independent circumstances." United States v. Goetzke, 494 F.3d 1231, 1237 (9th Cir. 2007) (internal quotations omitted).
The "strongly corroborated" language in this instruction is taken from United States v. Snell, 627 F.2d 186, 187 (9th Cir. 1980) ("A conviction for attempt requires proof of culpable intent and conduct constituting a substantial step toward commission of the crime that strongly corroborates that intent") and United States v. Darby, 857 F.2d 623, 625 (9th Cir. 1988) (same).
Jurors do not need to agree unanimously as to which particular act or actions constituted a substantial step toward the commission of a crime. United States v. Hofus, 598 F.3d 1171, 1176 (9th Cir. 2010).
"[A] person may be convicted of an attempt to commit a crime even though that person may have actually completed the crime." United States v. Rivera-Relle, 333 F.3d 914, 921 (9th Cir. 2003).