9.1 ALIEN—BRINGING OR ATTEMPTING TO BRING TO THE UNITED STATES
 (OTHER THAN DESIGNATED PLACE)
(8 U.S.C. § 1324(a)(1)(A)(i))

The defendant is charged in [Count _______ of] the indictment with [bringing] [attempting to bring] an alien to the United States in violation of Section 1324(a)(1)(A)(i) of Title 8 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 [brought] [attempted to bring] a person who was an alien to the United States at a place other than a designated port of entry or at a place other than as designated by a United States immigration official; 

Second, the defendant knew that the person was an alien; [and]

Third, the defendant acted with the intent to violate the United States immigration laws by assisting that person to enter the United States at a time or place other than as designated by a United States immigration official[.] [; 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 a 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.]

An alien is a person who is not a natural-born or naturalized citizen of the United States.

Comment

Bringing an alien to the United States does not require that the alien be free from official restraint as is required for offenses under 8 U.S.C. § 1326 for aliens illegally reentering or being found in the United States. United States v. Lopez, 484 F.3d 1186, 1193 (9th Cir. 2007); United States v. Hernandez-Garcia, 284 F.3d 1135, 1137-38 (9th Cir.), cert. denied, 537 U.S. 932 (2002); see also Comment to Instruction 9.6 (Alien—Deported Alien Reentering United States Without Consent).

The offense of bringing an alien to the United States is a continuing offense; "although all of the elements of the ‘bringing to’ offense are satisfied once the aliens cross the border, the crime does not terminate until the initial transporter who brings the aliens to the United States ceases to transport them—in other words, the offense continues until the initial transporter drops off the aliens on the U.S. side of the border." Lopez, 484 F.3d at 1187-88. Thereafter, the offense is illegal "transport within" the United States, 8 U.S.C. § 1324(a)(1)(A)(ii). Id. at 1194-98. Lopez overrules United States v. Ramirez-Martinez, 273 F.3d 903 (9th Cir. 2001) (applying immediate destination analysis of whether the alien had reached the ultimate or intended destination within the United States); United States v. Angwin, 271 F.3d 786, 271 F.3d 786 (9th Cir. 2001) (same)). Lopez at 1191.

Aiding and abetting, involving a state-side transporter, requires proof of the specific intent to facilitate the commission of the "bringing to" offense and evidence that the state-side transporter involved himself in the bringing to offense prior to its completion. See United States v. Singh, 532 F.3d 1053, 1057-59 (9th Cir. 2008). Aiding and abetting a "bringing to" offense may take place entirely on the United States side of the border. United States v. Noriega-Perez, 670 F.3d 1033, 1039 (9th Cir. 2012).

Statutory maximum sentences under § 1324 are increased for offenses causing serious bodily injury, placing the life of any person in jeopardy, or resulting in the death of a person. In such cases, a special jury finding is required.

An alien is also defined as being a person who is not a national. In the rare event that there is an issue as to the alien being a national, the definition of alien in the last paragraph of the instruction should be modified accordingly. See 8 U.S.C. § 1101(a)(22); Perdomo-Padilla v. Ashcroft, 333 F.3d 964, 967-68 (9th Cir. 2003); United States v. Sotelo, 109 F.3d 1446, 1447-1448 (9th Cir. 1997).

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).　

Approved 4/2019

9.2 ALIEN—ILLEGAL TRANSPORTATION OR ATTEMPTED TRANSPORTATION
(8 U.S.C. § 1324(a)(1)(A)(ii)) 

The defendant is charged in [Count _______ of] the indictment with [attempted] illegal transportation of an alien in violation of Section 1324(a)(1)(A)(ii) of Title 8 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, [name of alien] was an alien; 

Second, [name of alien] was not lawfully in the United States; 

Third, the defendant [knew] [acted in reckless disregard of the fact] that [name of alien] was not lawfully in the United States; [and] 

Fourth, the defendant knowingly [transported or moved] [attempted to transport or move] [name of alien] in order to help [him] [her] remain in the United States illegally [.] [; and]

[Fifth, 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.] 

An alien is a person who is not a natural-born or naturalized citizen of the United States. An alien is not lawfully in this country if the person was not duly admitted by an immigration officer.

A person acts with reckless disregard if: (1) the person is aware of facts from which a reasonable inference could be drawn that the alleged alien was in fact an alien in the United States unlawfully; and (2) the person actually draws that inference.

Comment

See Comment to Instruction 9.1 (Alien—Bringing to the United States (Other than Designated Place)).

“Reckless disregard” is not defined in Title 8, United States Code, but the Ninth Circuit has clarified that “reckless disregard” includes both an objective prong and a subjective prong.  United States v. Rodriguez, 880 F.3d 1151, 1161 (9th Cir. 2018) (“a correct definition of ‘reckless disregard,’ consistent with Supreme Court and Ninth Circuit law, would include the defendant’s disregard of a risk of harm of which the defendant is aware.”) (internal brackets omitted).  

Statutory maximum sentences under § 1324 are increased for offenses done for commercial advantage or private financial gain, or which caused serious bodily injury, placed the life of any person in jeopardy, or resulted in the death of a person. In such cases, a special jury finding is required.

If the defendant is charged with transportation of illegal aliens resulting in deaths under 8 U.S.C. § 1324(a)(1)(A)(ii) and (a)(1)(B)(iv), the government must prove beyond a reasonable doubt that the defendant’s conduct was the proximate cause of the charged deaths. United States v. Pineda-Doval,614 F.3d 1019, 1026-28 (9th Cir. 2010). In such cases, the instruction should be modified to instruct on the proximate cause element of "resulting in death."

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). 

Approved 4/2019

9.3 ALIEN—HARBORING OR ATTEMPTED HARBORING
(8 U.S.C. § 1324(a)(1)(A)(iii)) 

The defendant is charged in [Count _______ of] the indictment with [attempted] harboring of an alien in violation of Section 1324(a)(1)(A)(iii) of Title 8 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, [name of alien] was an alien; 

Second, [name of alien] was not lawfully in the United States; 

Third, the defendant [knew] [acted in reckless disregard of the fact] that [name of alien] was not lawfully in the United States; [and] 

Fourth, the defendant [harbored, concealed, or shielded from detection] [attempted to harbor, conceal, or shield from detection] [name of alien] with intent to violate the law[.] [; and]

[Fifth, 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.] 

An alien is a person who is not a natural-born or naturalized citizen of the United States. An alien is not lawfully in this country if the person was not duly admitted by an Immigration Officer. 

A person acts with reckless disregard if: (1) the person is aware of facts from which a reasonable inference could be drawn that the alleged alien was in fact an alien in the United States unlawfully; and (2) the person actually draws that inference. 

Comment 

See Comment to Instructions 9.1 (Alien—Bringing to United States (Other than Designated Place)) and 9.2 (Alien—Illegal Transportation).

Statutory maximum sentences under § 1324 are increased for offenses done for commercial advantage or private financial gain, or which caused serious bodily injury, placed the life of any person in jeopardy, or resulted in the death of a person. In such cases, a special jury finding is required.

The defendant acts with "reckless disregard" only if "the defendant herself [is] aware of facts from which an inference of risk could be drawn and the defendant . . . actually draw[s] that inference." United States v. Tydingco, 909 F.3d 297, 304 (emphasis in original) (citing United States v. Rodriguez, 880 F.3d 1151, 1159-62 (9th Cir. 2018)).  The defendant must "intend to violate the law." Tydingco, 909 F.3d at 302-03. Prior versions of this instruction required the jury to specifically find that the defendant harbored the alien "for the purpose of avoiding the alien’s detection by immigration authorities." However, although proving that the defendant sought to avoid the alien’s detection is one way to demonstrate the requisite intent, it is not the only way. Id. at 304. "For example, a defendant who chooses to publicize her harboring of an illegal alien in order to call attention to what she considers an unjust immigration law intends to violate the law, even though she does not intend to prevent detection." Id. 

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).

"To harbor" means to provide "shelter to." Valle del Sol Inc. v. Whiting, 732 F.3d 1006, 1017 n.9 (9th Cir. 2013).

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).　　

Approved 4/2019

9.4  ALIEN—ENCOURAGING ILLEGAL ENTRY
(8 U.S.C. § 1324(a)(1)(A)(iv))

The defendant is charged in [Count _______ of] the indictment with encouraging illegal entry by an alien in violation of Section 1324(a)(1)(A)(iv) of Title 8 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, [name of alien] was an alien; 

Second, the defendant encouraged or induced [name of alien] to [come to] [enter] [reside in] the United States in violation of law; and 

Third, the defendant [knew] [acted in reckless disregard of the fact] that [name of alien]’s [coming to] [entry into] [residence in] the United States would be in violation of the law. 

An alien is a person who is not a natural-born or naturalized citizen of the United States.  An alien enters the United States in violation of law if not duly admitted by an Immigration Officer.

Comment

See Comment to Instructions 9.1 (Alien—Bringing to United States (Other than Designated Place)) and 9.2 (Alien—Illegal Transportation). 

Statutory maximum sentences under § 1324 are increased for offenses done for commercial advantage or private financial gain, or which caused serious bodily injury, placed the life of any person in jeopardy, or resulted in the death of a person.  In such cases, a special jury finding is required. 

Concerning the elements of the crime, see United States v. Sineneng-Smith, 982 F.3d 766, 776 (9th Cir. 2020). 

“Encourage” within the meaning of Section 1324(a)(1)(A)(iv) is defined “as ‘to inspire with courage, spirit, or hope . . . to spur on . . . to give help or patronage to.’”  Sineneng-Smith, 982 F.3d at 773 (quotingUnited States v. Thum, 749 F.3d 1143, 1148 (9th Cir. 2014)).  A defendant’s encouragement or inducing must be knowing.  Id. 

The scope of 8 U.S.C. § 1324(a)(1)(A)(iv) is not limited to conduct involving unlawful means (e.g., fraud, false documents, or fraud against the government) or conduct that provides no legitimate benefit to the alien.  Sineneng-Smith, 982 F.3d at 774. 

Approved 3/2021

9.5 ALIEN—BRINGING OR ATTEMPTING TO BRING
TO THE UNITED STATES (WITHOUT AUTHORIZATION)
(8 U.S.C. § 1324(a)(2)(B)(i)-(iii))

The defendant is charged in [Count _______ of] the indictment with [bringing] [attempting to bring] an alien to the United States [knowing] [in reckless disregard of the fact] that the alien has not received prior official authorization to [come to] [enter] [reside in] the United States. 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 [brought] [attempted to bring] a person who was an alien to the United States [[for the purpose of the defendant’s [commercial advantage] [private gain]] [and upon arrival did not immediately bring and present the alien to an appropriate immigration official at a designated port of entry] [with the intent or with reason to believe that the alien will commit an offense against the United States or any state punishable by imprisonment for more than one year]; 

Second, the defendant [knew] [was in reckless disregard of the fact] that the person was an alien who had not received prior official authorization to [come to] [enter] [reside in] the United States; [and]

Third, the defendant acted with the intent to violate the United States immigration laws[.] [; 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.]

An alien is a person who is not a natural-born or naturalized citizen of the United States.

Comment

See Comment to Instructions 9.1 (Alien—Bringing to the United States (Other than Designated Place)) for "aiding and abetting" and "bringing to" the United States and 9.2 (Alien—Illegal Transportation) for "reckless disregard."

This is a separate crime from 8 U.S.C. § 1324(a)(1)(A)(i) (as to that statutory provision, see Instruction 9.1). Nevertheless, the two crimes share the same elements. Both require that the alien lack prior authorization to enter the United States, but Section 1324(a)(1)(A)(i) requires that the entry be at a place not designated as a port of entry. United States v. Barajas-Montiel, 185 F.3d 947, 951 (9th Cir. 1999).

The instruction should be modified to reflect which subsection in Section 1324(a)(2)(B) is charged: (i) an offense committed with the intent or with reason to believe that the alien will commit an offense against the United States or any state punishable by imprisonment for more than one year; (ii) an offense done for the purpose of commercial advantage or private financial gain or (iii) an offense in which the alien is not upon arrival immediately brought to an appropriate immigration official at a designated port of entry. 

Commercial advantage or financial gain may be established under either the theory that, as a principal, the defendant acted for his own commercial advantage or financial gain or under the theory that he aided another individual in committing the crime for a pecuniary motive. United States v. Lopez-Martinez, 543 F.3d 509, 515-16 (9th Cir. 2008); United States v. Munoz, 412 F.3d 1043, 1046-47 (9th Cir. 2005); United States v. Tsai, 282 F.3d 690, 697 (9th Cir. 2002). If the theory of liability is aiding and abetting, the jury need not find that the defendant committed the offense for his own financial advantage. It is enough that the offense was committed for the purpose of commercial advantage and financial gain of another. Lopez-Martinez, 543 F.3d at 515-16. If the defendant is charged with aiding and abetting instead of as a principal, modify the first element by deleting the words "the defendant’s" to reflect the offense was done "for the purpose of [commercial advantage] [private financial gain]."

Statutory maximum sentences are increased for offenses involving groups of aliens in excess of 10. 8 U.S.C. § 1324(c). In such cases, a special jury finding is required.

See Barajas–Montiel,185 F.3d at 951-53 (holding that criminal intent is required for felony convictions under 8 U.S.C. § 1324(a) (1) and (2)(B), as distinguished from a misdemeanor offense under § 1324(a)(2)(A), where Congress eliminated mens rea requirement if illegal alien is brought to the United States and taken directly to INS official at a designated port of entry). This instruction may be used for a misdemeanor charge by excluding the felonies described in § 1324(a)(2)(B)(i), (ii) and (iii) in the first element and omitting the third element.

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).　

Approved 4/2019

9.6 ALIEN—DEPORTED ALIEN REENTERING
UNITED STATES WITHOUT CONSENT
(8 U.S.C. § 1326(a))

The defendant is charged in [Count _______ of] the indictment with being an alien who, after [removal] [deportation], reentered the United States in violation of Section 1326(a) of Title 8 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 was [removed] [deported] from the United States]] [[the defendant departed the United States while an order of [removal] [deportation] was outstanding]];

Second, thereafter the defendant knowingly and voluntarily reentered the United States without having obtained the consent of the Attorney General or the Secretary of the Department of Homeland Security, to reapply for admission into the United States; and

Third, the defendant was an alien at the time of reentry.

An alien is a person who is not a natural-born or naturalized citizen of the United States. 

Comment

Section 1326 provides three separate offenses for a deported alien: to enter; to attempt to enter, and to be found in the United States without permission. United States v. Castillo-Mendez, 868 F.3d 830, 835 (9th Cir. 2017); United States v. Parga-Rosas, 238 F.3d 1209, 1213 (9th Cir. 2001). Entry and being "found in" are general intent crimes; attempting reentry is a specific intent crime. Castillo-Mendez, 868 F.3d at 835-36. Use this instruction for "entered," Instruction 9.7 (Alien—Deported Alien Reentering United States Without Consent—Attempt) for "attempted reentry," and Instruction 9.8 (Alien—Deported Alien Found in United States) for "found in."

As to the second element of this instruction, it should be noted that although 8 U.S.C. § 1326(a) provides that the statute is violated by an alien who "enters, attempts to enter, or is at any time found in, the United States, unless . . . 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 the alien’s reapplying for admission, it is common for the charging indictment in such prosecutions to refer to the lack of consent by the Secretary of the Department of Homeland Security.

"The Attorney General’s consent to reapply must come after the most recent deportation." United States v. Hernandez-Quintania, 874 F.3d 1123, 1126 (9th Cir. 2017). If there is any evidence presented that the defendant obtained such consent, the second element should be supplemented to clarify that the government must only prove that the defendant did not obtain consent since the defendant’s most recent deportation.　

An alien has not reentered the United States for purposes of the crime of reentry of deported alien "until he or she is physically present in the country and free from official restraint." United States v. Gracidas-Ulibarry, 231 F.3d 1188, 1191 n.3 (9th Cir. 2000) (citing United States v. Pacheco-Medina, 212 F.3d 1162, 1166 (9th Cir. 2000)). An alien is under official restraint if, after crossing the border, he is "‘deprived of his liberty and prevented from going at large within the United States.’" United States v. Cruz-Escoto, 476 F.3d 1081, 1185 (9th Cir. 2007) (citations omitted). An alien need not be in physical custody to be officially restrained. Id. (citing United States v. Ruiz-Lopez, 234 F.3d 445, 448 (9th Cir. 2000)). "‘[R]estraint may take the form of surveillance, unbeknownst to the alien.’" Id. (quoting Pacheco-Medina, 212 F.3d at 1164). The government has the burden of proving the defendant was free from official restraint, but need not respond to a defendant’s free floating speculation that he might have been observed the whole time. United States v. Castellanos-Garcia, 270 F.3d 773, 777 (9th Cir. 2001).

In Almendarez-Torres v. United States,523 U.S. 224, 244 (1998), the Supreme Court held that in a prosecution for illegal re-entry after deportation in violation of 8 U.S.C. § 1326(a), the existence of a prior aggravated felony conviction need not be alleged in the indictment and presented to the jury because the conviction constitutes a sentencing enhancement pursuant to 8 U.S.C. § 1326(b)(2) and "[a] prior felony conviction is not an element of the offense described in 8 U.S.C. §　1326(a)." United States v. Alviso, 152 F.3d 1195, 1199 (9th Cir. 1998). The Supreme Court’s opinion in Apprendi v. New Jersey, 530  U.S. 466 (2002) expressed doubt concerning the correctness of Almendarez-Torres; however, the Ninth Circuit has stated "until the Supreme Court expressly overrules it, Almendarez-Torres controls."  United States v. Pacheco-Zepeda, 234 F.3d 411, 414-415 (9th Cir. 2000).

To trigger an increase in the statutory maximum sentence under § 1326(b)(1)-(2), the aggravating fact of the removal being subsequent to the predicate conviction must be submitted to the jury and proved beyond a reasonable doubt. See United States v. Martinez, 850 F.3d 1097, 1105 (9th Cir. 2017); United States v. Salazar-Lopez, 506 F.3d 748, 751-52 (9th Cir. 2007); United States v. Covian-Sandoval, 462 F.3d 1090, 1097-98 (9th Cir. 2006). However, if the temporal sequence of events is necessarily established by the evidence and jury verdict, then the absence of a special jury finding may not constitute reversible error. Compare United States v. Calderon-Segura, 512 F.3d 1104, 1110-11 (9th Cir. 2008) (holding that, because all evidence of prior removal related only to one removal in 1999, jury necessarily found beyond reasonable doubt not only fact of prior removal but also that removal occurred subsequent to 1997 conviction), with Martinez, 850 F.3d at 1108-09 (holding that jury’s finding of fact of prior removal could not be construed as finding that removal occurred subsequent to conviction where immigration documents submitted to jury contained mistakes).

The third element, alienage, is an element of the offense that the government must prove. United States v. Sandoval-Gonzalez, 642 F.3d 717, 722 (9th Cir. 2011). A defendant who contends that his or her citizenship derives from the citizenship of a parent is not raising an affirmative defense. Id. at 721-24. The burden remains on the government to prove the defendant is an alien. Id.

Alienage cannot be proven by a prior deportation order alone or a defendant's admission of noncitizenship alone without corroborating evidence.  United States v. Gonzalez-Corn, 807 F.3d 989, 996 (9th Cir. 2015).  These two facts taken together, however, may establish alienage.  See id. at 992, 996 (providing example of instruction addressing alienage).

A person who meets any of the qualifications set out in 8 U.S.C §1401 is a national or a citizen at birth.

In the typical case the third element will turn on whether the defendant is a citizen, but in rare cases the issue could be whether the defendant is a national of the United States. See 8 U.S.C. §1101(a)(22) for a definition of national of the United States. See also Perdomo-Padilla v. Ashcroft, 333 F.3d 964, 967-68 (9th Cir. 2003).　

Approved 4/2019

9.7 ALIEN—DEPORTED ALIEN REENTERING UNITED
 STATES WITHOUT CONSENT—ATTEMPT
(8 U.S.C. § 1326(a))

The defendant is charged in [Count _______ of]] the indictment with being an alien who, after [removal] [deportation], attempted reentry into the United States in violation of Section 1326(a) of Title 8 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 was [removed] [deported] from the United States]] [[the defendant departed the United States while an order of [removal] [deportation] was outstanding]];

Second, the defendant had the specific intent to enter the United States free from official restraint;

Third, the defendant was an alien at the time of the defendant’s attempted reentry into the United States;

Fourth, the defendant had not obtained the consent of the Attorney General or the Secretary of the Department of Homeland Security to reapply for admission into the United States; and

Fifth, 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.

An alien is a person who is not a natural-born or naturalized citizen of the United States.

Comment

The crime of attempted illegal reentry is a specific intent offense. United States v. Castillo-Mendez, 868 F.3d 830, 836 (9th Cir. 2017); see also United States v. Gracidas-Ulibarry, 231 F.3d 1188, 1190 (9th Cir.2000) (en banc) (discussing elements of offense where defendant claimed he was asleep when he entered United States).

An alien has not reentered the United States for purposes of the crime of reentry of a deported alien "until he or she is physically present in the country and free from official restraint." Gracidas-Ulibarry, 231 F.3d at 1191 n.3 (citing United States v. Pacheco-Medina, 212 F.3d 1162, 1166 (9th Cir. 2000)). In an attempt case, the government must prove that the alien had a specific intent to enter the country free from official restraint. Castillo-Mendez, 868 F.3d at 836; United States v. Vazquez-Hernandez, 849 F.3d 1219, 1225 (9th Cir. 2017). "Official restraint" means restraint by any government official, and thus an alien who enters the United States with the intent to go to jail lacks specific intent to enter the country free from official restraint. United States v. Lombera-Valdovinos, 429 F.3d 927, 929-30 (9th Cir. 2005). "Official restraint" does not make substantial steps toward entry impossible, and thus an alien who was under official restraint so as to preclude a conviction for illegal reentry may still be guilty of attempted reentry. United States v. Leos-Maldonado, 302 F.3d 1061, 1063 (9th Cir. 2002). If there is conflicting evidence as to whether the defendant possessed any specific intention to remain free of restraint, the jury should decide the issue. See United States v. Argueta-Rosales, 819 F.3d 1149, 1156 (9th Cir. 2016) (holding that government must prove alien had specific intention to enter country free of official restraint, when alien presented evidence that attempt to enter was based on intent to be placed into protective custody).

For an attempt to commit the crime, 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). The attempt coupled with the specification of the time and place of the attempted illegal reentry may provide the requisite overt act that constitutes a substantial step toward completing the offense. United States v. Resendiz-Ponce, 549 U.S. 102, 107-08 (2007).

Regarding sentencing, see the Comment to 9.6 (Alien—Deported Alien Reentering United States Without Consent) for a discussion of Almendarez-Torres v. United States, 523 U.S. 224 (1998).

The "strongly corroborates" language 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).　

Approved 4/2019

9.8 ALIEN—DEPORTED ALIEN FOUND IN UNITED STATES
(8 U.S.C. § 1326(a))

The defendant is charged in [Count _______ of] the indictment with being an alien who, after [removal] [deportation], was found in the United States in violation of Section 1326(a) of Title 8 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 was [removed] [deported] from the United States]] [[the defendant departed the United States while an order of [removal] [deportation] was outstanding]];

Second, thereafter, the defendant voluntarily entered the United States;

Third, [[at the time of entry the defendant knew [he] [she] was entering the United States]] [[after entering the United States the defendant knew that [he] [she] was in the United States and knowingly remained]];

Fourth, the defendant was found in the United States without having obtained the consent of the Attorney General or the Secretary of the Department of Homeland Security to reapply for admission into the United States;

Fifth, the defendant was an alien at the time of the defendant’s entry into the United States; and

Sixth, the defendant was free from official restraint at the time [he][she] entered the United States.

An alien is a person who is not a natural-born or naturalized citizen of the United States.

Comment

"Found in" the United States is a general intent crime. United States v. Castillo-Mendez, 868 F.3d 830, 836 (9th Cir. 2017). In United States v. Salazar-Gonzalez,458 F.3d 851, 856 (9th Cir. 2006), overruled on other grounds, United States v. Orozco-Acosta, 607 F.3d 1156 (9th Cir. 2010), the court clarified "an area of confusion in our §　1326 jurisprudence" by holding "that for a defendant to be convicted of a §　1326 ‘found in’ offense, the government must prove beyond a reasonable doubt that he entered voluntarily and had knowledge that he was committing the underlying act that made his conduct illegal—entering or remaining in the United States."

In United States v. Martinez, 850 F.3d 1097 (9th Cir. 2017), the court reiterated that the jury is required to make a finding regarding the defendant’s removal date and that the government is required to prove that date beyond a reasonable doubt. See id. at 1099, 1105. This finding may be made by a special jury verdict form. 

Mere physical presence is inadequate to support a conviction for being found in the United States. See United States v. Ruiz-Lopez, 234 F.3d 445, 448 (9th Cir. 2000) (proof that border patrol encountered the defendant at the port of entry does not constitute adequate proof that the defendant was found in the United States free from official restraint). "The burden is on the government to establish lack of official restraint." United States v. Bello–Bahena, 411 F.3d 1083, 1087 (9th Cir. 2005); see also Castillo-Mendez, 868 F.3d at 838 ("In ‘found in’ cases, on the other hand, the government must prove that at the time a defendant entered, he was free from official restraint as a matter of fact, irrespective of his knowledge or intent to avoid that restraint."). An alien is under official restraint if, after crossing the border, he is "‘deprived of his liberty and prevented from going at large within the United States.’" United States v. Cruz-Escoto, 476 F.3d 1081, 1185 (9th Cir. 2007) (citations omitted).

Whether an alien crosses the border at a designated point of entry or elsewhere weighs on the question of official restraint. Cruz-Escoto, 476 F.3d at 1085. When an alien crosses the border at a designated point of entry and proceeds directly in the manner designated by the government where he is stopped when he presents himself to the authorities, he has not yet entered and cannot be found in the United States. Id. (citing United States v. Zavala-Mendez, 411 F.3d 1116, 1121 (9th Cir. 2005)). Aliens who sneak across the border are under official restraint only if they are under constant governmental observation from the moment they set foot in this country until the moment of their arrest. Id. (citing United States v. Castellanos-Garcia, 270 F.3d 773, 775 (9th Cir. 2001)).

An alien is under official restraint if he is "‘deprived of his liberty and prevented from going at large within the United States.’" United States v. Cruz-Escoto, 476 F.3d 1081, 1085 (9th Cir. 2007) (citations omitted). An alien need not be in physical custody to be officially restrained. Id. (citing United States v. Ruiz-Lopez, 234 F.3d 445, 448 (9th Cir. 2000)). "‘[R]estraint may take the form of surveillance, unbeknownst to the alien.’" Id. (quoting United States v. Pacheco-Medina, 212 F.3d 1162, 1164 (9th Cir. 2000)). The government has the burden of proving the defendant was free from official restraint, but need not respond to a defendant’s free floating speculation that he might have been observed the whole time. Castellanos-Garcia, 270 F.3d at 777. When there is some evidentiary support for it, the court might consider instructing the jury on the defense of constant official restraint as follows:

THEORY OF DEFENSE

In this case when deciding whether the defendant is guilty or not guilty of the crime of being a deported alien found in the United States, the government must prove beyond a reasonable doubt that the defendant was not under constant official restraint when [he] [she] entered the United States. If the defendant was under constant official restraint, [he] [she] cannot be found guilty of being found in the United States. 

"Under constant official restraint" means the defendant was under constant, continuous observation by a United States officer, either directly or by camera surveillance, from the moment [he] [she] first crossed the border and entered the territory of the United States up until the time of [his] [her] apprehension. If the individual was first observed after [he] [she] had physically crossed the border of the United States, then [he] [she] is not under constant official restraint.

Regarding sentencing, see Comment to Instruction 9.6 (Alien—Deported Alien Reentering United States Without Consent) for a discussion of Almendarez-Torres v. United States, 523 U.S. 224 (1998).　　　　

Approved 9/2019

9.9 SECURITIES FRAUD
(15 U.S.C. §§ 78j(b), 78ff; 17 C.F.R. § 240.10b-5)

The defendant is charged in [Count _______ of] the indictment with securities fraud in violation of federal securities law. 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 willfully [used a device or scheme to defraud someone] [made an untrue statement of a material fact] [failed to disclose a material fact that resulted in making the defendant’s statements misleading] [engaged in any act, practice, or course of business that operates or would operate as a fraud or deceit upon any person];

Second, the defendant’s [acts were undertaken] [statement was made] [failure to disclose was done] in connection with the [purchase] [sale] of [specify security];

Third, the defendant directly or indirectly used the [specify instrument or facility] in connection with [these acts] [making this statement][this failure to disclose]; and

Fourth, the defendant acted knowingly.

"Willfully" means intentionally [undertaking an act] [making an untrue statement] [failing to disclose] for the wrongful purpose of defrauding or deceiving someone. Acting willfully does not require that the defendant know that the conduct was unlawful. You may consider evidence of the defendant’s words, acts, or omissions, along with all the other evidence, in deciding whether the defendant acted willfully.

"Knowingly" means [[to make a statement or representation that is untrue and known to the defendant to be untrue] [to fail to state something that the defendant knows is necessary to make other statements true] [to make a statement with reckless disregard as to its truth or falsity] [to fail to make a statement with reckless disregard that the statement is necessary to make other statements true] in respect to a material fact] [intentional conduct that is undertaken to control or affect the price of securities]. [An act is done] [A statement is made] [A failure to disclose is done] knowingly if the defendant is aware of [the act] [making the statement] [the failure to disclose] and did not [act or fail to act] [make the statement] [fail to disclose] through ignorance, mistake or accident. The government is not required to prove that the defendant knew that [[his] [her] [acts were unlawful] [it was unlawful to make the statement] [[his] [her] failure to disclose was unlawful]. You may consider evidence of the defendant’s words, acts, or omissions, along with all the other evidence, in deciding whether the defendant acted knowingly.

["Reckless" means highly unreasonable conduct that is an extreme departure from ordinary care, presenting a danger of misleading investors, which is either known to the defendant or so obvious that the defendant must have been aware of it.]

[A fact is material if there is a substantial likelihood that a reasonable investor would consider it important in making the decision to [purchase] [sell] securities.]

It is not necessary that an untrue statement passed [through] [over] the [specify instrument or facility] so long as the [specify instrument or facility] was used as a part of the [purchase] [sale] transaction.

It is not necessary that the defendant made a profit or that anyone actually suffered a loss.

Comment

"Willfully" as used in 15 U.S.C. Section 78ff(a) does not require the actor to know that the conduct was unlawful. United States v. Tarallo, 380 F.3d 1174, 1188 (9th Cir. 2004); see also United States v. Reyes, 577 F.3d 1069, 1079 (9th Cir. 2009) (jury need only find defendant acted knowing the falsification to be wrongful).

The Ninth Circuit has held reckless disregard for truth or falsity to be sufficient to sustain a conviction for securities fraud. See United States v. Farris, 614 F.2d 634, 638 (9th Cir. 1980); Tarallo, 380 F.3d at 1188 (stating that government need only prove that defendant made a false representation with reckless indifference to its falsity).

As in the Securities Exchange Act §10(b) context, 18 U.S.C. § 1348's requirement of "in connection with" is broadly construed and can be met by proof of dissemination and materiality of the misrepresentation or omission.  See United States v. Hussein, 972 F.3d 1128, 1147 (9th Cir. 2020).

For Rule 10b-5(a) and (c) violations for schemes or practices designed to defraud investors by controlling or artificially manipulating the market, such as in "pump and dump" cases, use thebracketed language in the instruction defining "knowingly" as: "intentional conduct that is undertaken to control or affect the price of securities" and omit the paragraph as to the meaning of "to be material." Such cases may also proceed under Rule 10b-5(b) for omitting to state a material fact, United States v. Charnay, 537 F.2d 341, 351 (9th Cir. 1976) (failure to disclose that market prices are being artificially depressed operates as a deceit on the marketplace and is an omission of a material fact, which is actionable under Rule 10b-5(b)), but there must be a duty to disclose such as that arising from a fiduciary or quasi-fiduciary relationship between the defendant and his or her victim, Chiarella v. United States, 445 U.S. 222, 230 (1980) (error to fail to instruct the jury as to fiduciary duty).

Materiality, in the context of securities fraud, is measured by a reasonable investor standard. United States v. Berger, 473 F.3d 1080, 1100 (9th Cir. 2007); Tarallo, 380 F.3d at 1182.

Apprendi does not apply to theSection 78ff penalty provision that "no person shall be subject to imprisonment under this section for a violation of a rule or regulation if he proves that he had no knowledge of such rule or regulation" because it is an affirmative defense that may mitigate the defendant’s sentence. Tarallo, 380 F.3d at 1192.　

Depending on the facts in evidence, it may be appropriate to amend this instruction with language requiring specific jury unanimity. See Instruction 7.9 (Specific Issue Unanimity). See, e.g., United States v. Weiner, 578 F.2d 757, 788 (9th Cir. 1978) (explaining the distinction between the scheme to defraud, which is the theory of liability under Rule 10b-5, and the means adopted to effectuate the scheme; unanimity is required for the former, but not the latter); United States v. Lyons, 472 F.3d 1055, 1068 (9th Cir. 2007) (finding no need for unanimity instruction where there is simply more than one alleged false promise).

For insider trading schemes, Rule 10b-5(b) prohibits individuals owing a fiduciary duty to a source from using material, undisclosed insider information from that source for their personal benefit. See Dirks v. S.E.C., 463 U.S. 646, 653-54 (1983). Thus, tipping inside information to others for one’s own personal benefit violates Rule 10b-5. Id. at 659 ("Not only are insiders forbidden by their fiduciary relationship from personally using undisclosed corporate information to their advantage, but they may not give such information to an outsider for the same purpose of exploiting the information for their personal gain."). In such a situation, the person receiving the undisclosed, material inside information (the "tippee") is equally liable under Rule 10b-5(b) if: (1) "the tippee knows or should know" that the person disclosing the information (the "tipper") did so for their personal benefit; and (2) the tippee trades on that information anyway. Id. at 662-63; see also Salman v. United States, 137 S. Ct. 420, 421 (2016). A jury can infer the tipper personally benefitted "where the tipper receives something of value in exchange for the tip or ‘makes a gift of confidential information to a trading relative or friend.’" Salman, 137 S. Ct. at 423 (quoting Dirks, 463 U.S. at 664). But if the tipper did not personally benefit from tipping the undisclosed inside information, then the tippee is not liable under Rule 10b-5(b). See, e.g., Dirks, 463 U.S. at 649-50 (finding no tippee liability because tipper was whistleblower who did not personally benefit from tipping material, undisclosed inside information).　　

Approved 12/2020

9.9A SALE OF UNREGISTERED SECURITIES

The defendant is charged in [Count _______ of] the indictment with the sale or delivery after sale of unregistered securities in violation of federal securities law. 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, that the securities that the defendant sold were not registered with the Securities and Exchange Commission;

Second, that the securities sold were required to be registered with the Securities and Exchange Commission—that is, that the transactions were not exempt from registration;

Third, that, knowing the shares were not registered and not exempt, the defendant willfully sold or caused the shares to be sold to the public; and

Fourth, that the defendant knowingly, directly or indirectly, used or caused to be used the mails or the means and instrumentalities of interstate commerce to sell the stock. 

Comment

This instruction is for use in any case involving a violation of 15 U.S.C. §§ 77e and 77x, involving the offer or sale of an unregistered security in interstate commerce. 

"To establish a prima facie case for violation of Section 5, the [government] must show that (1) no registration statement was in effect as to the securities; (2) the defendant directly or indirectly sold or offered to sell securities; and (3) the sale or offer was made through interstate commerce." SEC v. CMKM Diamonds, Inc., 729 F.3d 1248, 1255 (9th Cir.2013) (citing SEC v. Phan, 500 F.3d 895, 902 (9th Cir.2007)).

"‘Once the [government] introduces evidence that a defendant has violated the registration provisions, the defendant then has the burden of proof in showing entitlement to an exemption.’" CMKM Diamonds, Inc., 729 F.3d at 1255 (quoting SEC v. Murphy, 626 F.2d 633, 641 (9th Cir.1980)). Exemptions to 15 U.S.C. § 77e are listed in 15 U.S.C. § 77d. "Exemptions from registration provisions are construed narrowly ‘in order to further the purpose of the Act: To provide full and fair disclosure of the character of the securities, and to prevent frauds in the sale thereof.’" SEC v. Platforms Wireless Int’l Corp., 617 F.3d 1072, 1086 (9th Cir.2010) (quoting SEC v. Murphy, 626 F.2d 633, 641 (9th Cir. 1980)).

Scienter is not an element of liability for civil enforcement of 15 U.S.C. § 77e. See Aaron v. Sec. & Exch. Comm'n, 446 U.S. 680, 714 n.5 (1980) ("The prohibition in § 5 of the 1933 Act, 15 U.S.C. § 77e, against selling securities without an effective registration statement has been interpreted to require no showing of scienter."). However, a criminal prosecution under 15 U.S.C. § 77x for the violation of § 77e requires a showing that the sale or offer of unregistered securities was done "willfully." "Willfully" in this context does not require that the actor know specifically that the conduct was unlawful. See United States v. Lloyd, 807 F.3d 1128, 1166 (9th Cir.2015). 

Approved 3/2016 

9.10 EXCAVATING OR TRAFFICKING IN ARCHAEOLOGICAL RESOURCES
(16 U.S.C. § 470ee(a), (b)(2) and (d))

The defendant is charged in [Count _______ of] the indictment with [excavating] [trafficking in] archaeological resources in violation of Section 470ee(b)(2) and (d) of Title 16 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 [[excavated] [removed] [damaged] [altered] [defaced]] [specify archaeological resource] knowing that it was of archaeological interest and at least 100 years of age;]

or

[First, the defendant knowingly [[sold] [purchased] [exchanged] [transported] [received] [offered to sell] [offered to purchase] [offered to exchange]] [specify archaeological resource] knowing that it was of archaeological interest and at least 100 years of age;]

Second, the [specify archaeological resource] was [[located on] [removed from]] [specify public or Indian lands]; and

Third, the defendant acted without a permit to do so from [specify federal land manager].

The government is not required to prove that the defendant knew that the [specify archaeological resource] was [[located on] [removed from]] [public] [Indian] land.

Comment

A felony prosecution under the Archaeological Resources Protection Act requires proof that the defendant knew, or at least had reason to know, that the object taken is an "archaeological resource"; otherwise, the offense is a misdemeanor and knowledge that the object is of archaeological interest is not an element. United States v. Lynch, 233 F.3d 1139, 1145-46 (9th Cir.2000) (discussing prosecution under 16 U.S.C. § 470ee(a)).

Knowledge that the archaeological resource was on government land is not an element of the offense, only a jurisdictional prerequisite for prosecution. Cf. United States v. Howey, 427 F.2d 1017 (9th Cir.1970) (holding that a defendant’s knowledge of government ownership of property is not an element of the offense of theft of government property under 18 U.S.C. § 641).

Statutory maximum sentences are increased for offenses if the commercial or archaeological value of the archaeological resources involved and the cost of restoration and repair of such resources exceeds the sum of $500. If the value of the resource is disputed, the jury should be instructed to make a finding of whether the value was more than $500. Archaeological value is what it would have cost the United States to engage in a full-blown archaeological dig to recover the archaeological information protected by the Act. United States v. Ligon, 440 F.3d 1182, 1185 (9th Cir.2006).

For a definition of "archaeological resource," see 16 U.S.C. § 470bb(1). As to obtaining a permit from a federal land manager, see 16 U.S.C. § 470cc.

9.11 LACEY ACT—IMPORT OR EXPORT OF ILLEGALLY TAKEN FISH, WILDLIFE OR PLANTS
(16 U.S.C. §§ 3372 and 3373(d)(1)(A))

The defendant is charged in [Count _______ of] the indictment with violating Sections 3372 and 3373 of Title 16 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 [[imported] [exported]] [[fish] [wildlife] [plants]]; and

Second, the defendant knew that the [[imported] [exported]] [[fish] [wildlife] [plants]] had been [taken] [possessed] [transported] [sold] in violation of or in a manner unlawful under [United States law] [United States regulations] [United States treaties] [tribal law].

A defendant acts knowingly if [he] [she] is aware of the conduct and does not act through ignorance, mistake or accident. You may consider evidence of the defendant’s words, acts, or omissions, along with all the other evidence, in deciding whether the defendant acted knowingly.

Comment

This instruction is for use in any case involving a violation of 16 U.S.C. § 3373(d)(1)(A) for the illegal importing or exporting of fish, wildlife or plants. Under that section of the Lacey Act, criminal liability is premised on a finding of a violation of one of the subsections of 16 U.S.C. § 3372. For violations of § 3373(d)(1)(B), see Instruction 9.12. For violations of § 3373(d)(2), see Instruction 9.13. For violations of § 3373(d)(3), see Instruction 9.14.

When a violation of 16 U.S.C. § 3372(a)(1) (U.S. Laws, Treaties) is alleged, use this instruction without change. For offenses under subsections (a)(2) and (a)(3) of Section 3372, the instruction should be modified as shown below.

For an alleged violation of 16 U.S.C. § 3372(a)(2)(A) (fish or wildlife taken in violation of state or foreign law), substitute the following element:

Second, the defendant knew that the [fish] [wildlife] had been [taken] [possessed] [transported] [sold] in violation of or in a manner unlawful under any [state law] [state regulation] [foreign law] [foreign regulation].

For an alleged violation of 16 U.S.C. § 3372(a)(2)(B) (plants taken in violation of state or foreign law), substitute the following element:

Second, the defendant knew that the plants had been [taken] [possessed] [transported] [sold] in violation of any [state law] [state regulation] [foreign law] [foreign regulation] that [protects plants] [[regulates [the theft of plants] [the taking of plants from a park, forest reserve, or other officially protected area] [the taking of plants without, or contrary to, required authorization]] [without the payment of appropriate royalties, taxes, or stumpage fees required for the plant by any law or regulation of any state or any foreign law or regulation] [in violation of any limitation under any law or regulation of any state, or under any foreign law or regulation, governing the export or transshipment of plants].

For an alleged violation of 16 U.S.C. § 3372(a)(3)(A) (fish or wildlife in special U.S. jurisdiction), substitute the following element:

Second, the defendant possessed [fish] [wildlife] within the Special Maritime and Territorial Jurisdiction of the United States;

and add a new third element:

Third, the defendant knew the [fish] [wildlife] had been [taken] [possessed] [transported] [sold] in violation of or in a manner unlawful under any [state law] [state regulation] [foreign law] [foreign regulation] [tribal law].

For an alleged violation of 16 U.S.C. § 3372(a)(3)(B) (plants in special U.S. jurisdiction), substitute the following element:

Second, the defendant possessed plants within the Special Maritime and Territorial Jurisdiction of the United States;

and add a third element:

Third, the defendant knew the plants had been [taken] [possessed] [transported] [sold] in violation of any [state law] [state regulation] [foreign law] [foreign regulation] that [protects plants] [[regulates [the theft of plants] [the taking of plants from a park, forest reserve, or other officially protected area] [the taking of plants without, or contrary to, required authorization]] [without the payment of appropriate royalties, taxes, or stumpage fees required for the plant by any law or regulation of any state or any foreign law or regulation] [in violation of any limitation under any law or regulation of any state, or under any foreign law or regulation, governing the export or transshipment of plants].

When a violation of 16 U.S.C. § 3372(a)(2) is involved, consult 18 U.S.C. § 10 for a definition of interstate commerce or foreign commerce.

When a violation of 16 U.S.C. § 3372(a)(3) is involved, consult 18 U.S.C. § 7 for a definition of special maritime and territorial jurisdiction of the United States.

The requirement that the defendant knew that the wildlife was possessed in violation of "a particular law" is not an element of the offense. See, for example, United States v. Santillan, 243 F.3d 1125, 1129 (9th Cir.2001) (concluding that the Lacey Act does not require knowledge of the particular law violated by the possession or other predicate act, so long as the defendant knows of the unlawful possession).

"[A]ny foreign law" in the Lacey Act includes foreign regulations, even those based upon foreign laws invalidated by the foreign government after the time of the offense. United States v. Lee, 937 F.2d 1388, 1391-93 (9th Cir.1991).

9.12 LACEY ACT—COMMERCIAL ACTIVITY IN ILLEGALLY TAKEN FISH, WILDLIFE OR PLANTS
(16 U.S.C. §§ 3372 and 3373(d)(1)(B))

The defendant is charged in [Count _______ of] the indictment with violating Sections 3372 and 3373 of Title 16 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 knew that the [fish] [wildlife] [plants] had been [taken] [possessed] [transported] [sold] in violation of, or in a manner unlawful under [United States law] [United States regulations] [United States treaties] [tribal law];

Second, the market value of the [fish] [wildlife] [plants] actually [taken] [possessed] [transported] [sold] exceeded $350; and

Third, the defendant [[imported] [exported] [transported] [sold] [received] [acquired] [purchased]] [[fish] [wildlife] [plants]] by knowingly engaging in conduct that involved [its sale] [its purchase] [the offer to sell it] [the offer to purchase it] [the intent to sell it] [the intent to purchase it].

A defendant acts knowingly if [he] [she] is aware of the conduct and does not act through ignorance, mistake or accident. You may consider evidence of the defendant’s words, acts, or omissions, along with all the other evidence, in deciding whether the defendant acted knowingly.

Comment

This instruction is for use in any case involving a violation of 16 U.S.C. § 3373(d)(1)(B) involving the sale or purchase of, the offer of sale or purchase of, or the intent to sell or purchase, fish or wildlife or plants with a market value in excess of $350. Under that section of the Lacey Act, criminal liability is premised on a finding of a violation of one of the subsections of 16 U.S.C. § 3372. For violations of §  3373(d)(1)(A), see Instruction 9.11. For violations of § 3372(d)(2), see Instruction 9.13. For violations of § 3373(d)(3), see Instruction 9.14.

When a violation of 16 U.S.C. § 3372(a)(1) (U.S. Laws, Treaties) is alleged, use this instruction without change. For offenses under subsections (a)(2) and (a)(3) of Section 3372, the elements of the instruction should be modified as shown below.

For an alleged violation of 16 U.S.C. § 3372(a)(2)(A) (fish or wildlife taken in violation of state or foreign law), substitute the following elements:

First, the defendant knew that the [fish] [wildlife] had been [taken] [possessed] [transported] [sold] in violation of or in a manner unlawful under any [state law] [state regulation] [foreign law] [foreign regulation];

Third, the defendant [imported] [exported] [transported] [sold] [received] [acquired] [purchased] in interstate or foreign commerce the [fish] [wildlife] by knowingly engaging in conduct that involved [[their sale] [their purchase] [the offer to sell them] [the offer to purchase them] [the intent to sell them] [the intent to purchase them]].

For an alleged violation of 16 U.S.C. § 3372(a)(2)(B) (plants taken in violation of state or foreign law), substitute the following elements:

First, the defendant knew that the plants had been [taken] [possessed] [transported] [sold] in violation of or in a manner unlawful under any [state law] [state regulation] [foreign law] [foreign regulation] that [protects plants] [[regulates [the theft of plants] [the taking of plants from a park, forest reserve, or other officially protected area] [the taking of plants without, or contrary to, required authorization]] [without the payment of appropriate royalties, taxes, or stumpage fees required for the plant by any law or regulation of any state or any foreign law or regulation] [in violation of any limitation under any law or regulation of any state, or under any foreign law or regulation, governing the export or transshipment of plants];

Third, the defendant [imported] [exported] [transported] [sold] [received] [acquired] [purchased] the plants in interstate or foreign commerce by knowingly engaging in conduct that involved the [sale] [purchase] [offer of sale] [offer to purchase ] [intent to sell] [intent to purchase] the plants.

For an alleged violation of 16 U.S.C. § 3372(a)(3)(A) (fish or wildlife in special U.S. jurisdiction), substitute the following elements:

First, the defendant knew that the [fish] [wildlife] had been [taken] [possessed] [transported] [sold] in violation of or in a manner unlawful under any [state law] [state regulation] [foreign law] [foreign regulation] [tribal law];

Second, the market value of the [fish] [wildlife] actually [taken] [possessed] [transported] [sold] exceeded $350;

Third, the defendant, while within the special maritime and territorial jurisdiction of the United States, possessed [fish] [wildlife], knowing that it had been [taken] [possessed] [transported] [sold] in violation of any [state law] [state regulation] [foreign law] [foreign regulation] [tribal law]; and

Fourth, in possessing the [fish] [wildlife] within the special maritime and territorial jurisdiction of the United States, the defendant knowingly engaged in conduct that involved [its sale or purchase] [the offer to sell or purchase it] [the intent to sell or purchase it].

For an alleged violation of 16 U.S.C. § 3372(a)(3)(B) (plants in special maritime jurisdiction), substitute the following elements:

First, the defendant knew that the plants had been [taken] [possessed] [transported] [sold] in violation of or in a manner unlawful under any [state law] [state regulation] [foreign law] [foreign regulation] that [protects plants] [[regulates [the theft of plants] [the taking of plants from a park, forest reserve, or other officially protected area] [the taking of plants without, or contrary to, required authorization]] [without the payment of appropriate royalties, taxes, or stumpage fees required for the plant by any law or regulation of any state or any foreign law or regulation] [in violation of any limitation under any law or regulation of any state, or under any foreign law or regulation, governing the export or transshipment of plants];

Second, the market value of the plants actually [taken] [possessed] [transported] [sold] exceeded $350;

Third, the defendant, while within the special maritime and territorial jurisdiction of the United States, possessed plants, knowing that they had been [taken] [possessed] [transported] [sold] in violation of any [state law] [state regulation] [foreign law] [foreign regulation] that [protects plants] [[regulates [the theft of plants] [the taking of plants from a park, forest reserve, or other officially protected area] [the taking of plants without, or contrary to, required authorization]] [without the payment of appropriate royalties, taxes, or stumpage fees required for the plant by any law or regulation of any state or any foreign law or regulation] [in violation of any limitation under any law or regulation of any state, or under any foreign law or regulation, governing the export or transshipment of plants]; and

Fourth, in possessing the plants within the special maritime and territorial jurisdiction of the United States, the defendant knowingly engaged in conduct that involved [their sale or purchase] [the offer to sell or purchase them] [the intent to sell or purchase them].

Normally, a specific definition of market value will not be necessary. However, if special circumstances arise where such a definition would be appropriate under the facts of the case, the judge might consult United States v. Stenberg, 803 F.2d 422, 432–33 (9th Cir.1986). Where the case involves purchases made by government agents it is advisable to instruct the jury that the price paid by the government agent is not conclusive evidence of the market value; market value is the price a piece of property would bring if sold on the open market between a willing buyer and seller. Id.; see also United States v. Atkinson, 966 F.2d 1270, 1273 (9th Cir.1992) (proper method for valuing game under 16 U.S.C. § 3372(c) on guided hunt is value of offer to provide services).

See United States v. Senchenko, 133 F.3d 1153, 1156 (9th Cir.1998) (permissible to infer commercial intent on facts presented).

"‘[S]ale’ for purposes of 16 U.S.C. § 3373(d)(1)(B) includes both the agreement to receive consideration for guiding or outfitting services and the actual provision of such guiding or outfitting services." United States v. Fejes, 232 F.3d 696, 701 (9th Cir.2000), cert denied, 534 U.S. 813 (2001).

9.13 LACEY ACT—DEFENDANT SHOULD HAVE KNOWN FISH,
WILDLIFE OR PLANTS WERE ILLEGALLY TAKEN
(16 U.S.C. §§ 3372 and 3373(d)(2))

The defendant is charged in [Count _______ of] the indictment with violating Sections 3372 and 3373 of Title 16 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 [[imported] [exported] [transported] [sold] [received] [acquired] [purchased]] [[fish] [wildlife] [plants]]; and

Second, the defendant in the exercise of due care should have known that the [fish] [wildlife] [plants] had been [taken] [possessed] [transported] [sold] in violation of or in a manner unlawful under [United States Law] [United States regulations] [United States treaties] [tribal law].

A defendant acts knowingly if [he] [she] is aware of the act and does not act through ignorance, mistake or accident. You may consider evidence of the defendant's words, acts, or omissions, along with all the other evidence, in deciding whether the defendant acted knowingly.

Due care means that degree of care which a reasonably prudent person would exercise under the same or similar circumstances.

Comment

This instruction is for use in any case involving a violation of 16 U.S.C. § 3373(d)(2), a misdemeanor. See United States v. Hansen–Sturm, 44 F.3d 793, 794 (9th Cir.1995) (describing it as a lesser included offense of the felony provisions of the Lacey Act). Liability is premised on a finding of a violation of one of the subsections of 16 U.S.C. § 3372. For violations of § 3373(d)(1)(A), see Instruction 9.11. For violations of § 3373(d)(1)(B), see Instruction 9.12. For violations of § 3373(d)(3), see Instruction 9.14.

When a violation of 16 U.S.C. § 3372(a)(1) (U.S. Laws, Treaties) is alleged, use this instruction without change. For offenses under subsections (a)(2) and (a)(3) of Section 3372, the elements of the instruction should be modified as shown below.

For an alleged violation of 16 U.S.C. § 3372(a)(2)(A) (fish or wildlife taken in violation of state or foreign law), substitute the following elements:

First, the defendant knowingly [[imported] [exported] [transported] [sold] [received] [acquired] [purchased]] [[fish] [wildlife]] in interstate or foreign commerce; and

Second, the defendant in the exercise of due care should have known that the [fish] [wildlife] had been [taken] [possessed] [transported] [sold] in violation of or in a manner unlawful under any [state law] [state regulation] [foreign law] [foreign regulation].

For an alleged violation of 16 U.S.C. § 3372(a)(2)(B) (plants taken in violation of state or foreign law), substitute the following elements:

First, the defendant knowingly [imported] [exported] [transported] [sold] [received] [acquired] [purchased] plants in interstate or foreign commerce; and

Second, the defendant in the exercise of due care should have known that the plants had been [taken] [possessed] [transported] [sold] in violation of or in a manner unlawful under any [state law] [state regulation] [foreign law] [foreign regulation] that [protects plants] [[regulates [the theft of plants] [the taking of plants from a park, forest reserve, or other officially protected area] [the taking of plants without, or contrary to, required authorization]] [without the payment of appropriate royalties, taxes, or stumpage fees required for the plant by any law or regulation of any state or any foreign law or regulation] [in violation of any limitation under any law or regulation of any state, or under any foreign law or regulation, governing the export or transshipment of plants].

For an alleged violation of 16 U.S.C. § 3372(a)(3)(A) (fish or wildlife in special U.S. jurisdiction), substitute the following elements:

First, while within the special maritime and territorial jurisdiction of the United States, the defendant knowingly possessed [fish] [wildlife] which had been [taken] [possessed] [transported] [sold] in violation of or in a manner unlawful under any [state law] [state regulation] [foreign law] [foreign regulation] [tribal law]; and

Second, in the exercise of due care the defendant should have known that the [fish] [wildlife] had been [taken] [possessed] [transported] [sold] in violation of or in a manner unlawful under any [state law] [state regulation] [foreign law] [foreign regulation] [tribal law].

For an alleged violation of 16 U.S.C. § 3372(a)(3)(B) (plants in special U.S. jurisdiction), substitute the following elements:

First, while within the special maritime and territorial jurisdiction of the United States, the defendant knowingly possessed plants which had been [taken] [possessed] [transported] [sold] in violation of or in a manner unlawful under any [state law] [state regulation] [foreign law] [foreign regulation] that [protects plants] [[regulates [the theft of plants] [the taking of plants from a park, forest reserve, or other officially protected area] [the taking of plants without, or contrary to, required authorization]] [without the payment of appropriate royalties, taxes, or stumpage fees required for the plant by any law or regulation of any state or any foreign law or regulation] [in violation of any limitation under any law or regulation of any state, or under any foreign law or regulation, governing the export or transshipment of plants; and

Second, in the exercise of due care the defendant should have known that the plants had been [taken] [possessed] [transported] [sold] in violation of or in a manner unlawful under any [state law] [state regulation] [foreign law] [foreign regulation] that [protects plants] [[regulates [the theft of plants] [the taking of plants from a park, forest reserve, or other officially protected area] [the taking of plants without, or contrary to, required authorization]] [without the payment of appropriate royalties, taxes, or stumpage fees required for the plant by any law or regulation of any state or any foreign law or regulation] [in violation of any limitation under any law or regulation of any state, or under any foreign law or regulation, governing the export or transshipment of plants].

For a discussion of due care, see United States v. Thomas, 887 F.2d 1341, 1346 (9th Cir.1989).

9.14 LACEY ACT—FALSE LABELING OF FISH,  WILDLIFE OR PLANTS
(16 U.S.C. §§ 3372(d) and 3373(d)(3))

The defendant is charged in [Count _______ of] the indictment with violating Sections 3372 and 3373 of Title 16 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 [made] [submitted] a false [[record concerning] [account concerning] [label for] [identification of]] [[fish] [wildlife] [plants]]; [and]

Second, the [[fish] [wildlife] [plants]] [[had been] [were intended to be]] [[imported] [exported] [transported] [sold] [purchased] [received] from a foreign country] [transported in interstate or foreign commerce] [; and]

[Third, the defendant’s [making of] [submission of] a false [[record concerning] [account concerning] [label for] [identification of]] [[fish] [wildlife] [plants]] involved the [sale or purchase of] [offer of sale or purchase of] [commission of an act with intent to sell or purchase] the [fish] [wildlife] [plants] with a market value greater than $350].

A defendant acts knowingly if [he] [she] is aware of the act and does not act through ignorance, mistake or accident. You may consider evidence of the defendant’s words, acts, or omissions, along with all the other evidence, in deciding whether the defendant acted knowingly.

Comment

This instruction is for use in any case involving a violation of 16 U.S.C. § 3373(d)(3). Under that section of the Lacey Act, criminal liability is premised on a finding of a violation of 16 U.S.C. § 3372(d) (false labeling).

The third element should be added only if the defendant is accused of violating 16 U.S.C. § 3373(d)(3)(A)(ii). If the jury finds the government proved only the first and second elements, the defendant may be found guilty of 16 U.S.C. § 3373(d)(3)(A)(I) (felony importation of fish, wildlife or plants) or of 16 U.S.C. § 3373(d)(3)(B) (misdemeanor false labeling).

The scienter required for conviction under 16 U.S.C. § 3373(d)(3) requires the defendant "knowingly" violate 16 U.S.C. § 3372(d) prohibiting making or submitting a false label.

See Comment to Instruction 9.12 (Lacey Act–Commercial Activity In Illegally Taken Fish, Wildlife or Plants) concerning the need for an instruction concerning a definition of "market value."

For a definition of interstate commerce or foreign commerce, see 18 U.S.C. § 10.

9.15 CONTROLLED SUBSTANCE—POSSESSION
 WITH INTENT TO DISTRIBUTE
(21 U.S.C. § 841(a)(1))

The defendant is charged in [Count _______ of] the indictment with possession of [specify controlled substance] with intent to distribute in violation of Section 841(a)(1) of Title 21 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 possessed [specify controlled substance]; and

Second, the defendant possessed it with the intent to distribute it to another person.

[The government is not required to prove the amount or quantity of [specify controlled substance]. It need only prove beyond a reasonable doubt that there was a measurable or detectable amount of [specify controlled substance].]

It does not matter whether the defendant knew that the substance was [specify controlled substance]. It is sufficient that the defendant knew that it was some kind of a federally controlled substance.

To "possess with intent to distribute" means to possess with intent to deliver or transfer possession of [specify controlled substance] to another person, with or without any financial interest in the transaction.

Comment

See Comment to Instruction 9.18 (Controlled Substance—Distribution or Manufacture), if death or serious bodily injury occurred. 

Use the bracketed paragraph only when quantity is not at issue. 

The defendant does not need to know what the controlled substance is so long as the defendant knows that he or she has possession of such a substance. United States v. Jewell, 532 F.2d 697, 698 (9th Cir. 1976) (en banc). See also United States v. Soto-Zuniga, 837 F.3d 992, 1004-05 (9th Cir. 2016) (knowledge of type and quantity of drugs not element of offense).

In the aftermath of Apprendi v. New Jersey, 530 U.S. 466 (2000), the Ninth Circuit has held that where the amount of drugs "increases the prescribed statutory maximum penalty to which a criminal defendant is exposed," the amount of drugs must be decided by a jury beyond a reasonable doubt. See United States v. Garcia-Guizar, 234 F.3d 483, 488 (9th Cir. 2000). However, the government need not prove that the defendant knew the type or quantity of controlled substance he possessed in order to obtain either a conviction under § 841(a) or a particular sentence under § 841(b). It is sufficient that the jury finds beyond a reasonable doubt that the defendant actually possessed a certain type and quantity of drugs. United States v. Jefferson, 791 F.3d 1013, 1015 (9th Cir. 2015) (holding in the context of a parallel statute, 21 U.S.C. § 960, that the government is not required to prove a defendant’s knowledge of the type or quantity of drugs either for a conviction or for the heightened statutory penalties to apply). As a result, if applicable, the court should obtain a jury determination of the amount of drugs involved. See also United States v. Booker, 543 U.S. 220 (2005); United States v. Ameline, 409 F.3d 1073 (9th Cir. 2005) (en banc). When it is necessary to determine an amount of controlled substance, use this instruction with Instruction 9.16 (Determining Amount of Controlled Substance), together with a verdict form similar to the example provided in the Comment to Instruction 9.19. But see United States v. Hunt, 656 F.3d 906 (9th Cir. 2011) (discussing effect on sentencing of knowledge of type of drug in attempted possession with intent to distribute case).

The defendant may be entitled to a jury instruction on a lesser included offense of simple possession, 21 U.S.C. § 844(a). See Instruction 3.15. See also United States v. Hernandez, 476 F.3d 791, 798-800 (9th Cir. 2007).

Possession of a controlled substance with intent to distribute requires the jury to find that the defendant (1) knowingly possessed drugs and (2) possessed them with the intent to deliver them to another person. See, for example, United States v. Orduno-Aguilera, 183 F.3d 1138, 1140 (9th Cir. 1999); United States v. Seley, 957 F.2d 717, 721 (9th Cir. 1992). See also United States v. Magallon-Jimenez, 219 F.3d 1109, 1112 (9th Cir. 2000).

Regarding cases involving a "controlled substance analogue" as it is defined in 21 U.S.C. § 802(32)(A), the Supreme Court held in McFadden v. United States, 135 S. Ct. 2298 (2015), that, in order to prove the knowledge element, the government must prove that either the defendant knew that the substance distributed is treated as a drug listed on the federal drug schedules—regardless of whether he knew the particular identity of the substance—or "that the defendant knew the specific analogue he was dealing with, even if he did not know its legal status as an analogue." Id. at 2305.　　

Approved 3/2018

9.16 DETERMINING AMOUNT OF CONTROLLED SUBSTANCE 

If you find the defendant guilty of the charge in [Count _______ of] the indictment, you are then to determine whether the government proved beyond a reasonable doubt that the amount of [specify controlled substance] that defendant intended to distribute equaled or exceeded [certain weights] [insert specific threshold weight]. Your determination of weight must not include the weight of any packaging material. Your decision as to weight must be unanimous. 

The government does not have to prove that the defendant knew the quantity of [specify controlled substance]. 

Comment 

When a drug conspiracy is charged, the jury may infer the agreed upon drug amount based on the conduct of the conspirators, but may not speculate as to the amount. See United States v. Narvarrette-Aguilar, 813 F.3d 785, 794 (9th Cir. 2015) ("Express agreement is not required; rather, agreement may be inferred from conduct.") 

While quantity and drug type are not elements of controlled substance offenses, a jury must determine those facts before a sentencing enhancement based upon drug type or quantity can be applied. The Ninth Circuit has held, however, that the Government need not prove that a defendant knew either the controlled substance type or quantity in order for the enhancement to apply. United States v. Jefferson, 791 F.3d 1013, 1019 (9th Cir. 2015); see also United States v. Soto-Zuniga, 837 F.3d 992, 1004-05 (9th Cir. 2016) (knowledge of type and quantity of drugs not element of offense); but see United States v. Hunt, 656 F.3d 906 (9th Cir. 2011) (discussing effect on sentencing of knowledge of type of drug in attempted possession with intent to distribute case). If the charged controlled substances are not in evidence, the court should only allow the jury to use comparison drugs that are from the defendant’s activity or a conspiracy in which the defendant was involved. United States v. Lemus, 815 F.3d 583, 591 (9th Cir. 2016) (stating that purity of controlled substances not connected to defendant could not be used to estimate purity of defendant’s drugs). 

When it is necessary to determine the amount of a controlled substance, use this instruction with Instruction 9.15 (Controlled Substance–Possession with Intent to Distribute). The court may also consider submitting a special verdict form to the jury. For an example of such a form, see the Comment to Instruction 9.19 (Controlled Substance—Conspiracy to Distribute or Manufacture).

Approved 5/2020

9.17 CONTROLLED SUBSTANCE—ATTEMPTED 
POSSESSION WITH INTENT TO DISTRIBUTE
(21 U.S.C. §§ 841(a)(1) and 846)

The defendant is charged in [Count _______ of] the indictment with attempted possession of [specify controlled substance] with intent to distribute in violation of Sections 841(a)(1) and 846 of Title 21 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 intended to possess [specify controlled substance] with the intent to distribute it to another person; and

Second, 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 ste toward the commission of a crime.

To "possess with the intent to distribute" means to possess with intent to deliver or transfer possession of a controlled substance to another person, with or without any financial interest in the transaction.

Comment

See Comment to Instructions 9.15 (Controlled Substance–Possession with Intent to Distribute) and 9.16 (Determining Amount of Controlled Substance). See United States v. Morales-Perez, 467 F.3d 1219, 1222 (9th Cir. 2006) (citing United States v. Davis, 960 F.2d 820, 826-27 (9th Cir. 1992)); United States v. Esquivel-Ortega, 484 F.3d 1221, 1228 (9th Cir. 2007) (citing to United States v. Estrada-Macias, 218 F.3d 1064, 1066 (9th Cir. 2000) (jury instruction requiring the government to prove that defendants knowingly associated themselves with the crime and were not mere spectators)).

The Ninth Circuit has stated, in a case in which the defendant pleaded guilty to attempted possession of a controlled substance with the intent to distribute, in violation of §　841(a), and the government sought a sentence under the heightened penalty provisions of §　841(b) based on type and quantity, that the government was required to prove the defendant’s intent to possess a particular controlled substance. United States v. Hunt, 656 F.3d 906, 912-13 (9th Cir. 2011). By contrast, in a case in which the defendant pleaded guilty to actual importation of a controlled substance with the intent to distribute, in violation of § 960(a) (an analogous statute to § 841(a)), the court held that "the government need not prove that the defendant knew the precise type or quantity of drug he imported" for the heightened penalties based on drug type and quantity to apply. United States v. Jefferson, 791 F.3d 1013, 1019 (9th Cir. 2015); see also United States v. Carranza, 289 F.3d 634, 644 (9th Cir. 2002) ("A defendant charged with importing or possessing a drug is not required to know the type and amount of drug."). The Committee believes that there may be tension between Hunt and Jefferson on the issue of a defendant’s knowledge or intent regarding drug type and quantity. At least one district judge has limited the holding in Hunt to attempt crimes. See United States v. Rivera, No. 10-cr-3310-BTM, 2014 WL 3896041, at *2 (S.D. Cal., Aug. 7, 2014).

Regarding cases involving a "controlled substance analogue" as it is defined in 21 U.S.C. § 802(32)(A), the Supreme Court held in McFadden v. United States, 135 S. Ct. 2298 (2015), that, in order to prove the knowledge element, the government must prove that either the defendant knew that the substance distributed is treated as a drug listed on the federal drug schedules—regardless of whether he knew the particular identity of the substance—or "that the defendant knew the specific analogue he was dealing with, even if he did not know its legal status as an analogue." Id. at 2305.

"To 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).　　

Approved 4/2019

9.18 CONTROLLED SUBSTANCE—DISTRIBUTION OR MANUFACTURE
(21 U.S.C. § 841(a)(1)) 

The defendant is charged in [Count _______ of] the indictment with [distribution] [manufacture] of [specify controlled substance] in violation of Section 841(a)(1) of Title 21 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 [[distributed] [manufactured]] [specify controlled substance]; and 

Second, the defendant knew that it was [specify controlled substance] or some other federally controlled substance. 

["Distributing" means delivering or transferring possession of [specify controlled substance] to another person, with or without any financial interest in that transaction.] 

[The government is not required to prove the amount or quantity of [specify controlled substance]. It need only prove beyond a reasonable doubt that there was a measurable or detectable amount of [specify controlled substance].] 

Comment 

See Comment to Instructions 9.15 (Controlled Substance–Possession with Intent to Distribute) and 9.16 (Determining Amount of Controlled Substance). 

A similar instruction was explicitly approved in United States v. Houston, 406 F.3d 1121, 1122 n.2 (9th Cir.), cert. denied, 546 U.S. 914 (2005). 

It is also unlawful under 21 U.S.C. § 841(a)(1) to dispense or possess with intent to dispense a controlled substance. If that crime is charged, the instruction should be modified accordingly. 

Several of the penalty sections for a violation of 21 U.S.C. §§ 841(a)(1), 846, 859, 860 and/or 861(a)(1) increase the sentence "if death or serious bodily injury results from the use of such [controlled] substance[s]." 21 U.S.C. §§ 841(b)(1)(A)-(C). Although the government must prove that death or serious bodily injury resulted from the use of the controlled substance for this enhancement to apply, the government need not prove that the death was a foreseeable result of the distribution of the controlled substance. Houston, 406 F.3d at 1124-25 ("Cause-in-fact is required by the ‘results’ language, but proximate cause, at least insofar as it requires that the death have been foreseeable, is not a required element."). 

"[W]hen Congress made it a crime to ‘knowingly. . .possess with intent to manufacture, distribute, or dispense, a controlled substance. . . , it meant to punish not only those who know they possess a controlled substance, but also those who don’t know because they don’t want to know." United States v. Heredia, 483 F.3d 913, 918 (9th Cir.) (en banc), cert. denied, 552 U.S. 1077 (2007). See also Instruction 5.8 (Deliberate Ignorance). 

Regarding cases involving a "controlled substance analogue" as it is defined in 21 U.S.C. § 802(32)(A), the Supreme Court held in McFadden v. United States, 135 S. Ct. 2298 (2015), that, in order to prove the knowledge element, the government must prove that either the defendant knew that the substance distributed is treated as a drug listed on the federal drug schedules—regardless of whether he knew the particular identity of the substance—or "that the defendant knew the specific analogue he was dealing with, even if he did not know its legal status as an analogue." Id. at 2305.  

Approved 3/2018

9.19 CONTROLLED SUBSTANCE—CONSPIRACY
 TO DISTRIBUTE OR MANUFACTURE
(21 U.S.C. §§ 841(a) and 846) 

The defendant is charged in [Count _____ of] the indictment with conspiracy to [[distribute] [manufacture]] [specify controlled substance] in violation of Section 841(a) and Section 846 of Title 21 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, beginning on or about [date] and ending on or about [date], there was an agreement between two or more persons to [[distribute] [manufacture]] [specify controlled substance]; and 

Second , the defendant joined in the agreement knowing of its purpose and intending to help accomplish that purpose. 

["To distribute" means to deliver or transfer possession of [specify controlled substance] to another person, with or without any financial interest in that transaction.] 

A conspiracy is a kind of criminal partnership—an agreement of two or more persons to commit one or more crimes. The crime of conspiracy is the agreement to do something unlawful; it does not matter whether the crime agreed upon was committed. 

For a conspiracy to have existed, it is not necessary that the conspirators made a formal agreement or that they agreed on every detail of the conspiracy. It is not enough, however, that they simply met, discussed matters of common interest, acted in similar ways, or perhaps helped one another. You must find that there was a plan to commit at least one of the crimes alleged in the indictment as an object or purpose of the conspiracy with all of you agreeing as to the particular crime which the conspirators agreed to commit. 

One becomes a member of a conspiracy by willfully participating in the unlawful plan with the intent to advance or further some object or purpose of the conspiracy, even though the person does not have full knowledge of all the details of the conspiracy. Furthermore, one who willfully joins an existing conspiracy is as responsible for it as the originators. On the other hand, one who has no knowledge of a conspiracy, but happens to act in a way which furthers some object or purpose of the conspiracy, does not thereby become a conspirator. Similarly, a person does not become a conspirator merely by associating with one or more persons who are conspirators, nor merely by knowing that a conspiracy exists. 

Comment 

This instruction is for use with Instructions 9.15, 9.16, 9.18, 9.21, 9.23, and 9.25. 

Concerning the elements of the crime, see, e.g., United States v. Collazo, 982 F.3d 596 (9th 2020);United States v. Reed, 575 F. 3d 900, 923 (9th Cir. 2009); United States v. Garrison, 888 F.3d 1057, 1064-65 (9th Cir. 2018). 

To prove an agreement to commit a crime, it is not sufficient for the government to prove that the defendant committed the crime in question. It must prove that the defendant agreed with at least one other person to commit that crime. United States v. Loveland, 825 F.3d 555 (9th Cir. 2016). 

See United States v. Shabani, 513 U.S. 10, 15-16 (1994), holding that in order to establish a violation of 21 U.S.C. § 846, the government is not required to prove commission of overt acts in furtherance of the conspiracy. The Court contrasted § 846, which is silent as to whether there must be an overt act, with the general conspiracy statute, 18 U.S.C. § 371, which contains the explicit requirement that a conspirator "do any act to effect the object of the conspiracy." Id. at 14. 

Regarding cases involving a "controlled substance analogue" as it is defined in 21 U.S.C. § 802(32)(A), the Supreme Court held in McFadden v. United States, 135 S. Ct. 2298 (2015), that, in order to prove the knowledge element, the government must prove that either the defendant knew that the substance distributed is treated as a drug listed on the federal drug schedules—regardless of whether he knew the particular identity of the substance—or "that the defendant knew the specific analogue he was dealing with, even if he did not know its legal status as an analogue." Id. at 2305. 

When it is necessary to determine the amount of a controlled substance, the court might consider submitting the following special verdict form to the jury:  

SUGGESTED VERDICT FORM 

            WE, THE JURY, FIND THE DEFENDANT, [name of defendant], AS FOLLOWS: 

            AS TO COUNT [insert count number] OF THE INDICTMENT: 

 SPECIAL VERDICTS 

_____________                                              ______________________                           

DATE                                                             FOREPERSON

Approved 9/2020

9.19A BUYER-SELLER RELATIONSHIP

A buyer-seller relationship between a defendant and another person, standing alone, cannot support a conviction for conspiracy. The fact that a defendant may have bought [specify controlled substance] from another person or sold [specify controlled substance] to another person is not sufficient without more to establish that the defendant was a member of the charged conspiracy. Instead, a conviction for conspiracy requires proof of an agreement to commit a crime beyond that of the mere sale. 

In considering whether the evidence supports the existence of a conspiracy or the existence of a buyer-seller relationship, you should consider all the evidence, including the following factors:

[(1) whether the sales were made on credit or consignment;]

[(2) the frequency of the sales;]

[(3) the quantity of the sales;]

[(4) the level of trust demonstrated between the buyer and the seller, including the use of codes;]

[(5) the length of time during which the sales were ongoing;]

[(6) whether the transactions were standardized;]

[(7) whether the parties advised each other on the conduct of the other's business;]

[(8) whether the buyer assisted the seller by looking for other customers;]

[(9) and whether the parties agreed to warn each other of potential threats from competitors or law enforcement.]

These are merely a list of relevant factors to aid you in analyzing the evidence; the presence or absence of any single factor is not determinative.

Comment

Use this instruction with Instruction 9.19 (Controlled Substance—Conspiracy to Distribute or Manufacture) if applicable.

See United States v. Moe, 781 F.3d 1120, 1128 (9th Cir. 2015) (explaining that no buyer-seller instruction is required when jury instructions as a whole accurately inform jury that conspiracy cannot be found based solely on sale of drugs from one party to another. However, buyer-seller instruction might assist jury in working through fact-intensive determinations and, in certain circumstances, buyer-seller instruction might be required).

"To show a conspiracy, the government must show not only that [the seller] gave drugs to other people knowing that they would further distribute them, but also that he had an agreement with these individuals to so further distribute the drugs." United States v. Lennick, 18 F.3d 814, 819 (9th Cir. 1994).　

“A relationship of mere seller and buyer, with the seller having no stake in what the buyer does with the goods, shows the absence of a conspiracy, because it is missing the element of an agreement for redistribution.”  United States v. Loveland, 825 F.3d 555, 562 (9th Cir. 2016).  Evidence showing that the seller probably knew the buyer was reselling the drugs based on the quantities and repeated sales between the two is insufficient by itself to establish an agreement for redistribution.  See id. 

The list of factors provided in this instruction is neither necessarily required nor meant to be exhaustive. See Moe, 781 F.3d at 1125–26. The list of factors presented to the jury should be tailored to fit the facts of the case.　

Approved 9/2020

9.20 CONTROLLED SUBSTANCE—ATTEMPTED 
DISTRIBUTION OR MANUFACTURE
(21 U.S.C. §§ 841(a)(1) and 846)

The defendant is charged in [Count _______ of] the indictment with attempted [distribution] [manufacture] of [specify controlled substance] in violation of Sections 841(a)(1) and 846 of Title 21 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 intended to [[distribute [specify controlled substance] to another person]] [[manufacture [specify controlled substance]];

Second, the defendant knew that it was [specify controlled substance] or some other federally controlled substance; and

Third, 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 the commission of the crime of [distribution] [manufacture] of [specify controlled substance]. 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.

["To distribute" means to deliver or transfer possession of [specify controlled substance] to another person, with or without any financial interest in that transaction.]

Comment

See Comment to Instructions 9.15 (Controlled Substance–Possession with Intent to Distribute), 9.16 (Determining Amount of Controlled Substance) and 9.18 (Controlled Substance–Distribution or Manufacture).

Regarding cases involving a "controlled substance analogue" as it is defined in 21 U.S.C. § 802(32)(A), the Supreme Court held in McFadden v. United States, 135 S. Ct. 2298 (2015), that, in order to prove the knowledge element, the government must prove that either the defendant knew that the substance distributed is treated as a drug listed on the federal drug schedules—regardless of whether he knew the particular identity of the substance—or "that the defendant knew the specific analogue he was dealing with, even if he did not know its legal status as an analogue." Id. at 2305. 

"To 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).　

Approved 4/2019

9.21 CONTROLLED SUBSTANCE—DISTRIBUTION 
TO PERSON UNDER 21 YEARS
(21 U.S.C. §§ 841(a)(1) and 859) 

The defendant is charged in [Count _______ of] the indictment with distribution of [specify controlled substance] to a person under the age of 21 years in violation of Section 841(a)(1) and 859 of Title 21 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 distributed [specify controlled substance] to [name of underage person]; 

Second, the defendant knew that it was [specify controlled substance] or some other federally controlled substance; 

Third, the defendant was at least eighteen years of age; and 

Fourth, [name of underage person] was under twenty-one years of age. 

"Distribution" means delivery or transfer of possession of [specify controlled substance] to another person, with or without any financial interest in that transaction.  

Comment 

See Comment to Instruction 9.15 (Controlled Substance–Possession with Intent to Distribute). See also Instruction 9.16 (Determining Amount of Controlled Substance). 

Knowledge by the defendant that the person to whom the controlled substance is distributed is under twenty-one years of age is not an essential element. United States v. Valencia–Roldan, 893 F.2d 1080, 1083 (9th Cir. 1990). 

The government is required to establish beyond a reasonable doubt that the defendant: (1) "knowingly and intentionally" (2) distributed (3) a controlled substance (4) while the defendant was over the age of 18 and (5) the victim was under the age of twenty-one. United States v. Durham, 464 F.3d 976, 980-81 (9th Cir. 2006).

Regarding cases involving a "controlled substance analogue" as it is defined in 21 U.S.C. § 802(32)(A), the Supreme Court held in McFadden v. United States, 135 S. Ct. 2298 (2015), that, in order to prove the knowledge element, the government must prove that either the defendant knew that the substance distributed is treated as a drug listed on the federal drug schedules—regardless of whether he knew the particular identity of the substance—or "that the defendant knew the specific analogue he was dealing with, even if he did not know its legal status as an analogue." Id. at 2305.

Approved 9/2017

9.22 CONTROLLED SUBSTANCE—ATTEMPTED 
DISTRIBUTION TO PERSON UNDER 21 YEARS
(21 U.S.C. §§ 841(a)(1), 846 and 859)

The defendant is charged in [Count _______ of] the indictment with attempted distribution of [specify controlled substance] to a person under the age of twenty-one years in violation of Sections 841(a)(1), 846 and 859 of Title 21 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 intended to distribute [specify controlled substance] to [name of underage person];

Second, the defendant knew that it was [specify controlled substance] or some other federally controlled substance;

Third, the defendant was at least eighteen years of age;

Fourth, [name of underage person] was under the age of twenty-one years; and

Fifth, 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 the commission of the crime of distribution of [specify controlled substance] to a person under the age of twenty-one years. 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.

"Distribution" means delivery or transfer of possession of [specify controlled substance] to another person, with or without any financial interest in that transaction.

Comment

See Comment to Instructions 9.15 (Controlled Substance–Possession with Intent to Distribute), 9.16 (Determining Amount of Controlled Substance) and 9.21 (Controlled Substance–Distribution to Person Under 21 Years).

Regarding cases involving a "controlled substance analogue" as it is defined in 21 U.S.C. § 802(32)(A), the Supreme Court held in McFadden v. United States, 135 S. Ct. 2298 (2015), that, in order to prove the knowledge element, the government must prove that either the defendant knew that the substance distributed is treated as a drug listed on the federal drug schedules—regardless of whether he knew the particular identity of the substance—or "that the defendant knew the specific analogue he was dealing with, even if he did not know its legal status as an analogue." Id. at 2305.

"To 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).　　

Approved 4/2019

9.23 CONTROLLED SUBSTANCE—DISTRIBUTION IN OR NEAR SCHOOL
(21 U.S.C. §§ 841(a)(1) and 860)

The defendant is charged in [Count _______ of] the indictment with distribution of [specify controlled substance] in, on or within 1,000 feet of the [schoolyard] [campus] of a [school] [college] [university] in violation of Sections 841(a)(1) and 860 of Title 21 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 distributed [specify controlled substance] to another person;

Second, the defendant knew that it was [specify controlled substance] or some other federally controlled substance; and

Third, the distribution took place in, on or within 1,000 feet of the [schoolyard] [campus] of [school].

"Distribution" means delivery or transfer of possession of [specify controlled substance] to another person, with or without any financial interest in that transaction.

Comment

See Comment to Instructions 9.15 (Controlled Substance–Possession with Intent to Distribute) and 9.16 (Determining Amount of Controlled Substance).

The defendant’s specific knowledge of the proximity of a school is not an element of the offense. United States v. Pitts,908 F.2d 458, 461 (9th Cir. 1990). Distance is measured by a straight line. United States v. Watson, 887 F.2d 980, 981 (9th Cir. 1989).

Section 860 applies not only to schools, but also to playgrounds and public housing facilities. In addition, it applies to youth centers, public swimming pools and video arcades; as to these locations, the distribution must have occurred within a 100 foot radius (as opposed to a 1,000 foot radius). The instruction should be revised as necessary to match the facts of the case.

Regarding cases involving a "controlled substance analogue" as it is defined in 21 U.S.C. § 802(32)(A), the Supreme Court held in McFadden v. United States, 135 S. Ct. 2298 (2015), that, in order to prove the knowledge element, the government must prove that either the defendant knew that the substance distributed is treated as a drug listed on the federal drug

schedules—regardless of whether he knew the particular identity of the substance—or "that the defendant knew the specific analogue he was dealing with, even if he did not know its legal status as an analogue." Id. at 2305.

Approved 9/2017

9.24 CONTROLLED SUBSTANCE—ATTEMPTED 
DISTRIBUTION IN OR NEAR SCHOOL
(21 U.S.C. §§ 841(a)(1), 846 and 860)

The defendant is charged in [Count _______ of] the indictment with attempted distribution of [specify controlled substance] within 1,000 feet of the [schoolyard] [campus] of a [school] [college] [university] in violation of Sections 841(a)(1), 846 and 860 of Title 21 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 intended to distribute [specify controlled substance] to another person in, on, or within 1,000 feet of the [schoolyard] [campus] of [name of school];

Second, the defendant knew that it was [specify controlled substance] or some other federally controlled substance; and

Third, 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 the commission of the crime of distribution of [specify controlled substance] in or near a school. 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.

"Distribution" means delivery or transfer of possession of [specify controlled substance] to another person, with or without any financial interest in that transaction.

Comment

See Comment to Instructions 9.15 (Controlled Substance–Possession with Intent to Distribute), 9.16 (Determining Amount of Controlled Substance) and 9.23 (Controlled Substance–Distribution In or Near a School).

Regarding cases involving a "controlled substance analogue" as it is defined in 21 U.S.C. § 802(32)(A), the Supreme Court held in McFadden v. United States, 135 S. Ct. 2298 (2015), that, in order to prove the knowledge element, the government must prove that either the defendant knew that the substance distributed is treated as a drug listed on the federal drug schedules—regardless of whether he knew the particular identity of the substance—or "that the defendant knew the specific analogue he was dealing with, even if he did not know its legal status as an analogue." Id. at 2305. 

"To 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).　

Approved 4/2019

9.25 CONTROLLED SUBSTANCE—EMPLOYMENT OF MINOR TO VIOLATE DRUG LAWS
(21 U.S.C. §§ 841(a)(1) and 861(a)(1))

The defendant is charged in [Count _______ of] the indictment with [hiring] [using] [employing] [persuading] [inducing] [enticing] [coercing] a minor to [specify drug law violation] in violation of Sections 841(a)(1) and 861(a)(1) of Title 21 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 [[hired] [used] [persuaded] [coerced] [induced] [enticed] [employed]] [name of minor] to [specify drug law violation and controlled substance];

Second, the defendant was at least eighteen years of age; and

Third, [name of minor] was under the age of eighteen years.

The government is not required to prove that the defendant knew the age of [name of minor].

Comment

The defendant’s knowledge of the age of the minor is not an essential element of the offense. United States v. Valencia–Roldan, 893 F.2d 1080, 1083 (9th Cir.1990). This statute creates a separate offense and is not a mere sentence enhancement. Id.

This instruction may be modified for use in cases arising under Sections 861(a)(2) and (3).

Regarding cases involving a "controlled substance analogue" as it is defined in 21 U.S.C. § 802(32)(A), the Supreme Court held in McFadden v. United States, 135 S. Ct. 2298 (2015), that, in order to prove the knowledge element, the government must prove that either the defendant knew that the substance distributed is treated as a drug listed on the federal drug schedules—regardless of whether he knew the particular identity of the substance—or "that the defendant knew the specific analogue he was dealing with, even if he did not know its legal status as an analogue." Id. at 2305.

Approved 9/2015

9.26 CONTROLLED SUBSTANCE—
ATTEMPTED EMPLOYMENT OF
MINOR TO VIOLATE DRUG LAWS
(21 U.S.C. §§ 841(a)(1), 846 and 861(a)(1))

The defendant is charged in [Count _______ of] the indictment with attempted employment of a minor to [specify drug law violation] in violation of Sections 841(a)(1), 846 and 861(a)(1) of Title 21 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 intended to [[hire] [use] [persuade] [coerce] [induce] [entice] [employ]] [name of minor] to [specify drug law violation and controlled substance];

Second, the defendant was at least eighteen years of age;

Third, [name of minor] was under the age of eighteen years; 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 the commission of the crime of [hiring] [using] a minor to violate the drug laws. 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.

Comment

See Comment to Instruction 9.25 (Controlled Substance–Employment of Minor to Violate Drug Law).

Regarding cases involving a "controlled substance analogue" as it is defined in 21 U.S.C. § 802(32)(A), the Supreme Court held in McFadden v. United States, 135 S. Ct. 2298 (2015), that, in order to prove the knowledge element, the government must prove that either the defendant knew that the substance distributed is treated as a drug listed on the federal drug schedules—regardless of whether he knew the particular identity of the substance—or "that the defendant knew the specific analogue he was dealing with, even if he did not know its legal status as an analogue." Id. at 2305.

"To 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).

Approved 4/2019

9.27 CONTROLLED SUBSTANCE—POSSESSION OF LISTED
 CHEMICAL WITH INTENT TO MANUFACTURE
(21 U.S.C. § 841(c)(1))

The defendant is charged in [Count _______ of] the indictment with possession of a listed chemical with intent to manufacture [specify controlled substance] in violation of Section 841(c)(1) of Title 21 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 possessed [specify listed chemical]; and

Second, the defendant possessed it with the intent to manufacture [specify controlled substance].

It does not matter whether the defendant knew that [specify listed chemical] was a listed chemical. It is sufficient that the defendant knew that it was to be used to manufacture [specify controlled substance] or some other prohibited drug.

Comment

The term "knowingly" in the first element refers only to "possessed" and not to "listed chemical." United States v. Estrada,453 F.3d 1208, 1212 (9th Cir. 2006); see also United States v. Ching Tang Lo,447 F.3d 1212, 1231 (9th Cir. 2006) (same).

9.28 CONTROLLED SUBSTANCE— POSSESSION
OR DISTRIBUTION OF LISTED CHEMICAL
(21 U.S.C. § 841(c)(2))

The defendant is charged in [Count _______ of] the indictment with [possession] [distribution] of a listed chemical, knowing or having reasonable cause to believe it would be used to manufacture [specify controlled substance] in violation of Section 841(c)(2) of Title 21 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 [[possessed] [distributed]] [specify listed chemical]; and

Second, the defendant [possessed] [distributed] it knowing, or having reasonable cause to believe, that it would be used to manufacture [specify controlled substance].

It does not matter whether defendant knew that [specify listed chemical] was a listed chemical. It is sufficient that the defendant knew or had reasonable cause to believe that it would be used to manufacture [specify controlled substance] or some other prohibited drug.

"Reasonable cause to believe" means knowledge of facts that, although not amounting to direct knowledge, would cause a reasonable person in the defendant’s position knowing the same facts, to reasonably conclude that the [specify listed chemical] would be used to manufacture a controlled substance. You must consider the knowledge and sophistication of the defendant when determining whether the defendant had reasonable cause to believe that the [specify listed chemical] would be used to manufacture [specify controlled substance] or some other prohibited drug.　

Comment

In United States v. Kaur,382 F.3d 1155, 1156-57 (9th Cir. 2004),the court recognized that 21 U.S.C. § 841(c)(2) "clearly presents knowledge and reasonable cause to believe as two distinct alternatives" and held that the trial court fairly and accurately defined "reasonable cause to believe" as follows: "‘Reasonable cause to believe’ means to have knowledge of facts which, although not amounting to direct knowledge, would cause a reasonable person knowing the same facts, to reasonably conclude that the pseudoephedrine would be used to manufacture a controlled substance." See also United States v. Johal, 428 F.3d 823, 825-28 (9th Cir. 2005).The "reasonable cause to believe" standard incorporates both objective and subjective elements. Kaur, 382 F.3d at 1157. The standard "requires a jury to evaluate scienter through the lens of the particular defendant on trial" considering "the knowledge and sophistication of the particular defendant on trial, not that of a hypothetical person before the court." United States v. Munguia, 704 F.3d 596, 603 (9th Cir. 2012).　

See United States v. Ching Tang Lo, 447 F.3d 1212, 1231-33 (9th Cir. 2006) (discussing mens rea standard for conspiring to aid and abet manufacture of controlled substances). 　

Approved 4/2013

9.29 ILLEGAL USE OF COMMUNICATIONFACILITY
(21 U.S.C. § 843(b))

The defendant is charged in [Count _____ of] the indictment with illegal use of a communication facility in violation of Section 843(b) of Title 21 of the United States Code. In order for the defendant to be found guilty of that charge, the government must prove beyond a reasonable doubt that the defendant knowingly or intentionally used [a telephone] [the mail] [a radio] [a wire] to help bring about [specify illegal act or acts] as charged in [Count _____ of] the indictment].

Comment

For a definition of "knowingly," see Instruction 5.7 (Knowingly—Defined).　

Approved 3/2018

9.30 CONTROLLED SUBSTANCE—CONTINUING
CRIMINAL ENTERPRISE
(21 U.S.C. § 848)

The defendant is charged in [Count _______ of] the indictment with engaging in a continuing criminal enterprise in violation of Section 848 of Title 21 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 committed the violation[s] of [specify drug law violation] [as charged in [Count[s] _______ of] the indictment];

Second, the violation[s] [was] [were] part of a series of three or more violations committed by the defendant over a definite period of time, with the jury unanimously finding that the defendant committed each of at least three such violations;

Third, the defendant committed the violations together with five or more other persons. The government does not have to prove that all five or more of the other persons operated together at the same time, or that the defendant knew all of them;

Fourth, the defendant acted as an organizer, supervisor or manager of the five or more other persons; and

Fifth, the defendant obtained substantial income or resources from the violations.

"Income or resources" means receipts of money or property.

Comment

"[A] jury in a federal criminal case brought under § 848 must unanimously agree not only that the defendant committed some ‘continuing series of violations’ but also that the defendant committed each of the individual ‘violations’ necessary to make up that ‘continuing series.’" Richardson v. United States, 526 U.S. 813, 815 (1999); see also United States v. Garcia, 988 F.2d 965, 969 (9th Cir. 1993) (concluding that general unanimity instruction is sufficient unless "genuine possibility" of juror confusion exists),citing United States v. Gilley, 836 F.2d 1206, 1211-12 (9th Cir. 1988)); United States v. Hernandez-Escarsega, 886 F.2d 1560, 1570-73 (9th Cir. 1989).

The Supreme Court has held that a § 846 drug conspiracy is a lesser included offense of a continuing criminal enterprise. Rutledge v. United States, 517 U.S. 292, 306-07 (1996).　

To be held liable for occupying a "position of organizer" and a "supervisory position" within a continuing criminal enterprise, the defendant must be in a position of management. United States v. Barona, 56 F.3d 1087, 1097 (9th Cir. 1995); but see United States v. Jerome, 942 F.2d 1328, 1331 (9th Cir. 1991) (reversing conviction when jury was not properly instructed as to which of several persons could be included in "five or more" category).

9.31 CONTROLLED SUBSTANCE—MAINTAINING
DRUG-INVOLVED PREMISES
(21 U.S.C. § 856(a)(1))

The defendant is charged in [Count ______ of] the indictment with knowingly and intentionally [opening] [leasing] [renting] [using] [maintaining] any place, whether permanently or temporarily, for the purpose of manufacturing, distributing or using a controlled substance in violation of Section 856(a)(1) of Title 21 of the United States Code. In order for the defendant to be found guilty of that charge, the government must prove beyond a reasonable doubt that the defendant knowingly [opened] [maintained] a place for the purpose of [manufacturing] [distributing] [using] a controlled substance.

["For the purpose of manufacturing, distributing or using a controlled substance" means that manufacturing, distributing or using a controlled substance is one of the primary or principal uses to which the residence is put.]

"Maintaining" a place includes facts showing that over a period of time, the defendant directed the activities of and the people in the place.

Comment　

In United States v. Shetler, 665 F.3d 1150, 1162 (9th Cir. 2011), the Ninth Circuit held that "in the residential context, the manufacture (or distribution or use) of drugs must at least be one of the primary or principal uses to which the house is put" (quoting United States v. Verners, 53 F.3d 291, 296 (10th Cir. 1995)). See also United States v. Mancuso, 718 F.3d 780, 794-96 (9th Cir. 2013) (following Shetler and holding that "primary or principal use" instruction should have been used for count alleging unlawful use of dental office, as well as use of house).

See United States v. Basinger, 60 F.3d 1400, 1405-06 (9th Cir. 1995) (analyzing dominion and control shed).　　

Approved 7/2013

9.32 CONTROLLED SUBSTANCE—UNLAWFUL IMPORTATION
(21 U.S.C. §§ 952 and 960)

The defendant is charged in [Count _______ ] of the indictment with unlawful importation of a controlled substance in violation of Sections 952 and 960 of Title 21 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 brought [specify controlled substance] into the United States from a place outside the United States; andSecond, the defendant knew the substance he was bringing into the United States was [specify controlled substance] or some other prohibited drug.

[The government is not required to prove the amount or quantity of [specify controlled substance]. It need only prove beyond a reasonable doubt that there was a measurable or detectable amount of [specify controlled substance].]

It does not matter whether the defendant knew that the substance was [specify controlled substance]. It is sufficient that the defendant knew that it was some kind of a prohibited drug.

Comment

See Comment to Instructions 9.15 (Controlled Substance—Possession with Intent to Distribute) and 9.16 (Determining Amount of Controlled Substance).

Separate counts for different controlled substances is not multiplicitous. See United States v. Vargas-Castillo, 329 F.3d 715, 720-22 (9th Cir. 2003).

"By their very nature, ‘importation’ offenses and ‘distribution’ offenses require entirely different factual bases to justify a conviction." United States v. Transfiguracion, 442 F.3d 1222, 1235-36 (9th Cir. 2006).

See also United States v. Vallejo, 237 F.3d 1008, 1025 n.8 (9th Cir. 2001) (noting that "the Ninth Circuit model instructions correctly state the law under 21 U.S.C. § 952 and 960").

9.33 CONTROLLED SUBSTANCE—MANUFACTURE FOR PURPOSE OF IMPORTATION
(21 U.S.C. §§ 959 and 960(a)(3))

The defendant is charged in [Count _______ of] the indictment with the manufacture of [specify controlled substance] for purposes of unlawful importation in violation of Sections 959 and 960(a)(3) of Title 21 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 manufactured [specify controlled substance] outside of the United States; and

Second, the defendant either intended that the [specify controlled substance] be unlawfully brought into the United States [or into waters within a distance of 12 miles off the coast of the United States] or knew that the [specify controlled substance] would be unlawfully brought into the United States.

9.34 FIREARMS—POSSESSION OF UNREGISTERED FIREARM
(26 U.S.C. § 5861(d)) 

The defendant is charged in [Count _______ of] the indictment with [possession] [receipt] of an unregistered firearm in violation of Section 5861(d) of Title 26 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 [[possessed] [received]] [specify firearm]; and

Second, the defendant was aware that the [specify firearm] was [specify statutory features or characteristics of the firearm that bring it within the statute]; and

Third, the defendant had not registered the [specify firearm] with the National Firearms Registration and Transfer Record.

The government need not prove that the defendant knew that possessing the firearm was illegal.

Comment

For a definition of "firearm," see 26 U.S.C. § 5845(a).

The government must prove that the defendant knew of those features which brought the firearm within the scope of the statute. See Staples v. United States, 511 U.S. 600, 619 (1994) ("[T]o obtain a conviction, the Government should have been required to prove that petitioner knew of the features of his AR-15 that brought it within the scope of the Act"); see also United States v. Montoya-Gaxiola, 796 F.3d 1118, 1122 (9th Cir. 2015) ("The law then is clear that, in order to convict under § 5861(d) . . . the Government must prove that the defendant knew the specific characteristics that made it a firearm within the Act"). The government need not prove that the defendant knew that possessing the firearm was illegal. See United States v. Summers, 268 F.3d 683, 688 (9th Cir. 2001).　

Approved 9/2015

9.35 FIREARMS—DESTRUCTIVE DEVICES—COMPONENT PARTS 
(26 U.S.C. § 5861(d))

The defendant is charged in [Count _______ of] the indictment with possession of an unregistered firearm—specifically, components from which a destructive device such as a bomb, grenade or mine can be readily assembled—in violation of Section 5861(d) of Title 26 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 possessed components that could be readily assembled into a destructive device such as a bomb, grenade or mine;

Second, the defendant intended to use the components as a weapon; and

Third, the components were not registered to the defendant in the National Firearms Registration and Transfer Record.

Comment

The statutory definition of "destructive device" includes "any combination of parts either designed or intended for use in converting any device into a destructive device . . . and from which a destructive device may be readily assembled." 26 U.S.C. § 5845(f). For unassembled components to qualify as a "firearm" there must be proof beyond a reasonable doubt that the components were intended for use as a weapon. United States v. Fredman, 833 F.2d 837, 839 (9th Cir.1987).  See United States v. Schaefer, 13 F.4th 875, 893-95 (9th Cir. 2021) (explaining “destructive device” as that term is used in both 18 U.S.C. § 921(a)(4) and 26 U.S.C. § 5845(f)).

9.36 FIREARMS—POSSESSION WITHOUTSERIAL NUMBER
(26 U.S.C. § 5861(i)) 

The defendant is charged in [Count _______ of] the indictment with [possession] [receipt] of a firearm without a serial number in violation of Section 5861(i) of Title 26 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 [possessed] [received] a [specify firearm]; and 

Second, there was no serial number on the [specify firearm]. 

Comment 

For a definition of "knowingly," see Instruction 5.7 (Knowingly—Defined). 

For a definition of "firearm," see 26 U.S.C. § 5845(a).  

Approved 3/2018

9.37 ATTEMPT TO EVADE OR DEFEAT INCOME TAX
(26 U.S.C. § 7201)

The defendant is charged in [Count _______ of] the indictment with [specify charge] in violation of Section 7201 of Title 26 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 owed more federal income tax for the calendar year [specify year] than was declared due on the defendant’s income tax return for that calendar year;

Second, the defendant knew that more federal income tax was owed than was declared due on the defendant’s income tax return;

Third, the defendant made an affirmative attempt to evade or defeat such additional tax; and

Fourth, in attempting to evade or defeat such additional tax, the defendant acted willfully.

Comment

See Instruction 9.42 (Willfully—Defined) as to " willfully" in the context of prosecutions for violations of Title 26.

The elements of attempted tax evasion under 26 U.S.C. § 7201 are stated in United States v. Kayser, 488 F.3d 1070, 1073 (9th Cir. 2007), as follows: (1) willfulness; (2) the existence of a tax deficiency; and (3) an affirmative act constituting an evasion or attempted evasion of the tax. (citing Sansone v. United States, 380 U.S. 343, 351 (1965) and United States v. Marashi, 913 F.2d 724, 735 (9th Cir. 1990)). "A tax deficiency occurs when a defendant owes more federal income tax for the applicable tax year than was declared due on the defendant’s income tax return." Kayser, 488 F.3d at 1073.

The first element requires the government to prove there was a tax deficiency, but the deficiency need not be "substantial." Marashi, 913 F.2d at 735.

"A defendant may negate the element of tax deficiency in a tax evasion case with evidence of unreported deductions." Kayser, 488 F.3d at 1073-74 (rejecting an argument that the defendant was precluded from offering evidence that is inconsistent with information that he reported on his tax returns).

When a corporation makes a distribution to a stockholder initially characterized as a "distribution," that "distribution" may subsequently be legitimately characterized as a non-taxable "return of capital" if the corporation has no earnings. Boulware v. United States, 552 U.S. 421, 430-31 (2008).

A defendant accused of tax evasion is not entitled to a lesser included offense instruction based on § 7203 if the act constituting evasion was the filing of a false return. Sansone, 380 U.S. at 351-52. In addition, because failure to file a return is an element of a § 7203 failure to file charge, but is not an element of a § 7201 tax evasion charge, the offense of failure to file is not a lesser included offense of tax evasion. United States v. Nichols, 9 F.3d 1420, 1422 (9th Cir. 1993). See Instruction 3.14 (Lesser Included Offense), and Instruction 9.38 (Willful Failure to Pay Tax or File Tax Return).

9.38 WILLFUL FAILURE TO PAY TAX OR FILE TAX RETURN
(26 U.S.C. § 7203)

The defendant is charged in [Count _______ of] the indictment with willful failure [to pay tax] [to file an income tax return] in violation of Section 7203 of Title 26 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 [owed taxes] [was required to file a return] [was required to keep records] [was required to supply information] for the calendar year ending December 31, [specify year];

Second, the defendant failed to [[pay the tax] [file an income tax return]] [[by April 15, [specify year]] as required by Title 26 of the United States Code; and

Third, in failing to do so, the defendant acted willfully.

Comment

See Instruction 9.42 (Willfully—Defined) as to "willfully" in the context of prosecutions for violations of Title 26.

9.39 FILING FALSE TAX RETURN
(26 U.S.C. § 7206(1))

The defendant is charged in [Count _______ of] the indictment with filing a false tax return in violation of Section 7206(1) of Title 26 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 signed and filed a tax return for the year [specify year] that [he] [she] knew contained [false] [incorrect] information as to a material matter;

Second, the return contained a written declaration that it was being signed subject to the penalties of perjury; and

Third, in filing the false tax return, the defendant acted willfully.

A matter is material if it had a natural tendency to influence, or was capable of influencing, the decisions or activities of the Internal Revenue Service.

Comment

See Instruction 9.42 (Willfully—Defined) as to " willfully" in the context of prosecutions for violations of Title 26.

Section 7206 creates several distinct crimes. This instruction applies to § 7206(1) and should be modified if the charge arises under § 7206(3), (4), or (5). If the charge arises under § 7206(2), see Instruction 9.40 (Aiding or Advising False Income Tax Return).

False information is material if it had a natural tendency to influence or was capable of influencing or affecting the ability of the IRS to audit or verify the accuracy of the tax return or a related return. See United States v. Gaudin, 515 U.S. 506, 509 (1995) (explaining that material statement has "natural tendency to influence, or [be] capable of influencing, the decision of the decision making body to which it was addressed") (quoting Kungys v. United States, 485 U.S. 759, 770 (1988)); see also United States v. Peterson, 538 F.3d 1064, 1067 (9th Cir. 2008) (suggesting that district courts should instruct on materiality "tracking the language" of Gaudin). A false statement "need not have actually influenced the agency, and the agency need not rely on the information in fact for it to be material." United States v. Serv. Deli Inc., 151 F.3d 938, 941 (9th Cir. 1998); see also United States v. Matsumaru, 244 F.3d 1092, 1101 (9th Cir. 2001).

When a corporation makes a distribution to a stockholder initially characterized as a "distribution," that "distribution" may subsequently be legitimately characterized as a non-taxable "return of capital" if the corporation has no earnings. Boulware v. United States, 552 U.S. 421, 430-31 (2008).　

The tax return must have been filed. See United States v. Boitano, 796 F.3d 1160, 1163 (9th Cir. 2015).　

Approved 9/2015

9.40 AIDING OR ADVISING FALSE INCOME TAX RETURN
(26 U.S.C. § 7206(2))

The defendant is charged in [Count _______ of] the indictment with [aiding] [assisting] [advising] [procuring] [counseling] the preparation of a false income tax return in violation of Section 7206(2) of Title 26 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 [[aided] [assisted] [advised] [procured] [counseled]] [specify person(s)] in the [preparation] [presentation] of an income tax return that was [false] [fraudulent];

Second, the income tax return was [false] [fraudulent] as to any material matter necessary to a determination of whether income tax was owed; and

Third, the defendant acted willfully.

The government is not required to prove that the taxpayer knew that the return was false.

A matter is material if it had a natural tendency to influence, or was capable of influencing, the decisions or activities of the Internal Revenue Service.

Comment

See Instruction 9.42 (Willfully—Defined) as to " willfully" in the context of prosecutions for violations of Title 26.

"Under § 7206(2), the government must prove that ‘(1) the defendant aided, assisted, or otherwise caused the preparation and presentation of a return; (2) that the return was fraudulent or false as to a material matter; and (3) the act of the defendant was willful."’ United States v. Smith,424 F.3d 992, 1009 (9th Cir. 2005) (quoting United States v. Salerno, 902 F.2d 1429, 1432 (9th Cir. 1990)).

False information is material if it had a natural tendency to influence or was capable of influencing or affecting the ability of the IRS to audit or verify the accuracy of the tax return or a related return. See United States v. Gaudin, 515 U.S. 506, 509 (1995) (explaining that material statement has "natural tendency to influence, or [be] capable of influencing, the decision of the decision making body to which it was addressed") (quoting Kungys v. United States, 485 U.S. 759, 770 (1988)); see also United States v. Peterson, 538 F.3d 1064, 1067 (9th Cir. 2008) (suggesting that district courts should instruct on materiality "tracking the language" of Gaudin). A false statement "need not have actually influenced the agency, and the agency need not rely on the information in fact for it to be material." United States v. Serv. Deli Inc., 151 F.3d 938, 941 (9th Cir. 1998); see also United States v. Matsumaru, 244 F.3d 1092, 1101 (9th Cir. 2001).

9.41 FILING FALSE TAX RETURN (MISDEMEANOR)
(26 U.S.C. § 7207)

The defendant is charged in [Count _______ of] the indictment with filing a false tax return in violation of Section 7207 of Title 26 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 [delivered] [disclosed] a tax return knowing that it contained [false] [fraudulent] information as to any material matter; and

Second, the defendant acted willfully.

A matter is material if it had a natural tendency to influence, or was capable of influencing, the decisions or activities of the Internal Revenue Service.

Comment

See Comment to Instruction 9.37 (Attempt to Evade or Defeat Income Tax).

See Instruction 9.42 (Willfully—Defined) as to " willfully" in the context of prosecutions for violations of Title 26.

False information is material if it had a natural tendency to influence or was capable of influencing or affecting the ability of the IRS to audit or verify the accuracy of the tax return or a related return. See United States v. Gaudin, 515 U.S. 506, 509 (1995) (explaining that material statement has"natural tendency to influence, or [be] capable of influencing, the decision of the decision making body to which it was addressed") (quoting Kungys v. United States, 485 U.S. 759, 770 (1988)); see also United States v. Peterson, 538 F.3d 1064, 1067 (9th Cir. 2008) (suggesting that district courts should instruct on materiality "tracking the language" of Gaudin). A false statement "need not have actually influenced the agency, and the agency need not rely on the information in fact for it to be material." United States v. Serv. Deli Inc., 151 F.3d 938, 941 (9th Cir. 1998); see also United States v. Matsumaru, 244 F.3d 1092, 1101 (9th Cir. 2001).

9.42 WILLFULLY—DEFINED
(26 U.S.C. §§ 7201, 7203, 7206, 7207)

In order to prove that the defendant acted "willfully," the government must prove beyond a reasonable doubt that the defendant knew federal tax law imposed a duty on [him] [her], and the defendant intentionally and voluntarily violated that duty.

[A defendant who acts on a good faith misunderstanding as to the requirements of the law does not act willfully even if [his] [her] understanding of the law is wrong or unreasonable. Nevertheless, merely disagreeing with the law does not constitute a good faith misunderstanding of the law because all persons have a duty to obey the law whether or not they agree with it. Thus, in order to prove that the defendant acted willfully, the government must prove beyond a reasonable doubt that the defendant did not have a good faith belief that [he] [she] was complying with the law.]

Comment

Sections 7201–7207 of the Internal Revenue Code use the term "willfully." In Cheek v. United States, 498 U.S. 192, 201 (1991), the Supreme Court set forth the following definition: "Willfulness, as construed by our prior decisions in criminal tax cases, requires the Government to prove that the law imposed a duty on the defendant, that the defendant knew of this duty, and that he voluntarily and intentionally violated that duty." This same definition applies equally to all tax offenses, misdemeanors and felonies alike. See United States v. Pomponio, 429 U.S. 10, 12 (1976) (citing United States v. Bishop, 412 U.S. 346, 359–60 (1973)). "In other words, if you know that you owe taxes and you do not pay them, you have acted willfully." United States v. Easterday, 564 F.3d 1004, 1006 (9th Cir. 2009). Despite earlier case law suggesting the contrary, the element of willfulness does not require that the defendant have the financial ability to pay the taxes. See id. at 1005 (holding that United States v. Poll, 521 F.2d 329 (9th Cir. 1975) is no longer controlling authority in light of intervening Supreme Court decisions). In a failure to file tax return prosecution, the government is not required to prove an intent to evade or defeat a tax, but may instead prove an intent to disobey or disregard the law, which may be the intent not to file a return, rather than the intent to evade or defeat a tax. United States v. Meredith, 685 F.3d 814, 826 (9th Cir. 2012).

The bracketed second paragraph of this instruction may be used when there is evidence a defendant acted on a good faith, but erroneous belief as to the requirements of the tax laws. In United States v. Trevino, 419 F.3d 896, 901 (9th Cir. 2005), the Ninth Circuit explained:

The government’s burden of proving willfulness requires negating [1] a defendant’s claim of ignorance of the law or [2] a claim that because of a misunderstanding of the law, he had a good-faith belief that he was not violating any of the provisions of the tax laws. This is so because one cannot be aware that the law imposes a duty upon him and yet be ignorant of it, misunderstand the law, or believe that the duty does not exist. Cheek v. United States, 498 U.S. 192, 202 (1991) (emphasis added). . . . In order to rely on a good faith defense, the defendant must in fact have some "belief;" either that her own understanding was correct, or that she in good faith relied on the tax advice of a qualified tax professional. See United States v. Bishop, 291 F.3d 1100, 1106-07 (9th Cir. 2002).

Nonetheless, Ninth Circuit precedent forecloses the argument that a defendant is entitled to a separate "good faith" instruction "when the jury has been adequately instructed with regard to the intent required to be found guilty of the crime charged. . . ." United States v. Hickey, 580 F.3d 922, 931 (9th Cir. 2009) (holding no good faith instruction needed when jury properly instructed on intent to defraud).

A defendant’s views regarding the validity of a tax statute is irrelevant to the issue of willfulness and, if heard, the jury should be instructed to disregard such views. See Cheek, 498 U.S. at 202. See also United States v. Powell, 955 F.2d 1206, 1212 (9th Cir. 1992) (concluding that district court did not plainly err in instructing that "[m]ere disagreement with the law, in and of itself, does not constitute good faith misunderstanding under the requirements of law[] [b]ecause it is the duty of all persons to obey the law whether or not they [agree with it]").

Willfulness is a state of mind that may be established by evidence of fraudulent acts. See United States v. Voorhies, 658 F.2d 710, 715 (9th Cir. 1981); see also United States v. Conforte, 624 F.2d 869, 875 (9th Cir. 1980).　

Approved 12/2012

9.43 FORCIBLE OR ATTEMPTED RESCUE OF SEIZED
PROPERTY
(26 U.S.C. § 7212(b))

The defendant is charged in [Count _______ of] the indictment with [forcibly rescuing] [attempting to rescue forcibly] seized property in violation of Section 7212(b) of Title 26 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, [specify property] was seized as authorized by the Internal Revenue Code;

Second, the defendant knew that the property had been seized as authorized by the Internal Revenue Code; and

Third, the defendant [forcibly retook] [caused to be retaken forcibly] [attempted to retake forcibly] the property without the consent of the United States.

"Forcibly" is not limited to force against persons, but includes any force that enables the defendant to retake the seized property.

[A defendant "attempts to retake" seized property when that defendant does something that is a substantial step toward retaking the property and that strongly corroborates the defendant’s intent to do so.

Mere preparation is not a substantial step toward the commission of attempting to rescue seized property. 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.]

Comment

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).　

Approved 4/2019

9.44 FAILURE TO REPORT EXPORTING OR 
IMPORTING MONETARY INSTRUMENTS
(31 U.S.C. §§ 5316(a)(1), 5324(c)) 

The defendant is charged in [Count _______ of] the indictment with failure to report [exporting] [importing] monetary instruments in violation of Sections 5316(a)(1) and 5324(c) of Title 31 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 [transported] [was about to transport] more than $10,000 in [specify monetary instrument] [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];

Second, the defendant knew that a report of the amount [transported] [about to be transported] was required to be filed with the Secretary of Treasury; and

Third, the defendant intentionally evaded the reporting requirement.

Comment 

This instruction covers a violation of 31 U.S.C. § 5316(a)(1), regarding the reporting requirement for exporting or importing monetary instruments. The reporting requirement for receipt of such instruments after their importation into the United States is codified in 31 U.S.C. § 5316(a)(2).

See United States v. Del Toro-Barboza, 673 F.3d 1136, 1144 (9th Cir. 2012) (setting forth the elements of the offense).

Knowing concealment is not an element of failure to report under 31 U.S.C. § 5316(a), but is an element of bulk cash smuggling under 31 U.S.C. § 5332(a). Therefore, where a defendant’s conduct constitutes a violation of both statutory provisions, the offenses do not merge, and cumulative punishment may be imposed. United States v. Tatoyan, 474 F.3d 1174, 1181-82. As to violations of § 5332(a), see Instruction 9.45 (Bulk Cash Smuggling).

Approved 8/2012

9.45 BULK CASH SMUGGLING
(31 U.S.C. § 5332(a))

The defendant is charged in [Count _______ of] the indictment with bulk cash smuggling in violation of Section 5332(a) of Title 31 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 concealed more than $10,000 in [specify monetary instrument] [[on his or her person] [in any conveyance, article of luggage, merchandise or other container]];

Second, the defendant [transported] [attempted to transport] the [specify monetary instrument] [[from a place within the United States to a place outside the United States] [from a place outside the United States to a place within the United States]];

Third, the defendant knew that a report of the amount concealed was required to be filed with the Secretary of Treasury; and

Fourth, the defendant intended to evade filing such a report.

The intent to evade the reporting requirement can arise at any time prior to (and including) the moment of [attempted] transportation. It is not necessary that the defendant have such intent at the time the concealment occurred.

Comment

The authority for the last paragraph in the instruction is found in United States v. Tatoyan, 474 F.3d 1174, 1180 (9th Cir. 2007).

The penalties set forth in 31 U.S.C. § 5322—in particular a fine of up to $250,000–do not apply unless the jury makes an additional explicit finding that the defendant acted "willfully." Tatoyan, 474 F.3d at 1180. Absent such a finding, the applicable penalties are found in 31 U.S.C. § 5332(b) and include a forfeiture provision, but not a fine. Tatoyan, 474 F.3d at 1183.