A defendant may be found guilty of [specify crime charged], even if the defendant personally did not commit the act or acts constituting the crime but aided and abetted in its commission.  To “aid and abet” means intentionally to help someone else commit a crime.  To prove a defendant guilty of [specify crime charged] by aiding and abetting, the government must prove each of the following beyond a reasonable doubt:

            First, someone else committed [specify crime charged];

            Second, the defendant aided, counseled, commanded, induced, or procured that person with respect to at least one element of [specify crime charged];

            Third, the defendant acted with the intent to facilitate [specify crime charged]; and

            Fourth, the defendant acted before the crime was completed.

            It is not enough that the defendant merely associated with the person committing the crime, or unknowingly or unintentionally did things that were helpful to that person or was present at the scene of the crime.  The evidence must show beyond a reasonable doubt that the defendant acted with the knowledge and intention of helping that person commit [specify crime charged].

            A defendant acts with the intent to facilitate the crime when the defendant actively participates in a criminal venture with advance knowledge of the crime [and having acquired that knowledge when the defendant still had a realistic opportunity to withdraw from the crime].

            The government is not required to prove precisely which defendant actually committed the crime and which defendant aided and abetted.

Comment

            Use this instruction with an instruction on the elements of the underlying substantive crime.

            The Supreme Court has stated that the federal aiding and abetting statute has two primary components: “a person is liable under § 2 if (and only if) he (1) takes an affirmative act in furtherance of that offense, (2) with the intent of facilitating the offense’s commission.”  Rosemond v. United States, 572 U.S. 65, 71 (2014).  The defendant’s conduct need not facilitate each and every element of the crime; a defendant can be convicted as an aider and abettor even if the defendant’s conduct “relates to only one (or some) of a crime’s phases or elements.”  Id. at 73.  The intent requirement is satisfied when a person actively participates in a criminal venture with advance knowledge of the circumstances constituting the elements of the charged offense.  Id. at 77; see also United States v. Goldtooth, 754 F.3d 763, 769 (9th Cir. 2014) (reversing defendants’ convictions for aiding and abetting robbery on Indian reservation because there was no evidence that defendants had foreknowledge that robbery was to occur).

            In Rosemond, the defendant was charged with aiding and abetting the crime of using a firearm during and in relation to a drug-trafficking crime in violation of 18 U.S.C. § 924(c).  The Supreme Court held that the government need not necessarily prove that the defendant took action with respect to any firearm, so long as the government proves that the defendant facilitated another element—drug trafficking.  Rosemond, 572 U.S. at 74.  It was necessary, however, that the government prove that the defendant had advance knowledge of the firearm.  Id. at 78.  See Instruction 14.22 (Firearms—Using, Carrying, or Brandishing in Commission of Crime of Violence or Drug Trafficking Crime).

            If, as in Rosemond, there is an issue as to when the defendant learned of a particular circumstance that constitutes an element of the crime, the judge should further instruct the jury that the defendant must have learned of the circumstance at a time when the defendant still had a realistic opportunity to withdraw from the crime.  See Rosemond, 572 U.S. 81 & n.10  (instruction telling jury to consider whether Rosemond “knew his cohort used a firearm” was erroneous because instruction “failed to convey that Rosemond had to have advance knowledge . . . that a confederate would be armed” such that “he c[ould] realistically walk away”).

            Aiding and abetting is not a separate and distinct offense from the underlying substantive crime but is a different theory of liability for the same offense.  United States v. Garcia, 400 F.3d 816, 820 (9th Cir. 2005).  An aiding and abetting instruction is proper even when the indictment does not specifically charge that theory of liability because all indictments are read as implying that theory in each count.  United States v. Vaandering, 50 F.3d 696, 702 (9th Cir. 1995); United States v. Armstrong, 909 F.2d 1238, 1241-42 (9th Cir. 1990); United States v. Jones, 678 F.2d 102, 104 (9th Cir. 1982).  See also United States v. Gaskins,849 F.2d 454, 459 (9th Cir. 1988); United States v. Sayetsitty, 107 F.3d 1405, 1412 (9th Cir. 1997).  There are two paths to a conviction for the substantive offense under an “aiding and abetting” theory: first, aiding and abetting an attempt, and second, attempting to aid and abet. United States v. Bellot, 113 F.4th 1151, 1155-56 (9th Cir. 2024) (describing the two paths in the context of a conviction for knowingly attempting to possess with the intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1)). Aiding and abetting an attempt requires “a guilty principal,” while attempting to aid and abet does not. Id. However, to prove an attempt, the government must prove that the defendant did something that was a substantial step toward committing the crime. See Instruction 4.4.

            A person may be convicted of aiding and abetting despite the prior acquittal of the principal.  Standefer v. United States, 447 U.S. 10, 20 (1980); United States v. Mejia-Mesa, 153 F.3d 925, 930 (9th Cir. 1998).  Moreover, the principal need not be named or identified; it is necessary only that the offense was committed by somebody and that the defendant intentionally did an act to help in its commission.  Mejia-Mesa, 153 F.3d at 930 (citing Feldstein v. United States, 429 F.2d 1092, 1095 (9th Cir. 1970)).

            The defendant’s deliberate ignorance of the actions taken by another person who commits a crime is sufficient to satisfy the knowledge required for the offense of aiding and abetting that crime.  United States v. Nosal, 844 F.3d 1024, 1039-40 (9th Cir. 2016) (approving instruction that defendant acted “knowingly” if he “was aware of a high probability that [other employees] had gained unauthorized access to a computer . . . or misappropriated trade secrets . . . without authorization . . . and deliberately avoided learning the truth.”).  For a definition of “deliberate ignorance,” see Instruction 4.9 (Deliberate Ignorance).

            No specific unanimity instruction on the issue of who acted as principal or aider and abettor is necessary, id., nor does the jury need to reach unanimous agreement on the manner (e.g., “procured,” “aided,” “abetted,” “counseled,” “induced,” or “commanded”) by which the defendant provided assistance.  United States v. Kim, 196 F.3d 1079, 1083 (9th Cir. 1999).

            The last paragraph of this instruction has been expressly approved in Vaandering, 50 F.3d at 702.  It may be unnecessary to give the last paragraph if there is no dispute as to the identities of the principal and the aider and abettor. 

Revised November 2024 

          A defendant may be found guilty of the crime(s) charged even if the defendant did not personally commit the act(s) constituting the crime if the defendant willfully caused an act to be done that if directly performed by him would be an offense against the United States.  A defendant who puts in motion or causes the commission of an indispensable element of the offense may be found guilty as if he had committed this element himself.

Comment

            See United States v. Ubaldo, 859 F.3d 690, 705-06 (9th Cir. 2017) (quoting United States v. Causey, 835 F.2d 1289, 1292 (9th Cir. 1987)); United States v. Vaughn, 797 F.2d 1485, 1490-91 (9th Cir. 1986).  

Revised Sept. 2019

            The defendant is charged with having been an accessory after the fact to the crime of [specify crime charged].  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 pricipal] committed the crime of [specify crime charged];

            Second, the defendant knew that [name of principal] had committed the crime of [specify crime charged]; and

            Third, the defendant assisted [name of principal]with the specific purpose or design to hinder or prevent that person’s [apprehension] [trial] [or] [punishment].

            The government is not required to prove that [name of principal] has been indicted for or convicted of the crime of [specify crime charged in the indictment].

Comment

            The court must charge on the elements of the underlying offense if those elements are not set forth in another count. 

            When there is substantial evidence that the defendant participated in the principal offense before its completion, an instruction on this distinct offense need not be given.  United States v. Panza, 612 F.2d 432, 441 (9th Cir. 1979); United States v. Jackson, 448 F.2d 963, 971 (9th Cir. 1971).

            Knowledge that the principal committed the offense charged may be inferred from circumstantial evidence.  United States v. Mills, 597 F.2d 693, 697 (9th Cir. 1979).  Accordingly, an instruction requiring “positive knowledge in contrast to imputed or implied knowledge” should not be given, but the jury should be instructed that the accessory after the fact must know of the principal’s actions and act with the “specific purpose or design” to hinder or prevent the principal’s apprehension, trial, or punishment.  Id.

            If the name of the principal is unknown, replace “[name of principal]” with “someone else.”  

Revised Mar. 2018 

           The defendant is charged in the indictment with attempting to commit [specify crime charged]. 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 [specify elements of crime charged]; and

            Second, the defendant did something that was a substantial step toward committing the crime.

            A “substantial step” is conduct that strongly corroborated a defendant’s intent to commit 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.  Mere preparation is not a substantial step toward committing 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. 

Comment

            This definition should follow the elements instruction for the substantive crime.

            Where this Manual provides a model instruction covering attempt to commit a specific offense, such instruction should be used instead of this generic attempt instruction.  This instruction is appropriate only when a defendant is accused of attempting to commit a crime for which there is no specific model instruction.

            This Manual contains model instructions for attempt to commit the following specific offenses: 

Instruction 7.2 Alien–Illegal Transportation or Attempted Transportation

Instruction 7.3 Alien–Harboring or Attempted Harboring

Instruction 7.5 Alien–Bringing or Attempting to Bring to the United States (Without Authorization)

Instruction 7.7 Alien–Deported Alien Reentering United States Without Consent–Attempt

Instruction 9.4 Attempted Bank Robbery

Instruction 9.5 Hobbs Act–Extortion or Attempted Extortion by Force

Instruction 9.6 Hobbs Act–Extortion or Attempted Extortion by Nonviolent Threat

Instruction 9.7 Hobbs Act–Extortion or Attempted Extortion Under Color of Official Right

Instruction 9.8 Hobbs Act–Robbery or Attempted Robbery

Instruction 12.3 Controlled Substance–Attempted Possession with Intent to Distribute

Instruction 12.7 Controlled Substance–Attempted Distribution or Manufacture

Instruction 12.9 Controlled Substance–Attempted Distribution to Person Under 21 Years

Instruction 12.11 Controlled Substance–Attempted Distribution in or Near School

Instruction 12.13 Controlled Substance–Attempted Employment of Minor to Violate Drug Laws

Instruction 13.2 Passing or Attempting to Pass Counterfeit Obligations

Instruction 13.8 Passing or Attempting to Pass Forged Endorsement on Treasury Check, Bond, or Security of United States

Instruction 15.38 Attempted Bank Fraud–Scheme to Deprive Bank of Intangible Right of Honest Services

Instruction 15.40 Attempted Bank Fraud–Scheme to Defraud by False Promises

Instruction 16.5 Attempted Murder

Instruction 17.5 Attempted Kidnapping–Foreign Official or Official Guest

Instruction 17.6 Attempted Kidnapping–Federal Officer of Employee

Instruction 18.1 Travel Act–Interstate or Foreign Travel in Aid of Racketeering Enterprise

Instruction 18.3 Financial Transaction or Attempted Transaction to Promote Unlawful Activity

Instruction 18.4 Laundering or Attempting to Launder Monetary Instruments

Instruction 18.5 Transporting or Attempting to Transport Funds to Promote Unlawful Activity

Instruction 18.6 Transporting or Attempting to Transport Monetary Instruments for the Purpose of Laundering

Instruction 18.8 Violent Crime or Attempted Violent Crime in Aid of Racketeering Enterprise

Instruction 20.2 and 20.4 Attempted Aggravated Sexual Abuse                     

Instruction 20.4 Attempted Aggravated Sexual Abuse–Administration of Drug, Intoxicant, or Other Substance

Instruction 20.6 Attempted Aggravated Sexual Abuse of Child

Instruction 20.8 Attempted Sexual Abuse–By Threat

Instruction 20.10 Attempted Sexual Abuse–Incapacity of Victim

Instruction 20.12 Attempted Sexual Abuse of Minor

Instruction 20.14 Attempted Sexual Abuse of Person in Official Detention

Instruction 20.27 Transportation or Attempted Transportation for Prostitution or Criminal Sexual Activity

Instruction 20.28 Persuading or Coercing to Travel in Prostitution or Sexual Activity

Instruction 20.29 Using or Attempting to Use the Mail or a Means of Interstate Commerce to Persuade or Coerce a Minor to Travel to Engage in Prostitution or Sexual Activity

Instruction 21.1 Smuggling or Attempting to Smuggle Goods

Instruction 21.2 Smuggling or Attempting to Smuggle Goods from the United States

Instruction 21.3 Passing or Attempting to Pass False Papers Through Customhouse

Instruction 22.7 Forcible or Attempted Rescue of Seized Property

Instruction 23.11 Attempted Mail Theft

Instruction 24.2 Arson or Attempted Arson

Instruction 24.5 Attempted Escape

            “There is no general federal ‘attempt’ statute.  A defendant therefore can only be found guilty of an attempt to commit a federal offense if the statute defining the offense also expressly proscribes an attempt.” (citations omitted).  United States v. Hopkins, 703 F.2d 1102, 1104 (9th Cir. 1983).  However, many federal statutes defining crimes also expressly proscribe attempts.

           “[A]ttempt is a term that at common law requires proof that the defendant had the specific intent to commit the underlying crime and took some overt act that was a substantial step toward committing that crime.”  United States v. Gracidas-Ulibarry, 231 F.3d 1188, 1192 (9th Cir. 2000) (en banc).  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) (per curiam) (quoting United States v. Nelson, 66 F.3d 1036, 1042 (9th Cir. 1995)). 

            The “strongly corroborated” language in this instruction comes from United States v. Snell, 627 F.2d 186, 187 (9th Cir. 1980) (per curiam) (“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). 

Revised Dec 2023

Comment 

            The Committee recommends avoiding instructions that distinguish between “specific intent” and “general intent.”  The Ninth Circuit has stated: “Both the manual [on jury trial procedures] accompanying the Model Instructions and our case law discourage the use of generic intent instructions.”  United States v. Bell, 303 F.3d 1187, 1191 (9th Cir. 2002).  The “preferred practice” is to give an intent instruction that reflects the intent requirements of the offense charged.  Id. 

            If the statute at issue is silent regarding the necessary mens rea of the crime, the court should examine the statute’s legislative history.  United States v. Nguyen, 73 F.3d 887, 891 (9th Cir. 1995).  See also United States v. Barajas-Montiel,185 F.3d 947, 952 (9th Cir. 1999) (following Nguyen and holding that criminal intent is required for conviction of the felony offenses of 8 U.S.C. § 1324(a)(2)(B)).  If the court perceives an ambiguity regarding Congress’s intent to require a mens rea, the court should read such a requirement into the statute.  Nguyen,73 F.3d at 890-91.  Accord, United States v. Johal, 428 F.3d 823, 826 (9th Cir. 2005) (requirement of some mens rea for conviction of a crime is “firmly embedded”).

            Most attempt crimes require specific intent.  See United States v. Gracidas-Ulibarry, 231 F.3d 1188, 1192 (9th Cir. 2000) (en banc) (crime of attempted illegal reentry, for example, is a specific intent offense).

  Comment 

           As the Supreme Court has observed, “willful” is a word of “many meanings” and “its construction [is] often . . . influenced by its context.”  Ratzlaf v. United States, 510 U.S. 135, 141 (1994).  Accordingly, Ninth Circuit cases have defined “willful” in different terms depending on the particular crime charged.  See, e.g., United States v. Hernandez, 859 F.3d 817 (9th Cir. 2017) (holding that in criminal prosecution for transporting firearms into one’s state of residence, “willfully” requires that defendant knew transportation itself, not some later intended crime, was unlawful); United States v. Lloyd, 807 F.3d 1128, 1166 (9th Cir. 2015) (in criminal prosecution for selling unregistered securities in violation of 15 U.S.C. § 77e, “willfully” does not require actor to have known conduct was unlawful (citing Reyes, 577 F.3d 1069)); United States v. Anguiano-Morfin, 713 F.3d 1208, 1210 (9th Cir. 2013) (in prosecution for falsely claiming United States citizenship, defendant’s subjective belief is dispositive on issue of willfulness); United States v. Berry, 683 F.3d 1015, 1021 (9th Cir. 2012) (in prosecution for social security fraud, “willfully” connotes “culpable state of mind”); United States v. Reyes, 577 F.3d 1069, 1080 (9th Cir. 2009) (in prosecution for securities fraud, “willfully” means “intentionally undertaking an act that one knows to be wrongful; ‘willfully’ in this context does not require that the actor know specifically that the conduct was unlawful,” quoting United States v. Tarallo, 380 F.3d 1174, 1188 (9th Cir. 2004) (emphasis in original)).  See also United States v. Easterday, 564 F.3d 1004, 1006 (9th Cir. 2009) (for crime of failure to pay employee payroll taxes, “willful” defined as “a voluntary, intentional violation of a known legal duty”); United States v. Awad, 551 F.3d 930, 939 (9th Cir. 2009) (in health care fraud case, “willful” act is one undertaken with “bad purpose” with knowledge that conduct was unlawful); but see United States v. Ajoku, 718 F.3d 882 (9th Cir. 2013), judgment vacated, 134 S. Ct. 1872 (mem.) (U.S. April 21, 2014).  After the Solicitor General confessed error, the Supreme Court vacated the decision of the Ninth Circuit in Ajoku.  As a result, in cases alleging a false statement to a government agency in violation of 18 U.S.C. § 1001, as well as cases alleging a false statement relating to health care matters in violation of 18 U.S.C. § 1035, the government must prove, among other things, that a defendant acted deliberately and with knowledge both that the statement was untrue and that his or her conduct was unlawful.

            As the meaning of “willfully” necessarily depends on particular facts arising under the applicable statute, the Committee has not provided a generic instruction defining that term.  In the context of tax crimes, however, see Instruction 22.6 (Willfully—Defined). 

Revised Sept. 2017

   Comment 

            There is no uniform definition of the term “maliciously.”  When a statute provides a definition of a term, that definition controls.  However, when a statute does not define a term, the term will generally be interpreted “‘by employing the ordinary, contemporary, and common meaning of the words that Congress used.’”  United States v. Kelly, 676 F.3d 912, 917 (9th Cir. 2012) (quoting United States v. Iverson, 162 F.3d 1015, 1022 (9th Cir. 1988)).  Furthermore, when a term “ha[s] accumulated settled meaning under . . . the common law . . . a court must infer, unless the statute otherwise dictates, that Congress means to incorporate the established meaning of [the term].”  Id. at 917 (quotation marks and citation omitted) (in prosecution under 18 U.S.C. § 1363, government was not required to prove that defendant harbored any “malevolence or ill-will”).  One acts “maliciously” when he or she has the intent to do the prohibited act and has no justification or excuse.  Id. at 918. 

Revised Mar. 2018

            You may find that the defendant acted knowingly if you find beyond a reasonable doubt that: 

First, the defendant was aware of a high probability that [e.g., drugs were in the defendant’s automobile], and 

Second, the defendant deliberately avoided learning the truth. 

            You may not find such knowledge, however, if you find that the defendant actually believed that [e.g. no drugs were in the defendant’s automobile], or if you find that the defendant was simply negligent, careless, or foolish. 

Comment 

            In United States v. Heredia, 483 F.3d 913 (9th Cir. 2007) (en banc), the Ninth Circuit revived its decision in United States v. Jewell, 532 F.2d 697 (9th Cir. 1976) (en banc), on which the language of this instruction is based.  In so doing, the en banc court reiterated that in deciding whether to give a deliberate ignorance instruction along with an instruction on actual knowledge, “the district court must determine whether the jury could rationally find willful blindness even though it has rejected the government’s evidence of actual knowledge.  If so, the court may also give a Jewell instruction.”  Heredia, 483 F.3d at 922; see also United States v. Ramos-Atondo, 732 F.3d 1113, 1120, (9th Cir. 2013) (deliberate ignorance instruction may be given in conspiracy case); United States v. Yi, 704 F.3d 800, 805 (9th Cir. 2013) (approving modified version of Instruction 5.8 (now Instruction 4.9) when defendant knew of high probability of asbestos in condominium ceilings and deliberately avoided learning truth); United States v. Galecki, 89 F.4th 713, 729 (9th Cir. 2023) (holding no abuse of discretion in giving deliberate ignorance instruction in the context of the Analogue Act). 

            In the event the court determines to give a Jewell instruction, “it must, at a minimum contain the two prongs of suspicion and deliberate avoidance.”  Heredia at 483 F.3d at 924.  As the Ninth Circuit explained: 

We conclude, therefore, that the two-pronged instruction given at defendant’s trial met the requirements of Jewell and, to the extent some of our cases have suggested more is required, see page 920 supra, they are overruled.  A district judge, in the exercise of his discretion, may say more to tailor the instruction to the particular facts of the case.  Here, for example, the judge might have instructed the jury that it could find Heredia did not act deliberately if it believed that her failure to investigate was motivated by safety concerns.  Heredia did not ask for such an instruction and the district judge had no obligation to give it sua sponte. Even when defendant asks for such a supplemental instruction, it is within the district court’s broad discretion whether to comply. 

Id. at 920-21.  Accordingly, the government need not prove that the reason for the defendant’s deliberate avoidance was to obtain a defense against prosecution.  Id. 

            In United States v. Hong, 938 F.3d 1040 (9th Cir. 2019), the Ninth Circuit applied Heredia and discussed when a deliberate ignorance (or willful blindness) instruction should be given in the context of a charge of health care fraud.  The Ninth Circuit explained: 

A deliberate ignorance—or “willful blindness”—instruction is only relevant if the jury rejects the government’s evidence of actual knowledge. United States v. Heredia, 483 F.3d 913, 922 (9th Cir. 2007) (en banc). “In deciding whether to give a willful blindness instruction, in addition to an actual knowledge instruction, the district court must determine whether the jury could rationally find willful blindness even though it has rejected the government’s evidence of actual knowledge.” Id. A jury can believe some, but not all, evidence presented by a party. Id. at 923. As we have said before, “[t]he government has no way of knowing which version of the facts the jury will believe, and it is entitled (like any other litigant) to have the jury instructed in conformity with [different] rational possibilities. That these possibilities are mutually exclusive is of no consequence.” Id.  Still, “the district judge has discretion to refuse” the instruction even where its factual predicates are present. Id. at 924.  

Hong, 938 F.3d at 1046-47. 

Revised March 2024

Comment 

             The Committee recommends that extreme caution be used in instructing the jury regarding presumptions.  “A jury instruction cannot relieve the State of the burden of proving beyond a reasonable doubt a crucial element of the criminal offense.”  Patterson v. Gomez, 223 F.3d 959, 962 (9th Cir. 2000).  Accordingly, “if a ‘reasonable juror could have given the presumption conclusive or persuasion-shifting effect,’ the instruction is unconstitutional.”  Id. (quoting Sandstrom v. Montana, 442 U.S. 510, 519 (1979)). 

Revised Mar. 2018

           One element that the government must prove beyond a reasonable doubt is that the defendant had the unlawful intent to [specify applicable unlawful act].  Evidence that the defendant in good faith followed the advice of counsel would be inconsistent with such an unlawful intent.  Unlawful intent has not been proved if the defendant, before acting, made full disclosure of all material facts to an attorney, received the attorney’s advice as to the specific course of conduct that was followed, and reasonably followed the attorney’s recommended course of conduct or advice in good faith.

Comment

            A defendant who reasonably relies on the advice of counsel may “not be convicted of [a] crime which involves willful and unlawful intent[.]” Williamson v. United States, 207 U.S. 425, 453 (1908).  Advice of counsel is not a separate and distinct defense but rather is a circumstance indicating good faith which the trier of fact is entitled to consider on the issue of intent.  Bisno v. United States, 299 F.2d 711, 719 (9th Cir. 1961).  A defendant is entitled to an instruction concerning the advice of counsel if it has some foundation in the evidence.  United States v. Ibarra-Alcarez, 830 F.2d 968, 973 (9th Cir. 1987).  To assert advice of counsel, a defendant must have made a full disclosure of all material facts to his or her attorney, received advice as to the specific course of conduct that he or she followed, and relied on the advice in good faith.  United States v. Munoz, 233 F.3d 1117, 1132 (9th Cir. 2000) (citing id.).       

            In appropriate cases, where the prerequisites are met, the jury may be instructed as to good-faith reliance on advice of an accountant or tax return preparer.  United States v. Bishop, 291 F.3d 1100, 1106-07 (9th Cir. 2002); United States v. Claiborne, 765 F.2d 784, 798 (9th Cir. 1985), abrogated on other grounds, Ross v. Oklahoma, 487 U.S. 81 (1988).  In such cases, the instruction should be modified accordingly. 

Revised Mar. 2018

Comment 

            Consult each statute that uses the term “corruptly,” and related case law, for the meaning of the term because it is capable of different meanings in different statutory contexts. 

            For example:

In a prosecution under 18 U.S.C. § 1512(b)(2)(A) or (B) (making it a crime to “knowingly . . . or corruptly persuade [ ] another person . . . with intent to . . . cause [the] person” to “withhold” or “alter” documents for use in “an official proceeding”), the term “corruptly” must reflect some consciousness of wrongdoing.  Arthur Andersen LLP v. United States, 544 U.S. 696, 704-06 (2005).

In a prosecution under 26 U.S.C. § 7212(a) (making it a crime to “corruptly” endeavor to intimidate or impede the administration of tax laws), “the district court correctly instructed the jury that ‘corruptly’ means ‘performed with the intent to secure an unlawful benefit for oneself or another.’”  United States v. Massey, 419 F.3d 1008, 1010 (9th Cir. 2005) (citing United States v. Workinger, 90 F.3d 1409, 1414 (9th Cir. 1996)).

In a prosecution under 18 U.S.C. § 201(b)(2)(B) (making it a crime to “corruptly” receive something of value in return for being influenced in the performance of an official act), the district court properly rejected a defendant’s requested instruction that would have required the government to prove an official acts “corruptly” when the official uses his official position to commit or aid in the commission of fraud.  United States v. Leyva, 282 F.3d 623, 625(9th Cir. 2002). 

            In a prosecution under 18 U.S.C. § 215(a)(2) (making it crime for banking officials, employees, or agents to “corruptly” solicit, demand, or accept anything of value in connection with any bank business or transaction), the district court correctly instructed the jury that “corruptly” refers to the language in § 215(a)(2) requiring the government to prove that the defendant “‘intend[ed] to be influenced or rewarded in connection with any business or transaction of’ a financial institution.”  United States v. Lonich, 23 F.4th 881, 902-03 (9th Cir. 2022) (alteration in original).

In United States v. Sanders, 421 F.3d 1044 (9th Cir. 2005), the Ninth Circuit noted it had not yet ruled as to whether a defendant violates 18 U.S.C. § 1512(b) when he “corruptly persuades” others to invoke their Fifth Amendment right to remain silent.  Id. at 1050-51.  The Ninth Circuit has held, however, that a defendant does not act “corruptly” within the meaning of § 1512 when she non-coercively persuades a witness to exercise a legal privilege not to testify.  United States v. Doss, 630 F.3d 1181, 1189-90 (9th Cir. 2011).  “[T]here is a difference in approach among the circuits about whether merely attempting to persuade a witness to withhold cooperation or not to disclose information to law enforcement officials—as opposed to actively lying—falls within the ambit of § 1512(b).”  United States v. Khatami, 280 F.3d 907, 913 (9th Cir. 2002). 

            In a prosecution under 18 U.S.C. § 1512(c) (making it a crime to corruptly obstruct, influence or impede any official proceeding, or attempt to do so), the district court did not err by failing to include the words “evil” and “wicked” in its instructions defining the word “corruptly”; nor would it be error to omit these words when instructing on 18 U.S.C. § 1512(b).  United States v. Watters, 717 F.3d 733, 735 (9th Cir. 2013).  

Revised Mar. 2022

            An intent to defraud is an intent to deceive [or] [and] cheat. 

Comment 

            While United States v. Shipsey, 363 F.3d 962 (9th Cir. 2004) explicitly approved the language of this instruction, United States v. Miller, 953 F.3d 1095, 1101 (9th Cir. 2020) expressly overruled Shipsey, holding that intent to defraud for purposes of wire fraud (18 U.S.C. § 1343) and mail fraud (18 U.S.C. § 1341) requires intent “to deceive and cheat[.]” (emphasis in original); see also United States v. Saini, 23 F.4th 1155, 1163 (9th Cir. 2022) (holding that “ordinary meaning of ‘intent to defraud’ under § 1029(a)(3) and (4) requires an intent to deceive and cheat” (emphasis added)).  However, for purposes of other statutes, the [or] [and] formulation may be permissible for this instruction.  See United States v. Dearing, 504 F.3d 897 (9th Cir. 2007). 

Miller did not disturb Shipsey’s ruling that because the trial court gave this instruction, “no good faith instruction was necessary at all.”  Shipsey, 363 F.3d  at 967-68; see also United States v. Crandall, 525 F.3d 907, 911-12 (9th Cir. 2008) (in which the Ninth Circuit rejected a contention based on Arthur Andersen LLP v. United States, 544 U.S. 696, 704-06 (2005), an obstruction of justice case, that intent to deceive requires proof of “consciousness of wrongdoing” in a prosecution for mail or wire fraud and said that the Ninth Circuit model instruction that was given “adequately covered the defense theory of lack of intent.”). 

            As to whether the defendant acted in good faith, and therefore did not act with an intent to defraud, see United States v. Molinaro, 11 F.3d 853, 863 (9th Cir. 1993), in which the Ninth Circuit approved the following instruction in a case involving the crime of bank fraud: 

You may determine whether a defendant had an honest, good faith belief in the truth of the specific misrepresentations alleged in the indictment in determining whether or not the defendant acted with intent to defraud.  However, a defendant’s belief that the victims of the fraud will be paid in the future or will sustain no economic loss is no defense to the crime. 

Revised Mar. 2022