The defendant is charged in [Count _______ of] the indictment with assault on a federal officer in violation of Section 111(a) of Title 18 of the United States Code. 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 forcibly assaulted [name of federal officer or employee]; [and]
Second, the defendant did so while [name of federal officer or employee] was engaged in, or on account of [his] [her] official duties[.] [; and]
[Third, the defendant [made physical contact] [acted with the intent to commit another felony].]
There is a forcible assault when one person intentionally strikes another, or willfully attempts to inflict injury on another, or intentionally threatens another coupled with an apparent ability to inflict injury on another which causes a reasonable apprehension of immediate bodily harm.
Comment
When the crime is charged under the enhanced penalty provisions of 18 U.S.C. § 111(b), use Instruction 8.2 (Assault on Federal Officer or Employee [With a Deadly or Dangerous Weapon] [Which Inflicts Bodily Injury]).
See 18 U.S.C. § 1114 for the definition of federal officer or employee referenced in 18 U.S.C. § 111.
The third element is to be used only when the charge is a felony. A felony charge requires actual physical contact or action with the intent to commit another felony.
A reasonable apprehension of immediate bodily harm is determined with reference to a reasonable person aware of the circumstances known to the victim, not with reference to all circumstances, including circumstances unknown to the victim. United States v. Acosta-Sierra, 690 F.3d 1111, 1121 (9th Cir. 2012).
The statutory language states that the crime can be committed by one who “forcibly assaults, resists, opposes, impedes, intimidates or interferes,” but the Ninth Circuit has held that regardless of the circumstances, “convictions under [111(a)] require at least some form of assault.” United States v. Chapman, 528 F.3d 1215, 1221 (9th Cir. 2008). Similarly, the court has held that a proper instruction may not reduce the concept of force or threatened force to the mere appearance of physical intimidation. United States v. Harrison, 585 F.3d 1155, 1160 (9th Cir. 2009).
There is no requirement that an assailant be aware that the victim is a federal officer. United States v. Feola, 420 U.S. 671, 684 (1975); see also United States v. Mobley, 803 F.3d 1105, 1109 (9th Cir. 2015) (citing Feola and holding that defendant’s lack of knowledge as to victim’s status as federal officer was “irrelevant to establishing the wrongfulness of the defendant’s conduct” in prosecution for assault of federal officer). If the defendant denies knowledge that the person assaulted was a federal officer and claims to have acted in self-defense, Instruction 8.3 (Assault on Federal Officer or Employee—Defenses) should be used.
Violation of § 111 is a general intent crime in this circuit. United States v. Jim, 865 F.2d 211, 215 (9th Cir. 1989). Among other things, this means that voluntary intoxication is not a defense. Id.
For an instruction defining “official duties,” see United States v. Ornelas, 906 F.3d 1138, 1149 (9th Cir. 2018) (upholding “official duties” instruction providing that: “the test” for determining whether officer is “[e]ngaged in the performance of official duties” is “whether the officer is acting within the scope of his employment, that is, whether the officer’s actions fall within his agency’s overall mission, in contrast to engaging in a personal frolic of his own”); see also United States v. Juvenile Female, 566 F.3d 943, 950 (9th Cir. 2009) (describing official duties test as “whether [the officer] is acting within the scope of what he is employed to do, as distinguished from engaging in a personal frolic of his own”).
Revised Apr. 2019
The defendant is charged in [Count _______ of] the indictment with assault on a federal officer in violation of Section 111(b) of Title 18 of the United States Code. 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 forcibly assaulted [name of federal officer or employee];
Second, the defendant did so while [name of federal officer or employee] was engaged in, or on account of [his] [her] official duties; and
Third, the defendant [used a deadly or dangerous weapon] [inflicted bodily injury].
There is a forcible assault when one person intentionally strikes another, or willfully attempts to inflict injury on another, or intentionally threatens another coupled with an apparent ability to inflict injury on another which causes a reasonable apprehension of immediate bodily harm.
[A [specify weapon] is a deadly or dangerous weapon if it is used in a way that is capable of causing death or serious bodily injury.]
Comment
See 18 U.S.C. § 1114 for the definition of federal officer or employee referenced in 18 U.S.C. § 111.
The statutory language states that the crime can be committed by one who “forcibly assaults, resists, opposes, impedes, intimidates or interferes,” but the Ninth Circuit has held that regardless of the circumstances, “convictions under [111(a)] require at least some form of assault.” United States v. Chapman, 528 F.3d 1215, 1221 (9th Cir. 2008).
There is no requirement that an assailant be aware that the victim is a federal officer. United States v. Feola, 420 U.S. 671, 684 (1975); see also United States v. Mobley, 803 F.3d 1105, 1109 (9th Cir. 2015) (citing Feola and holding that defendant’s lack of knowledge as to victim’s status as federal officer was “irrelevant to establishing the wrongfulness of the defendant’s conduct” in prosecution for assault of federal officer). If the defendant denies knowledge that the person assaulted was a federal officer and claims to have acted in self-defense, Instruction 8.3 (Assault on Federal Officer or Employee—Defenses) should be used.
A reasonable apprehension of immediate bodily harm is determined with reference to a reasonable person aware of the circumstances known to the victim, not with reference to all circumstances, including circumstances unknown to the victim. United States v. Acosta-Sierra, 690 F.3d 1111, 1121 (9th Cir. 2012).
Violation of § 111 is a general intent crime in this circuit. United States v. Jim, 865 F.2d 211, 215 (9th Cir. 1989). Among other things, this means that voluntary intoxication is not a defense, id., and that § 111(b) does not require an intent to cause the bodily injury. United States v. Garcia-Camacho, 122 F.3d 1265, 1269 (9th Cir. 1997).
For an instruction defining “official duties,” see United States v. Ornelas, 906 F.3d 1138, 1149 (9th Cir. 2018) (upholding “official duties” instruction providing that: “the test” for determining whether officer is “[e]ngaged in the performance of official duties” is “whether the officer is acting within the scope of his employment, that is, whether the officer’s actions fall within his agency’s overall mission, in contrast to engaging in a personal frolic of his own”); see also United States v. Juvenile Female, 566 F.3d 943, 950 (9th Cir. 2009) (describing official duties test as “whether [the officer] is acting within the scope of what he is employed to do, as distinguished from engaging in a personal frolic of his own”).
Revised Apr. 2019
The defendant asserts that [he] [she] acted in self-defense. It is a defense to the charge if (1) the defendant did not know that [name of federal officer or employee] was a federal [officer] [employee], (2) the defendant reasonably believed that use of force was necessary to defend oneself against an immediate use of unlawful force, and (3) the defendant used no more force than appeared reasonably necessary in the circumstances.
Force which is likely to cause death or great bodily harm is justified in self-defense only if a person reasonably believes that such force is necessary to prevent death or great bodily harm.
In addition to proving all the elements of the crime beyond a reasonable doubt, the government must also prove beyond a reasonable doubt either (1) that the defendant knew that [name of federal officer or employee] was a federal [officer] [employee] or (2) that the defendant did not reasonably believe force was necessary to defend against an immediate use of unlawful force or (3) that the defendant used more force than appeared reasonably necessary in the circumstances.
Comment
In United States v. Feola, 420 U.S. 671, 684 (1975), the Supreme Court held that there is no “requirement that an assailant be aware that his victim is a federal officer” but went on to point out that there could be circumstances where ignorance of the official status of the person assaulted might justify a defendant acting in self-defense. “The jury charge in such a case, therefore, should include (1) an explanation of the essential elements of a claim of self-defense, and (2) an instruction informing the jury that the defendant cannot be convicted unless the government proves, beyond a reasonable doubt, either (a) that the defendant knew that the victim was a federal agent, or (b) that the defendant’s use of deadly force would not have qualified as self-defense even if the agent had, in fact, been a private citizen.” United States v. Alvarez, 755 F.2d 830, 847 (11th Cir. 1985) (emphasis in original).
In United States v. Span, 970 F.2d 573 (9th Cir. 1992), the Ninth Circuit upheld this instruction. The court cautioned, however, that “the model instruction would be inappropriate in a case where a defendant’s theory of the case is self-defense against the use of excessive force by a federal law enforcement officer.” Id. at 577 (emphasis in original). In such a case, the instruction must be modified appropriately.
The defendant is charged in [Count _______ of] the indictment with assault with intent to commit [specify felony] in violation of Section 113(a)[(1)][(2)] of Title 18 of the United States Code. 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 assaulted [name of victim] by intentionally [[striking] [wounding]] [[him] [her]] [using a display of force that reasonably caused [him] [her] to fear immediate bodily harm];
Second, the defendant did so with the intent to commit [specify felony]; and
Third, the assault took place on [specify place of federal jurisdiction].
Comment
Assaults proscribed by 18 U.S.C. § 113 are those committed “within the special maritime and territorial jurisdiction of the United States.” See 18 U.S.C. § 7 for the definition of “special maritime and territorial jurisdiction of the United States.”
When the assault consists of a display of force, it must actually cause reasonable apprehension of immediate bodily harm; fear is a necessary element. United States v. Skeet, 665 F.2d 983, 986 n.1 (9th Cir. 1982).
Assault with intent to commit murder is a specific intent crime. United States v. Jones, 681 F.2d 610, 611 (9th Cir. 1982).
Revised Sept. 2016
The defendant is charged in [Count _______ of] the indictment with assault with a dangerous weapon in violation of Section 113(a)(3) of Title 18 of the United States Code. 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 assaulted [name of victim] by intentionally [[striking] [wounding]] [[him] [her]] [using a display of force that reasonably caused [him] [her] to fear immediate bodily harm];
Second, the defendant acted with the intent to do bodily harm to [name of victim];
Third, the defendant used a dangerous weapon; and
Fourth, the assault took place on [specify place of federal jurisdiction].
[A [specify weapon] is a dangerous weapon if it is used in a way that is capable of causing death or serious bodily injury.]
Comment
See Comment to Instruction 8.2 (Assault on Federal Officer or Employee [With a Deadly or Dangerous Weapon] [Which Inflicts Bodily Injury]).
See United States v. Smith, 561 F.3d 934, 938-40 (9th Cir. 2009) (en banc) (discussing prior version of jury instruction).
The use of bare hands only to perpetrate an assault did not constitute use of a “dangerous weapon” and therefore could not support a conviction under 18 U.S.C. § 113(a)(3). United States v. Rocha, 598 F.3d 1144, 1153-58 (9th Cir. 2010).
The statutory definition of assault with a dangerous weapon, 18 U.S.C. § 113(a)(3), includes “without just cause or excuse.” However, the existence of “just cause or excuse” is an affirmative defense, and the government does not have the burden of pleading or proving its absence. United States v. Guilbert, 692 F.2d 1340, 1343 (11th Cir. 1982).
The defendant is charged in [Count _______ of] the information with assault with a dangerous weapon in violation of Section 113(a)(4) of Title 18 of the United States Code. 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 assaulted [name of victim] by intentionally [[striking] [wounding]] [[him]] [her]]; and
Second, the assault took place on [specify place of federal jurisdiction].
Comment
See United States v. Pierre, 254 F.3d 872, 875 (9th Cir. 2001) (holding that assault by striking, beating, or wounding is not lesser included offense of assault with dangerous weapon).
Revised Apr. 2019
The defendant is charged in [Count _______ of] the indictment with assaulting a person who has not attained the age of 16 years in violation of Section 113(a)(5) of Title 18 of the United States Code. 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 assaulted [name of victim] by intentionally using a display of force that reasonably caused [him] [her] to fear immediate bodily harm;
Second, [name of victim] was under the age of 16 years at the time of the assault; and
Third, the assault took place on [specify place of federal jurisdiction].
Comment
When the assault consists of a display of force, it must actually cause reasonable apprehension of immediate bodily harm; fear is a necessary element. United States v. Skeet, 665 F.2d 983, 986 n.1 (9th Cir. 1982).
The defendant is charged in [Count _______ of] the indictment with assault resulting in serious bodily injury in violation of Section 113(a)(6) of Title 18 of the United States Code. 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 assaulted [name of victim] by intentionally [[striking] [wounding]] [him] [her];
Second, as a result, [name of victim] suffered serious bodily injury; and
Third, the assault took place on [specify place of federal jurisdiction].
“Serious bodily injury” means bodily injury that involves (1) a substantial risk of death; (2) extreme physical pain; (3) protracted and obvious disfigurement; or (4) protracted loss or impairment of the function of a body part, organ, or mental faculty.
Comment
See Comment to Instruction 8.1 (Assault on Federal Officer or Employee) concerning general intent.
The definition of “serious bodily injury” in the last paragraph of the instruction is the statutory definition in 18 U.S.C. §§ 113(b)(2) and 1365(h)(3).
Proof of battery supports conviction of assault. United States v. Lewellyn, 481 F.3d 695, 697 (9th Cir. 2007).
At common law, criminal battery is shown if the defendant’s conduct is reckless. United States v. Loera, 923 F.2d 725, 728 (9th Cir. 1991). A defendant can be convicted of assault resulting in serious bodily injury if a battery is proved.
The defendant is charged in [Count _______ of] the indictment with assaulting a person who has not attained the age of 16 years resulting in substantial bodily injury in violation of Section 113(a)(7) of Title 18 of the United States Code. 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 assaulted [name of victim] by intentionally [[striking] [wounding]] [[him] [her]];
Second, as a result, [name of victim] suffered substantial bodily injury;
Third, [name of victim] was under the age of 16 years at the time of the assault; and
Fourth, the assault took place on [specify place of federal jurisdiction].
“Substantial bodily injury” means a temporary but substantial disfigurement, or a temporary but substantial loss or impairment of the function of any bodily member, organ or mental faculty.
Comment
The definition of “substantial bodily injury” in the last paragraph of the instruction is the definition given in 18 U.S.C. § 113(b)(1).
The defendant is charged in [Count _______ of] the indictment with assault by strangulation in violation of Section 113(a)(8) of Title 18 of the United States Code. 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 assaulted a [spouse] [intimate partner] [, or] [dating partner] by [[strangling] [suffocating] [, or] [attempting to [strangle] [or] [suffocate]] [[him] [her]]; and
Second, the assault took place on [specify place of federal jurisdiction].
[“Spouse”] [“intimate partner”] [or] [“dating partner”] includes any of the following:
[“Intimate partner” [also] means a person who is or has been in a social relationship of a romantic or intimate nature with the defendant. You may determine whether such a relationship existed by considering (a) the length of the relationship, (b) the type of relationship, and (c) the frequency of interaction between the defendant and [name of victim].]
[“Dating partner” means a person who is or has been in a social relationship of a romantic or intimate nature with the defendant. You may determine whether such a relationship existed by considering (a) the length of the relationship, (b) the type of relationship, and (c) the frequency of interaction between the defendant and [name of victim].]
[“Strangling” means intentionally, knowingly, or recklessly impeding the normal breathing or circulation of the blood of a person by applying pressure to the throat or neck.]
[“Suffocating” means intentionally, knowingly, or recklessly impeding the normal breathing of a person by covering the mouth of the person, the nose of the person, or both, regardless of whether that conduct results in any visible injury or whether there is any intent to kill or protractedly injure the victim.]
The government is not required to prove that the defendant intended to kill the victim or cause [him] [her] to suffer prolonged injury. It also is not required to prove that the victim suffered any visible injury.
Comment
The definitions of “strangling” and “suffocating” in the instruction are the statutory definitions in 18 U.S.C. §§ 113(b)(4) and 113(b)(5).
The definitions of “spouse,” “intimate partner,” and “dating partner” are the statutory definitions in 18 U.S.C. § 2266, which is incorporated into 18 U.S.C. § 113(b)(3).
Assault by strangulation is a general intent crime. United States v. Lamott, 831 F.3d 1153, 1154 (9th Cir. 2016).
Revised Apr. 2019
The defendant is charged in [Count _______ of] the indictment with assaulting a [[spouse] [intimate partner] [or] [dating partner]] resulting in substantial bodily injury in violation of Section 113(a)(7) of Title 18 of the United States Code. 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 assaulted [name of victim] by intentionally [[striking] [wounding]] [[him] [her]];
Second, as a result, [name of victim] suffered substantial bodily injury;
Third, [name of victim] was a [[spouse] [intimate partner] [or] [dating partner]] of the defendant; and
Fourth, the assault took place on [specify place of federal jurisdiction].
[[“Spouse”] [“Intimate partner”] [“dating partner”]] includes any of the following:
[“Intimate partner” [also] means a person who is or has been in a social relationship of a romantic or intimate nature with the defendant. You may determine whether such a relationship existed by considering (a) the length of the relationship, (b) the type of relationship, and (c) the frequency of interaction between the defendant and [name of victim].]
[“Dating partner” means a person who is or has been in a social relationship of a romantic or intimate nature with the defendant. You may determine whether such a relationship existed by considering (a) the length of the relationship, (b) the type of relationship, and (c) the frequency of interaction between the defendant and [name of victim].]
Comment
The definitions of “spouse,” “intimate partner,” and “dating partner” are the statutory definitions in 18 U.S.C. § 2266, which is incorporated into 18 U.S.C. § 113(b)(3).
Revised Apr. 2019
Comment
The Committee has withdrawn the previously adopted and published jury instruction for violations of 18 U.S.C. § 871, (threats against the president). In reversing a defendant’s conviction for violating 18 U.S.C. § 875(c) (transmitting in interstate or foreign commerce any communication containing a threat to kidnap any person or injure any person), the Supreme Court has held that the mens rea of a crime involved in communicating a threat is established through proof that the defendant makes a communication for the purpose of issuing a threat, or with knowledge that the communication will be viewed as a threat. Elonis v. United States, 575 U.S. 723, 740 (2015). Elonis rejected the rule applied in the Ninth Circuit that “‘[w]hether a particular statement may properly be considered to be a threat is governed by an objective standard—whether a reasonable person would foresee that the statement would be interpreted by those to whom the maker communicates the statement as a serious expression of intent to harm or assault.’” United States v. Keyser, 704 F.3d 631, 638 (9th Cir. 2012) (quoting United States v. Orozco-Santillan, 903 F.2d 1262, 1265 (9th Cir. 1990)). The withdrawn instruction incorporated an element that also used an objective standard when viewing whether the communication was a threat. While this crime is not identical in its elements to the more general crime under 18 U.S.C. § 875(c), a court may want to consider whether the legal analysis regarding the mens rea element in Elonis applies to the more specific crime of threats against the President.
See also United States v. Bagdasarian, 652 F.3d 1113, 1122-23 (9th Cir. 2011) (reversing conviction under 18 U.S.C. § 879(a)(3), criminalizing threats against major presidential candidates, when defendant’s statements were “predictive” and “exhortatory” but did not indicate speaker’s own intention to threaten then-candidate Obama).
Revised Sept. 2018
The defendant is charged in [Count _______ of] the indictment with transmitting in [interstate commerce] [foreign commerce] a threatening communication to a person in violation of Section 875(c) of Title 18 of the United States Code. 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 transmitted in [interstate commerce] [foreign commerce] a [insert form of communication] containing a threat to [[kidnap] [injure]] [insert name or title of natural person].
Second, such [insert form of communication] was transmitted for the purpose of issuing a threat, or with knowledge that the [insert form of communication] would be viewed as a threat.
The government need not prove that the defendant intended to carry out the threat.
Comment
Whether a particular statement may be considered a threat is not governed by an objective standard. The mens rea of the crime involved in communicating a threat is established through proof that a defendant makes a communication for the purpose of issuing a threat, or with knowledge that the communication will be viewed as a threat. See Elonis v. United States, 575 U.S. 723, 740 (2015) (involving violation of 18 U.S.C. § 875(c), transmitting in interstate or foreign commerce any threat to kidnap any person or threat to injure the person of another).
Revised Sept. 2015
The defendant is charged in [Count _______ of] the indictment with mailing threatening communications in violation of Section 876(c) of Title 18 of the United States Code. 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 [mailed] [arranged to have mailed] a [letter] [insert other form of communication] addressed to [insert name or title of natural person] containing a threat to [kidnap] [injure] any person; and
Second, the defendant intended to communicate a threat by such [insert form of communication].
The government need not prove that the defendant intended to carry out the threat.
Comment
This instruction is based on United States v. Keyser,704 F.3d 631 (9th Cir. 2012), United States v. Havelock, 664 F.3d 1284 (9th Cir. 2012), United States v. King, 122 F.3d 808 (9th Cir. 1997), United States v. Twine, 853 F.2d 676 (9th Cir. 1988), and United States v. Sirhan, 504 F.2d 818, 820 (9th Cir. 1974). While the Ninth Circuit has not offered comprehensive guidance concerning the requirements for conviction under 18 U.S.C. § 876, these cases are instructive.
Under 18 U.S.C. § 876, the threatening communications must be addressed to a natural person. Havelock, 664 F.3d at 1286. “[I]n order to determine whom a threatening communication is ‘addressed to,’ a court may consult the directions on the outside of the envelope or the packaging, the salutation line, if any, and the contents of the communication.” Id. at 1296. A general title such as “manager” is sufficient to meet this requirement. Keyser, 704 F.3d at 641.
There are two specific intent elements in 18 U.S.C. § 876. The defendant must have both “knowingly” transmitted the communication and subjectively intended to threaten. Twine, 853 F.2d at 680; Keyser, 704 F.3d at 638 (“In order to be subject to criminal liability for a threat, the speaker must subjectively intend to threaten.”). United States v. Bachmeier clarifies that “subjective intent to threaten is the required mental state [under section 876], not . . . mere ‘knowledge that the [communication] would be viewed as a threat.’” 8 F.4th 1059, 1065 (9th Cir. 2021) (emphasis added). However, the defendant need not have expected the threats to gain him a benefit, or have had the intent or ability to actually carry out the threat. Planned Parenthood of the Columbia/Williamette, Inc. v. Am. Coalition of Life Activists, 290 F.3d 1058, 1076 n.9 (9th Cir. 2002); King, 122 F.3d at 809.
Revised Sept. 2021
8.15 Threatening to Assault, Kidnap, or Murder a United States
Official, United States Judge, Federal Law Enforcement Officer, or Other Official
(18 U.S.C. § 115(a)(1)(B))
The defendant is charged in [Count _______ of] the indictment with threatening to [assault] [kidnap] [murder] [name of United States official, judge, federal officer, or other official or member of the immediate family] a [United States Official] [United States Judge] [federal law enforcement officer] [other official] in violation of Section 115(a)(1)(B) of Title 18 of the United States Code. 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 threatened to [assault] [kidnap] [murder] [name of United States official, judge, federal officer or other official or member of the immediate family]; [and]
[Second, the defendant did so with intent to [impede] [intimidate] [interfere] with [name of United States official, judge, federal officer or other official] while [he] [she] was engaged in the performance of official duties]
or
[Second, the defendant did so with intent to retaliate against [name of United States official, judge, federal officer or other official] on account of the performance of [his] [her] official duties.]
Comment
“‘Federal law enforcement officer’ means any officer, agent, or employee of the United States authorized by law or by a Government agency to engage in or supervise the prevention, detection, investigation, or prosecution of any violation of Federal criminal law.” 18 U.S.C. § 115(c)(1).
“‘United States judge’ means any judicial officer of the United States, and includes a justice of the Supreme Court and a United States magistrate judge.” 18 U.S.C. § 115(c)(3).
“‘United States official’ means the President, President-elect, Vice President, Vice President-elect, a Member of Congress, a member-elect of Congress, a member of the executive branch who is the head of a department listed in 5 U.S.C. § 101, or the Director of the Central Intelligence Agency.” 18 U.S.C. § 115(c)(4).
“Other officials” are those "whose killing would be a crime under 18 U.S.C. § 1114.” United States v. Anderson, 46 F.4th 1000, 1007 (9th Cir. 2022) (holding that threats to private security guard contracted by Federal Protective Service at Social Security Office violated § 115).
The instruction may be modified to identify any person who formerly served as a United States official, a United States judge, a federal law enforcement officer, or an official, or a member of the immediate family of any person who formerly served in any of these positions. See 18 U.SC. § 115(a)(2).
For an instruction defining “official duties,” see United States v. Ornelas, 906 F.3d 1138, 1149 (9th Cir. 2018) (upholding “official duties” instruction stating that test for determining whether officer is “[e]ngaged in the performance of official duties” is “whether the officer is acting within the scope of his employment, that is, whether the officer’s actions fall within his agency’s overall mission, in contrast to engaging in a personal frolic of his own”). See also United States v. Juvenile Female, 566 F.3d 943, 950 (9th Cir. 2009) (describing official duties test as “whether [the officer] is acting within the scope of what he is employed to do, as distinguished from engaging in a personal frolic of his own”).
Links
[1] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/_WPD/8.1_criminal_rev_3_2022_0.docx
[2] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/_WPD/8.2_criminal_rev_3_2022.docx
[3] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/_WPD/8.3_criminal_rev_3_2022.docx
[4] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/_WPD/8.4_criminal_rev_3_2022_0.docx
[5] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/_WPD/8.5_criminal_rev_3_2022.docx
[6] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/_WPD/8.6_criminal_rev_3_2022_0.docx
[7] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/_WPD/8.7_criminal_rev_3_2022.docx
[8] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/_WPD/8.8_criminal_rev_3_2022.docx
[9] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/_WPD/8.9_criminal_rev_3_2022_0.docx
[10] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/_WPD/8.10_criminal_rev_3_2022_0.docx
[11] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/_WPD/8.11_criminal_rev_3_2022.docx
[12] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/_WPD/8.12_criminal_rev_3_2022.docx
[13] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/_WPD/8.13_criminal_rev_3_2022_0.docx
[14] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/_WPD/8.14_criminal_rev_3_2022.docx
[15] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/_WPD/8.15_criminal_3_2023_0.docx