The defendant is charged in [Count _______ of] the indictment with [armed] bank robbery in violation of Section 2113 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, through force and violence or intimidation, [[took] [obtained by extortion] [[property] [money] [something of value]] belonging to or in the care, custody, control, management or possession of [specify financial institution];]
or
[First, the defendant entered [specify financial institution] intending to commit [insert applicable crime] affecting [specify financial institution];]
Second, the deposits of [specify financial institution] were then insured by the [Federal Deposit Insurance Corporation] [National Credit Union Administration Board] [.] [; and]
[Third, the defendant intentionally [[struck or wounded [name of victim]] [made a display of force that reasonably caused [name of victim] to fear bodily harm] by using a [specify dangerous weapon or device]. [A weapon or device is dangerous if it is something that creates a greater apprehension in the victim and increases the likelihood that police or bystanders would react using deadly force.]]
Comment
Choose the applicable first element of the instruction depending on which portion of 18 U.S.C. § 2113(a) the defendant is charged under. When the second option of the first element is used, a companion instruction may be necessary to define the applicable crime.
The third element should be used when a violation of 18 U.S.C. § 2113(d) for use of a dangerous weapon is charged. When the § 2113(d) offense is predicated on an underlying § 2113(b) offense, substitute for the first element in this instruction the first element in Instruction 9.2 (Bank Robbery).
Frequently, the weapon used is a firearm, in which case there is not likely to be an issue about whether a dangerous weapon was used. In such cases, the last bracketed sentence in the third element might be omitted. A “dangerous weapon” is required for both the “assault” and “display of force” options of § 2113(d). See Simpson v. United States, 435 U.S. 6, 13 n.6 (1978), superseded by statute on other grounds as stated in United States v. Beierle, 77 F.3d 1199, 1201 n.1 (9th Cir. 1996).
There may be cases in which a jury must decide whether the weapon or device is dangerous. In such cases the bracketed last sentence in the third element should be used. The definition of dangerous weapon is derived from a discussion in United States v. Pike, 473 F.3d 1053, 1060 (9th Cir. 2007), which did not involve a dangerous weapon issue. The Ninth Circuit explained that its previous decisions in United States v. Taylor, 960 F.2d 115, 116-17 (9th Cir. 1992), and United States v. Boyd, 924 F.2d 945, 947 (9th Cir. 1991), had held devices to be dangerous because the device increased victim apprehension and increased the likelihood of police or bystanders responding with deadly force. Pike, 473 F.3d at 1060.
To constitute “use” of a dangerous weapon, the weapon must be actively employed rather than inadvertently displayed. United States v. Bain, 925 F.3d 1172, 1177-78 (9th Cir. 2019) (holding that inadvertent placement of closed pocket knife on bank counter does not constitute use of dangerous weapon); see also United States v. Odom, 329 F.3d 1032, 1033 (9th Cir. 2003) (“[A] bank robber with a concealed gun who never mentions or insinuates having one, but who displays it inadvertently [cannot] be convicted of armed bank robbery.”).
To convict a defendant for armed bank robbery under an aiding and abetting theory, the Ninth Circuit requires the government to show beyond a reasonable doubt both that the defendant knew that the principal had and intended to use a dangerous weapon during the robbery, and that the defendant intended to aid in that endeavor. United States v. Dinkane, 17 F.3d 1192, 1195 (9th Cir. 1994). Failure to properly instruct the jury on this issue constitutes reversible error. Id.
Armed bank robbery under § 2113(d) “requires that ‘the robber knowingly made one or more victims at the scene of the robbery aware that he had a gun, real or not.’” United States v. Henry, 984 F.3d 1343, 1358 (9th Cir. 2021) (quoting United States v. McDuffy, 890 F.3d 796, 799 (9th Cir. 2018)).
Bank robbery is a general intent crime. See Carter v. United States, 530 U.S. 255, 268 (2000).
Revised Mar. 2021
The defendant is charged in [Count _______ of] the indictment with bank robbery in violation of Section 2113 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 [[took and carried away with intent to steal or purloin] [received, possessed, concealed, stored, bartered, sold, or disposed of]] [[property] [money] [something of value]] belonging to or in the care, custody, control, management or possession of [specify financial institution];
Second, what the defendant [took and carried away] [received, possessed, concealed, bartered, sold, or disposed of] had a value [greater than $1000] [of $1000 or less]; [and]
[Third, the defendant knew that what the defendant received, possessed, concealed, stored, bartered, sold, or disposed of had been stolen; and]
or
[Third/Fourth], the deposits of [specify financial institution] were then insured by the [Federal Deposit Insurance Corporation] [National Credit Union Administration Board].
Comment
Use the third element concerning the defendant’s knowledge when the defendant is charged under 18 U.S.C. § 2113(c) and adjust the number of the last element accordingly.
See also Instructions 9.1 (Bank Robbery) and 9.3 (Bank Robbery).
Revised June 2015
The defendant is charged in [Count _______ of] the indictment with bank robbery in violation of Section 2113 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 [[took] [obtained by extortion] [[property] [money] [something of value]] belonging to or in the care, custody, control, management or possession of [specify financial institution], using force and violence or intimidation in doing so.]
or
[First, the defendant entered [specify financial institution], intending to commit [insert applicable crime] affecting [specify financial institution];]
or
[First, the defendant took and carried away, with intent to steal or purloin, [[property] [money] [something of value]] belonging to or in the care, custody, control, management or possession of [specify financial institution];]
or
[First, the defendant received, possessed, concealed, stored, bartered, sold, or disposed of [property] [money] [something of value] belonging to, or in the care, custody, control, management, or possession of [specify financial institution], knowing that the [property] [money] [item] was stolen;]
or
[First, the defendant [[took] [obtained by extortion] [[property] [money] [something of value]] belonging to, or in the care, custody, control, management, or possession of [specify financial institution], using force and violence or intimidation in doing so [and intentionally struck or wounded a person] [and intentionally made a display of force that reasonably caused another person to fear bodily harm by] using [specify dangerous weapon or device];]
or
[First, the defendant entered [specify financial institution] intending to commit [insert applicable crime] affecting [specify financial institution], using force and violence or intimidation in doing so and intentionally [struck or wounded a person] [made a display of force that reasonably caused another person to fear bodily harm by] using [specify dangerous weapon or device];]
Second, while doing so, the defendant [killed [name of victim]] [forced [name of victim]] to accompany the defendant without the consent of such person. A defendant “forces a person to accompany” the defendant when the defendant forces that person to go somewhere with the defendant, even if the movement occurs entirely within a single building or over a short distance]; and
Third, the deposits of [specify financial institution] were then insured by the [Federal Deposit Insurance Corporation] [National Credit Union Administration Board].
Comment
Depending on which crime(s) from 18 U.S.C. § 2113 are charged in the indictment, select the appropriate “First” option(s).
The “forced” language in the second element should be used when a violation of 18 U.S.C. § 2113(e) for kidnapping a person in connection with a robbery is charged. See Whitfield v. United States, 574 U.S. 265, 267, 270 (2015) (§ 2113(e) does not require defendant to force someone to accompany defendant over “substantial distance”; movement may occur “entirely within a single building or over a short distance”); United States v. Strobehn, 421 F.3d 1017, 1019 (9th Cir. 2005) (“On its face, the enhancing elements are that a defendant (1) in the course of committing a bank robbery (2) forces a person (3) to accompany him (4) without that person’s consent. While ‘kidnaping’ works as a shorthand description because § 2113(e) contemplates moving someone by force to someplace he doesn't want to go, the statute plainly, and only, requires accompaniment that is forced and without consent.”).
Revised June 2015
The defendant is charged in [Count _______ of] the indictment with attempted bank robbery in violation of Section 2113 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 intended to use force and violence or intimidation to take money that belonged to [specify financial institution];
Second, the deposits of [specify financial institution] were then insured by the [Federal Deposit Insurance Corporation] [National Credit Union Administration Board]; and
Third, the defendant did something that was a substantial step toward committing the crime.
A “substantial step” is conduct that strongly corroborates 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 the 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 the crime.
Comment
“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 May 2023
The defendant is charged in [Count _______ of] the indictment with [attempted] extortion by force, violence, or fear in violation of Section 1951 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 [[induced] [intended to induce]] [name of victim] to part with property by the wrongful use of actual or threatened force, violence, or fear;
Second, the defendant obtained the property with [name of victim]’s consent;
Third, the defendant acted with the intent to obtain the property; [and]
Fourth, commerce from one state to another [was] [would have been] affected in some way[.] [; and]
[Fifth, the defendant did something that was a substantial step toward committing the crime.
A “substantial step” is conduct that strongly corroborates 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
For an instruction on extortion or attempted extortion by nonviolent threat, see Instruction 9.6 (Hobbs Act—Extortion or Attempted Extortion by Nonviolent Threat).
For a definition of “affecting interstate commerce,” see Instruction 9.9 (Hobbs Act—Affecting Interstate Commerce).
Only a de minimis effect on interstate commerce is required to establish jurisdiction under the Hobbs Act, and the effect need only be probable or potential, not actual. United States v. Lynch, 437 F.3d 902, 908-09 (9th Cir. 2006) (en banc). The interstate nexus may arise from either direct or indirect effects on interstate commerce. Id. at 909-10. When the effects are only indirect it may be appropriate to measure the adequacy of proof of interstate nexus by applying the test articulated in United States v. Collins, 40 F.3d 95, 100 (5th Cir. 1994).
“Property” under the Hobbs Act is not limited to tangible things; it includes the right to make business decisions and to solicit business free from coercion. United States v. Hoelker, 765 F.2d 1422, 1425 (9th Cir. 1985) (citing United States v. Zemek, 634 F.2d 1159, 1174 (9th Cir. 1980)). The Hobbs Act is not limited to lawful property and includes contraband. United States v. Cortes, 757 F.3d 850, 865-66 (9th Cir. 2014).
Actual or threatened force standing alone does not violate the statute. “We conclude that Congress did not intend to create a freestanding physical violence offense in the Hobbs Act. It did intend to forbid acts or threats of physical violence in furtherance of a plan or purpose to engage in what the statute refers to as robbery or extortion (and related attempts or conspiracies).” Scheidler v. Nat’l Org. for Women, Inc., 547 U.S. 9, 23 (2006).
A defendant’s claim of right to the property is not a defense. “‘Congress meant to punish as extortion any effort to obtain property by inherently wrongful means, such as force or threats of force . . . regardless of the defendant’s claim of right to the property . . . .’” United States v. Daane, 475 F.3d 1114, 1120 (9th Cir. 2007) (quoting with approval from United States v. Zappola, 677 F.2d 264, 268-69 (2d Cir. 1982)). There is an exception to this proposition, but it is confined to cases involving certain types of labor union activity. Id. at 1119-20.
“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).
It is unclear whether 18 U.S.C. § 1951 requires specific intent as an element. In United States v. Ornelas, 906 F.3d 1138 (9th Cir. 2018), the Ninth Circuit discussed the intent element in statutory offenses that appear to “simply punish” common law crimes. In footnote 2, however, the Ninth Circuit distinguished federal statutes that “simply punish” a common law offense (thus requiring importation of common law elements) from federal statutes that provide their own elements (and thus not requiring importation of common law elements). Id. at 1143 n.2. The circuits are currently split as to whether the Hobbs Act requires specific intent to steal. Compare United States v. Thomas, 8 F.3d 1552, 1562-63 (11th Cir. 1993), with United States v. Nedley, 255 F.2d 350, 355 (3d Cir. 1958).
Revised May 2023
The defendant is charged in [Count _______ of] the indictment with [attempted] extortion by threat of [economic harm] [specify other nonviolent harm] in violation of Section 1951 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 [[induced] [intended to induce]] [name of victim] to part with property by wrongful threat of [economic harm] [specify other nonviolent harm];
Second, the defendant acted with the intent to obtain property;
Third, commerce from one state to another [was] [would have been] affected in some way[.] [; and]
[Fourth, the defendant did something that was a substantial step toward committing the crime.
A “substantial step” is conduct that strongly corroborates 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.]
A threat is wrongful [if it is unlawful] [or] [if the defendant knew [he] [she] was not entitled to obtain the property].
Comment
See generally Comment to Instruction 9.5 (Hobbs Act—Extortion or Attempted Extortion by Force).
A nonviolent threat is prohibited by the Hobbs Act if it is “wrongful.” 18 U.S.C. § 1951(b)(2) (defining extortion as “the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened . . . fear” (emphasis added)); United States v. Villalobos, 748 F.3d 953, 955 (9th Cir. 2014) (error for jury instruction to essentially read out § 1951’s “wrongful” element). “[T]hreats of sham litigation, which are made to obtain property to which the defendant knows he has no lawful claim, are ‘wrongful’ under the Hobbs Act.” United States v. Koziol, 993 F.3d 1160, 1170 (9th Cir. 2021).
If a nonviolent threat is to be carried out by unlawful means, then the Hobbs Act’s “wrongful” requirement is satisfied, regardless of whether the defendant had a lawful claim of right to the property demanded. Villalobos, 748 F.3d at 957-58. For example, threats to cooperate with, or alternatively, impede an ongoing investigation, contingent on payment, are unlawful and therefore clearly wrongful. Id.
If, on the other hand, a nonviolent threat is to be carried out by lawful means (for example, a threat of economic harm), a claim of right instruction is necessary. See United States v. Dischner, 974 F.2d 1502, 1515 (9th Cir. 1992) (holding that wrongfully obtaining property by threat of economic harm is sufficient to convict of extortion under Hobbs Act and noting that “[o]btaining property is generally ‘wrongful’ if the alleged extortionist has no lawful claim to that property” (citing United States v. Enmons, 410 U.S. 396, 400 (1973))), overruled on other grounds by United States v. Morales, 108 F.3d 1031 (9th Cir. 1997).
It is unclear whether the claim of right instruction to be given in lawful-threat cases must require that the defendant knew he or she was not entitled to obtain the property. At least one other circuit so requires, see United States v. Sturm, 870 F.2d 769, 773-74 (1st Cir. 1989), but the Ninth Circuit has yet to impose such a requirement. See United States v. Greer, 640 F.3d 1011, 1019 n.4 (9th Cir. 2011) (“Because the district court’s instructions satisfied the First Circuit’s requirement in Sturm, we need not decide whether to adopt Sturm as the law of this circuit.”); Dischner, 974 F.2d at 1515 (declining to “decide whether the government must prove that the defendant knew he had no entitlement” to property because district court’s jury instructions necessarily required such finding); Koziol, 993 F.3d at 1170 n. 10 (“We do not decide whether the Hobbs Act imposes liability absent proof that the defendant knew he was not entitled to the property.”). Until the Ninth Circuit decides the question, the Committee recommends the above instruction, which requires the government to prove that the defendant knew he or she was not entitled to obtain the property.
A general instruction that the defendant need not have known that his or her conduct was unlawful does not negate the instruction in lawful-threat cases that a threat is wrongful if the defendant knew he or she was not entitled to obtain the property. Knowledge that one has no entitlement to property is distinguishable from knowledge that an act violates the Hobbs Act. Greer, 640 F.3d at 1019-20.
“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).
It is unclear whether 18 U.S.C. § 1951 requires specific intent as an element. In United States v. Ornelas, 906 F.3d 1138 (9th Cir. 2018), the Ninth Circuit discussed the intent element in statutory offenses that appear to “simply punish” common law crimes. In footnote 2, however, the Ninth Circuit distinguished federal statutes that “simply punish” a common law offense (thus requiring importation of common law elements) from federal statutes that provide their own elements (and thus not requiring importation of common law elements). Id. at 1143 n.2. The circuits are currently split as to whether the Hobbs Act requires specific intent to steal. Compare United States v. Thomas, 8 F.3d 1552, 1562-63 (11th Cir.1993), with United States v. Nedley, 255 F.2d 350, 355 (3d Cir. 1958).
Revised May 2023
The defendant is charged in [Count _______ of] the indictment with [attempted] extortion under color of official right in violation of Section 1951 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 was a public official;
Second, the defendant [[obtained] [intended to obtain]] [specify property] that the defendant knew [he] [she] was not entitled to receive;
[Third, the defendant knew that the [specify property] [[was] [would be]] given in return for [taking] [withholding] some official action; [and]
or
[Third, the defendant knew that the [specify property] [[was] [would be]] given in return for an express promise to perform a particular official action; and]
Fourth, commerce or the movement of an article or commodity in commerce from one state to another [was] [would have been] affected in some way[.] [; and]
[Fifth, the defendant did something that was a substantial step toward committing the crime.
A “substantial step” is conduct that strongly corroborates 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.]
[The acceptance by a public official of a campaign contribution does not, in itself, constitute a violation of law even though the donor has business pending before the official. However, if a public official demands or accepts [money] [property] [some valuable right] in exchange for a specific requested exercise of official power, such a demand or acceptance does constitute a violation regardless of whether the payment is made in the form of a campaign contribution.]
Comment
If the defendant is not a public official, then this instruction should be modified to include a requirement that the government prove that the defendant either conspired with a public official or aided and abetted a public official. United States v. McFall, 558 F.3d 951, 960 (9th Cir. 2009). A Hobbs Act conspiracy may exist even if some members of the conspiracy are not public officials and thus cannot complete the offense. Ocasio v. United States, 136 S. Ct. 1423, 1429-32 (2016). The object of the conspiracy need not be to get property from a person outside the conspiracy; it is sufficient that the property comes from another member of the conspiracy. Id. at 1429, 1434-35.
If there is any question in the case about the “official” character of the action sought by the defendant, give Instruction 10.1 (Official Action—Defined). When using that instruction in connection with Instruction 9.7, the court should change the term “official act” to “official action.”
When the property is not a campaign contribution, the government need only show that the public official obtained payment to which he or she was not entitled knowing that the payment was made in exchange for some official act. See United States v. Kincaid-Chauncey,556 F.3d 923, 937-38 (9th Cir. 2009). In such a case the first version of the third element should be used and the final paragraph should not be included.
The second version of the third element, and the final paragraph should be included in cases involving an alleged campaign contribution. See McCormick v. United States, 500 U.S. 257 (1991); Kincaid-Chauncey,556 F.3d at 936. The express promise need not actually be carried out. It is sufficient if the promise to act is given in exchange for the property. See Evans v. United States,504 U.S. 255, 267 (1992).
“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).
It is unclear whether 18 U.S.C. § 1951 requires specific intent as an element. In United States v. Ornelas, 906 F.3d 1138 (9th Cir. 2018), the Ninth Circuit discussed the intent element in statutory offenses that appear to “simply punish” common law crimes. In footnote 2, however, the Ninth Circuit distinguished federal statutes that “simply punish” a common law offense (thus requiring importation of common law elements) from federal statutes that provide their own elements (and thus not requiring importation of common law elements). Id. at 1143 n.2. The circuits are currently split as to whether the Hobbs Act requires specific intent to steal. Compare United States v. Thomas, 8 F.3d 1552, 1562-63 (11th Cir.1993), with United States v. Nedley, 255 F.2d 350, 355 (3d Cir. 1958).
Revised May 2023
The defendant is charged in [Count ______ of] the indictment with [attempted] robbery in violation of Section 1951 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 [obtained] [attempted to obtain] money or property from or in the presence of [name of victim];
Second, the defendant [did so] [attempted to do so] by means of robbery;
Third, the defendant believed that [name of victim] [[parted] [would part]] with the money or property because of the robbery; [and]
Fourth, the robbery [affected] [would have affected] interstate commerce [; and][.]
[Fifth, the defendant did something that was a substantial step toward committing the crime.
A “substantial step” is conduct that strongly corroborates 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.]
“Robbery” means the unlawful taking or obtaining of personal property from the person or in the presence of another, against his will, by means of actual or threatened force, or violence [or fear of injury, immediate or future, to his person or property, or to property in his custody or possession, or to the person or property of a relative or member of his family or of anyone in his company at the time of the taking or obtaining].
Comment
Give the bracketed language appropriate to either a completed crime or an attempt. Only that portion of the definition of robbery that is relevant to the issues in the trial should be given to the jury.
For a definition of “affecting interstate commerce,” see Instruction 9.9 (Hobbs Act—Affecting Interstate Commerce). Only a de minimis effect on interstate commerce is required to establish jurisdiction under the Hobbs Act, and the effect need only be probable or potential, not actual. United States v. Lynch, 437 F.3d 902, 908-09 (9th Cir. 2006) (en banc). The interstate nexus may arise from either direct or indirect effects on interstate commerce. Id. at 909-10. When the effects are only indirect it may be appropriate to measure the adequacy of proof of interstate nexus by applying the test articulated in United States v. Collins, 40 F.3d 95, 100 (5th Cir. 1994).
When the defendant has been charged with robbing or attempting to rob a drug dealer, the government satisfies the “affecting commerce” element of this crime if it shows that the defendant robbed or attempted to rob a drug dealer of drugs or drug proceeds. Taylor v. United States, 136 S. Ct. 2074, 2081 (2016). See also United States v. Woodberry, 987 F.3d 1231, 1235 (9th Cir. 2021) (applying Taylor’s holding to robbery of licensed marijuana dispensary). “[T]he Government need not show that the drugs that a defendant stole or attempted to steal either traveled or were destined for transport across state lines.” Taylor, 136 S. Ct. at 2081.
“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).
Section 1951 requires specific intent as an element. See United States v. Du Bo, 186 F.3d 1177, 1179 (9th Cir. 1999) (“Although not stated in the Hobbs Act itself, criminal intent—acting ‘knowingly or willingly’—is an implied and necessary element that the government must prove for a Hobbs Act conviction.” (quoting United States v. Soriano, 880 F.2d 192, 198 (9th Cir. 1989)).
Revised Dec 2023
Comment
To convict the defendant of [specify crime], the government must prove that the defendant’s conduct affected or could have affected interstate commerce. Conduct affects interstate commerce if it in any way involves, interferes with, changes, or alters the movement or transportation or flow of goods, merchandise, money, or other property in commerce between or among the states or between the United States and a foreign country. The effect can be minimal.
It is not necessary for the government to prove that the defendant knew or intended that [his][her] conduct would affect commerce; it must prove only that the natural consequences of [his] [her] conduct affected commerce in some way. Also, you do not have to find that there was an actual effect on commerce. The government must show only that the natural result of the offense would be to cause an effect on interstate commerce to any degree, however minimal or slight.
See United States v. Woodberry, 987 F.3d 1231, 1235 (9th Cir. 2021); see generally United States v. Tuan Ngoc Luong, 965 F.3d 973, 986 (9th Cir. 2020) (holding that district court did not err by giving instruction that “[a]n effect on interstate commerce is established by proof of an actual impact, however small, or in the absence of an actual impact, proof of a probable or potential impact. This impact can be slight, but not speculative.”).
Revised Mar. 2021
Links
[1] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/_WPD/9.1_criminal_rev_3_2022_0.docx
[2] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/_WPD/9.2_criminal_rev_3_2022_0.docx
[3] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/_WPD/9.3_criminal_rev_3_2022_0.docx
[4] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/_WPD/9.4_criminal_rev_5_2023.docx
[5] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/_WPD/9.5_criminal_rev_5_2023.docx
[6] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/_WPD/9.6_criminal_rev_5_2023.docx
[7] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/_WPD/9.7_criminal_rev_5_2023.docx
[8] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/_WPD/9.8_criminal_rev_12_2023.docx
[9] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/_WPD/9.9_criminal_rev_3_2022_0.docx