The defendant is charged in [Count ______ of] the indictment with producing without legal authority [an identification document] [an authentication feature] [a false identification document] in violation of Section 1028(a)(1) 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 produced [an identification document] [an authentication feature] [a false identification document];
Second, the defendant produced the [identification document] [authentication feature] [false identification document] without lawful authority; and
[Third, the [identification document] [authentication feature] [false identification document] was or appeared to be issued by or under authority of [the United States] [specify issuing authority].]
or
[Third, the production of the [identification document] [authentication feature] [false identification document] was in or affected commerce between one state and [an]other state[s], or between a state of the United States and a foreign country.]
or
[Third, in the course of production, the [identification document] [authentication feature] [false identification document] was transported in the mail.]
Comment
The first and second elements are drawn from 18 U.S.C. § 1028(a)(2); the alternative third elements are drawn from 18 U.S.C. §§ 1028(c)(1), (c)(3)(A) and (c)(3)(B). A defendant knowingly produces an identification document “without lawful authority” if the defendant produces the document knowing that the recipient has not completed the eligibility requirements for the document. United States v. Turchin, 21 F.4th 1192, 1197 (9th Cir. 2022).
It is plain error to instruct the jury “that the federal nexus required by § 1028(c)(1) was automatically satisfied merely by showing that the identification document in question was issued by a state government.” United States v. Turchin, 21 F.4th 1192, 1202 (9th Cir. 2022).
Section 1028(d) provides definitions for the terms: “identification document,” “authentication feature,” “false identification document,” “issuing authority,” and “produce.” An “authentication feature” need not be a physical thing affixed to or imprinted on another physical thing. United States v. Barrogo, 59 F.4th 440, 446 (9th Cir. 2023) (holding non-physical PIN constituted “authentication feature” even though it was not physically on EBT card). Private financial institutions do not fit within the definition of “issuing authority,” which means “‘any governmental entity or agency that is authorized to issue identification documents, means of identification, or authentication features.’” United States v. Kirilyuk, 29 F.4th 1128 (2022) (quoting 18 U.S.C. § 1028(d)(6)(A)).
Section 1028(b) provides for various enhanced statutory maximum penalties in certain circumstances, such as when particular types of identification documents are involved or when their use occurs in connection with certain other criminal conduct. In the event that such enhanced penalties are charged, a special verdict form may need to be submitted to the jury regarding the presence or absence of such facts.
When a defendant presents false information to a government agent to obtain an identification document, it is unnecessary to show that the government agent who actually produced the identification document intended to commit identification fraud. United States v. Lee, 602 F.3d 974, 976 (9th Cir. 2010).
Revised March 2023
The defendant is charged in [Count ______ of] the indictment with transferring [an identification document] [an authentication feature] [a false identification document] in violation of Section 1028(a)(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 knowingly transferred [an identification document] [an authentication feature] [a false identification document];
Second, the defendant knew the [identification document] [authentication feature] [false identification document] was [stolen] [produced without lawful authority]; and
[Third, the [identification document] [authentication feature] [false identification document] was or appeared to be issued by or under the authority of [the United States] [specify issuing authority].]
or
[Third, the production of the [identification document] [authentication feature] [false identification document] was in or affected commerce between one state and [an]other state[s], or between a state of the United States and a foreign country.]
or
[Third, in the course of production, the [identification document] [authentication feature] [false identification document] was transported in the mail.]
Comment
The first and second elements are drawn from 18 U.S.C. § 1028(a)(2); the alternative third elements are drawn from 18 U.S.C. § 1028(c)(1), (c)(3)(A), and (c)(3)(B).
Section 1028(d) provides definitions for the terms: “identification document,” “authentication feature,” “false identification document,” “issuing authority,” and “transfer.” An “authentication feature” need not be a physical thing affixed to or imprinted on another physical thing. United States v. Barrogo, 59 F.4th 440, 446 (9th Cir. 2023) (holding non-physical PIN constituted “authentication feature” even though it was not physically on EBT card). Private financial institutions do not fit within the definition of “issuing authority,” which means “‘any governmental entity or agency that is authorized to issue identification documents, means of identification, or authentication features.’” United States v. Kirilyuk, 29 F.4th 1128 (2022) (quoting 18 U.S.C. § 1028(d)(6)(A)).
Section 1028(b) provides for various enhanced statutory maximum penalties in certain circumstances, such as when particular types of identification documents are involved or when their use occurs in connection with certain other criminal conduct. In the event that such enhanced penalties are charged, a special verdict form may need to be submitted to the jury regarding the presence or absence of such facts.
Revised March 2023
The defendant is charged in [Count ______ of] the indictment with possessing five or more [identification documents] [authentication features] [false identification documents] for unlawful use or transfer in violation of Section 1028(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 knowingly possessed five or more [identification documents] [authentication features] [false identification documents];
Second, the defendant intended to [use] [transfer] unlawfully those [identification documents] [authentication features] [false identification documents]; and
[Third, the [identification document] [authentication feature] [false identification document] was or appeared to be issued by or under the authority of [the United States] [specify issuing authority].]
or
[Third, the production of the [identification document] [authentication feature] [false identification document] was in or affected commerce between one state and [an]other state[s], or between a state of the United States and a foreign country.]
or
[Third, in the course of production, the [identification document] [authentication feature] [false identification document] was transported in the mail.]
[In determining whether the defendant possessed five or more identification documents, you should not count any that were issued lawfully for the use of the defendant.]
Comment
The first and second elements are drawn from 18 U.S.C. § 1028(a)(2); the alternative third elements are drawn from 18 U.S.C. §§ 1028(c)(1), (c)(3)(A) and (c)(3)(B).
Section 1028(d) provides definitions for the terms: “identification document,” “authentication feature,” “false identification document,” “issuing authority,” and “transfer.” An “authentication feature” need not be a physical thing affixed to or imprinted on another physical thing. United States v. Barrogo, 59 F.4th 440, 446 (9th Cir. 2023) (holding non-physical PIN constituted “authentication feature” even though it was not physically on EBT card). Private financial institutions do not fit within the definition of “issuing authority,” which means “‘any governmental entity or agency that is authorized to issue identification documents, means of identification, or authentication features.’” United States v. Kirilyuk, 29 F.4th 1128 (2022) (quoting 18 U.S.C. § 1028(d)(6)(A)).
Section 1028(b) provides for various enhanced statutory maximum penalties in certain circumstances, such as when particular types of identification documents are involved or when their use occurs in connection with certain other criminal conduct. In the event that such enhanced penalties are charged, a special verdict form may need to be submitted to the jury regarding the presence or absence of such facts.
Revised March 2023
The defendant is charged in [Count ______ of] the indictment with possessing [an identification document] [an authentication feature] [a false identification document] for use in defrauding the United States in violation of Section 1028(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 knowingly possessed [an identification document] [an authentication feature] [a false identification document]; and
Second, the defendant intended the [identification document] [authentication feature] [false identification document] to be used to defraud the United States.
[In determining whether the defendant possessed an identification document you should not count any that were issued lawfully for the use of the defendant.]
Comment
The first and second elements are drawn from 18 U.S.C. § 1028(a)(4) in light of 18 U.S.C. § 1028(c)(2).
Violation of a federal, state, or local law is not an essential element of an offense under § 1028(a)(4). United States v. McCormick, 72 F.3d 1404, 1407 (9th Cir. 1995) (affirming trial court’s instruction that government must prove (1) that defendant knowingly possessed false identification document, and (2) that he did so with intent to defraud United States).
Section 1028(d) provides definitions for the terms: “identification document,” “authentication feature,” and “false identification document.” An “authentication feature” need not be a physical thing affixed to or imprinted on another physical thing. United States v. Barrogo, 59 F.4th 440, 446 (9th Cir. 2023) (holding non-physical PIN constituted “authentication feature” even though it was not physically on EBT card).
Section 1028(b) provides for various enhanced statutory maximum penalties in certain circumstances such as when particular types of identification documents are involved or when their use occurs in connection with certain other criminal conduct. In the event that such enhanced penalties are charged, a special verdict form may need to be submitted to the jury regarding the presence or absence of such facts.
See Instruction 4.13 (Intent to Defraud).
Revised March 2023
The defendant is charged in [Count ______ of] the indictment with [[possessing] [producing] [transferring]] [[a document-making implement] [an authentication feature]] in violation of Section 1028(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 knowingly [[produced] [transferred] [possessed]] [[a document-making implement] [an authentication feature]];
Second, the defendant intended the [document-making implement] [authentication feature] to be used in the production of [another document-making implement] [another authentication feature], which was to be used in producing a false identification document; and
[Third, the authentication feature was or appeared to be issued by or under authority of [the United States] [specify issuing authority].]
or
[Third, the document-making implement was designed or suited for making [an identification document] [an authentication feature] [a false identification document].]
or
[Third, the [production] [transfer] [possession] [use] of the [document-making implement] [authentication feature] was in or affected commerce between one state and [an]other state[s], or between a state of the United States and a foreign country].]
or
[Third, in the course of defendant’s [production] [transfer] [possession] [use] of the document-making implement, it was transported in the mail.]
Comment
The first and second elements are drawn from 18 U.S.C. § 1028(a)(5); the alternative third elements are drawn from 18 U.S.C. § 1028(c)(1), (c)(3)(A), and (c)(3)(B).
Section 1028(d) provides definitions for the terms: “identification document,” “authentication feature,” “false identification document,” “document-making implement,” “issuing authority,” and “transfer.” An “authentication feature” need not be a physical thing affixed to or imprinted on another physical thing. United States v. Barrogo, 59 F.4th 440, 446 (9th Cir. 2023) (holding non-physical PIN constituted “authentication feature” even though it was not physically on EBT card). Private financial institutions do not fit within the definition of “issuing authority,” which means “‘any governmental entity or agency that is authorized to issue identification documents, means of identification, or authentication features.’” United States v. Kirilyuk, 29 F.4th 1128 (2022) (quoting 18 U.S.C. § 1028(d)(6)(A)).
Section 1028(b) provides for various enhanced statutory maximum penalties in certain circumstances, such as when particular types of identification documents are involved or when their use occurs in connection with certain other criminal conduct. In the event that such enhanced penalties are charged, a special verdict form may need to be submitted to the jury regarding the presence or absence of such facts.
Revised March 2023
The defendant is charged in [Count ______ of] the indictment with possessing an [identification document] [authentication feature] in violation of Section 1028(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 knowingly possessed an [identification document] [authentication feature];
Second, the [identification document] [authentication feature] was or appeared to be an [identification document] [authentication feature] of [the United States] [specify issuing authority];
Third, the [identification document] [authentication feature] was [stolen] [produced without lawful authority]; and
Fourth, the defendant knew the [identification document] [authentication feature] was [stolen] [produced without lawful authority].
Comment
The elements are drawn from 18 U.S.C. § 1028(a)(6).
Section 1028(d) provides definitions for the terms: “identification document,” “authentication feature,” “issuing authority,” and “produce.” An “authentication feature” need not be a physical thing affixed to or imprinted on another physical thing. United States v. Barrogo, 59 F.4th 440, 446 (9th Cir. 2023) (holding non-physical PIN constituted “authentication feature” even though it was not physically on EBT card). Private financial institutions do not fit within the definition of “issuing authority,” which means “‘any governmental entity or agency that is authorized to issue identification documents, means of identification, or authentication features.’” United States v. Kirilyuk, 29 F.4th 1128 (2022) (quoting 18 U.S.C. § 1028(d)(6)(A)).
Section 1028(b) provides for various enhanced statutory maximum penalties in certain circumstances such as when particular types of identification documents are involved or when their use occurs in connection with certain other criminal conduct. In the event that such enhanced penalties are charged, a special verdict form may need to be submitted to the jury regarding the presence or absence of such facts.
In United States v. Fuller, 531 F.3d 1020, 1027–28 (9th Cir. 2008), the Ninth Circuit, in a case under § 1028(a)(6), approved the use of an instruction that the identification document “was or appeared to be an identification document of the United States.” In so doing, the court rejected the argument that the language of the instruction operated to relieve the government of the burden of showing that the identification document be issued by or under the authority of the United States. Id. at 1028.
Revised March 2023
The defendant is charged in [Count ______ of] the indictment with [possessing] [transferring] [using] another person’s means of identification without lawful authority in violation of Section 1028(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 knowingly [transferred] [possessed] [used] a means of identification of another person;
Second, the defendant did so without lawful authority;
[Third, the defendant intended to commit [specify unlawful activity]; and]
or
[Third, the defendant aided or abetted [specify unlawful activity]; and]
or
[Third, the defendant [transferred] [possessed] [used] the means of identification in connection with [specify unlawful activity]; and]
[Fourth, [transfer] [possession] [use] of the means of identification of another person was in or affected commerce between one state and [an]other state[s], or between a state of the United States and a foreign country];
or
[Fourth, in the course of [transfer] [possession] [use], the means of identification was transported in the mail.]
Comment
The first, second, and third elements are drawn from 18 U.S.C. § 1028(a)(7); the fourth element is drawn from § 1028(c)(3). The unlawful activity must be a violation of federal law or be a felony under applicable state or local law. 18 U.S.C. § 1028(a)(7).
A § 1028(a)(7) conviction requires no evidence of an underlying crime. United States v. Sutcliffe, 505 F.3d 944, 960 (9th Cir. 2007) (“[T]he government must only prove that the defendant committed the unlawful act with the requisite criminal intent, not that the defendant’s crime actually caused another crime to be committed.”).
Section 1028(d) provides definitions for the terms: “means of identification” and “transfer.” A “means of identification” need not be a physical thing. United States v. Barrogo, 59 F.4th 440, 446 (9th Cir. 2023). The Ninth Circuit has held that a signature qualifies as a “means of identification.” United States v. Blixt, 548 F.3d 882, 887 (9th Cir. 2008). A test account (i.e., an account created to test the functionality of a software application) may qualify as a “means of identification” provided that the accounts could be used to “‘identify a specific individual.’” United States v. Kvashuk, 29 F.4th 1077, 1089 (9th Cir. 2022). Because Congress “intended ‘to construct an expansive definition’ of the term ‘means of identification,’” the “purpose, prerequisites, and functionality” of a name or number “does not bear on whether they ‘identify a specific individual.’” Id.
Section 1028(b) provides for various enhanced statutory maximum penalties in certain circumstances, such as when particular types of identification documents are involved or when their use occurs in connection with certain other criminal conduct. In the event that such enhanced penalties are charged, a special verdict form may need to be submitted to the jury regarding the presence or absence of such facts.
Revised March 2023
The defendant is charged in [Count ______ of] the indictment with trafficking in authentication features in violation of Section 1028(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 knowingly trafficked in [false] authentication features;
Second, the [false] authentication features were for use in [false identification documents] [document-making implements] [means of identification]; and
[Third, the authentication feature was or appeared to be issued by or under authority of [the United States] [specify issuing authority].]
or
[Third, the transfer of the [false] authentication feature was in or affected commerce between one state and [an]other state[s], or between a state of the United States and a foreign country.]
or
[Third, in the course of transferring the authentication feature, it was transported in the mail.]
Comment
The first and second elements are drawn from 18 U.S.C. § 1028(a)(8); the alternative third elements are drawn from 18 U.S.C. § 1028(c)(1), (c)(3)(A), and (c)(3)(B).
Section 1028(d) provides definitions for the terms: “authentication feature,” “false authentication feature,” “false identification document,” “document-making implement,” “means of identification,” “traffic,” “issuing authority,” and “transfer.” A “means of identification” need not be a physical thing, and an “authentication feature” need not be a physical thing affixed to or imprinted on another physical thing. United States v. Barrogo, 59 F.4th 440, 446 (9th Cir. 2023). “A non-physical association between the ‘authentication feature’ and the ‘means of identification’ can therefore be sufficient.” Id. (holding non-physical PIN constituted “authentication feature” even though it was not physically on EBT card). The Ninth Circuit has held that a signature qualifies as a “means of identification.” United States v. Blixt, 548 F.3d 882, 887 (9th Cir. 2008). A test account (i.e., an account created to test the functionality of a software application) may qualify as a “means of identification” provided that the accounts could be used to “‘identify a specific individual.’” United States v. Kvashuk, 29 F.4th 1077, 1089 (9th Cir. 2022). Because Congress “intended ‘to construct an expansive definition’ of the term ‘means of identification,’” the “purpose, prerequisites, and functionality” of a name or number “does not bear on whether they ‘identify a specific individual.’” Id. Private financial institutions do not fit within the definition of “issuing authority,” which means “‘any governmental entity or agency that is authorized to issue identification documents, means of identification, or authentication features.’” United States v. Kirilyuk, 29 F.4th 1128 (2022) (quoting 18 U.S.C. § 1028(d)(6)(A)).
Section 1028(b) provides for various enhanced statutory maximum penalties in certain circumstances, such as when particular types of identification documents are involved or when their use occurs in connection with certain other criminal conduct. In the event that such enhanced penalties are charged, a special verdict form may need to be submitted to the jury regarding the presence or absence of such facts.
Revised March 2023
The defendant is charged in [Count ______ of] the indictment with aggravated identity theft in violation of Section 1028A 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 [transferred] [possessed] [used] without legal authority [a means of identification of another person] [a false identification document]; [and]
[Second, the defendant knew that the means of identification belonged to a real person; and]
[Second] [Third], the defendant did so during and in relation to [specify felony violation].
A means of identification is [transferred] [possessed] [used] “during and in relation to” a crime when the means of identification is [transferred] [possessed] [used] in a manner that is fraudulent or deceptive and is at the crux of what makes the conduct criminal.
[The government need not establish that the [means of identification of another person] [false identification document] was stolen.]
Comment
See United States v. Doe, 842 F.3d 1117, 1119-20 (9th Cir. 2016) (setting out elements for a §1028A violation). Both direct and circumstantial evidence can establish that a defendant knew that the means of identification belonged to a real person. Id. at 1120-22. If the case involves circumstantial evidence of knowledge, consider the following instruction from Doe at 1121:
Repeated and successful testing of the authenticity of a victim's identifying information by submitting it to a government agency, bank or other lender is circumstantial evidence that you may consider in deciding whether the defendant knew the identifying information belonged to a real person as opposed to a fictitious one. It is up to you to decide whether to consider any such evidence and how much weight to give it.
For offenses charged under § 1028A(a)(1), use only “a means of identification of another person” under the first element and select the applicable felony from § 1028A(c)(1)-(11) for insertion in the last element. For offenses charged under § 1028A(a)(2) [terrorism offense], select the applicable felony from 18 U.S.C. § 2332b(g)(5) for insertion in the last element. Do not use the bracketed second element in cases charging a false identification document under § 1028A(a)(2).
Section 1028(d) provides definitions for the terms: “false identification document” and “means of identification.” A “means of identification” need not be a physical thing. United States v. Barrogo, 59 F.4th 440, 446 (9th Cir. 2023). The Ninth Circuit has held that a signature qualifies as a “means of identification.” United States v. Blixt, 548 F.3d 882, 887 (9th Cir. 2008). A test account (i.e., an account created to test the functionality of a software application) may qualify as a “means of identification” provided that the accounts could be used to “‘identify a specific individual.’” United States v. Kvashuk, 29 F.4th 1077, 1089 (9th Cir. 2022). Because Congress “intended ‘to construct an expansive definition’ of the term ‘means of identification,’” the “purpose, prerequisites, and functionality” of a name or number “does not bear on whether they ‘identify a specific individual.’” Id.
In Flores-Figueroa v. United States,556 U.S. 646, 647 (2009), the Supreme Court held that § 1028A requires that the government prove the defendant knew that the “means of identification” he or she unlawfully transferred, possessed or used belonged to a real person. The word “person” includes both living and deceased persons, and the government is not required to prove that the defendant knew the person was living when the defendant committed the crime of aggravated identity theft. United States v. Maciel-Alcala, 612 F.3d 1092, 1100-02 (9th Cir. 2010).
If the government offers evidence at trial of uncharged identity theft against victims not included in the indictment, or if the government’s proof at trial includes uncharged conduct that would satisfy an element of the offense charged in the indictment, it may be necessary for the court to modify this instruction to name the specific victims whose identities the indictment accuses the defendant of stealing or to instruct the jury that it must find the conduct charged in the indictment before it may convict. See United States v. Ward, 747 F.3d 1184, 1192 (9th Cir. 2014) (holding it was reversible error to permit jury to convict on counts of aggravated identity theft against two victims named in indictment based on evidence presented at trial of uncharged conduct against identity-theft victims not named in indictment). See Instruction 6.10 (Activities Not Charged).
The government need not prove that the identification document was stolen. United States v. Osuna-Alvarez, 788 F.3d 1183, 1185 (9th Cir. 2015); see also United States v. Gagarin, 950 F.3d 596, 604-05 (9th Cir. 2020) (holding that government is not required to prove that other person did not consent to use of his or her means of identification).
“Use” of another person’s means of identification “in relation to” a predicate offense under § 1028A requires that the use of the means of identification is “at the crux of what makes the conduct criminal.” Dubin v. United States, 599 U.S. 110, 131 (2023). This requires more than a causal relationship, so facilitating the commission of the offense or being a but-for cause of its success is insufficient. Instead, “the means of identification specifically must be used in a manner that is fraudulent or deceptive.” Id. For example, the forging of someone else’s signature on a fraudulent life insurance application constitutes a “use” within the meaning of § 1028A. See Gagarin, 950 F.3d at 603-04. In addition, the use of a speech pathologist’s identifying information constituted a “use” within the meaning of § 1028A when the defendant manufactured two claim forms and submitted them to an insurer showing that the pathologist had provided services on dates when the pathologist was on leave and did not provide any services. See United States v. Harris, 983 F.3d 1125, 1126, 1128 (9th Cir. 2020). The Ninth Circuit explained that the defendant’s use of the pathologist’s identification “was central to the wire fraud” because the defendant used that information “to manufacture a fraudulent submission out of whole cloth” as opposed to “merely inflating the scope of services rendered during an otherwise legitimate appointment.” Id. at 1127-28. But employing a patient’s Medicare identification information to file Medicare claims that falsely identified the treatments as Medicare-eligible physical therapy services rather than as massages does not constitute a “use” within the meaning of § 1028A. See United States v. Hong, 938 F.3d 1040, 1051 (9th Cir. 2019). And employing a patient’s Medicare identification information to file a Medicare claim that misrepresents the qualifications of the treating healthcare provider is not a “use” of the patient’s identification information for purposes of § 1028A because the patient’s name was an ancillary feature of the fraudulent billing method employed. Dubin, 599 U.S. at 132. Similarly, “possession” of another person’s means of identification “in relation to” a predicate offense under § 1028A requires that the possession of the means of identification be “at the crux of the criminality” of the predicate offense. See United States v. Ovsepian, 13 F.4th 1193, 1209 (9th Cir. 2024) (internal quotations and citation omitted) (explaining that the same is true for all three verb prongs of § 1028A(a)(1)).
Revised November 2024
The defendant is charged in [Count _______ of] the indictment with [production of] [use of] [trafficking in] [a] counterfeit access device[s] in violation of Section 1029(a)(1) 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 [used] [produced] [trafficked in] a counterfeit access device;
Second, the defendant acted with intent to defraud; and
Third, the defendant’s conduct in some way affected commerce between one state and [an]other state[s], or between a state of the United States and a foreign country.
A “counterfeit access device” means any access device that is counterfeit, fictitious, altered or forged, or an identifiable component of an access device or a counterfeit access device.
[To “produce” a telecommunications instrument means to design, alter, authenticate, duplicate, or assemble it.]
[To “traffic” in a telecommunications instrument means to transfer or otherwise dispose of it to another, or to obtain control of it with intent to transfer or dispose of it.]
Comment
Use this instruction in conjunction with Instruction 15.16 (Access Device—Defined).
For a definition of “intent to defraud,” see Instruction 4.13 (Intent to Defraud).
18 U.S.C. § 1029(e) defines the terms “access device,” “counterfeit access device,” “produce,” and “traffic.”
For a definition of “knowingly,” see Instructions 4.8 (Knowingly) and 4.9 (Deliberate Ignorance).
Regarding a jury finding that commerce was affected, consult United States v. Gomez, 87 F.3d 1093, 1096-97 (9th Cir. 1996) (discussing role of jury in determining fact which is both element of offense and jurisdictional fact). See also United States v. Lopez, 514 U.S. 549 (1995) (regarding “affecting” commerce requirement); United States v. Clayton, 108 F.3d 1114, 1117 (9th Cir. 1997) (applying test in Lopez to alleged violation of § 1029).
18 U.S.C. §§ 1029(b)(1) and (b)(2) specify penalties for an attempt or a conspiracy to violate any subsection of § 1029(a). Where the indictment charges such an attempt or conspiracy, adjust this instruction accordingly, using relevant elements from Instructions 4.4 (Attempt) or 11.1 (Conspiracy—Elements).
For specific cases referring to counterfeit access devices, see the following: United States v. McCormick, 72 F.3d 1404, 1408 (9th Cir. 1995) (holding that submission of credit card application containing false or inflated information produces counterfeit access device); United States v. Brannan, 898 F.2d 107, 109 (9th Cir. 1990) (submitting fictitious credit card applications to bank was functional equivalent to manufacture of counterfeit access devices); United States v. Luttrell, 889 F.2d 806, 810 (9th Cir. 1989) (discussing distinction between unauthorized and counterfeit access devices) (opinion amended in part, vacated in part on rehearing, 923 F.2d 764 (9th Cir. 1991)).
18 U.S.C. § 10 defines interstate and foreign commerce.
Revised Mar. 2021
The defendant is charged in [Count _______ of] the indictment with [using] [trafficking in] unauthorized access devices during a period of one year in violation of Section 1029(a)(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 knowingly [used] [trafficked in] the unauthorized access devices at any time during a one-year period [beginning [date], and ending [date]];
Second, by [using] [trafficking in] the unauthorized access devices during that period, the defendant obtained [anything of value worth $1,000 or more] [things of value, their value together totaling $1,000 or more] during that period;
Third, the defendant acted with the intent to defraud; and
Fourth, the defendant’s conduct in some way affected commerce between one state and [an]other state[s], or between a state of the United States and a foreign country.
An “unauthorized access device” is any access device that is lost, stolen, expired, revoked, canceled, or obtained with intent to defraud.
[To “traffic” in an access device means to transfer or otherwise dispose of it to another, or to obtain control of it with intent to transfer or dispose of it.]
Comment
Use this instruction in conjunction with Instruction 15.16 (Access Device—Defined). See United States v. Brannan, 898 F.2d 107, 110 (9th Cir. 1990) (distinguishing “unauthorized access device” from “counterfeit access device”).
For a definition of “intent to defraud,” see Instruction 4.13 (Intent to Defraud).
For a definition of “knowingly,” see Instructions 4.8 (Knowingly) and 4.9 (Deliberate Ignorance).
When parties dispute the “affecting commerce” requirement, see Comment to Instruction 15.10 (Counterfeit Access Devices—Producing, Using, or Trafficking). See also Comment to Instruction 15.10 for changes to this instruction when attempt or conspiracy is alleged in violation of 18 U.S.C. § 1029(a).
18 U.S.C. § 10 defines interstate and foreign commerce.
18 U.S.C. § 1029(e) defines “access device,” “traffic,” and “unauthorized access device.”
The defendant is charged in [Count _______ of] the indictment with unlawful possession of access devices in violation of Section 1029(a)(1) 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 possessed at least fifteen [counterfeit] [unauthorized] access devices at the same time;
Second, the defendant knew that the devices were [counterfeit] [unauthorized];
Third, the defendant acted with the intent to defraud; and
Fourth, the defendant’s conduct in some way affected commerce between one state and [an]other state[s], or between a state of the United States and a foreign country.
[An “unauthorized access device” is any access device that is lost, stolen, expired, revoked, canceled, or obtained with intent to defraud.]
[A “counterfeit access device” is any device that is counterfeit, fictitious, altered, or forged, or an identifiable component of an access device or a counterfeit access device.]
A defendant acts with the intent to defraud if [he] [she] had the intent to deprive [victim] of money or property by deception.
Comment
Use this instruction in conjunction with Instruction 15.16 (Access Device—Defined).
See Comment to Instruction 15.10 (Counterfeit Access Devices—Producing, Using, or Trafficking) and Comment to Instruction 15.11 (Unauthorized Access Devices—Using or Trafficking).
18 U.S.C. § 10 defines interstate and foreign commerce.
18 U.S.C. § 1029(e) defines “access device,” “counterfeit access device,” and “unauthorized access device.”
“Intent to defraud” for purposes of § 1029(a)(3) requires the intent to “deceive and cheat,” which means “the government must prove that the defendant had the intent to deprive a victim of money or property by deception.” United States v. Saini, 23 F.4th 1155, 1160 (9th Cir. 2022).
Revised Mar. 2022
The defendant is charged in [Count _______ of] the indictment with [production] [trafficking in] [having control or custody of] [possessing] device-making equipment in violation of Section 1029(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 knowingly [produced] [trafficked in] [had control or custody of] [possessed] device-making equipment;
Second, the defendant acted with intent to defraud; and
Third, the defendant’s conduct in some way affected commerce between one state and [an]other state[s], or between a state of the United States and a foreign country.
“Device-making equipment” is any equipment, mechanism, or impression designed or primarily used for making an access device or a counterfeit access device.
[A “counterfeit access device” is any device that is counterfeit, fictitious, altered, or forged, or an identifiable component of an access device or a counterfeit access device.]
[To “traffic” in device-making equipment means to transfer or otherwise dispose of it to another, or to obtain control of it with intent to transfer or dispose of it to another.]
[To “produce” device-making equipment means to design, alter, authenticate, duplicate, or assemble it.]
A defendant acts with the intent to defraud if [he] [she] had the intent to deprive [victim] of money or property by deception.
Comment
Use this instruction in conjunction with Instruction 15.16 (Access Device—Defined).
See Comment to Instruction 15.10 (Counterfeit Access Devices—Producing, Using, or Trafficking) and Comment to Instruction 15.11 (Unauthorized Access Devices—Using or Trafficking).
18 U.S.C. § 10 defines interstate and foreign commerce.
18 U.S.C. § 1029(e) defines “access device,” “counterfeit access device,” “trafficking,” “produce,” and “unauthorized access device.”
“Intent to defraud” for purposes of § 1029(a)(4) requires the intent to “deceive and cheat,” which means “the government must prove that the defendant had the intent to deprive a victim of money or property by deception.” United States v. Saini, 23 F.4th 1155, 1160 (9th Cir. 2022).
Revised Mar. 2022
The defendant is charged in [Count _______ of] the indictment with effecting transactions with an access device issued to another person in violation of Section 1029(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, with [an access device] [access devices] issued to [another person] [other persons], the defendant knowingly effected transactions;
Second, the defendant obtained through such transactions [at any time during a one-year period beginning [date], and ending [date]] a total of at least $1,000 in payment[s] or [any other thing] [other things] of value;
Third, the defendant acted with intent to defraud; and
Fourth, the defendant’s conduct in some way affected commerce between one state and [an]other state[s], or between a state of the United States and a foreign country.
Comment
Use this instruction in conjunction with Instruction 15.16 (Access Device—Defined).
See Comment to Instruction 15.10 (Counterfeit Access Devices—Producing, Using, or Trafficking) and Comment to Instruction 15.11 (Unauthorized Access Devices—Using or Trafficking).
18 U.S.C. § 10 defines interstate and foreign commerce.
The defendant is charged in [Count _______ of] the indictment with soliciting persons for the purpose of [offering] [selling information regarding] an access device in violation of Section 1029(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 knowingly solicited a person for the purpose of [offering an access device] [selling information regarding an access device] [selling information regarding an application to obtain an access device];
Second, the defendant solicited that person without authorization of the issuer of the access device;
Third, the defendant acted with the intent to defraud; and
Fourth, the defendant’s conduct in some way affected commerce between one state and [an]other state[s], or between a state of the United States and a foreign country.
Comment
Use this instruction in conjunction with Instruction 15.16 (Access Device—Defined).
See Comment to Instruction 15.10 (Counterfeit Access Devices—Producing, Using, or Trafficking) and Comment to Instruction 15.11 (Unauthorized Access Devices—Using or Trafficking).
18 U.S.C. § 10 defines interstate and foreign commerce.
An “access device” means any card, plate, code, account number, electronic serial number, mobile identification number, personal identification number, or other telecommunications service, equipment, or instrument identifier, or other means of account access, that can be used alone or in conjunction with another access device, to obtain money, goods, services, or any other thing of value, or that can be used to initiate a transfer of funds (other than a transfer originated solely by paper instrument).
Comment
18 U.S.C. § 1029(e)(1) contains the definition of what constitutes an “access device.” See also United States v. Gainza, 982 F.3d 762, 764 (9th Cir. 2020) (“The term ‘access device’ includes the information needed to access funds from a debit or credit card, such as the account number and the PIN.”). United States v. Barrogo, 59 F.4th 440, 445 (9th Cir. 2023) (“an EBT card is an ‘access device’”). Use this instruction in conjunction with Instructions 15.10 through 15.16.
Revised March 2023
The defendant is charged in [Count _______ of] the indictment with [use of] [production of] [trafficking in] a telecommunications instrument that had been modified to obtain unauthorized telecommunications services in violation of Section 1029(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 knowingly [used] [produced] [trafficked in] [had custody or control of] [possessed] a telecommunications instrument that had been modified or altered to obtain unauthorized use of telecommunications services;
Second, the defendant acted with the intent to defraud; and
Third, the defendant’s conduct in some way affected commerce between one state and [an]other state[s], or between a state of the United States and a foreign country.
[To “produce” a telecommunications instrument means to design, alter, authenticate, duplicate, or assemble it.]
[To “traffic” in a telecommunications instrument means to transfer or otherwise dispose of it to another, or to obtain control of it with intent to transfer or dispose of it.]
Comment
Section 1029 does not define the term “telecommunications instrument.” Section 1029(e)(9) provides that “telecommunications service” has the meaning given in the Communications Act of 1934, 47 U.S.C. § 153, which defines “telecommunications service” as: “the offering of telecommunications for a fee directly to the public, or to such classes of users as to be effectively available directly to the public, regardless of the facilities used.” 47 U.S.C. § 153(53).
18 U.S.C. § 10 defines interstate and foreign commerce.
18 U.S.C. § 1029(e)(4) and (5) define “produce” and “traffic.”
Revised Sept. 2018
The defendant is charged in [Count _______ of] the indictment with [using] [producing] [trafficking in] [possessing] a scanning receiver in violation of Section 1029(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 knowingly [used] [produced] [trafficked in] [had custody or control of] [possessed] a scanning receiver;
Second, the defendant acted with intent to defraud; and
Third, the defendant’s conduct in some way affected commerce between one state and [an]other state[s], or between a state of the United States and a foreign country.
[A “scanning receiver” is a device or apparatus that can be used to intercept illegally a wire or electronic communication or to intercept illegally an electronic serial number, mobile identification number, or other identifier of any telecommunications service, equipment, or instrument.]
[To “produce” a scanning receiver means to design, alter, authenticate, duplicate, or assemble it.]
[To “traffic” in a scanning receiver means to transfer or otherwise dispose of it to another, or to obtain control of it with intent to transfer or dispose of it.]
Comment
For a definition of “intent to defraud,” see Instruction 4.13 (Intent to Defraud).
For a definition of “knowingly,” see Instructions 4.8 (Knowingly) and 4.9 (Deliberate Ignorance).
18 U.S.C. § 10 defines interstate and foreign commerce.
18 U.S.C. § 1029(e)(8) defines the term “scanning receiver” to be a device or apparatus that can be used to intercept a wire or electronic communication in violation of 18 U.S.C. §§ 2510-2522. 18 U.S.C. § 2510(4) defines “intercept” to mean the aural or other acquisition of the contents of any wire, electronic, or oral communication through the use of any electronic, mechanical, or other device. When parties dispute whether the device involved is a “scanning receiver,” the court should add the following sentence to the instruction concerning the meaning of that term:
The government has the burden of proving beyond a reasonable doubt that [specify device] is a scanning receiver.
Section 1029 does not define the term “telecommunications instrument.” Section 1029(e)(9) provides that “telecommunications service” has the meaning given in the Communications Act of 1934, 47 U.S.C. § 153, that carries the definition: “transmission between or among points specified by the user, of information of the user’s choosing, without change in the form or content of the information as sent and received.” 47 U.S.C. § 153(47).
Sections 1029(b)(1) and (b)(2) specify penalties for an attempt or a conspiracy to violate any subsection of § 1029(a). When the indictment charges an attempt or conspiracy, modify this instruction accordingly, using relevant elements from Instruction 4.4 (Attempt) or 11.1 (Conspiracy—Elements).
Revised Sept. 2018
The defendant is charged in [Count _______ of] the indictment with [use of] [production of] [having possession, custody, or control of] [trafficking in] hardware or software configured to [insert] [modify] telecommunication identifying information [contained within] [associated with] a telecommunications instrument, so that such instrument could be used to obtain telecommunications services, in violation of Section 1029(a)(9) 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 [used] [produced] [trafficked in] [had custody or control of] [possessed] hardware or software configured to [insert] [modify] telecommunication identifying information, so that a telecommunications instrument could be used to obtain telecommunications services without authorization;
Second, the defendant acted with the intent to defraud; and
Third, the defendant’s conduct in some way affected commerce between one state and [an]other state[s], or between a state of the United States and a foreign country.
“Telecommunication identifying information” means an electronic serial number or any other number or signal that identifies a specific telecommunications instrument or account, or a specific communication transmitted from a telecommunications instrument.
[To “produce” a telecommunications instrument means to design, alter, authenticate, duplicate, or assemble it.]
[To “traffic” in a telecommunications instrument means to transfer or otherwise dispose of it to another, or to obtain control of it with intent to transfer or dispose of it.]
Comment
See Comment to Instruction 15.17 (Telecommunications Instrument—Illegal Modification). See also Comment to Instruction 15.10 (Counterfeit Access Devices—Producing, Using, or Trafficking) and Comment to Instruction 15.11 (Unauthorized Access Devices—Using or Trafficking) for discussion of intent to defraud, and affecting interstate commerce.
18 U.S.C. § 10 defines interstate and foreign commerce.
The defendant is charged in [Count _______ of] the indictment with arranging for another person to present a record of a transaction made by an access device to a credit card system for payment in violation of Section 1029(a)(10) 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 [arranged for] [caused] another person to present, for payment to a credit card system [member] [agent], one or more [records] [evidences] of transactions made by an access device;
Second, the defendant was not authorized by the credit card system [member] [agent] to [arrange] [cause] such a claim to be presented for payment;
Third, the defendant acted with the intent to defraud; and
Fourth, the defendant’s conduct in some way affected commerce between one state and [an]other state[s], or between a state of the United States and a foreign country.
Comment
Use this instruction in conjunction with Instruction 15.16 (Access Device—Defined).
See Comment to Instruction 15.10 (Counterfeit Access Devices—Producing, Using, or Trafficking) and Comment to Instruction 15.11 (Unauthorized Access Devices—Using or Trafficking).
A “credit card system member” is a “financial institution or other entity that is a member of a credit card system, including an entity, whether affiliated with or identical to the credit card issuer, that is the sole member of a credit card system.” 18 U.S.C. § 1029(e)(7).
18 U.S.C. § 10 defines interstate and foreign commerce.
A person uses a computer “without authorization” when the person has not received permission from the [owner] [[person who] or [entity which] controls the right of access to the computer] for any purpose, or when the [owner] [[person who] or [entity which] controls the right of access to the computer] has withdrawn or rescinded permission to use the computer and the person uses the computer anyway.
Comment
Use this instruction with Instructions 15.22, 15.23, 15.24, 15.25, 15.26, 15.27, 15.28, 15.29, 15.30, and 15.31. Where appropriate, substitute “government,” “financial institution,” or other specific entity where called for by the accompanying CFAA instructions. See, e.g., Instruction 15.23 (Obtaining Information by Computer—from Financial Institution or Government Computer).
A person uses a computer “without authorization” under the CFAA when the owner of the computer, or a person or entity who controls the right of access to the computer, has rescinded permission to access the computer and the defendant uses the computer anyway. United States v. Nosal, 844 F.3d 1024, 1034 (9th Cir. 2016).
Revised Mar. 2017
The defendant is charged in [Count _______ of] the indictment with obtaining and transmitting injurious information by computer in violation of Section 1030(a)(1) 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 [accessed without authorization] [exceeded authorized access to] a computer;
Second, by [accessing without authorization] [exceeding authorized access to] a computer, the defendant obtained [information that had been determined by the United States government to require protection against disclosure for reasons of national defense or foreign relations] [data regarding the design, manufacture, or use of atomic weapons];
Third, the defendant had reason to believe that the [information] [data] obtained could be used to the injury of the United States or to the benefit of a foreign nation; and
[Fourth, the defendant willfully [caused to be] [[communicated] [delivered] [transmitted]] the [information] [data] to any person not entitled to receive it.]
or
[Fourth, the defendant willfully [caused to be] retained and failed to deliver the information or data to an officer or employee of the United States entitled to receive it.]
Comment
18 U.S.C. § 1030(e) provides definitions of the terms “computer,” “exceeds authorized access,” and “person.” As to “knowingly,” see Instruction 4.8 (Knowingly), and as to “willfully,” see Comment in Instruction 4.6 (Willfully).
The Ninth Circuit has held that the phrase “exceeds [or exceeded] authorized access” is limited to violations of restrictions on access to information, and not restrictions on the use of information that is permissibly accessed. United States v. Nosal, 676 F.3d 854, 864 (9th Cir. 2012); see also United States v. Christensen, 828 F.3d 763, 786-87 (9th Cir. 2015), as amended on denial of reh’g (2016).
Revised June 2019
The defendant is charged in [Count _______ of] the indictment with unlawfully obtaining information of a [financial institution] [card issuer] [consumer reporting agency] [government department or agency] in violation of Section 1030(a)(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 intentionally [accessed without authorization] [exceeded authorized access to] a computer; and
[Second, by [accessing without authorization] [exceeding authorized access to] a computer, the defendant obtained information contained in a financial record of [specify financial institution or card issuer].]
or
[Second, by [accessing without authorization] [exceeding authorized access to] a computer, the defendant obtained information contained in a file [of specify consumer reporting agency] on a consumer.]
or
[Second, by [accessing without authorization] [exceeding authorized access to] a computer, the defendant obtained information from [specify department or agency of the United States].]
Comment
18 U.S.C. § 1030(e) provides definitions of the terms “computer,” “financial institution,” “financial record,” “exceeds authorized access,” and “department of the United States.”
Interpreting the civil counterpart to § 1030 and expressly finding such interpretation equally applicable in the criminal context, the Ninth Circuit held that “a person uses a computer ‘without authorization’ under §§ 1030(a)(2) and (4) when the person has not received permission to use the computer for any purpose (such as when a hacker accesses someone’s computer without any permission), or when the employer has rescinded permission to access the computer and the defendant uses the computer anyway.” LVRC Holdings LLC v. Brekka, 581 F.3d 1127, 1135 (9th Cir. 2009). The court further held that an employee’s use of a computer contrary to the employer’s interest does not alone satisfy the “without authorization” prong of the statute. Id.
The Ninth Circuit has held that the phrase “exceeds [or exceeded] authorized access” is limited to violations of restrictions on access to information, and not restrictions on the use of information that is permissibly accessed. United States v. Nosal, 676 F.3d 854, 864 (9th Cir. 2012); see also United States v. Christensen, 828 F.3d 763, 786-87 (9th Cir. 2015), as amended on denial of reh’g (2016).
Revised June 2019
The defendant is charged in [Count _______ of] the indictment with unlawfully obtaining information from a protected computer in violation of Section 1030(a)(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 intentionally [accessed without authorization] [exceeded authorized access to] a computer; and
Second, by [accessing without authorization] [exceeding authorized access to] a computer, the defendant obtained information from a computer that was [[exclusively for the use of a financial institution or the United States government] [not exclusively for the use of a financial institution or the United States government, but the defendant’s access affected the computer’s use by or for the financial institution or the United States government] [used in or affecting interstate or foreign commerce or communication] [located outside the United States but that computer was used in a manner that affected interstate or foreign commerce or communication of the United States]].
Comment
18 U.S.C. § 1030(e) provides definitions of the terms “computer,” “financial institution,” and “exceeds authorized access.” While the term “protected computer” is defined in 18 U.S.C. § 1030(e), that term is not used in the elements of this instruction because that definition has been incorporated into the second element. Accordingly, it is not necessary to provide a definition of “protected computer.”
The first element is satisfied when a defendant intentionally accesses a computer without authorization or exceeds authorized access. Musacchio v. United States, 577 U.S. 237, 241 (2016).
Interpreting the civil counterpart to § 1030 and expressly finding such interpretation equally applicable in the criminal context, the Ninth Circuit held that “a person uses a computer ‘without authorization’ under §§ 1030(a)(2) and (4) when the person has not received permission to use the computer for any purpose (such as when a hacker accesses someone’s computer without any permission), or when the employer has rescinded permission to access the computer and the defendant uses the computer anyway.” LVRC Holdings LLC v. Brekka, 581 F.3d 1127, 1135 (9th Cir. 2009). The court further held that an employee’s use of a computer contrary to the employer’s interest does not alone satisfy the “without authorization” prong of the statute. Id.
The Ninth Circuit has held that the phrase “exceeds [or exceeded] authorized access” is limited to violations of restrictions on access to information, and not restrictions on the use of information that is permissibly accessed. United States v. Nosal, 676 F.3d 854, 864 (9th Cir. 2012); see also United States v. Christensen, 828 F.3d 763, 786-87 (9th Cir. 2015), as amended on denial of reh’g (2016).
Revised June 2019
The defendant is charged in [Count _______ of] the indictment with unlawfully accessing a computer in violation of Section 1030(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 intentionally accessed a nonpublic computer of [specify department or agency of the United States];
Second, the defendant accessed that computer without authorization; and
Third, the computer accessed by the defendant [was exclusively for the use of the United States government] [was used nonexclusively by or for the United States government, but the defendant’s conduct affected that computer’s use by or for the United States government].
Comment
18 U.S.C. § 1030(e) provides definitions of the terms “computer” and “department of the United States.”
The defendant is charged in [Count _______ of] the indictment with computer fraud in violation of Section 1030(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 knowingly [accessed without authorization] [exceeded authorized access to] a computer [that was exclusively for the use of a financial institution or the United States government] [that was not exclusively for the use of a financial institution or the United States government, but the defendant’s access affected the computer’s use by or for the financial institution or the United States government] [used in or affecting interstate or foreign commerce or communication] [located outside the United States but using it in a manner that affected interstate or foreign commerce or communication of the United States];
Second, the defendant did so with the intent to defraud;
Third, by [accessing the computer without authorization] [exceeding authorized access to the computer], the defendant furthered the intended fraud; [and]
Fourth, the defendant by [accessing the computer without authorization] [exceeding authorized access to the computer] obtained anything of value[.] [; and]
[Fifth, the total value of the defendant’s computer use exceeded $5,000 during [specify applicable period.]]
Comment
As to intent to defraud, see Instruction 4.13 (Intent to Defraud).
Use the fifth element of this instruction when the prosecution’s theory is that the object of the defendant’s alleged fraud was only the use of the computer, and the value of that computer use was “more than $5,000 in any 1-year period.” This fifth element reflects the requirements of 18 U.S.C. § 1030(a)(4), which apply where the defendant’s purpose and the thing of value the defendant obtained by the fraud was only the use of the computer.
18 U.S.C. § 1030(e) provides definitions of the terms “computer,” “financial institution,” and “exceeds authorized access.” While the term “protected computer” is defined in 18 U.S.C. § 1030(e), that term is not used in the elements of this instruction because that definition has been incorporated into the first element of the instruction. Accordingly, it is not necessary to provide a definition of “protected computer.”
Interpreting the civil counterpart to § 1030 and expressly finding such interpretation equally applicable in the criminal context, the Ninth Circuit held that “a person uses a computer ‘without authorization’ under §§ 1030(a)(2) and (4) when the person has not received permission to use the computer for any purpose (such as when a hacker accesses someone’s computer without any permission), or when the employer has rescinded permission to access the computer and the defendant uses the computer anyway.” LVRC Holdings LLC v. Brekka, 581 F.3d 1127, 1135 (9th Cir. 2009). The court further held that an employee’s use of a computer contrary to the employer’s interest does not alone satisfy the “without authorization” prong of the statute. Id.
The Ninth Circuit has held that the phrase “exceeds [or exceeded] authorized access” is limited to violations of restrictions on access to information, and not restrictions on the use of information that is permissibly accessed. United States v. Nosal, 676 F.3d 854, 864 (9th Cir. 2012); see also United States v. Christensen, 828 F.3d 763, 786-87 (9th Cir. 2015), as amended on denial of reh’g (2016).
Revised June 2019
The defendant is charged in [Count _______ of] the indictment with transmitting [a program] [information] [a code] [a command] to a computer, intending to cause damage, in violation of Section 1030(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 knowingly caused the transmission of [a program] [information] [a code] [a command] to a computer;
Second, as a result of the transmission, the defendant intentionally impaired without authorization the [integrity] [availability] of [data] [a program] [a system] [information]; and
Third, the computer was [exclusively for the use of a financial institution or the United States government] [not exclusively for the use of a financial institution or the United States government, but the defendant’s transmission affected the computer’s use by or for a financial institution or the United States government] [used in or affected interstate or foreign commerce or communication] [located outside the United States but was used in a manner that affects interstate or foreign commerce or communication of the United States].
Comment
18 U.S.C. § 1030(e) provides definitions of the terms “computer” and “financial institution.” While the term “protected computer” is defined in 18 U.S.C. § 1030, that term is not used in the elements of this introduction because that definition has been incorporated into the third element of the instruction. Accordingly, it is not necessary to provide a definition of “protected computer.” Similarly, the term “damage” is defined at 18 U.S.C. § 1030(e), but because the common usage of that term could be broader and therefore conducive to confusion, the definition has been incorporated into the second elements.
In United States v. Middleton, 231 F.3d 1207, 1211-12 (9th Cir. 2000), the Ninth Circuit discussed the definitions of “protected computer” and “damage.” However, it is uncertain whether the conclusions drawn by the circuit are still applicable after amendments to § 1030 in USA PATRIOT Act, Pub. L. 107-56, Title V, § 506(a), Title VIII, § 814, 115 Stat. 366, 382 (2001) (codified as amended at 18 U.S.C. § 1030). See 18 U.S.C. § 1030(e) (“protected computer” and “damage”).
Revised June 2019
The defendant is charged in [Count _______ of] the indictment with accessing a computer and recklessly damaging it in violation of Section 1030(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 intentionally accessed a computer without authorization;
Second, as a result of the defendant’s access, the defendant recklessly impaired the [integrity] [availability] of [data] [a program] [a system] [information]; and
Third, the computer was [exclusively for the use of a financial institution or the United States government] [not exclusively for the use by or for a financial institution or the United States government, but the defendant’s transmission affected the computer’s use by or for a financial institution or the United States government] [used in or affected interstate or foreign commerce or communication] [located outside the United States but was used in a manner that affects interstate or foreign commerce or communication of the United States].
Comment
18 U.S.C. § 1030(e) provides definitions of the terms “computer” and “financial institution.” While the term “protected computer” is defined in 18 U.S.C. § 1030(e), that term is not used in the elements of this instruction because that definition has been incorporated into the third element of the instruction. Accordingly, it is not necessary to provide a definition of “protected computer.” Similarly, the term “damage” is defined at 18 U.S.C. § 1030(e) but because the common usage of that term could be broader and therefore conducive to confusion, the definition has been incorporated into the second elements.
In United States v. Middleton, 231 F.3d 1207, 1211-12 (9th Cir. 2000), the Ninth Circuit discussed the definitions of “protected computer” and “damage.” However, it is uncertain whether the conclusions drawn by the circuit are still applicable after amendments to § 1030 in USA PATRIOT Act, Pub. L. 107-56, Title V, § 506(a), Title VIII, § 814, 115 Stat. 366, 382 (2001) (codified as amended at 18 U.S.C. § 1030). See 18 U.S.C. § 1030(e) (“protected computer” and “damage”).
Revised June 2019
The defendant is charged in [Count _______ of] the indictment with accessing a computer which resulted in its damage in violation of Section 1030(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 intentionally accessed a computer without authorization;
Second, as a result of the defendant’s access, the defendant caused the impairment of the [integrity] [availability] of [data] [a program] [a system] [information];
Third, as a result of the defendant’s access, the defendant caused a loss; and
Fourth, the computer was [exclusively for the use of a financial institution or the United States government] [not exclusively for the use by or for a financial institution or the United States government, but the defendant’s transmission affected the computer’s use by or for a financial institution or the United States government] [used in or affected interstate or foreign commerce or communication] [located outside the United States but was used in a manner that affects interstate or foreign commerce or communication of the United States].
Comment
18 U.S.C. § 1030(e) provides definitions of the terms “computer,” “financial institution” and “loss.” While the term “protected computer” is defined in 18 U.S.C. § 1030(e), that term is not used in the elements of this instruction because that definition has been incorporated into the third element of the instruction. Accordingly, it is not necessary to provide a definition of “protected computer.” Similarly, the term “damage” is defined at 18 U.S.C. § 1030(e) but as the common usage of that term could be broader and therefore conducive to confusion, the definition has been incorporated into the second elements.
In United States v. Middleton, 231 F.3d 1207, 1211-12 (9th Cir. 2000), the Ninth Circuit discussed the definitions of “protected computer” and “damage.” However, it is uncertain whether the conclusions drawn by the circuit are still applicable after amendments to § 1030 in USA PATRIOT Act, Pub. L. 107-56, Title V, § 506(a), Title VIII, § 814, 115 Stat. 366, 382 (2001) (codified as amended at 18 U.S.C. § 1030). See 18 U.S.C. § 1030(e) (“protected computer” and “damage”).
Revised June 2019
The defendant is charged in [Count _______ of] the indictment with trafficking in [a] password[s] or similar information through which a computer may be accessed without authorization, in violation of Section 1030(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 knowingly [[transferred to another] [disposed of to another] [obtained control of with intent to transfer or dispose of]] [a] password[s] or similar information through which a computer may be accessed without authorization;
Second, the defendant acted with the intent to defraud; and
Third, [the defendant’s conduct affected commerce between [one state and another] [a foreign nation and the United States]] [the computer was used by or for the government of the United States].
Comment
As to intent to defraud, see Instruction 4.13 (Intent to Defraud).
18 U.S.C. § 1030(e)(1) provides a definition of “computer,” and 18 U.S.C. § 1030(a)(6) incorporates the definition of “traffic” from 18 U.S.C. § 1029(e).
Revised June 2019
The defendant is charged in [Count _______ of] the indictment with transmitting a threat to damage a computer, in violation of Section 1030(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 beyond a reasonable doubt:
First, the defendant transmitted a communication in interstate or foreign commerce;
Second, the defendant acted with intent to extort money or any other thing of value from any individual, firm, corporation, educational institution, financial institution, government entity, or legal or other entity;
[Third, the communication contained a threat to cause damage to a computer; and]
or
[Third, the communication contained a threat to [obtain] [impair the confidentiality of] information from a computer [without authorization] [in excess of authorization]; and]
or
[Third, the communication contained a [demand or request for money or other thing of value in relation to damage to a computer, and damages were caused to facilitate the extortion]; and]
Fourth, the defendant’s threat concerned a computer that was [exclusively for the use of a financial institution or the United States government] [not exclusively for the use by or for a financial institution or the United States government, but the defendant’s transmission affected the computer’s use by or for a financial institution or the United States government] [used in or affected interstate or foreign commerce or communication] [located outside the United States but was used in a manner that affects interstate or foreign commerce or communication of the United States].
Comment
18 U.S.C. § 1030(e) provides definitions of the terms “computer,” “financial institution,” and “government entity.”
Revised June 2019
The defendant is charged in [Count _______ of] the indictment with mail fraud in violation of Section 1341 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 [participated in] [devised] [intended to devise] a scheme or plan to defraud for the purpose of obtaining money or property by means of false or fraudulent pretenses, representations, or promises[, or omitted facts.] [Deceitful statements of half-truths may constitute false or fraudulent representations];
Second, the statements made [or facts omitted] as part of the scheme were material; that is, they had a natural tendency to influence, or were capable of influencing, a person to part with money or property;
Third, the defendant acted with the intent to defraud; that is, the intent to deceive and cheat; and
Fourth, the defendant used, or caused to be used, the mails to carry out or attempt to carry out an essential part of the scheme.
In determining whether a scheme to defraud exists, you may consider not only the defendant’s words and statements, but also the circumstances in which they are used as a whole.
[To convict a defendant[s] of mail fraud based on omission[s] of material fact[s], you must find that a defendant[s] had a duty to disclose the omitted fact[s] arising out of a relationship of trust. That duty can arise either out of a formal fiduciary relationship, or an informal, trusting relationship in which one party acts for the benefit of another and induces the trusting party to relax the care and vigilance that it would ordinarily exercise.]
[To convict [a] defendant[s] of mail fraudbased on a scheme to induce a victim to enter a bargain, the false or fraudulent pretenses, representations, or promises[, or omitted facts] must directly or indirectly deceive the victim about the nature of the bargain. A misrepresentation will go to the nature of the bargain if it goes to price or quality, or otherwise to essential aspects of the transaction. [Whether a misrepresentation goes to the nature of the bargain may depend on the specific transaction at issue.]]
A mailing is caused when one knows that the mails will be used in the ordinary course of business or when one can reasonably foresee such use. It does not matter whether the material mailed was itself false or deceptive so long as the mail was used as a part of the scheme, nor does it matter whether the scheme or plan was successful or that any money or property was obtained.
Comment
Use this instruction with respect to a crime charged under the second clause of 18 U.S.C. § 1341.
In Ciminelli v. United States, 598 U.S. 306, 308-09 (2023), the Supreme Court held that a jury was improperly instructed that the term “property” in 18 U.S.C. § 1343 “includes intangible interests such as the right to control the use of one’s assets” because “the federal fraud statutes criminalize only schemes to deprive people of traditional property interests.” The Court explained that despite the inclusion of the term “or” in the phrase “or for obtaining money or property,” the Court has “consistently understood the ‘money or property’ requirement to limit the ‘scheme or artifice to defraud’ element because the ‘common understanding’ of the words ‘to defraud’ when the statute was enacted referred ‘to wrongdoing one in his property rights.’” Id. at 312 (quoting Cleveland v. United States, 531 U.S. 12, 19 (2000)). “Accordingly, the Government must prove not only that wire fraud defendants ‘engaged in deception,’ but also that money or property was ‘an object of their fraud.’” Id.
The validity of this instruction was initially confirmed in United States v. Holden, 908 F.3d 395, 399-401 (9th Cir. 2018), as amended on denial of reh’g (Oct. 30, 2018). However, in United States v. Miller, 953 F.3d 1095, 1101-03 (9th Cir. 2020), the Ninth Circuit expressly considered the intent language in Instruction 15.35 (Wire Fraud), which mirrors the intent language for mail fraud in this instruction and held that wire fraud (and thus mail fraud) requires the intent to “deceive and cheat.” The Miller Court thus overruled prior holdings approving the “deceive or cheat” language in light of the Supreme Court’s decision in Shaw v. United States, 137 S. Ct. 462, 469 (2016). Miller, 953 F.3d at 1102. Miller does not disturb Holden’s ruling that, although the mail and wire fraud statutes expressly punish only those who “devise . . . or intend . . . to devise” a fraudulent scheme, those who “participate in” such a scheme also fall within the statute’s ambit. Holden, 908 F.3d at 399-401.
Much of the language in this instruction comes from the instructions approved in United States v. Woods, 335 F.3d 993 (9th Cir. 2003). Materiality is an essential element of the crime of mail fraud. Neder v. United States, 527 U.S. 1 (1999). Materiality of statements or promises must be established, United States v. Halbert, 640 F.2d 1000, 1007 (9th Cir. 1981), but the jury need not unanimously agree that a specific material false statement was made. United States v. Lyons, 472 F.3d 1055, 1068 (9th Cir. 2007). Materiality is a question of fact for the jury. United States v. Carpenter, 95 F.3d 773, 776 (9th Cir. 1996). The common law test for materiality in the false-statement statutes, as reflected in the second element of this instruction, is the preferred formulation. United States v. Peterson, 538 F.3d 1064, 1072 (9th Cir. 2008). For cases involving a scheme to induce a victim to enter a bargain, in order for a misrepresentation to constitute fraud, the misrepresentation “must . . . go to the nature of the bargain.” United States v. Milheiser, 98 F.4th 935, 938, 944-45 (9th Cir. 2024) (“The nature of the bargain requirement properly excludes from liability cases in which a defendant’s misrepresentations about collateral matters may have led to the transaction but the buyer still got the product that she expected at the price she expected.”).
For cases involving the failure to disclose material information, see United States v. Shields, 844 F.3d 819, 822-23 (9th Cir. 2016); United States v. Milovanovic, 678 F.3d 713, 723-24 (9th Cir. 2012).
For a definition of “fiduciary” duty, see Instruction 15.34 (Mail Fraud—Scheme to Defraud—Deprivation of Intangible Right of Honest Services).
Success of the scheme is immaterial. United States v. Rude, 88 F.3d 1538, 1547 (9th Cir. 1996); United States v. Utz, 886 F.2d 1148, 1150-51 (9th Cir. 1989).
“[M]ailings designed to avoid detection or responsibility for a fraudulent scheme”—even if sent after the proceeds of the fraud have been obtained—may satisfy the fourth element of the instruction if “they are sent prior to the scheme’s completion.” United States v. Tanke, 743 F.3d 1296, 1305 (9th Cir. 2014). To determine when the scheme ends, the jury must look to the scope of the scheme as devised by the perpetrator. Id. But allowance must be made for the reality that fraudulent schemes “may evolve over time, contemplate no fixed end date or adapt to changed circumstances.” Id.; see also Schmuck v. United States, 489 U.S. 705, 712 (1989) (holding that mailing that is “incident to an essential part of the scheme” or “a step in the plot” satisfies mailing element of offense); United States v. Hubbard, 96 F.3d 1223, 1228-29 (9th Cir. 1996) (same).
See United States v. LeVeque, 283 F.3d 1098, 1102 (9th Cir. 2002) (holding that government-issued license does not constitute property for purposes of § 1341).
A charge of mail fraud can be premised on a mailing that, although not sent by the defendant, was “incident to an essential part of the scheme.” United States v. Eglash, 813 F.3d 882, 886 (9th Cir. 2016) (quoting Schmuck, 489 U.S. at 721) (affirming conviction for mail fraud premised on Social Security Administration’s mailing of notice of disability award); see also United States v. Brown, 771 F.3d 1149, 1158 (9th Cir. 2014) (affirming conviction for mail fraud based on mailings by bankruptcy court of Notice of Chapter 7 Bankruptcy Case and Notice of Discharge).
Revised March 2025
If you decide that the defendant was a member of a scheme to defraud and that the defendant had the intent to defraud, the defendant may be responsible for other co-schemers’ actions during the course of and in furtherance of the scheme, even if the defendant did not know what the other co-schemers said or did.
For the defendant to be guilty of an offense committed by a co-schemer in furtherance of the scheme, the offense must be one that the defendant could reasonably foresee as a necessary and natural consequence of the scheme to defraud.
Comment
This instruction is based on the co-schemer liability instruction approved in United States v. Stapleton, 293 F.3d 1111, 1115-18 (9th Cir. 2002) (holding that there was no error of law in court’s instruction on elements of co-schemer vicarious liability when court also correctly instructed on scheme to defraud) and the Ninth Circuit’s guidance on vicarious liability in United States v. Green, 592 F.3d 1057, 1070-71 (9th Cir. 2010).
When this instruction is appropriate, it should be given in addition to Instructions 15.32 (Mail Fraud—Scheme to Defraud or to Obtain Money or Property by False Promises), 15.34 (Mail Fraud—Scheme to Defraud—Deprivation of Intangible Right of Honest Services), 15.35 (Wire Fraud), or 15.39 (Bank Fraud—Scheme to Defraud by False Promises). See Stapleton, 293 F.3d at 1118-20.
On co-schemer liability generally, see United States v. Blitz, 151 F.3d 1002, 1006 (9th Cir. 1998) (stating that knowing participant in scheme to defraud is liable for fraudulent acts of co-schemers); United States v. Lothian, 976 F.2d 1257, 1262-63 (9th Cir. 1992) (discussing similarity of co-conspirator and co-schemer liability); and United States v. Dadanian, 818 F.2d 1443, 1446 (9th Cir. 1987), modified, 856 F.2d 1391 (1988) (like co-conspirators, “[K]nowing participants in the scheme are legally liable for their co-schemer’s use of mails or wires”).
Revised June 2021
The defendant is charged in [Count _______ of] the indictment with mail fraud in violation of Section 1341 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 devised or knowingly participated in a scheme or plan to deprive [name of victim] of [his] [her] right of honest services;
Second, the scheme or plan consisted of a [bribe] [kickback] in exchange for the defendant’s services. The “exchange” may be express or may be implied from all the surrounding circumstances;
Third, the defendant owed a fiduciary duty to [name of victim];
Fourth, the defendant acted with the intent to defraud by depriving [name of victim] of [his] [her] right of honest services. A deprivation of the right of honest services does not require tangible harm;
Fifth, the defendant’s act was material; that is, it had a natural tendency to influence, or was capable of influencing, [a person’s] [an entity’s] acts; and
Sixth, the defendant used, or caused someone to use, the mails to carry out or to attempt to carry out the scheme or plan.
A “fiduciary” duty exists whenever one [person] [entity] places special trust and confidence in another person—the fiduciary—in reliance that the fiduciary will exercise [his] [her] discretion and expertise with the utmost honesty and forthrightness in the interests of the [person] [entity], such that the [person] [entity] relaxes the care and vigilance that [he] [she] [it] would ordinarily exercise, and the fiduciary knowingly accepts that special trust and confidence and thereafter undertakes to act on behalf of the other [person] [entity] based on such reliance.
The mere fact that a business relationship arises between two persons does not mean that either owes a fiduciary duty to the other. If one person engages or employs another and thereafter directs, supervises, or approves the other’s actions, the person so employed is not necessarily a fiduciary. Rather, as previously stated, it is only when one party places, and the other accepts, a special trust and confidence—usually involving the exercise of professional expertise and discretion—that a fiduciary relationship exists.
A mailing is caused when one knows that the mails will be used in the ordinary course of business or when one can reasonably foresee such use. It does not matter whether the material mailed was itself false or deceptive so long as the mail was used as a part of the scheme, nor does it matter whether the scheme or plan was successful or that any money or property was obtained.
Comment
Honest services fraud criminalizes only schemes to defraud that involve bribery or kickbacks. Skilling v. United States, 561 U.S. 358, 408-09 (2010); Black v. United States, 561 U.S. 465, 471 (2010). Undisclosed conflicts of interest, or undisclosed self-dealing, is not sufficient. Skilling, 561 U.S. at 409-10. This instruction is limited to honest services schemes to defraud that involve a bribe or kickback because there is as yet no controlling case law subsequent to Skilling that extends honest services fraud to any other circumstance. See id. at 412 (“[N]o other misconduct falls within § 1346’s province”).
The “prohibition on bribes and kickbacks draws content not only from the pre-McNally case law, but also from federal statutes proscribing—and defining—similar crimes.” Id. (citing 18 U.S.C. §§ 201(b) (bribery), 666(a)(2)(receiving stolen property within maritime jurisdiction); 41 U.S.C. § 52(2) (kickbacks)); see also McNally v. United States, 483 U.S. 350 (1987). However, conduct constituting a bribe or kickback under either state law or federal law establishes the second element of a charge of services fraud. See United States v. Christensen, 828 F.3d 763, 785 (9th Cir. 2015), as amended on denial of reh’g (2016) (affirming RICO conviction when honest services fraud predicate act under § 1346 was premised on violation of California state bribery law). Although it did not define bribery or kickbacks, the Supreme Court in Skilling cited three appellate decisions that reviewed jury instructions on the bribery element of honest services fraud. Skilling, 561 U.S. at 413 (citing United States v. Ganim, 510 F.3d 134, 147-49 (2d Cir. 2007); United States v. Whitfield, 590 F.3d 325, 352-53 (5th Cir. 2009); and United States v. Kemp, 500 F.3d 257, 281-86 (3d Cir. 2007)). In the Ninth Circuit, bribery requires at least an implicit quid pro quo. United States v. Kincaid-Chauncey, 556 F.3d 923, 941 (9th Cir. 2009). “Only individuals who can be shown to have had the specific intent to trade official actions for items of value are subject to criminal punishment on this theory of honest services fraud.” Id. at 943 n.15. The quid pro quo need not be explicit, and an implicit quid pro quo need not concern a specific official act. Id. at 945-46 (citing Kemp, 500 F.3d at 282 (“[T]he government need not prove that each gift was provided with the intent to prompt a specific official act.”)). A quid pro quo requirement is satisfied if the evidence shows a course of conduct of favors and gifts flowing to a public official in exchange for a pattern of official acts favorable to the donor. Id. at 943. Bribery is to be distinguished from legal lobbying activities. Id. at 942, 946 (citing Kemp, 500 F.3d at 281-82). These principles are consistent with the appellate decisions cited by the Supreme Court.
The Supreme Court in Skilling cited a statutory definition of kickbacks. Skilling, 561 U.S. at 412 (“‘The term ‘kickback’ means any money, fee, commission, credit, gift, gratuity, thing of value, or compensation of any kind which is provided, directly or indirectly, to [enumerated persons] for the purpose of improperly obtaining or rewarding favorable treatment in connection with [enumerated circumstances].’” (quoting 41 U.S.C. § 52(2))).
Relying on Skilling, the Ninth Circuit determined that breach of a fiduciary duty is an element of honest services fraud. United States v. Milovanovic, 678 F.3d 713 (9th Cir. 2012) (en banc). The fiduciary duty required is not limited to the classic definition of the term but also extends to defendants who assume a comparable duty of loyalty, trust, or confidence with the victim. Id. at 723-24; see also United States v. Solakyan, 119 F.4th 575, 585 (9th Cir. 2024) (holding that “[t]he physician-patient relationship falls squarely within [Milovanovic’s] definition of a fiduciary relationship”). “The existence of a fiduciary duty in a criminal prosecution is a fact-based determination that must ultimately be determined by a jury properly instructed on this issue.” Id. at 723; see also Solakyan, 119 F.4th at 586 (stating that a jury must decide “[w]hether a particular doctor-patient relationship gives rise to a fiduciary duty”).
Honest services fraud requires a “specific intent to defraud.” Kincaid-Chauncey, 556 F.3d at 941; see also Solakyan, 119 F.4th at 593(approving the intent language stated in Model Jury Instruction 15.34).
The Ninth Circuit has expressly adopted the “materiality test” to bring § 1346 in line with the mail, wire, and bank fraud statutes. Milovanovic, 678 F.3d at 726-27. The common law test for materiality in the false statement statutes, as reflected in the fifth element of this instruction, is the preferred formulation. United States v. Peterson, 538 F.3d 1064, 1072 (9th Cir. 2008). In a public sector case, the government need not prove that the fraud involved any foreseeable economic harm. Milovanovic, 678 F.3d at 727 (“We do not need to decide whether in a private sector case there might be a requirement that economic damages be shown.”).
In the case of mail or wire fraud, the government need not prove a specific false statement was made. United States v. Woods, 335 F.3d 993, 999 (9th Cir. 2003). “Under the mail fraud statute the government is not required to prove any particular false statement was made. Rather, there are alternative routes to a mail fraud conviction, one being proof of a scheme or artifice to defraud, which may or may not involve any specific false statements.” Id. (quoting United States v. Munoz, 233 F.3d 1117, 1131 (9th Cir. 2000)).
In Percoco v. United States, 598 U.S. 319 (2023), the Supreme Court held that a private citizen could be convicted of depriving the public of honest services. But the Court invalidated as unconstitutionally vague the trial court’s instruction that the jury could find that the defendant “had a duty to provide honest services to the public during the time when he was not serving as a public official if the jury concluded, first that ‘he dominated and controlled any governmental business’ and, second, that ‘people working in the government actually relied on him because of a special relationship he had with the government.’” Id. at 324-25.
Revised November 2024
The defendant is charged in [Count _______ of] the indictment with wire fraud in violation of Section 1343 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 [participated in] [devised] [intended to devise] a scheme or plan to defraud for the purpose of obtaining money or property by means of false or fraudulent pretenses, representations, or promises [, or omitted facts.] [Deceitful statements of half-truths may constitute false or fraudulent representations];
Second, the statements made [or facts omitted] as part of the scheme were material; that is, they had a natural tendency to influence, or were capable of influencing, a person to part with money or property;
Third, the defendant acted with the intent to defraud, that is, the intent to deceive and cheat; and
Fourth, the defendant used, or caused to be used, an interstate [or foreign] wire communication to carry out or attempt to carry out an essential part of the scheme.
In determining whether a scheme to defraud exists, you may consider not only the defendant’s words and statements but also the circumstances in which they are used as a whole.
[To convict the defendant of wire fraud based on omission[s] of material fact[s], you must find that the defendant had a duty to disclose the omitted fact[s] arising out of a relationship of trust. That duty can arise either out of a formal fiduciary relationship, or an informal, trusting relationship in which one party acts for the benefit of another and induces the trusting party to relax the care and vigilance that it would ordinarily exercise.]
A wiring is caused when one knows that a wire will be used in the ordinary course of business or when one can reasonably foresee such use.
[To convict [a] defendant[s] of wire fraudbased on a scheme to induce a victim to enter a bargain, the false or fraudulent pretenses, representations, or promises[, or omitted facts] must directly or indirectly deceive the victim about the nature of the bargain. A misrepresentation will go to the nature of the bargain if it goes to price or quality, or otherwise to essential aspects of the transaction. [Whether a misrepresentation goes to the nature of the bargain may depend on the specific transaction at issue.]]
It need not have been reasonably foreseeable to the defendant that the wire communication would be interstate [or foreign] in nature. Rather, it must have been reasonably foreseeable to the defendant that some wire communication would occur in furtherance of the scheme, and an interstate [or foreign] wire communication must have actually occurred in furtherance of the scheme.
Comment
See Comment to Instruction 15.32 (Mail Fraud—Scheme to Defraud or to Obtain Money or Property by False Promises). For cases involving wire fraud by deprivation of honest services, see Instruction 15.34 (Mail Fraud—Scheme to Defraud—Deprivation of Intangible Right of Honest Services).
In Ciminelli v. United States, 598 U.S. 306, 308-09 (2023), the Supreme Court held that a jury was improperly instructed that the term “property” in 18 U.S.C. § 1343 “includes intangible interests such as the right to control the use of one’s assets” because “the federal fraud statutes criminalize only schemes to deprive people of traditional property interests.” The Court explained that despite the inclusion of the term “or” in the phrase “or for obtaining money or property,” the Court has “consistently understood the ‘money or property’ requirement to limit the ‘scheme or artifice to defraud’ element because the ‘common understanding’ of the words ‘to defraud’ when the statute was enacted referred ‘to wrongdoing one in his property rights.’” Id. at 312 (quoting Cleveland v. United States, 531 U.S. 12, 19 (2000)). “Accordingly, the Government must prove not only that wire fraud defendants ‘engaged in deception,’ but also that money or property was ‘an object of their fraud.’” Id.
The validity of this instruction was initially confirmed in United States v. Holden, 908 F.3d 395, 399-401 (9th Cir. 2018), as amended on denial of reh’g (9th Cir. 2018). However, in United States v. Miller, 953 F.3d 1095, 1101-03 (9th Cir. 2020), the Ninth Circuit expressly considered this instruction and held that wire fraud requires the intent to “deceive and cheat,” thereby overruling prior holdings approving the “deceive or cheat” language in light of the Supreme Court’s decision in Shaw v. United States, 137 S. Ct. 462, 469 (2016). Miller, 953 F.3d at 1102. Miller reasoned that “to be guilty of wire fraud, a defendant must act with the intent not only to make false statements or utilize other forms of deception, but also to deprive a victim of money or property by means of those deceptions. In other words, a defendant must intend to deceive and cheat.” Id. at 1101. Miller does not disturb Holden’s ruling that although the mail and wire fraud statutes expressly punish only those who “devise . . . or intend . . . to devise” a fraudulent scheme, those who “participate in” such a scheme also fall within the statute’s ambit. Holden, 908 F.3d at 399-401. Miller also left unchanged the precedent that intent to repay “is not a defense to wire fraud.” Miller, 953. F.3d at 1103.
A defendant acts with the intent to deceive when he “make[s] false statements or utilize[s] other forms of deception[.]” Miller, 953 F.3d at 1101. A defendant acts with the intent to cheat when he engages in “a scheme or artifice to defraud or obtain money or property” and “deprive[s] a victim of money or property” thereby “cheat[ing] someone out of something valuable.” Id.
In clarifying the distinction between “deceive” and “cheat,” Miller cites to United States v. Walters, 997 F.2d 1219 (7th Cir. 1993). In Walters, the court reviewed the conviction for mail fraud of a sports agent who had defrauded the NCAA, not by stealing its property, but by inducing college athletes to sign secret representation contracts in violation of the Association’s rules. Walters, 997 F.2d at 1221. Finding that the agent had deceived, but not cheated, his victim, the Seventh Circuit reversed the agent’s conviction, holding that the statute requires “a scheme to obtain money or other property from the victim,” and that while a deprivation of money or property is a necessary condition of mail fraud, “[l]osses that occur as byproducts of a deceitful scheme do not satisfy the statutory requirement.” Id. at 1227.
The only difference between mail fraud and wire fraud is that the former involves the use of the mails and the latter involves the use of wire, radio, or television communication in interstate or foreign commerce. Much of the language of this instruction comes from the instructions approved in United States v. Jinian, 712 F.3d 1255, 1265-67 (9th Cir. 2013).
As with mail fraud, materiality is an essential element of the crime of wire fraud. Neder v. United States, 527 U.S. 1 (1999); United States v. Milovanovic, 678 F.3d 713, 726-27 (9th Cir. 2012) (en banc).
For cases involving a scheme to induce a victim to enter a bargain, in order for a misrepresentation to constitute fraud, the misrepresentation “must . . . go to the nature of the bargain.” United States v. Milheiser, 98 F.4th 935, 938, 944-45 (9th Cir. 2024) (“The nature of the bargain requirement properly excludes from liability cases in which a defendant’s misrepresentations about collateral matters may have led to the transaction but the buyer still got the product that she expected at the price she expected.”).
For a case involving wire fraud that “affects a financial institution” within the meaning of 18 U.S.C. § 1343, see United States v. Stargell, 738 F.3d 1018, 1022-23 (9th Cir. 2013) (defining term “affects”).
For cases involving the failure to disclose material information, see United States v. Shields, 844 F.3d 819, 822-23 (9th Cir. 2016); Milovanovic, 678 F.3d 723-24.
For a definition of “fiduciary” duty, see Instruction 15.34 (Mail Fraud—Scheme to Defraud—Deprivation of Intangible Right to Honest Services).
Cases Involving Mortgage Fraud. In prosecutions for mortgage fraud under this statute, lender negligence in verifying loan application information, or even intentional disregard of the information, is not a defense to fraud, and so evidence of such negligence or intentional disregard is inadmissible as a defense against charges of mortgage fraud. See United States v. Lindsey, 850 F.3d 1009, 1015 (9th Cir. 2017). Also, when a lender requests specific information in its loan applications, that information is objectively material as a matter of law, regardless of the lenders’ policies or practices with respect to use of that information. Id. at 1015. Evidence of general lending standards in the mortgage industry, however, is admissible to disprove materiality. “This difference matters because materiality measures natural capacity to influence, not whether the statement actually influenced any decision.” Id. at 1016.
Revised March 2025
The defendant is charged in [Count _______ of] the indictment with bank fraud in violation of Section 1344(1) 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 beyond a reasonable doubt:
First, the defendant knowingly executed or attempted to execute a scheme to defraud a financial institution of something of value;
Second, that the statements made [or facts omitted] as part of the scheme were material; that is, they had a natural tendency to influence, or were capable of influencing, a person to part with money or property;
Third, the defendant did so with the intent to defraud the financial institution; and
Fourth, the financial institution was insured by the Federal Deposit Insurance Corporation.
A “scheme to defraud” means any deliberate plan of action or course of conduct by which someone intends to deceive or and cheat, in other words to deprive the victim of money or property by means of deception. It is not necessary for the government to prove that a financial institution was the only or sole victim of the scheme to defraud. It is also not necessary for the government to prove that the defendant was actually successful in defrauding any financial institution. Finally, it is not necessary for the government to prove that any financial institution lost any money or property as a result of the scheme to defraud.
An “intent to defraud” means to act willfully and with the specific intent to deceive and cheat.
Comment
When the scheme or artifice to defraud is a scheme or artifice to deprive another of the intangible right to honest services under 18 U.S.C. § 1346, use Instruction 15.37 (Bank Fraud—Scheme to Deprive Bank of Intangible Right of Honest Services).
A “scheme to defraud” under 18 U.S.C. § 1344(1) “must be one to [both] deceive the bank and deprive it of something of value.” Shaw v. United States, 137 S. Ct. 462, 469 (2016).
In Shaw, the defendant created a scheme to siphon off funds from a bank depositor’s account through the use of PayPal, an online payment and money transfer service. The defendant argued that because the losses were eventually borne by the depositor and PayPal, and not the bank, he had not defrauded a “financial institution” within the meaning of § 1344(1). The Supreme Court rejected this argument, holding that
for purposes of the bank fraud statute, a scheme fraudulently to obtain funds from a bank depositor’s account normally is also a scheme fraudulently to obtain property from a “financial institution,” at least where, as here, the defendant knew that the bank held the deposits, the funds obtained came from the deposit account, and the defendant misled the bank in order to obtain those funds.
Id. at 466. The Court also clarified that in a prosecution under § 1344(1), the government is not required to prove that the bank ultimately suffered a financial loss, that the defendant intended the bank to suffer a financial loss, or that the defendant was aware the bank had a property interest in its customer accounts. Id. at 467; see also United States v. Shaw, 885 F.3d 1217, 1219 (9th Cir. 2018) (“As the Supreme Court has now clarified, an intent to obtain money from a depositor’s bank account is sufficient to constitute bank fraud under 18 U.S.C. § 1344(1). It is not necessary to show an intent to cause the bank itself a financial loss.”). Although the government need not prove an intent for a bank to suffer a financial loss, the government must prove an intent to “defraud a financial institution.” Loughrin v. United States, 573 U.S. 351, 355–57 (2014). The Supreme Court has explained that a key difference between § 1344(1) and (2) is that subsection (1) requires an intent to defraud a bank, “indeed, that is § 1344(1)’s whole sum and substance”; whereas subsection (2) does not require proof of specific intent to defraud the financial institution, only the intent to “obtain bank property.” Id.
“Materiality of the scheme is an essential element of bank fraud in violation of 18 U.S.C. § 1344(1).” United States v. Omer, 395 F.3d 1087, 1089 (9th Cir. 2005); see also Neder v. United States, 527 U.S. 1, 25 (1999) (“[M]ateriality of falsehood is an element of the federal mail fraud, wire fraud, and bank fraud statutes.”).
See United States v. Miller, F.3d 1095 (9th Cir. 2020), defining “intent to defraud”.
In United States v. Yates, 16 F.4th 256 (9th Cir. 2021), the Ninth Circuit vacated and remanded a conviction of two bank executives for bank fraud. The court rejected the government’s theories that the deprivation of “accurate information” or the officers’ salaries and bonuses could constitute the requisite deprivation of “something of value.” Id. at 264‑66. The court explained that “property deprivation ‘must play more than some bit part in a scheme’—the loss to the victim ‘must be an “object of the fraud,”’ not a mere ‘implementation cost [ ]’ or ‘incidental byproduct of the scheme.’” Id. at 264, quoting Kelly v. United States, 140 S. Ct. 1565, 1573-74 (2020). The court, however, agreed with the government’s third theory of deprivation of something of value. “[W]e agree with the government that a bank has a property interest in its funds and that it ‘has the right to use [its] funds as a source of loans that help the bank earn profits.’” Id. at 268, quoting Shaw (alterations in original). “In addition, a bank’s right to its funds extends to the right to decide how to use those funds. So the fraudulent diversion of a bank’s funds for unauthorized purposes certainly could be the basis for a conviction under section 1344.” Id.
The final element concerns proof that the institution’s deposits were federally insured. For a definition of “financial institution,” see 18 U.S.C. § 20.
Effective May 20, 2009, the definition of “financial institution” set forth in 18 U.S.C. § 20 was broadened substantially by the Fraud Enforcement and Recovery Act, Pub. L. 111-21, to include several types of financial institutions the assets of which might not be federally insured. The definition of the term “financial institution” set forth in § 20 is incorporated into § 1344, as well as into other statutes such as 18 U.S.C. § 215 (bank bribery), and is also addressed in 18 U.S.C. §§ 1341 and 1343 in connection with mail or wire fraud schemes that affect a financial institution. See United States v. Grasso, 724 F.3d 1077, 1089 n.13 (9th Cir. 2013) (explaining that Congress amended 18 U.S.C. § 20 to expand the definition of “financial institution” for purposes of § 1344(1) to cover “mortgage lending businesses”). This instruction should be appropriately modified if the indictment charges a scheme directed at the money or property of a financial institution other than a federally insured bank.
Revised March 2023
The defendant is charged in [Count _______ of] the indictment with bank fraud in violation of Section 1344(1) 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 devised or knowingly participated in a scheme or plan to deprive the [specify financial institution] of the right of honest services;
Second, the scheme or plan consisted of a [bribe] [kickback] in exchange for the defendant’s services. The “exchange” may be express or may be implied from all the surrounding circumstances;
Third, the defendant owed a fiduciary duty to [specify financial institution];
Fourth, the defendant acted with the intent to defraud by depriving the [specify financial institution] of the right of honest services;
Fifth, the defendant’s act was material; that is, the act had a natural tendency to influence, or was capable of influencing, the decisionmaker or decision-making body to which it was directed; and
Sixth, the [specify financial institution] was federally [chartered] [insured].
A “fiduciary” duty exists whenever one [person] [entity] places special trust and confidence in another person—the fiduciary—in reliance that the fiduciary will exercise [his] [her] discretion and expertise with the utmost honesty and forthrightness in the interests of the [person] [entity], such that the [person] [entity] relaxes the care and vigilance that [he] [she] [it] would ordinarily exercise, and the fiduciary knowingly accepts that special trust and confidence and thereafter undertakes to act on behalf of the other [person] [entity] based on such reliance.
The mere fact that a business relationship arises between two persons does not mean that either owes a fiduciary duty to the other. If one person engages or employs another and thereafter directs, supervises, or approves the other’s actions, the person so employed is not necessarily a fiduciary. Rather, as previously stated, it is only when one party places, and the other accepts, a special trust and confidence—usually involving the exercise of professional expertise and discretion—that a fiduciary relationship exists.
Comment
Caution: Honest services fraud criminalizes only schemes to defraud that involve bribery or kickbacks. Skilling v. United States, 561 U.S. 358, 408-09 (2010); Black v. United States, 561 U.S. 465, 471 (2010).
See Comment to Instruction 15.34 (Mail Fraud—Scheme to Defraud—Deprivation of Intangible Right of Honest Services).
For a definition of “financial institution,” see 18 U.S.C. § 20.
Revised June 2021
The defendant is charged in [Count _______ of] the indictment with attempted bank fraud in violation of Section 1344(1) 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 devised or knowingly participated in a scheme or plan to deprive the [specify financial institution] of the right of honest services;
Second, the scheme or plan consisted of a [bribe] [kickback] in exchange for the defendant’s services. The “exchange” may be express or may be implied from all the surrounding circumstances;
Third, the defendant owed a fiduciary duty to [specify financial institution];
Fourth, the defendant acted with the intent to defraud by depriving the [specify financial institution] of the right of honest services;
Fifth, the plan or scheme was material; that is, it had a natural tendency to, or was capable of depriving the [specify financial institution] of the right of honest services;
Sixth, the defendant did something that was a substantial step toward carrying out the plan or scheme to deprive the [specify financial institution] of the right of honest services, and that strongly corroborated the defendant’s intent to commit that crime; and
Seventh, the [specify financial institution] was federally [chartered] [insured].
A “fiduciary” duty exists whenever one [person] [entity] places special trust and confidence in another person—the fiduciary—in reliance that the fiduciary will exercise [his] [her] discretion and expertise with the utmost honesty and forthrightness in the interests of the [person] [entity], such that the [person] [entity] relaxes the care and vigilance that [he] [she] [it] would ordinarily exercise, and the fiduciary knowingly accepts that special trust and confidence and thereafter undertakes to act on behalf of the other [person] [entity] based on such reliance.
The mere fact that a business relationship arises between two persons does not mean that either owes a fiduciary duty to the other. If one person engages or employs another and thereafter directs, supervises, or approves the other’s actions, the person so employed is not necessarily a fiduciary. Rather, as previously stated, it is only when one party places, and the other accepts, a special trust and confidence—usually involving the exercise of professional expertise and discretion—that a fiduciary relationship exists.
A “substantial step” is conduct that strongly corroborated the 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
Caution: Honest services fraud criminalizes only schemes to defraud that involve bribery or kickbacks. Skilling v. United States, 561 U.S. 358, 408-09 (2010); Black v. United States, 561 U.S. 465, 471 (2010).
See Comment to Instruction 15.34 (Mail Fraud—Scheme to Defraud—Deprivation of Intangible Right of Honest Services).
For a definition of “financial institution,” see 18 U.S.C. § 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).
Revised May 2023
The defendant is charged in [Count _______ of] the indictment with bank fraud in violation of Section 1344(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 knowingly carried out a scheme or plan to obtain money or property from the [specify financial institution] by making false statements or promises;
Second, the defendant knew that the statements or promises were false;
Third, the statements or promises were material; that is, they had a natural tendency to influence, or were capable of influencing, a financial institution to part with money or property;
Fourth, the defendant acted with the intent to defraud; and
Fifth, [specify financial institution] was federally [chartered] [insured].
Comment
In United States v. Molinaro, 11 F.3d 853, 863 (9th Cir. 1993), 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.
Materiality is an essential element of the crime of bank fraud. Neder v. United States, 527 U.S. 1 (1999). The common law test for materiality in the false statement statutes, as reflected in the third element of this instruction, is the preferred formulation. United States v. Peterson, 538 F.3d 1064, 1072 (9th Cir. 2008).
In Loughrin v. United States, 573 U.S. 351 (2014), the defendant used a forged, stolen check to buy merchandise from a store, which he immediately returned for cash. On appeal he contended there was no evidence he intended to defraud a bank, only evidence that he intended to defraud the store. The Supreme Court held that the government need not prove the defendant intended to defraud a bank, and that § 1344(2)’s “by means of” language is satisfied when “the defendant’s false statement was the mechanism naturally inducing a bank (or custodian of bank property) to part with money in its control.” Id. at 363.
The government need not prove the defendant knowingly made false representations directly to a bank. United States v. Cloud, 872 F.2d 846, 851 n.5 (9th Cir. 1989).
For a definition of “financial institution,” see 18 U.S.C. § 20.
Revised June 2021
The defendant is charged in [Count _______ of] the indictment with attempted bank fraud in violation of Section 1344 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 devised a plan or scheme to obtain money or property from the [specify financial institution] by false promises or statements;
Second, the promises or statements were material; that is, they had a natural tendency to influence, or were capable of influencing, a financial institution to part with money or property;
Third, the defendant acted with the intent to defraud;
Fourth, the defendant did something that was a substantial step toward carrying out the plan or scheme; and
Fifth, [specify financial institution] was federally [chartered] [insured].
A “substantial step” is conduct that strongly corroborated the 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
In United States v. Molinaro, 11 F.3d 853, 863 (9th Cir. 1993), 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.
The government need not prove the defendant knowingly made false representations directly to a bank. United States v. Cloud, 872 F.2d 846, 851 n.5 (9th Cir. 1989).
Materiality is an essential element of the crime of bank fraud. Neder v. United States, 527 U.S. 1 (1999). The common law test for materiality in the false statement statutes, as reflected in the second element of this instruction, is the preferred formulation. United States v. Peterson, 538 F.3d 1064, 1072 (9th Cir. 2008).
For a definition of “financial institution,” see 18 U.S.C. § 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).
Revised May 2023
The defendant is charged in [Count _________of] the indictment with making a false statement to a federally insured [specify institution] for the purpose of influencing the [specify institution] in violation of Section 1014 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 [made a false statement or report] [willfully overvalued any land, property or security] to a federally insured [specify institution];
Second, the defendant made the false statement or report to the [specify institution] knowing it was false; and
Third, the defendant did so for the purpose of influencing in any way the action of the [specify institution].
It is not necessary, however, to prove that the [specify institution] involved was, in fact, influenced or misled, or that [specify institution] was exposed to a risk of loss. What must be proved is that the defendant intended to influence the [specify institution] by the false statement.
Comment
See generally Comment to Instruction 24.10 (False Statement to Government Agency). Materiality is not an element of the crime of knowingly making a false statement to a federally insured bank in violation of 18 U.S.C. § 1014. United States v. Wells, 519 U.S. 482, 496-97 (1997). Compare bank fraud under § 1344(2) where materiality is an element. United States v. Nash, 115 F.3d 1431 (9th Cir. 1997); see Instruction 15.39 (Bank Fraud—Scheme to Defraud by False Promises).
Depending on the facts in evidence, it may be appropriate to amend this instruction with language requiring specific jury unanimity. See Instruction 6.27 (Specific Issue Unanimity).
Federally insured status is an element of the crime. United States v. Davoudi, 172 F.3d 1130, 1133 (9th Cir. 1999).
Proof of a risk of loss to a financial institution is not an element of the crime. United States v. Taylor, 808 F.3d 1202, 1205 (9th Cir. 2015).
Revised Mar. 2016
The defendant is charged in [Count _______ of] the indictment with health care fraud in violation of Section 1347 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 and willfully [executed] [attempted to execute] a scheme or plan to [defraud a health care benefit program] [obtain [[money][property]] [[owned by] [under the custody or control of]] a health care benefit program by means of material false or fraudulent [pretenses] [representations] [promises]];
Second, the defendant acted with the intent to defraud;
Third, [name of victim or attempted victim] was a health care benefit program; and
Fourth, the [scheme][plan] was executed in connection with the [delivery][payment] for health care [benefits][items][services].
Comment
See Instructions 4.6 (Willfully) and 4.8 (Knowingly); see also Instruction 4.9(Deliberate Ignorance). In United States v. Hong, 938 F.3d 1040 (9th Cir. 2019), the Ninth Circuit discussed when it might be appropriate to give a deliberate ignorance (or willful blindness) instruction in the context of a charge of health care fraud.
The required showing regarding a defendant’s intent may be satisfied by circumstantial evidence that he acted with reckless indifference to the truth or falsity of his statements. United States v. Dearing, 504 F.3d 897, 902 (9th Cir. 2007).
“Health care benefit program” means any public or private plan or contract, affecting commerce, under which any medical benefit, item, or service is provided to any individual, and includes any individual or entity who is providing a medical benefit, item, or service for which payment may be made under the plan or contract. 18 U.S.C. § 24(b).
Revised Dec. 2019
The defendant is charged in [Count _______ of] the indictment with fraud in the [use] [misuse] of an immigration document in violation of Section 1546(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 [[forged] [counterfeited] [altered] [falsely made]] [[an immigrant] [a non-immigrant]] [[visa] [permit] [border crossing card] [alien registration receipt card] [other document prescribed by statute or regulation for entry into or as evidence of authorized stay or employment in the United States]]; and
Second, the defendant acted knowingly.
Comment
See Comment to Instruction 15.44 (Immigration Fraud—Use or Possession of Immigration Document Procured by Fraud).
Use this instruction with respect to a crime charged under 18 U.S.C. § 1546(a), first paragraph, first clause. UseInstruction 15.44 (Immigration Fraud—Use or Possession of Immigration Document Procured by Fraud) for an instruction as to a crime charged under 18 U.S.C. § 1546(a), first paragraph, second clause. Use Instruction 15.45 (Immigration Fraud—False Statement on Immigration Document), for an instruction as to a crime charged under 18 U.S.C. § 1546(a), fourth paragraph.
The defendant is charged in [Count _______ of] the indictment with fraud in the [use] [misuse] of an immigration document in violation of Section 1546(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 knowingly [[uttered] [used] [attempted to use] [possessed] [obtained] [accepted] [received]] [[an immigrant] [a non-immigrant]] [[visa] [permit] [border crossing card] [alien registration receipt card] [other document prescribed by statute or regulation for entry into or as evidence of authorized stay or employment in the United States]]; and
Second, the defendant knew the document [[to be [forged] [counterfeited] [altered] [falsely made]] [[to have been [procured by means of any false claim or statement] [otherwise procured by fraud] [unlawfully obtained]].
Comment
Use this instruction with respect to a crime charged under 18 U.S.C. § 1546(a), first paragraph, second clause. UseInstruction 15.43 (Immigration Fraud—Forged, Counterfeited, Altered, or Falsely Made Immigration Document) for an instruction as to a crime charged under 18 U.S.C. § 1546(a), first paragraph, first clause. Use Instruction 15.45 (Immigration Fraud—False Statement on Immigration Document) for an instruction as to a crime charged under 18 U.S.C. § 1546(a), fourth paragraph.
In United States v. Krstic, 558 F.3d 1010 (9th Cir. 2009), the Ninth Circuit held the first paragraph, second clause of the statute criminalizes both the possession of authentic immigration documents procured unlawfully and the possession of forged or other falsely made immigration documents.
The Fourth Circuit has held that the statute reaches documents that may be insufficient, in and of themselves, to authorize entry into the United States, when they are plainly prescribed by law as a prerequisite thereof. United States v. Ryan-Webster, 353 F.3d 353, 361-62 (4th Cir. 2003).
Mistake or ignorance of the law is no defense to a charge of “knowingly . . . accept[ing], or receiv[ing]” forged documents in violation of 18 U.S.C. § 1546(a). United States v. De Cruz, 82 F.3d 856, 867 (9th Cir. 1996).
The defendant is charged in [Count _______ of] the indictment with a false statement on an immigration document in violation of Section 1546(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 [made] [subscribed as true] a false statement;
Second, the defendant acted with knowledge that the statement was untrue;
Third, the statement was material to the activities or decisions of the [specify immigration agency]; that is, it had a natural tendency to influence, or was capable of influencing, the agency’s decisions or activities;
Fourth, the statement was made under [oath] [penalty of perjury]; and
Fifth, the statement was made on an [application] [affidavit] [other document] required by immigration laws or regulations.
Comment
Use this instruction in connection with crimes charged under 18 U.S.C. § 1546(a), fourth paragraph.
The term “oath” as used in § 1546 should be construed the same as “oath” as used in the perjury statute, 18 U.S.C. § 1621. United States v. Chu, 5 F.3d 1244, 1247 (9th Cir. 1993).
Materiality is a requirement of visa fraud under subsection (a) and presents a mixed question of fact and law to be decided by the jury. United States v. Matsumaru, 244 F.3d 1092, 1101 (9th Cir. 2001). The common law test for materiality in the false statement statutes, as reflected in the third element of this instruction, is the preferred formulation. United States v. Peterson, 538 F.3d 1064, 1072 (9th Cir. 2008). A statement need not have actually influenced the agency decision to meet the materiality requirement. Matsumaru, 244 F.3dat1101 (citing United States v. Serv. Deli, Inc., 151 F.3d 938, 941 (9th Cir. 1998); see, e.g., United States v. Amintobia, 57 F.4th 687, 703 (9th Cir. 2023) (“We have described § 1546(a)’s materiality requirement as requiring only proof that the statement in question was ‘capable of affecting or influencing a governmental decision.’” (quoting Matsumaru, 244 F.3d at 1101)). Nevertheless, it is an open question whether this definition of § 1546(a)’s materiality requirement must be revised in light of the Supreme Court’s analysis of the requirements of § 1425(a) in Maslenjak v. United States, 137 S. Ct. 1918 (2017). SeeAmintobia, F.4th at 703. A statement need not have actually influenced the agency decision to meet the materiality requirement. Amintobia, 57 F.4th at 703 (citing Matsumaru,244 F.3dat1101).
Revised March 2023
The defendant is charged in [Count _______ of] the indictment with bankruptcy fraud in violation of Section 157 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 devised or intended to devise a scheme or plan to defraud;
Second, the defendant acted with the intent to defraud;
Third, the defendant’s act was material; that is, it had a natural tendency to influence, or was capable of influencing the acts of an identifiable person, entity, or group; and
Fourth, the defendant [filed a petition] [filed a document in a proceeding] [made a false or fraudulent representation, claim, or promise concerning or in relation to a proceeding] under a Title 11 bankruptcy proceeding to carry out or attempt to carry out an essential part of the scheme.
It does not matter whether the document, representation, claim, or promise was itself false or deceptive so long as the bankruptcy proceeding was used as a part of the scheme or plan to defraud, nor does it matter whether the scheme or plan was successful or that any money or property was obtained.
Comment
Unlike the historic bankruptcy crimes described in 18 U.S.C. § 152, bankruptcy fraud under § 157 concerns a fraudulent scheme outside the bankruptcy that uses the bankruptcy as a means of executing or concealing the fraud or artifice. United States v. Milwitt, 475 F.3d 1150, 1155-56 (9th Cir. 2007) (bankruptcy fraud requires specific intent to defraud identifiable victim or class of victims of identified fraudulent scheme).
This statute is modeled after the mail and wire fraud statutes and therefore requires a specific intent to defraud and deceive. Id. (citing United States v. Bonallo, 858 F.2d 1427, 1433 (9th Cir. 1988)); see also United States v. Miller, 953 F.3d 1095, 1103 (9th Cir. 2020) (holding that wire fraud requires the intent to “deceive and cheat—in other words, to deprive the victim of money or property by means of deception”).
Revised Sept. 2020
The defendant is charged in [Count _______ of] the indictment with securities fraud in violation of federal securities law. For the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:
First, the defendant willfully[used a device or scheme to defraud someone] [made an untrue statement of a material fact] [failed to disclose a material fact that resulted in making the defendant’s statements misleading] [engaged in any act, practice, or course of business that operates or would operate as a fraud or deceit upon any person];
Second, the defendant’s [acts were undertaken] [statement was made] [failure to disclose was done] in connection with the [purchase] [sale] of [specify security];
Third, the defendant directly or indirectly used the [specify instrument or facility] in connection with [these acts] [making this statement][this failure to disclose]; and
Fourth, the defendant acted knowingly.
“Willfully” means intentionally [undertaking an act] [making an untrue statement] [failing to disclose] for the wrongful purpose of defrauding or deceiving someone. Acting willfully does not require that the defendant know that the conduct was unlawful. You may consider evidence of the defendant’s words, acts, or omissions, along with all the other evidence, in deciding whether the defendant acted willfully.
“Knowingly” means [[to make a statement or representation that is untrue and known to the defendant to be untrue] [to fail to state something that the defendant knows is necessary to make other statements true] [to make a statement with reckless disregard as to its truth or falsity] [to fail to make a statement with reckless disregard that the statement is necessary to make other statements true] in respect to a material fact] [intentional conduct that is undertaken to control or affect the price of securities]. [An act is done] [A statement is made] [A failure to disclose is done] knowingly if the defendant is aware of [the act] [making the statement] [the failure to disclose] and did not [act or fail to act] [make the statement] [fail to disclose] through ignorance, mistake, or accident. The government is not required to prove that the defendant knew that [[his] [her] acts were unlawful] [it was unlawful to make the statement] [[his] [her] failure to disclose was unlawful]. You may consider evidence of the defendant’s words, acts, or omissions, along with all the other evidence, in deciding whether the defendant acted knowingly.
[“Reckless” means highly unreasonable conduct that is an extreme departure from ordinary care, presenting a danger of misleading investors, which is either known to the defendant or so obvious that the defendant must have been aware of it.]
[A fact is material if there is a substantial likelihood that a reasonable investor would consider it important in making the decision to [purchase] [sell] securities.]
It is not necessary that an untrue statement passed [through] [over] the [specify instrument or facility] so long as the [specify instrument or facility] was used as a part of the [purchase] [sale] transaction.
It is not necessary that the defendant made a profit or that anyone actually suffered a loss.
Comment
“Willfully” as used in 15 U.S.C. § 78ff(a) does not require the actor to know that the conduct was unlawful. United States v. Tarallo, 380 F.3d 1174, 1188 (9th Cir. 2004); see also United States v. Reyes, 577 F.3d 1069, 1079 (9th Cir. 2009) (holding that jury need only find defendant acted knowing the falsification to be wrongful).
The Ninth Circuit has held reckless disregard for truth or falsity to be sufficient to sustain a conviction for securities fraud. See Tarallo, 380 F.3d at 1188 (stating that government need only prove that defendant made false representation with reckless indifference to its falsity); United States v. Farris,614 F.2d 634, 638 (9th Cir. 1980).
As in the Securities Exchange Act §10(b) context, 18 U.S.C. § 1348’s requirement of “in connection with” is broadly construed and can be met by proof of dissemination and materiality of the misrepresentation or omission. See United States v. Hussein, 972 F.3d 1128, 1147 (9th Cir. 2020).
For Rule 10b-5(a) and (c) violations for schemes or practices designed to defraud investors by controlling or artificially manipulating the market, such as in “pump and dump” cases, use thebracketed language in the instruction defining “knowingly” as: “intentional conduct that is undertaken to control or affect the price of securities” and omit the paragraph as to the meaning of “to be material.” Such cases may also proceed under Rule 10b-5(b) for omitting to state a material fact, United States v. Charnay, 537 F.2d 341, 351 (9th Cir. 1976) (failure to disclose that market prices are being artificially depressed operates as deceit on marketplace and is omission of material fact, which is actionable under Rule 10b-5(b)). But there must be a duty to disclose such as that arising from a fiduciary or quasi-fiduciary relationship between the defendant and his or her victim. Chiarella v. United States, 445 U.S. 222, 230 (1980) (error to fail to instruct the jury as to fiduciary duty).
Materiality, in the context of securities fraud, is measured by a reasonable investor standard. United States v. Berger, 473 F.3d 1080, 1100 (9th Cir. 2007); Tarallo, 380 F.3d at 1182.
Depending on the facts in evidence, it may be appropriate to amend this instruction with language requiring specific jury unanimity. See Instruction 6.27 (Specific Issue Unanimity); see, e.g., United States v. Weiner, 578 F.2d 757, 788 (9th Cir. 1978) (explaining distinction between scheme to defraud, which is theory of liability under Rule 10b-5, and means adopted to effectuate scheme; unanimity is required for former, but not latter); United States v. Lyons, 472 F.3d 1055, 1068 (9th Cir. 2007) (finding no need for unanimity instruction where there is simply more than one alleged false promise).
For insider trading schemes, Rule 10b-5(b) prohibits individuals owing a fiduciary duty to a source from using material, undisclosed insider information from that source for their personal benefit. See Dirks v. S.E.C., 463 U.S. 646, 653-54 (1983). Thus, tipping inside information to others for one’s own personal benefit violates Rule 10b-5. Id. at 659 (“Not only are insiders forbidden by their fiduciary relationship from personally using undisclosed corporate information to their advantage, but they may not give such information to an outsider for the same purpose of exploiting the information for their personal gain.”). In such a situation, the person receiving the undisclosed, material inside information (the “tippee”) is equally liable under Rule 10b-5(b) if: (1) “the tippee knows or should know” that the person disclosing the information (the “tipper”) did so for their personal benefit; and (2) the tippee trades on that information anyway. Id. at 662-63; see also Salman v. United States, 137 S. Ct. 420, 421 (2016). A jury can infer the tipper personally benefitted “where the tipper receives something of value in exchange for the tip or ‘makes a gift of confidential information to a trading relative or friend.’” Salman, 137 S. Ct. at 423 (quoting Dirks, 463 U.S. at 664). But if the tipper did not personally benefit from tipping the undisclosed inside information, then the tippee is not liable under Rule 10b-5(b). See, e.g., Dirks, 463 U.S. at 649-50 (finding no tippee liability because tipper was whistleblower who did not personally benefit from tipping material, undisclosed inside information).
Revised Dec. 2020
The defendant is charged in [Count _______ of] the indictment with the sale of unregistered securities in violation of federal securities law. 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 sold securities;
Second, the securities that were sold were required to be registered with the Securities and Exchange Commission—that is, the transactions were not exempt from registration;
Third, the securities that were sold were not registered with the Securities and Exchange Commission;
Fourth, knowing the shares were not registered and not exempt, the defendant willfully sold or caused the shares to be sold to the public; and
Fifth, the defendant knowingly, directly or indirectly, used or caused to be used the mails or the means and instrumentalities of interstate commerce for the purpose of selling the securities.
Comment
This instruction is for use in any case involving a violation of 15 U.S.C. § 77e, involving the offer or sale of an unregistered security in interstate commerce.
“Security” is defined at 15 U.S.C. § 77b(a)(1).
As to the fifth element, 15 U.S.C. § 77e also applies to a defendant who uses the mails or interstate commerce for the delivery after sale of an unregistered security. See 15 U.S.C. § 77e(a)(2).
“To establish a prima facie case for violation of Section 5, the [government] must show that (1) no registration statement was in effect as to the securities; (2) the defendant directly or indirectly sold or offered to sell securities; and (3) the sale or offer was made through interstate commerce.” SEC v. CMKM Diamonds, Inc., 729 F.3d 1248, 1255 (9th Cir. 2013) (citing SEC v. Phan, 500 F.3d 895, 902 (9th Cir. 2007)).
“‘Once the [government] introduces evidence that a defendant has violated the registration provisions, the defendant then has the burden of proof in showing entitlement to an exemption.’” CMKM Diamonds, Inc., 729 F.3d at 1255 (quoting SEC v. Murphy, 626 F.2d 633, 641 (9th Cir. 1980)). Exemptions to 15 U.S.C. § 77e are listed in 15 U.S.C. § 77d. “Exemptions from registration provisions are construed narrowly ‘in order to further the purpose of the Act: To provide full and fair disclosure of the character of the securities, and to prevent frauds in the sale thereof.’” SEC v. Platforms Wireless Int’l Corp., 617 F.3d 1072, 1086 (9th Cir. 2010) (quoting Murphy, 626 F.2d at 641).
Scienter is not an element of liability for civil enforcement of 15 U.S.C. § 77e. See Aaron v. Sec. & Exch. Comm'n, 446 U.S. 680, 714 n.5 (1980) (“The prohibition in § 5 of the 1933 Act, 15 U.S.C. § 77e, against selling securities without an effective registration statement has been interpreted to require no showing of scienter.”). However, a criminal prosecution under 15 U.S.C. § 77x for the violation of § 77e requires a showing that the sale or offer of unregistered securities was done “willfully.” “Willfully” in this context does not require that the actor know specifically that the conduct was unlawful. See United States v. Lloyd, 807 F.3d 1128, 1166 (9th Cir. 2015).
Revised Dec. 2021
Links
[1] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/_WPD/15.1_criminal_rev_3_2023.docx
[2] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/_WPD/15.2_criminal_rev_3_2023.docx
[3] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/_WPD/15.3_criminal_rev_3_2023.docx
[4] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/_WPD/15.4_criminal_rev_3_2023.docx
[5] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/_WPD/15.5_criminal_rev_3_2023.docx
[6] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/_WPD/15.6_criminal_rev_3_2023.docx
[7] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/_WPD/15.7_criminal_rev_3_2023.docx
[8] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/_WPD/15.8_criminal_rev_3_2023.docx
[9] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/_WPD/15.9_criminal_rev_12_2024.docx
[10] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/_WPD/15.10_criminal_rev_3_2022_0.docx
[11] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/_WPD/15.11_criminal_rev_3_2022_0.docx
[12] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/_WPD/15.12_criminal_rev_3_2022.docx
[13] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/_WPD/15.13_criminal_rev_3_2022_0.docx
[14] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/_WPD/15.14_criminal_rev_3_2022.docx
[15] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/_WPD/15.15_criminal_rev_3_2022_0.docx
[16] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/_WPD/15.16_criminal_rev_3_2023.docx
[17] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/_WPD/15.17_criminal_rev_3_2022_0.docx
[18] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/_WPD/15.18_criminal_rev_3_2022.docx
[19] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/_WPD/15.19_criminal_rev_3_2022.docx
[20] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/_WPD/15.20_criminal_rev_3_2022.docx
[21] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/_WPD/15.21_criminal_rev_3_2022_0.docx
[22] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/_WPD/15.22_criminal_rev_3_2022.docx
[23] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/_WPD/15.23_criminal_rev_3_2022_0.docx
[24] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/_WPD/15.24_criminal_rev_3_2022_0.docx
[25] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/_WPD/15.25_criminal_rev_3_2022.docx
[26] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/_WPD/15.26_criminal_rev_3_2022.docx
[27] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/_WPD/15.27_criminal_rev_3_2022_0.docx
[28] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/_WPD/15.28_criminal_rev_3_2022_0.docx
[29] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/_WPD/15.29_criminal_rev_3_2022_0.docx
[30] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/_WPD/15.30_criminal_rev_3_2022_0.docx
[31] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/_WPD/15.31_criminal_rev_3_2022.docx
[32] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/_WPD/15.32_criminal_rev_3_2025.docx
[33] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/_WPD/15.33_criminal_rev_3_2022.docx
[34] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/_WPD/15.34_criminal_rev_11_2024_0.docx
[35] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/_WPD/15.35_criminal_rev_3_2025.docx
[36] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/_WPD/15.36_criminal_rev_3_2023.docx
[37] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/_WPD/15.37_criminal_rev_3_2022_0.docx
[38] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/_WPD/15.38_criminal_rev_5_2023.docx
[39] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/_WPD/15.39_criminal_rev_3_2022.docx
[40] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/_WPD/15.40_criminal_rev_5_2023.docx
[41] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/_WPD/15.41_criminal_rev_3_2022_0.docx
[42] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/_WPD/15.42_criminal_rev_3_2022_0.docx
[43] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/_WPD/15.43_criminal_rev_3_2022.docx
[44] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/_WPD/15.44_criminal_rev_3_2022.docx
[45] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/_WPD/15.45_criminal_rev_3_2023.docx
[46] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/_WPD/15.46_criminal_rev_3_2022_0.docx
[47] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/_WPD/15.47_criminal_rev_3_2022_0.docx
[48] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/_WPD/15.48_criminal_rev_3_2022_0.docx
