The defendant is charged in [Count ______ of] the indictment with misprision of felony in violation of Section 4 of Title 18 of the United States Code. For the defendant to be found guilty of that crime, the government must prove each of the following elements beyond a reasonable doubt:
First, a federal felony was committed, as charged in [Count ______ of] the indictment;
Second, the defendant had knowledge of the commission of that felony;
Third, the defendant had knowledge that the conduct was a federal felony;
Fourth, the defendant failed to notify a federal authority as soon as possible; and
Fifth, the defendant did an affirmative act, as alleged, to conceal the crime.
A felony is a crime punishable by a term of imprisonment of more than one year.
Mere failure to report a federal felony is not a crime. The defendant must also commit some affirmative act designed to conceal the fact that a federal felony has been committed.
Comment
See United States v. Olson, 856 F.3d 1216 (9th Cir. 2017).
Revised Apr. 2019
The defendant is charged in [Count _______ of] the indictment with [attempted] arson in violation of Section 81 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 set fire to or burned] [intended to set fire to or burn]] [specify building];
Second, [specify building] was located on [specify place of federal jurisdiction]; [and]
Third, the defendant acted wrongfully and without justification[.] [; and]
[Fourth, the defendant did something that was a substantial step toward committing the crime.
A “substantial step” is conduct that strongly corroborated the defendant’s intent to commit the crime. To constitute a substantial step, the 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 the crime.]
[If you decide that the defendant is guilty, you must then decide whether the government has proved beyond a reasonable doubt that [the building was regularly used by people as a place in which to live and sleep] [a person’s life was placed in jeopardy].]
Comment
If the charge is conspiracy to commit the crime, use Instruction 24.3 (Conspiracy to Commit Arson).
As to the second element of the instruction regarding federal jurisdiction, “special maritime and territorial jurisdiction of the United States” is defined in 18 U.S.C. § 7. While federal jurisdiction over the place may be determined as a matter of law, the locus of the offense within that place is an issue for the jury. United States v. Gipe,672 F.2d 777, 779 (9th Cir. 1982).
The bracketed language stating an additional element applies only when the charge is an attempt. In attempt cases, “[t]o constitute a substantial step, a defendant’s actions must cross the line between preparation and attempt by unequivocally demonstrating that the crime will take place unless interrupted by independent circumstances.” United States v. Goetzke, 494 F.3d 1231, 1237 (9th Cir. 2007) (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 conspiracy to commit arson in violation of Section 81 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, beginning on or about [date], and ending on or about [date], there was an agreement between two or more persons to commit arson; and
Second, the defendant became a member of the conspiracy knowing of its object and intending to help accomplish it.
As used in this instruction “arson” is the intentional setting of a fire to or burning [specify building] located on [specify place of federal jurisdiction], which is wrongful and without justification.
A conspiracy is a kind of criminal partnership—an agreement of two or more persons to commit one or more crimes. The crime of conspiracy is the agreement to do something unlawful; it does not matter whether the crime agreed upon was committed.
For a conspiracy to have existed, it is not necessary that the conspirators made a formal agreement or that they agreed on every detail of the conspiracy. It is not enough, however, that they simply met, discussed matters of common interest, acted in similar ways, or perhaps helped one another. You must find that there was a plan to commit arson.
One becomes a member of a conspiracy by willfully participating in the unlawful plan with the intent to advance or further some object or purpose of the conspiracy, even though the person does not have full knowledge of all the details of the conspiracy. Furthermore, one who willfully joins an existing conspiracy is as responsible for it as the originators. On the other hand, one who has no knowledge of a conspiracy, but happens to act in a way that furthers some object or purpose of the conspiracy, does not thereby become a conspirator. Similarly, a person does not become a conspirator merely by associating with one or more persons who are conspirators, nor merely by knowing that a conspiracy exists.
[If you decide that the defendant is guilty, you must then decide whether the government has proved beyond a reasonable doubt that [the building was regularly used by people as a place in which to live and sleep] [a person’s life was placed in jeopardy].]
Comment
“Special maritime and territorial jurisdiction of the United States” is defined in 18 U.S.C. § 7. While federal jurisdiction over the place may be determined as a matter of law, the locus of the offense within that place is an issue for the jury. United States v. Gipe, 672 F.2d 777, 779 (9th Cir. 1982).
See Comment to Instruction 11.1 (Conspiracy—Elements). Because 18 U.S.C. § 81 does not expressly require proof of an overt act, the third element of Instruction 11.1 (overt act) is not included in this instruction. United States v. Shabani, 513 U.S. 10, 15-17 (1994) (holding that under “the plain language of the statute and settled interpretive principles,” proof of an overt act is not necessary for violation of drug conspiracy statute, 21 U.S.C. § 846); see also United States v. Montgomery, 150 F.3d 983, 997-98 (9th Cir. 1998) (recognizing that reasoning in Shabani obviates need for proof of an overt act in furtherance of conspiracy under 21 U.S.C. § 963).
The defendant is charged in [Count _______ of] the indictment with escape from custody in violation of Section 751(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 was in the custody of [specify custodian];
Second, the defendant was in custody by virtue of [specify reason for or type of custody]; and
Third, the defendant knowingly and voluntarily left custody without permission.
Comment
An intent to avoid confinement is not an element of escape. United States v. Bailey, 444 U.S. 394, 408 (1980).
Section 751(a) provides a maximum punishment of one year in prison for certain types of custody, such as custody imposed by virtue of an arrest for a misdemeanor, and a maximum punishment of five years in prison for other types of custody, such as custody imposed by virtue of a felony arrest. It is therefore necessary to include the type of custody in the instruction. Apprendi v. New Jersey, 530 U.S. 466, 490 (2000) (holding that other than fact of prior conviction, any fact that increases statutory maximum must be submitted to jury).
For cases considering what constitutes federal custody under 18 U.S.C. § 751(a), see United States v. Brown, 875 F.3d 1235, 1239 (9th Cir. 2017) (holding that federal inmate in state custody under writ of habeas corpus ad prosequendum was in federal custody); United States v. Burke, 694 F.3d 1062, 1064-65 (9th Cir. 2012) (holding that defendant who resided at residential reentry center under supervised release was not in federal custody).
Revised Sept. 2018
The defendant is charged in [Count _______ of] the indictment with attempted escape from custody in violation of Section 751(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 was in the custody of [specify custodian];
Second, the defendant was in custody by virtue of [specify reason for or type of custody];
Third, the defendant intended to escape from custody; and
Fourth, the defendant did something that was a substantial step toward escaping from custody.
A “substantial step” is conduct that strongly corroborated the defendant’s intent to commit the crime. To constitute a substantial step, the 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
See Comment to Instruction 24.4 (Escape from Custody).
“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 assisting escape in violation of Section 752(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, [name of escapee] was in the custody of [specify custodian] by virtue of [specify reason for or type of custody];
Second, [name of escapee] [[left] [attempted to leave]] [[his] [her]] custody, without permission;
Third, the defendant knew that [name of escapee] did not have permission to leave; and
Fourth, the defendant assisted [name of escapee] in [leaving] [attempting to leave].
Comment
Section 752(a) provides a maximum punishment of one year in prison for certain types of custody, such as custody imposed by virtue of an arrest for a misdemeanor, and a maximum punishment of five years in prison for other types of custody, such as custody imposed by virtue of a felony arrest. It is therefore necessary to include the type of custody in the instruction. Apprendi v. New Jersey, 530 U.S. 466, 490 (2000) (other than prior conviction, any fact that increases statutory maximum must be submitted to jury).
The defendant is charged in [Count _______ of] the indictment with making an extortionate extension of credit in violation of Section 892 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 extended credit to [name of debtor]; and
Second, at the time the credit was extended, the defendant as a creditor and [name of debtor] as a debtor both understood that delay or failure in making repayment could result in the use of violence or other criminal means to harm the person, reputation, or property of some person.
The defendant is charged in [Count _______ of] the indictment with misrepresenting [himself] [herself] to be a citizen of the United States. 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 directly and falsely represented [himself] [herself] to be a citizen of the United States;
Second, the defendant was not a citizen of the United States at that time;
Third, the defendant made such false representation willfully, that is, the misrepresentation was voluntarily and deliberately made; and
Fourth, the false representation was made to someone who had good reason to make inquiry into defendant’s citizenship status.
Comment
In United States v. Anguiano-Morfin, 713 F.3d 1208 (9th Cir. 2013), the Ninth Circuit explained that, when a defendant charged with falsely impersonating a United States citizen relies on the defense that he genuinely believed that he was a United States citizen, the “best course” is to instruct the jury that the government must prove beyond a reasonable doubt that the defendant knew that his claim to United States citizenship was false, and that a “reasonable doubt as to whether [the defendant] knew his claim to United States citizenship was false” must result in an acquittal. Id. at 1210. The Ninth Circuit explained that in such cases the jury instructions should make clear that the defendant’s subjective belief is the dispositive issue. Id.
In United States v. Karaouni, 379 F.3d 1139, 1144 (9th Cir. 2004), the Ninth Circuit held that the representation must be “direct” and that a statement from which United States citizenship could be inferred is insufficient. “Willfully” requires proof that the misrepresentation was “voluntary and deliberate.” Id. at 1142. The fourth element is required by Ninth Circuit case law limiting the reach of the statute to avoid First Amendment overbreadth issues. Id. at 1142 n.7.
Revised July 2013
The defendant is charged in [Count _______ of] the indictment with fraud while impersonating a federal officer or employee in violation of Section 912 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 falsely pretended to be an [officer] [employee] acting under the authority of [the United States] [specify federal department, agency, or officer]; and
Second, the defendant [acted as such] [in such pretended character demanded or obtained [specify thing of value]].
Comment
Two options are afforded for the second element because 18 U.S.C. § 912 states two offenses. It has been held to be duplicitous to charge both falsely acting as a federal officer and demanding or obtaining money while falsely acting as a federal officer in a single count. United States v. Aguilar, 756 F.2d 1418, 1422 (9th Cir. 1985).
To review the intent element of 18 U.S.C. § 912, see United States v. Tomsha-Miguel, 766 F.3d 1041, 1046-47 (9th Cir. 2014).
To review the First Amendment limits on criminal laws that penalize false speech, see United States v. Swisher, 811 F.3d 299, 315-16 (9th Cir. 2016).
Revised Mar. 2017
The defendant is charged in [Count _______ of] the indictment with knowingly and willfully [making a false statement] [using a document containing a false statement] in a matter within the jurisdiction of a governmental agency or department in violation of Section 1001 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] [used a writing that contained a false statement];
Second, the [statement][writing] was made in a matter within the jurisdiction of the [specify government agency or department];
Third, the defendant acted willfully; that is, the defendant acted deliberately and with knowledge both that the statement was untrue and that his or her conduct was unlawful; and
Fourth, the [statement] [writing] was material to the decisions or activities of the [specify government agency or department]; that is, it had a natural tendency to influence, or was capable of influencing, the agency’s decisions or activities.
Comment
The Ninth Circuit has held the common law test for materiality, as reflected in the last sentence of this instruction, is the standard to use when false statement statutes such as 18 U.S.C. §1001 are charged. United States v. Peterson, 538 F.3d 1064, 1072 (9th Cir. 2008) (citing United States v. Gaudin, 515 U.S. 506, 509 (1995)); see also United States v. Kirst, 54 F.4th 610, 624 (9th Cir. 2022) (affirming jury instruction regarding materiality element on grounds that it accorded with Model Criminal Jury Instruction 24.10 and Peterson). “The false statement need not have actually influenced the agency . . . and the agency need not rely on the information in fact for it to be material.” United States v. Serv. Deli Inc., 151 F.3d 938, 941 (9th Cir. 1998) (citations omitted); see also United States v. King, 735 F.3d 1098, 1108 (9th Cir. 2013).
No mental state is required with respect to the fact that a matter is within the jurisdiction of a federal agency, and the false statement need not be made directly to the government agency. United States v. Green, 745 F.2d 1205, 1208-10 (9th Cir. 1984). There is no requirement that the defendant acted with the intention of influencing the government agency. United States v. Yermian, 468 U.S. 63, 73 & n.13 (1984). The initial determination whether the matter is one within the jurisdiction of a department or agency of the United States—apart from the issue of materiality—should be made by the court as a matter of law. United States v. F.J. Vollmer & Co., 1 F.3d 1511, 1518 (7th Cir. 1993).
To make a false statement “willfully” under Section 1001, the defendant must have both the specific intent to make a false statement and the knowledge that his or her conduct was unlawful. Specific intent does not require evil intent but only that the defendant act deliberately and knowingly. See United States v. Heuer, 4 F.3d 723, 732 (9th Cir. 1993). The requirement that the defendant knew that his or her conduct was unlawful is based on Bryan v. United States,wherein the Supreme Court stated that “in order to establish a willful violation of a statute, the Government must prove that the defendant acted with knowledge that his conduct was unlawful.” 524 U.S. 184, 191-92 (1998) (quoting Ratzlaf v. United States, 510 U.S. 135, 139 (1994)). Later, the Solicitor General conceded that a district court erred by giving an instruction on “willfulness” that does not comply with Bryan. Ajoku v. United States, 572 U.S. 1056 (2014).
In determining whether the government has carried its burden to prove a defendant’s knowledge of unlawfulness, the jurors may rely on their common sense and life experiences in the absence of direct evidence. See United States v. Charley, 1 F.4th 637, 644 (9th Cir. 2021) (quoting United States v. Ramirez, 714 F.3d 1134, 1138 (9th Cir. 2013)).
Materiality must be demonstrated by the government, United States v. Oren, 893 F.2d 1057, 1063 (9th Cir. 1990); United States v. Talkington, 589 F.2d 415, 416 (9th Cir. 1978), and must be submitted to the jury. Gaudin, 515 U.S. at 506. Actual reliance is not required. Talkington, 589 F.2d at 417 (citation omitted). The materiality test applies to each allegedly false statement submitted to the jury. Id.
Depending on the facts in evidence, it may be appropriate to amend this instruction with language requiring specific jury unanimity (e.g., “with all of you agreeing as to which statement was false and material”). See Instruction 6.27 (Specific Issue Unanimity).
For purposes of determining proper venue, the location where the statement is uttered is the location of the crime. United States v. Fortenberry, 89 F.4th 702, 712 (9th Cir. 2023) (“Section 1001 offense is complete at the time the false statement is uttered, and because no actual effect on federal authorities is necessary to sustain a conviction, the location of the crime must be understood to be the place where the defendant makes the statement.”).
Revised March 2024
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 143, 1437 (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 [harboring] [concealing] a person from arrest in violation of Section 1071 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, a federal warrant had been issued for the arrest of [name of person];
Second, the defendant knowingly [[harbored] [concealed]] [name of person];
Third, at the time the defendant [[harbored] [concealed]] [name of person], the defendant knew that a warrant had been issued for the arrest of [name of person].
Fourth, the defendant intended to prevent the discovery or arrest of [name of person].
Comment
A violation of 18 U.S.C. § 1071 requires proof of four elements. United States v. Hill, 279 F.3d 731, 737-38 (9th Cir. 2002) (setting forth four elements listed in instruction). “[A]ny physical act of providing assistance, including food, shelter, and other assistance to aid the [fugitive] in avoiding detection and apprehension will make out a violation of section 1071.” Id. at 738 ((alterations in original) (quoting United States v. Yarbrough, 852 F.2d 1522, 1543 (9th Cir. 1988)) (holding that giving money to fugitive to shelter, feed, or hide himself is not harboring, while directly providing shelter, food, or aid is harboring).
A wife may be convicted of harboring her fugitive husband even if the harboring occurs outside the United States (i.e., Mexico). Hill, 279 F.3d at 733.
Failure to disclose a fugitive’s location to law enforcement and making false statements to law enforcement are not crimes under the statute. Yarbrough, 852 F.2d at 1543.
Revised June 2019
The defendant is charged in [Count _______ of] the indictment with [harboring] [concealing] an escaped prisoner in violation of Section 1072 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, [name of prisoner] escaped from [the custody of [e.g., a Deputy U.S. Marshal]] [a federal penal or correctional institution]; and
Second, the defendant thereafter knowingly [[harbored] [concealed]] [name of prisoner].
Comment
As to the first element, a defendant is in “federal custody” for the purposes of this statute if he or she is confined under the authority of the Attorney General. It does not matter that the prisoner is not physically confined in a federal institution, nor that actual federal officials supervise custody. United States v. Eaglin,571 F.2d 1069, 1072-73 (9th Cir. 1977); see also United States v. Hobson, 519 F.2d 765, 771 (9th Cir. 1975) (holding that “escape from an institution designated by the Attorney General, pursuant to a commitment to his custody, under a federal sentence, is an escape from ‘the custody of the Attorney General’ in the legal sense, even though the institution is run by the State”).
As to the issue of whether walking away from a half-way house is an escape, see United States v. Jones, 569 F.2d 499, 500 (9th Cir. 1978) (“A federal prisoner participating in a pre-release or half-way house program by designation of the Attorney General commits an escape when he willfully violates the terms of his extended confinement.”). As to the issue of whether not returning from temporary leave is an escape, see Eaglin, 571 at 1073 (“The custody of the Attorney General continues despite the unsupervised nature of the temporary release from confinement granted under a social pass . . . .”).
Any “physical act of providing assistance, including food, shelter, and other assistance to aid the fugitive in avoiding detection and apprehension will make out a violation of section 1071.” United States v. Hill, 279 F.3d 731, 738 (9th Cir. 2002)(alterations in original) (quoting United States v. Yarbrough, 852 F.2d 1522, 1543 (9th Cir. 1988)) (holding that giving money to fugitive to shelter, feed, or hide himself is not harboring, while directly providing shelter, food, or aid is harboring).
Regarding the second element, the government must prove that the defendant knew the person aided was an escapee but does not need to prove that the defendant knew the escape was from federal custody. Eaglin, 571 F.2d at 1074 n.4; see also United States v. Kutas, 542 F.2d 527, 528-29 (9th Cir. 1976) (holding no error in instructing jury that “[t]he words ‘harbor’ and ‘conceal’ refer to any physical act of providing assistance, including food, shelter, and other assistance to aid the prisoner in avoiding detection and apprehension”).
Revised June 2019
For the defendant to be found to be an Indian, the government must prove the following, beyond a reasonable doubt:
First, the defendant has some quantum of Indian blood, whether or not that blood is traceable to a member of a federally recognized tribe; and
Second, the defendant was a member of, or affiliated with, a federally recognized tribe at the time of the offense.
[I instruct you that [specify tribe] is a federally recognized tribe.]
Whether the defendant was a member of, or affiliated with, a federally recognized tribe is determined by considering four factors, in declining order of importance, as follows:
Comment
Indian status is a jurisdictional element under 18 U.S.C. § 1153. See United States v. Bruce, 394 F.3d 1215, 1223-24 (9th Cir. 2005). “[T]he government must prove that the defendant was an Indian at the time of the offense with which the defendant is charged.” United States v. Zepeda, 792 F.3d 1103, 1113 (9th Cir. 2015) (en banc). This rule applies with the same force when the Indian status of the victim is in question under 18 U.S.C. § 1152. United States v. Reza-Ramos, 816 F.3d 1110, 1120-21 (9th Cir. 2016). As to the first element, the defendant must have a blood connection to an Indian tribe, but the tribe need not be federally recognized. Zepeda, 792 F.3d at 1113. With regard to the second element, the defendant must have a current affiliation with a federally recognized tribe. Id. “The federally recognized tribe with which a defendant is currently affiliated need not be, and sometimes is not, the same as the tribe or tribes from which his bloodline derives.” Id. at 1110. It is plain error for the court to fail to instruct on each of the two prongs of the Indian status test. Reza-Ramos, 816 F.3d at 1123.
Offenses committed within Indian country are identified in 18 U.S.C. § 1153(a) as follows: murder, manslaughter, kidnapping, maiming, a felony under chapter 109A (sexual abuse felonies), incest, a felony assault under § 113, assault against an individual who has not attained the age of 16 years, felony child abuse or neglect, arson, burglary, robbery, and a felony under § 661 (embezzlement and theft) committed by any Indian against the person or property of another Indian or other person within Indian country.
For the enumerated offenses prosecuted under 18 U.S.C. § 1153, the court should give Instruction 24.14, and the jury instruction used for the substantive offense should include two additional elements, as follows:
[Number of element], the [specify offense] occurred at a place within the [name of the Indian Country where the offense allegedly occurred], which I instruct you is in Indian Country.
[Number of element], the defendant is an Indian.
Whether the offense occurred at a particular location is a question of fact to be decided by the jury, with the court determining the jurisdictional question of whether the location is within Indian Country as a question of law. See United States v. Gipe, 672 F.2d 777, 779 (9th Cir. 1982).
The court also must instruct the jury of the “declining order of importance” of the four factors used to determine whether the defendant was a member of, or affiliated with, a federally recognized tribe at the time of the offense. Zepeda, 729 F.3d at 1114.
Whether a tribe is federally recognized is a question of law to be determined by the court. Id. “[T]he list of federally recognized tribes [at the time of the offense] prepared by the Bureau of Indian Affairs (BIA) is the best evidence of a tribe’s federal recognition.” Reza-Ramos, 816 F.3d at 1122. “If the court has found that the tribe of which the government claims the defendant is a member, or with which the defendant is affiliated, is federally recognized, it should inform the jury that the tribe is federally recognized as a matter of law.” Zepeda, 792 F.3d at 1114-15.
Revised Dec. 2023
The defendant is charged in [Count _______ of] the indictment with perjury in violation of Section 1621 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 testified under oath orally or in writing that [specify false testimony];
Second, the testimony was false[, with all of you agreeing as to which statement was false];
Third, the false testimony was material to the matters before [specify proceeding]; that is, the testimony had a natural tendency to influence, or was capable of influencing, the actions of [specify, for example, the grand jury]; and
Fourth, the defendant acted willfully, that is deliberately and with knowledge that the testimony was false.
The testimony of one witness is not enough to support a finding that the testimony of [name of defendant] was false. There must be additional evidence—either the testimony of another person or other evidence—that tends to support the testimony of falsity. The other evidence, standing alone, need not convince you beyond a reasonable doubt that the testimony was false. But after considering all the evidence on the subject, you must be convinced beyond a reasonable doubt that the testimony was false.
Comment
The bracketed language in the second element of this instruction should be given when the indictment charges that the defendant made more than one false statement. See Vitello v. United States, 425 F.2d 416, 423 (9th Cir. 1970); see also Instruction 6.27 (Specific Issue Unanimity).
The Committee believes that what is “a competent tribunal, officer, or person, in any case in which a law of the United States authorizes an oath to be administered” for purposes of § 1621 is a question of law and need not be submitted to the jury.
The Supreme Court has held that materiality is a question of fact for the jury. See Johnson v. United States, 520 U.S. 461, 465-66 (1997) (discussing in context of perjury prosecution). Accordingly, it is necessary to include materiality as an element of the offense in this instruction. See, e.g., Instruction 24.10 (False Statement to Government Agency). 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).
Because the jury must determine whether a statement is material under Johnson, the definition of materiality has been included in this instruction. United States v. McKenna, 327 F.3d 830, 839 (9th Cir. 2003) (discussing materiality of false statements in context of perjury).
Whether a statement that may be literally true can support a conviction requires careful consideration. See United States v. Thomas, 612 F.3d 1107, 1121-23 (9th Cir. 2010). If the defendant’s theory of defense is that his or her statement was literally true, some modification of the instruction may be appropriate. Id.
When the defendant is accused of multiple falsehoods, the jury must be unanimous on at least one of the charges in the indictment. Vitello, 425 F.2d at 423.
The last paragraph of the instruction concerning corroboration is worded to cover the case where the perjury is in the giving of testimony. When the perjury consists of one or more false statements in a writing, such as an affidavit, it should be substituted for “testimony.” This paragraph applies to a charge of perjury in violation of 18 U.S.C. § 1621 and to a charge of subornation of perjury in violation of 18 U.S.C. § 1622. See Instruction 24.16 (Subornation of Perjury). In the case of a § 1622 charge, the name of the person alleged to have been suborned should be inserted.
A paragraph in the instruction concerning corroboration is not required when a defendant is accused of violating 18 U.S.C. § 1623. See Instruction 24.17 (False Declaration Before Grand Jury or Court).
When the alleged false testimony is proved by circumstantial evidence, corroboration is not required. See Gebhard v. United States, 422 F.2d 281, 288 (9th Cir. 1970).
Corroborative evidence may be circumstantial and need not be independently sufficient to establish the falsity of the testimony. See United States v. Howard, 445 F.2d 821, 822 (9th Cir. 1971); Arena v. United States, 226 F.2d 227, 233 (9th Cir. 1955).
The defendant is charged in [Count _______ of] the indictment with subornation of perjury in violation of Section 1622 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 voluntarily and intentionally persuaded [name of witness] to commit perjury;
Second, the defendant acted with the intent that [name of witness] would deceive the [court] [jury]; and
Third, [name of witness] committed perjury in that:
(a) [he] [she] testified under oath or affirmation at [describe proceeding] that [specify alleged false testimony];
(b) the testimony given was false[, with all of you agreeing at to which statement was false];
(c) at the time [name of witness] testified, [he] [she] knew the testimony was false; and
(d) the false testimony was material to the matter before the [court] [grand jury]; that is, the testimony had a natural tendency to influence, or was capable of influencing, the actions of [specify, for example: the grand jury].
Comment
See Comment to Instruction 24.15 (Perjury—Testimony).
The bracketed language in subpart (b) of the third element of this instruction should be given when the indictment charges that the defendant made more than one false statement. See Vitello v. United States, 425 F.2d 416, 423 (9th Cir. 1970); see also Instruction 6.27 (Specific Issue Unanimity).
Language in the instruction concerning corroboration is not required when a defendant is accused of a violation of 18 U.S.C. § 1623 but is required under 18 U.S.C. § 1621. See Instruction 24.15 (Perjury—Testimony).
The Supreme Court has held that materiality is a question of fact for the jury. See Johnson v. United States, 520 U.S. 461, 465-66 (1997) (discussing materiality of false statements in context of perjury). Accordingly, it is necessary to include materiality as an element of the offense in this instruction. The common law test for materiality in the false statement statutes, as reflected in the third element of this instruction, is the preferred formulation. See United States v. Peterson, 538 F.3d 1064, 1072 (9th Cir. 2008).
Because the jury must determine whether a statement is material under Johnson, the definition of materiality has been included in this instruction. See United States v. McKenna, 327 F.3d 830, 839 (9th Cir. 2003) (discussing materiality of false statements in context of perjury).
A perjury is an essential element of this offense. See Catrino v. United States, 176 F.2d 884, 886-87 (9th Cir. 1949). The use of “any perjury” in § 1622 evidences a congressional intent that subornation of perjury is committed not only by one who procures another to commit perjury in violation of 18 U.S.C. § 1621, but also by one who procures another to make a false statement in violation of 18 U.S.C. § 1623. See United States v. Gross, 511 F.2d 910, 915-16 (3d Cir. 1975).
If the suborned testimony is in violation of 18 U.S.C. § 1621, the “two-witness” or “corroboration” rule applies. See Instruction 24.15 (Perjury—Testimony). Corroboration, however, is not required if the suborned testimony is in violation of 18 U.S.C. § 1623. See 18 U.S.C. § 1623(e); Gross, 511 F.2d at 915-16.
Revised June 2021
The defendant is charged in [Count _______ of] the indictment with having made a false declaration in violation of Section 1623 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 testified under oath in or ancillary to any [court] [grand jury] proceedings;
Second, the testimony was false [, with all of you agreeing as to which statement was false];
Third, the defendant knew that the testimony was false; and
Fourth, the false testimony was material to the matters before the [court] [grand jury]; that is, it had a natural tendency to influence, or was capable of influencing, the [court] [grand jury’s investigations].
Comment
See Comment to Instructions 24.15 (Perjury—Testimony) and 24.16 (Subornation of Perjury).
The testimony under oath may be in conjunction with a proceeding that is ancillary to the main proceeding involving the defendant. See United States v. Brugnara, 856 F.3d 1198, 1209 (9th Cir. 2017) (involving false declaration made during supervised release revocation hearing).
The bracketed language in the second element of this instruction should be given when the indictment charges that the defendant made more than one false statement. See Vitello v. United States, 425 F.2d 416, 423 (9th Cir. 1970). See Instruction 6.27 (Specific Issue Unanimity).
Materiality of the false declaration is an element of the offense and therefore an issue for the jury. See Johnson v. United States, 520 U.S. 461, 465-66 (1997). The common law test for materiality in the false statement statutes, as reflected in the fourth element of this instruction, is the preferred formulation. See United States v. Peterson, 538 F.3d 1064, 1072 (9th Cir. 2008). The government must present evidence from an earlier trial to prove that the statements were material; “simply offering the defendant’s statement itself is not enough.” United States v. Leon-Reyes,177 F.3d 816, 819 (9th Cir. 1999).
Because the jury must determine whether a statement is material under Johnson, the definition of materiality has been included in this instruction. United States v. McKenna, 327 F.3d 830, 839 (9th Cir. 2003) (discussing materiality of false statements in context of perjury).
Whether a statement that may be literally true can support a conviction requires careful consideration. See United States v. Thomas, 612 F.3d 1107, 1121-23 (9th Cir. 2010). If the defendant’s theory of defense is that his or her statement was literally true, some modification of the instruction may be appropriate. Id.
Note that § 1623 applies only to “any proceeding before or ancillary to any court or grand jury of the United States.” An “ancillary proceeding” is “an action conducted by a judicial representative or an action conducted pursuant to explicit statutory or judicial procedures.” United States v. Tibbs, 600 F.2d 19, 21 (6th Cir. 1979); see also United States v. Krogh, 366 F. Supp. 1255, 1256 (D.D.C.1973) (discussing sworn deposition in ancillary proceeding).
Section 1623(c) authorizes a person to be accused of having “made two or more declarations, which are inconsistent to the degree that one of them is necessarily false,” and the government is not required to specify which declaration is false.
Revised June 2021
The defendant is charged in [Count _______ of] the indictment with failure to appear in violation of Section 3146(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 was released from custody under the Bail Reform Act;
Second, the defendant was required to appear in court or before a judicial officer on [date];
Third, the defendant knew of this required appearance; and
Fourth, the defendant intentionally failed to appear as required.
Comment
If the defendant becomes a fugitive before the hearing, the defendant’s release is no longer pursuant to the Bail Reform Act, and the defendant thus may not be convicted under § 3146(a). See United States v. Castaldo, 636 F.2d 1169, 1172 (9th Cir. 1980). Vacating a hearing before its occurrence precludes satisfaction of the second element because the defendant is no longer “under . . . order to appear on any date certain”; this rule applies even when the hearing is vacated because the defendant has failed to appear at prior hearings. See United States v. Fisher, 137 F.3d 1158, 1163 (9th Cir. 1998).
“When a defendant engages in a course of conduct designed to avoid notice of his trial date, the government is not required to prove the defendant’s actual knowledge of that date.” Weaver v. United States, 37 F.3d 1411, 1413 (9th Cir. 1994).
“A deliberate decision to disobey the law . . . cannot be found beyond a reasonable doubt merely from nonappearance and notice of obligation to appear.” United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980).
Revised Jan. 2019
The defendant is charged in [Count _______ of] the indictment with failure to surrender in violation of Section 3146(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 was sentenced to a term of imprisonment;
Second, the defendant was released from custody under the Bail Reform Act;
Third, the defendant was ordered to surrender for service of the sentence on [date];
Fourth, the defendant knew of the order to surrender; and
Fifth, the defendant intentionally failed to surrender as ordered.
Comment
See Comment to Instruction 24.18 (Failure to Appear (18 U.S.C. § 3146(a)(1))).
Revised Jan. 2019
It is a defense to a charge of failure to [appear] [surrender] if uncontrollable circumstances prevented the person from [appearing] [surrendering]. To establish this defense, the defendant must prove that the following elements are more probably true than not true:
First, uncontrollable circumstances prevented the defendant from [appearing] [surrendering];
Second, the defendant did not contribute to the creation of the circumstances in reckless disregard of the requirement to [appear] [surrender]; and
Third, the defendant [appeared] [surrendered] as soon as the uncontrollable circumstances ceased to exist.
If you find that each of these elements is more probably true than not true, you must find the defendant not guilty of the charge of failure to [appear] [surrender].
Comment
See United States v. Springer, 51 F.3d 861, 866-68 (9th Cir. 1995) (discussing “uncontrollable circumstances” prong).
The defendant is charged in [Count _______ of] the indictment with [excavating] [trafficking in] archaeological resources in violation of Sections 470ee(b)(2) and (d) of Title 16 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 [[excavated] [removed] [damaged] [altered] [defaced]] [specify archaeological resource] while knowing that it was of archaeological interest and at least 100 years of age;]
or
[First, the defendant knowingly [[sold] [purchased] [exchanged] [transported] [received] [offered to sell] [offered to purchase] [offered to exchange]] [specify archaeological resource] while knowing that it was of archaeological interest and at least 100 years of age;]
Second, the [specify archaeological resource] was [[located on] [removed from]] [specify public or Indian lands]; and
Third, the defendant acted without a permit to do so from [specify federal land manager].
The government is not required to prove that the defendant knew that the [specify archaeological resource] was [[located on] [removed from]] [[public] [Indian]] land.
Comment
A felony prosecution under the Archaeological Resources Protection Act requires proof that the defendant knew, or at least had reason to know, that the object taken is an “archaeological resource”; otherwise, the offense is a misdemeanor and knowledge that the object is of archaeological interest is not an element. See United States v. Lynch,233 F.3d 1139, 1145-46 (9th Cir. 2000) (discussing prosecution under 16 U.S.C. § 470ee(a)).
Knowledge that the archaeological resource was on government land is not an element of the offense, only a jurisdictional prerequisite for prosecution. Cf. United States v. Howey, 427 F.2d 1017 (9th Cir. 1970) (holding that defendant’s knowledge of government ownership of property is not element of the offense of theft of government property under 18 U.S.C. § 641).
Statutory maximum sentences are increased for offenses if the commercial or archaeological value of the archaeological resources at issue and the cost of restoration and repair of such resources exceeds the sum of $500. If the value of the resource is disputed, the jury should be instructed to make a finding of whether the value was more than $500. Archaeological value is what it would have cost the United States to engage in a full-blown archaeological dig to recover the archaeological information protected by the Act. United States v. Ligon, 440 F.3d 1182, 1185 (9th Cir. 2006).
For a definition of “archaeological resource,” see 16 U.S.C. § 470bb (1). As to obtaining a permit from a federal land manager, see 16 U.S.C. § 470cc.
The defendant is charged in [Count _______ of] the indictment with violating Sections 3372 and 3373 of Title 16 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 [[imported] [exported]] [[fish] [wildlife] [plants]]; and
Second, the defendant knew that the [[imported] [exported]] [[fish] [wildlife] [plants]] had been [taken] [possessed] [transported] [sold] in violation of or in a manner unlawful under [United States law] [United States regulations] [United States treaties] [tribal law].
A defendant acts knowingly if [he] [she] is aware of the conduct and does not act through ignorance, mistake or accident. You may consider evidence of the defendant’s words, acts, or omissions, along with all the other evidence, in deciding whether the defendant acted knowingly.
Comment
This instruction is for use in any case involving a violation of 16 U.S.C. § 3373(d)(1)(A) for the illegal importing or exporting of fish, wildlife, or plants. Under that section of the Lacey Act, criminal liability is premised on a finding of a violation of one of the subsections of 16 U.S.C. § 3372. For violations of § 3373(d)(1)(B), see Instruction 24.23. For violations of § 3373(d)(2), see Instruction 24.24. For violations of § 3373(d)(3), see Instruction 24.25.
When a violation of 16 U.S.C. § 3372(a)(1) (U.S. Laws, Treaties) is alleged, use this instruction without change. For offenses under subsections (a)(2) and (a)(3) of § 3372, the instruction should be modified as shown below.
For an alleged violation of 16 U.S.C. § 3372(a)(2)(A) (fish or wildlife taken in violation of state or foreign law), substitute the following element:
Second, the defendant knew that the [fish] [wildlife] had been [taken] [possessed] [transported] [sold] in violation of or in a manner unlawful under any [state law] [state regulation] [foreign law] [foreign regulation].
For an alleged violation of 16 U.S.C. § 3372(a)(2)(B) (plants taken in violation of state or foreign law), substitute the following element:
Second, the defendant knew that the plants had been [taken] [possessed] [transported] [sold] in violation of any [state law] [state regulation] [foreign law] [foreign regulation] that [protects plants] [[regulates [the theft of plants] [the taking of plants from a park, forest reserve, or other officially protected area] [the taking of plants without, or contrary to, required authorization]] [without the payment of appropriate royalties, taxes, or stumpage fees required for the plant by any law or regulation of any state or any foreign law or regulation] [in violation of any limitation under any law or regulation of any state, or under any foreign law or regulation, governing the export or transshipment of plants].
For an alleged violation of 16 U.S.C. § 3372(a)(3)(A) (fish or wildlife in special U.S. jurisdiction), substitute the following element:
Second, the defendant possessed [fish] [wildlife] within the Special Maritime and Territorial Jurisdiction of the United States;
and add a new third element:
Third, the defendant knew the [fish] [wildlife] had been [taken] [possessed] [transported] [sold] in violation of or in a manner unlawful under any [state law] [state regulation] [foreign law] [foreign regulation] [tribal law].
For an alleged violation of 16 U.S.C. § 3372(a)(3)(B) (plants in special U.S. jurisdiction), substitute the following element:
Second, the defendant possessed plants within the Special Maritime and Territorial Jurisdiction of the United States;
and add a third element:
Third, the defendant knew the plants had been [taken] [possessed] [transported] [sold] in violation of any [state law] [state regulation] [foreign law] [foreign regulation] that [protects plants] [[regulates [the theft of plants] [the taking of plants from a park, forest reserve, or other officially protected area] [the taking of plants without, or contrary to, required authorization]] [without the payment of appropriate royalties, taxes, or stumpage fees required for the plant by any law or regulation of any state or any foreign law or regulation] [in violation of any limitation under any law or regulation of any state, or under any foreign law or regulation, governing the export or transshipment of plants].
When a violation of 16 U.S.C. § 3372(a)(2) is involved, consult 18 U.S.C. § 10 for a definition of interstate commerce or foreign commerce.
When a violation of 16 U.S.C. § 3372(a)(3) is involved, consult 18 U.S.C. § 7 for a definition of special maritime and territorial jurisdiction of the United States.
The requirement that the defendant knew that the wildlife was possessed in violation of “a particular law” is not an element of the offense. See, e.g., United States v. Santillan, 243 F.3d 1125, 1129 (9th Cir. 2001) (concluding that Lacey Act does not require knowledge of specific law violated by the possession or other predicate act, so long as defendant knows that possession was unlawful).
“[A]ny foreign law” in the Lacey Act includes foreign regulations, even those based upon foreign laws invalidated by the foreign government after the time of the offense. See United States v. Lee, 937 F.2d 1388, 1391-93 (9th Cir. 1991).
The defendant is charged in [Count _______ of] the indictment with violating Sections 3372 and 3373 of Title 16 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 knew that the [fish] [wildlife] [plants] had been [taken] [possessed] [transported] [sold] in violation of, or in a manner unlawful under [United States law] [United States regulations] [United States treaties] [tribal law];
Second, the market value of the [fish] [wildlife] [plants] actually [taken] [possessed] [transported] [sold] exceeded $350; and
Third, the defendant [[imported] [exported] [transported] [sold] [received] [acquired] [purchased]] [[fish] [wildlife] [plants]] by knowingly engaging in conduct that involved [its sale] [its purchase] [the offer to sell it] [the offer to purchase it] [the intent to sell it] [the intent to purchase it].
A defendant acts knowingly if [he] [she] is aware of the conduct and does not act through ignorance, mistake, or accident. You may consider evidence of the defendant’s words, acts, or omissions, along with all the other evidence, in deciding whether the defendant acted knowingly.
Comment
This instruction is for use in any case involving a violation of 16 U.S.C. § 3373(d)(1)(B) involving the sale or purchase of, the offer of sale or purchase of, or the intent to sell or purchase, fish or wildlife or plants with a market value in excess of $350. Under that section of the Lacey Act, criminal liability is premised on a finding of a violation of one of the subsections of 16 U.S.C. § 3372. For violations of § 3373(d)(1)(A), see Instruction 24.22. For violations of § 3372(d)(2), see Instruction 24.24. For violations of § 3373(d)(3), see Instruction 24.25.
When a violation of 16 U.S.C. § 3372(a)(1) (U.S. Laws, Treaties) is alleged, use this instruction without change. For offenses under subsections (a)(2) and (a)(3) of § 3372, the elements of the instruction should be modified as shown below.
For an alleged violation of 16 U.S.C. § 3372(a)(2)(A) (fish or wildlife taken in violation of state or foreign law), substitute the following elements for the first and third elements, keeping the second element unchanged:
First, the defendant knew that the [fish] [wildlife] had been [taken] [possessed] [transported] [sold] in violation of or in a manner unlawful under any [state law] [state regulation] [foreign law] [foreign regulation];
Third, the defendant [imported] [exported] [transported] [sold] [received] [acquired] [purchased] in interstate or foreign commerce the [fish] [wildlife] by knowingly engaging in conduct that involved [[their sale] [their purchase] [the offer to sell them] [the offer to purchase them] [the intent to sell them] [the intent to purchase them]].
For an alleged violation of 16 U.S.C. § 3372(a)(2)(B) (plants taken in violation of state or foreign law), substitute the following elements for the first and third elements, keeping the second element unchanged:
First, the defendant knew that the plants had been [taken] [possessed] [transported] [sold] in violation of or in a manner unlawful under any [state law] [state regulation] [foreign law] [foreign regulation] that [protects plants] [[regulates [the theft of plants] [the taking of plants from a park, forest reserve, or other officially protected area] [the taking of plants without, or contrary to, required authorization]] [without the payment of appropriate royalties, taxes, or stumpage fees required for the plant by any law or regulation of any state or any foreign law or regulation] [in violation of any limitation under any law or regulation of any state, or under any foreign law or regulation, governing the export or transshipment of plants];
Third, the defendant [imported] [exported] [transported] [sold] [received] [acquired] [purchased] the plants in interstate or foreign commerce by knowingly engaging in conduct that involved the [sale] [purchase] [offer of sale] [offer to purchase] [intent to sell] [intent to purchase] the plants.
For an alleged violation of 16 U.S.C. § 3372(a)(3)(A) (fish or wildlife in special U.S. jurisdiction), substitute the following elements:
First, the defendant knew that the [fish] [wildlife] had been [taken] [possessed] [transported] [sold] in violation of or in a manner unlawful under any [state law] [state regulation] [foreign law] [foreign regulation] [tribal law];
Second, the market value of the [fish] [wildlife] actually [taken] [possessed] [transported] [sold] exceeded $350;
Third, the defendant, while within the special maritime and territorial jurisdiction of the United States, possessed [fish] [wildlife], knowing that it had been [taken] [possessed] [transported] [sold] in violation of any [state law] [state regulation] [foreign law] [foreign regulation] [tribal law]; and
Fourth, while possessing the [fish] [wildlife] within the special maritime and territorial jurisdiction of the United States, the defendant knowingly engaged in conduct that involved [its sale or purchase] [the offer to sell or purchase it] [the intent to sell or purchase it].
For an alleged violation of 16 U.S.C. § 3372(a)(3)(B) (plants in special maritime jurisdiction), substitute the following elements:
First, the defendant knew that the plants had been [taken] [possessed] [transported] [sold] in violation of or in a manner unlawful under any [state law] [state regulation] [foreign law] [foreign regulation] that [protects plants] [[regulates [the theft of plants] [the taking of plants from a park, forest reserve, or other officially protected area] [the taking of plants without, or contrary to, required authorization]] [without the payment of appropriate royalties, taxes, or stumpage fees required for the plant by any law or regulation of any state or any foreign law or regulation] [in violation of any limitation under any law or regulation of any state, or under any foreign law or regulation, governing the export or transshipment of plants];
Second, the market value of the plants actually [taken] [possessed] [transported] [sold] exceeded $350;
Third, the defendant, while within the special maritime and territorial jurisdiction of the United States, possessed plants, knowing that they had been [taken] [possessed] [transported] [sold] in violation of any [state law] [state regulation] [foreign law] [foreign regulation] that [protects plants] [[regulates [the theft of plants] [the taking of plants from a park, forest reserve, or other officially protected area] [the taking of plants without, or contrary to, required authorization]] [without the payment of appropriate royalties, taxes, or stumpage fees required for the plant by any law or regulation of any state or any foreign law or regulation] [in violation of any limitation under any law or regulation of any state, or under any foreign law or regulation, governing the export or transshipment of plants]; and
Fourth, while possessing the plants within the special maritime and territorial jurisdiction of the United States, the defendant knowingly engaged in conduct that involved [their sale or purchase] [the offer to sell or purchase them] [the intent to sell or purchase them].
Normally, a specific definition of market value will not be necessary. If, however, if special circumstances arise in which a definition would be appropriate under the facts of the case, the judge might consult United States v. Stenberg, 803 F.2d 422, 432-33 (9th Cir. 1986). When the case involves purchases made by government agents it is advisable to instruct the jury that the price paid by the government agent is not conclusive evidence of the market value; market value is the price a piece of property would bring if sold on the open market between a willing buyer and seller. Id.; see also United States v. Atkinson, 966 F.2d 1270, 1273 (9th Cir. 1992) (noting that proper method for valuing game under 16 U.S.C. § 3372(c) on guided hunt is value of offer to provide services).
See United States v. Senchenko, 133 F.3d 1153, 1156 (9th Cir. 1998) (permissible to infer commercial intent on facts presented).
“‘[S]ale’ for purposes of 16 U.S.C. § 3373(d)(1)(B) includes both the agreement to receive consideration for guiding or outfitting services and the actual provision of such guiding or outfitting services.” United States v. Fejes, 232 F.3d 696, 701 (9th Cir. 2000).
The defendant is charged in [Count _______ of] the indictment with violating Sections 3372 and 3373 of Title 16 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 [[imported] [exported] [transported] [sold] [received] [acquired] [purchased]] [[fish] [wildlife] [plants]]; and
Second, the defendant in the exercise of due care should have known that the [fish] [wildlife] [plants] had been [taken] [possessed] [transported] [sold] in violation of or in a manner unlawful under [United States Law] [United States regulations] [United States treaties] [tribal law].
A defendant acts knowingly if [he] [she] is aware of the act and does not act through ignorance, mistake, or accident. You may consider evidence of the defendant's words, acts, or omissions, along with all the other evidence, in deciding whether the defendant acted knowingly.
Due care means that degree of care that a reasonably prudent person would exercise under the same or similar circumstances.
Comment
This instruction is for use in any case involving a violation of 16 U.S.C. § 3373(d)(2), a misdemeanor. See United States v. Hansen–Sturm, 44 F.3d 793, 794 (9th Cir. 1995) (describing violation as a lesser included offense of felony provisions of Lacey Act). Liability is premised on a finding of a violation of one of the subsections of 16 U.S.C. § 3372. For violations of § 3373(d)(1)(A), see Instruction 24.22. For violations of §3373(d)(1)(B), see Instruction 24.23. For violations of § 3373(d)(3), see Instruction 24.25.
When a violation of 16 U.S.C. § 3372(a)(1) (U.S. Laws, Treaties) is alleged, use this instruction without change. For offenses under subsections (a)(2) and (a)(3) of § 3372, the elements of the instruction should be modified as shown below.
For an alleged violation of 16 U.S.C. § 3372(a)(2)(A) (fish or wildlife taken in violation of state or foreign law), substitute the following elements:
First, the defendant knowingly [[imported] [exported] [transported] [sold] [received] [acquired] [purchased]] [[fish] [wildlife]] in interstate or foreign commerce; and
Second, the defendant in the exercise of due care should have known that the [fish] [wildlife] had been [taken] [possessed] [transported] [sold] in violation of or in a manner unlawful under any [state law] [state regulation] [foreign law] [foreign regulation].
For an alleged violation of 16 U.S.C. § 3372(a)(2)(B) (plants taken in violation of state or foreign law), substitute the following elements:
First, the defendant knowingly [imported] [exported] [transported] [sold] [received] [acquired] [purchased] plants in interstate or foreign commerce; and
Second, the defendant in the exercise of due care should have known that the plants had been [taken] [possessed] [transported] [sold] in violation of or in a manner unlawful under any [state law] [state regulation] [foreign law] [foreign regulation] that [protects plants] [[regulates [the theft of plants] [the taking of plants from a park, forest reserve, or other officially protected area] [the taking of plants without, or contrary to, required authorization]] [without the payment of appropriate royalties, taxes, or stumpage fees required for the plant by any law or regulation of any state or any foreign law or regulation] [in violation of any limitation under any law or regulation of any state, or under any foreign law or regulation, governing the export or transshipment of plants].
For an alleged violation of 16 U.S.C. § 3372(a)(3)(A) (fish or wildlife in special U.S. jurisdiction), substitute the following elements:
First, while within the special maritime and territorial jurisdiction of the United States, the defendant knowingly possessed [fish] [wildlife] which had been [taken] [possessed] [transported] [sold] in violation of or in a manner unlawful under any [state law] [state regulation] [foreign law] [foreign regulation] [tribal law]; and
Second, with the exercise of due care the defendant should have known that the [fish] [wildlife] had been [taken] [possessed] [transported] [sold] in violation of or in a manner unlawful under any [state law] [state regulation] [foreign law] [foreign regulation] [tribal law].
For an alleged violation of 16 U.S.C. § 3372(a)(3)(B) (plants in special U.S. jurisdiction), substitute the following elements:
First, while within the special maritime and territorial jurisdiction of the United States, the defendant knowingly possessed plants which had been [taken] [possessed] [transported] [sold] in violation of or in a manner unlawful under any [state law] [state regulation] [foreign law] [foreign regulation] that [protects plants] [[regulates [the theft of plants] [the taking of plants from a park, forest reserve, or other officially protected area] [the taking of plants without, or contrary to, required authorization]] [without the payment of appropriate royalties, taxes, or stumpage fees required for the plant by any law or regulation of any state or any foreign law or regulation] [in violation of any limitation under any law or regulation of any state, or under any foreign law or regulation, governing the export or transshipment of plants; and
Second, with the exercise of due care the defendant should have known that the plants had been [taken] [possessed] [transported] [sold] in violation of or in a manner unlawful under any [state law] [state regulation] [foreign law] [foreign regulation] that [protects plants] [[regulates [the theft of plants] [the taking of plants from a park, forest reserve, or other officially protected area] [the taking of plants without, or contrary to, required authorization]] [without the payment of appropriate royalties, taxes, or stumpage fees required for the plant by any law or regulation of any state or any foreign law or regulation] [in violation of any limitation under any law or regulation of any state, or under any foreign law or regulation, governing the export or transshipment of plants].
For a discussion of due care, see United States v. Thomas, 887 F.2d 1341, 1346 (9th Cir. 1989).
The defendant is charged in [Count _______ of] the indictment with violating Sections 3372 and 3373 of Title 16 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 [made] [submitted] a false [[record concerning] [account concerning] [label for] [identification of]] [[fish] [wildlife] [plants]]; [and]
Second, the [[fish] [wildlife] [plants]] [[had been] [were intended to be]] [[imported] [exported] [transported] [sold] [purchased] [received] from a foreign country] [transported in interstate or foreign commerce] [; and]
[Third, the defendant’s [making of] [submission of] a false [[record concerning] [account concerning] [label for] [identification of]] [[fish] [wildlife] [plants]] involved the [sale or purchase of] [offer of sale or purchase of] [commission of an act with intent to sell or purchase] the [fish] [wildlife] [plants] with a market value greater than $350].
A defendant acts knowingly if [he] [she] is aware of the act and does not act through ignorance, mistake, or accident. You may consider evidence of the defendant’s words, acts, or omissions, along with all the other evidence, in deciding whether the defendant acted knowingly.
Comment
This instruction is for use in any case involving a violation of 16 U.S.C. § 3373(d)(3). Under that section of the Lacey Act, criminal liability is premised on a finding of a violation of 16 U.S.C. § 3372(d) (false labeling).
The third element should be added only if the defendant is accused of violating 16 U.S.C. § 3373(d)(3)(A)(ii). If the jury finds the government proved only the first and second elements, the defendant may be found guilty of 16 U.S.C. § 3373(d)(3)(A)(I) (felony importation of fish, wildlife or plants) or of 16 U.S.C. § 3373(d)(3)(B) (misdemeanor false labeling).
The scienter required for conviction under 16 U.S.C. § 3373(d)(3) requires the defendant “knowingly” violate 16 U.S.C. § 3372(d) prohibiting making or submitting a false label.
See Comment to Instruction 24.23 (Lacey Act—Commercial Activity in Illegally Taken Fish, Wildlife, or Plants) concerning the need for an instruction concerning a definition of “market value.”
For a definition of interstate commerce or foreign commerce, see 18 U.S.C. § 10.
The defendant is charged in [Count ______ of] the indictment with [soliciting] [receiving] kickbacks in connection with [Medicare] [federal health care program] payments in violation of Section 1320a-7b(b)(1)(A) of Title 42 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 [[solicited] [received]] [specify remuneration alleged];
Second, the [specify remuneration alleged] was [solicited] [paid] and at least one purpose of the payment was to [induce] [and] [or] [in exchange for] the referral of a patient insured by [Medicare] [specify federal health care program] for [furnishing] [arranging for the furnishing] of an item or service; [and]
Third, the patient’s items or services [furnished] [arranged to be furnished] were covered, in whole or in part, by [Medicare] [specify federal health care program]; [and]
[Fourth, [Medicare] [specify federal health care program] is a federal health care program.]
Comment
This instruction is largely based on the Eighth Circuit’s Model Criminal Instruction 6.42.1320, as modified per the Ninth Circuit’s decision in United States v. Hong, 938 F.3d 1040, 1048-49 (9th Cir. 2019).
Revised March 2023
The defendant is charged in [Count _______ of] the indictment with making a False Bank Entry, in violation of Section 1005 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, on or about the date charged in the indictment, the defendant [made a material false entry in the books or records of a bank] [caused a material false entry to be made in the books or records of a bank];
Second, the bank was [a Federal Reserve bank] [insured by the Federal Deposit Insurance Corporation (FDIC)] [specific other covered bank];
Third, the defendant knew the entry was false when it was made; and
Fourth, the defendant intended that the false entry injure or defraud the bank, or any individual person, or deceive any officer of a bank, or the Federal Deposit Insurance Corporation (FDIC), or any agent or examiner appointed to examine the affairs of a bank.
An entry in the books or records of a bank is false if it represents what is not true or does not exist. For purposes of this crime, an entry can be false if it omits, or leaves out, material information necessary to make what is stated or included in that entry not misleading or deceptive.
Comment
The common law test for materiality is the standard to use when false statement statutes, such as 18 U.S.C. § 1005, are charged. See United States v. Peterson, 538 F.3d 1064, 1072 (9th Cir. 2008) (citing United States v. Gaudin, 515 U.S. 506, 509 (1995)). That test is whether the statement has a “natural tendency to influence, or was capable of influencing, the decision of the decisionmaking body to which it was addressed.” Kungys v. United States, 485 U.S. 759, 770 (1988) (quoting Weinstock v. United States, 231 F.2d 699, 701-02 (D.C. Cir. 1956)). “The false statement need not have actually influenced the agency, and the agency need not rely on the information in fact for it to be material.” United States v. Serv. Deli Inc., 151 F.3d 938, 941 (9th Cir. 1998); see also United States v. King, 735 F.3d 1098, 1108 (9th Cir. 2013).
Materiality must be demonstrated by the government, United States v. Oren, 893 F.2d 1057, 1063 (9th Cir. 1990); United States v. Talkington, 589 F.2d 415, 416 (9th Cir. 1978), and must be submitted to the jury. Gaudin, 515 U.S. at 506. The materiality test applies to each allegedly false statement submitted to the jury. Id.
Material omissions are false statements for the purposes of § 1005. United States v. Tat, 15 F.4th 1248, 1251 (9th Cir. 2021). “[T]hat an accurately recorded bank transaction has a nexus to unlawful activity does not, standing alone, make all entries related to that transaction ‘false’ within the meaning of § 1005.” Id. at 1252. “Accurate records reflecting a customer’s purchase of a cashier’s check from her bank account are not false entries under § 1005 solely because that check has a nexus to money laundering.” Id. at 1253. However, an entry is false if it lists a fictitious payee. Id.
Depending on the evidence, it may be appropriate to amend this instruction with language requiring specific jury unanimity (e.g., “with all of you agreeing as to which statement was false and material”). See Instruction 6.27 (Specific Issue Unanimity).
In United States v. Yates, 16 F.4th 256 (9th Cir. 2021), the Ninth Circuit explained that an entry is false if it represents what is not true or does not exist. Conversely, the offense of false entry is not committed when the transaction entered actually took place and is entered exactly as it occurred. That is so even though it is a part of a fraudulent or otherwise illegal scheme. Id. at 272. The Ninth Circuit added that an entry is false, for purposes of § 1005, if it omits material information or vital facts requested by a bank or regulator, even if the entry, on its face, is literally true. Id. Further, an entry is false if it records a transaction that is itself false and fictitious, concocted for the very purpose of distorting a financial statement—as opposed to a transaction that is merely a part of some broader fraudulent or illegal scheme. Id.
The defendant is charged in [Count _______ of] the indictment with forced labor in violation of Section 1589(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 [provided] [obtained] the labor or services of another person; and
Second, that the defendant did so through at least one of the following prohibited means:
a. force, threat of force, physical restraint, or threats of physical restraint to that person or another person;
b. serious harm or threats of serious harm to that person;
c. the abuse or threatened abuse of law or legal process; or
d. a scheme, plan or pattern intended to cause the person to believe that if that person did not perform such labor or services that person or another person would suffer serious harm or physical restraint; and
Third, that the defendant acted knowingly.
Jurors do not need to agree unanimously on which of the prohibited means the defendant did.
Comment
See United States v. Barai, 55 F.4th 1245, 1249–53 (9th Cir. 2022) (affirming district court’s use of substantially similar jury instruction).
The listed alternatives in 18 U.S.C. § 1589(a) are factual means, rather than distinct legal elements. Barai, 55 F.4th at 1250. Therefore, a jury need not be unanimous as to which of the four prohibited means in § 1589(a) the defendant used to compel forced labor. See id. at 1250, 1253; see also United States v. Mickey, 897 F.3d 1173, 1181 (9th Cir. 2018) (“‘[E]lements [are] those circumstances on which the jury must unanimously agree, while . . . means [are] those circumstances on which the jury may disagree yet still convict.’” (quoting Rendon v. Holder, 764 F.3d 1077, 1086 (9th Cir. 2014)).
To demonstrate scienter under § 1589(a), the government must show that the defendant “‘knowingly . . . obtain[ed] the labor or services” of the employee ‘by means of’ one of the four statutorily enumerated methods.” Martinez-Rodriguez v. Giles, 31 F.4th 1139, 1156 (9th Cir. 2022) (quoting 18 U.S.C. § 1589(a)); see also Barai, 55 F.4th at 1252 (“[T]he forced labor statute expressly defines the mens rea element: ‘knowingly.’”). “The scienter element requires proof that the defendant knew (1) that the enumerated ‘circumstance existed’ and (2) that the defendant was obtaining the labor in question as a result.” Martinez-Rodriguez, 31 F.4th at 1156.
24.29 Receiving the Proceeds of Extortion
(18 U.S.C. § 880)
The defendant is charged in [Count _______ of] the indictment with [[receiving] [possessing] [concealing] [disposing of]] the proceeds of extortion in violation of Section 880 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 [[received] [possessed] [concealed] [disposed of]] [[money] [property]];
Second, the [[money] [property]] was obtained from [specify threat or extortion-related criminal activity violating 18 U.S.C. Chapter 41]; and
Third, the defendant knew the [[money] [property]] had been unlawfully obtained.
Comment
See United States v. Lemus, 93 F.4th 1255, 1258-61 (9th Cir. 2024) (affirming district court’s use of substantially similar jury instruction).
“To violate § 880, the money at issue must have been obtained from threats or extortion-related offenses. The term [in § 880] ‘any offense under this chapter’ refers to violations of Chapter 41 of Title 18 . . . .” Lemus, 93 F.4th at 1257.
To establish knowledge under the third element, the government need only prove that the defendant possessed knowledge that the money or property at issue was “unlawfully obtained.” Lemus, 93 F.4th at 1258-59. “Specific knowledge of the money’s origin as proceeds of extortion or threats is unnecessary.” Id. at 1259.
Links
[1] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/_WPD/24.1_criminal_rev_3_2022.docx
[2] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/_WPD/24.2_criminal_rev_5_2023.docx
[3] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/_WPD/24.3_criminal_rev_3_2022_0.docx
[4] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/_WPD/24.4_criminal_rev_3_2022_0.docx
[5] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/_WPD/24.5_criminal_rev_5_2023.docx
[6] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/_WPD/24.6_criminal_rev_3_2022_0.docx
[7] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/_WPD/24.7_criminal_rev_3_2022.docx
[8] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/_WPD/24.8_criminal_rev_3_2022.docx
[9] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/_WPD/24.9_criminal_rev_3_2022.docx
[10] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/_WPD/24.10_criminal_rev_3_2024.docx
[11] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/_WPD/24.11_criminal_rev_3_2022.docx
[12] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/_WPD/24.12_criminal_rev_3_2022_0.docx
[13] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/_WPD/24.13_criminal_rev_3_2022_0.docx
[14] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/_WPD/24.14_criminal_rev_12_2023.docx
[15] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/_WPD/24.15_criminal_rev_3_2022.docx
[16] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/_WPD/24.16_criminal_rev_3_2022_0.docx
[17] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/_WPD/24.17_criminal_rev_3_2022.docx
[18] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/_WPD/24.18_criminal_rev_3_2022.docx
[19] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/_WPD/24.20_criminal_rev_3_2022.docx
[20] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/_WPD/24.21_criminal_rev_3_2022_0.docx
[21] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/_WPD/24.22_criminal_rev_3_2022_0.docx
[22] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/_WPD/24.23_criminal_rev_3_2022_0.docx
[23] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/_WPD/24.24_criminal_rev_3_2022_0.docx
[24] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/_WPD/24.25_criminal_rev_3_2022_0.docx
[25] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/_WPD/24.26_criminal_rev_3_2023.docx
[26] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/_WPD/24.27_criminal_rev_3_2022.docx
[27] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/_WPD/24.28_criminal_rev_3_2023.docx
[28] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/_WPD/24.29_criminal_6_2024.docx
