The defendant is charged in [Count _______ of] the indictment with [smuggling] [attempting to smuggle] in violation of Section 545 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 [smuggled] [attempted to smuggle] merchandise into the United States without declaring the merchandise for invoicing as required by United States Customs law;
Second, the defendant knew that the merchandise was of a type that should have been declared; [and]
Third, the defendant acted willfully with intent to defraud the United States[.] [; 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, 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
See Comment in Instruction 4.6 (Willfully).
This instruction may be used when the defendant is charged with the crime of smuggling goods or attempting to smuggle goods. The bracketed fourth element should be used when the defendant is charged with an attempt to smuggle goods.
This instruction relates to the first clause of the first paragraph of 18 U.S.C. § 545. If the charge is based on the second clause of the first paragraph, use Instruction 21.3 (Passing or Attempting to Pass False Papers Through Customhouse). Instructions 21.4 (Importing Merchandise Illegally) and 21.5 (Receiving, Concealing, Buying, or Selling Smuggled Merchandise) concern violations of the second paragraph of § 545.
See United States v. Garcia-Paz, 282 F.3d 1212, 1214-15 (9th Cir. 2002) (court properly instructed jury that marijuana constitutes “merchandise” for purposes of 18 U.S.C. § 545).
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 [smuggling] [attempting to smuggle] merchandise from the United States in violation of Section 554 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] [fraudulently]] [exported] [sent] [attempted to export] [attempted to send] from the United States merchandise [or received, concealed, bought, sold, or in any manner facilitated the transportation, concealment, or sale of such merchandise prior to exportation, knowing the same to be intended for exportation]; and
Second, the [exportation] [sending] was contrary to [describe applicable United States law(s) or regulation(s)]; and
Third, the defendant knew the [exportation] [sending] was contrary to law or regulation[.]; [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, 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.]
“Merchandise” means objects, items, goods, and wares of every description.
Comment
This instruction may be used when the defendant is charged under 18 U.S.C. § 554 with the crime of smuggling or attempting to smuggle goods from the United States. The bracketed fourth element should be used when the defendant is charged with an attempt to smuggle goods from the United States. See Comment to Instruction 21.1 (Smuggling or Attempting to Smuggle Goods).
To convict under 18 U.S.C. § 554, the government need only prove the defendant knew he or she was exporting merchandise that was unlawful to export, not that the defendant knew the nature of the merchandise. United States v. Rivero, 889 F.3d 618, 621-22 (9th Cir. 2018).
18 U.S.C. § 554 references “any merchandise, article, or object.” The definition of “merchandise” is found in 19 U.S.C. § 1401(c). See United States v. Garcia-Paz, 282 F.3d 1212, 1214 (9th Cir. 2002) (defining “merchandise” as “goods, wares and chattels of every description”).
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 [passing] [attempting to pass] a [[false] [forged] [fraudulent]] [specify writing] in violation of Section 545 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 [[passed] [attempted to pass]] [specify writing] through a customhouse of the United States;
Second, the defendant knew that the [specify writing] was [false] [forged] [fraudulent];
Third, the defendant acted willfully with intent to defraud the United States; [and]
Fourth, the [specify writing] had a natural tendency to influence, or was capable of influencing, action by the United States[.] [; and]
[Fifth, 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, 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
See Comment to Instruction 4.6 (Willfully).
This instruction may be used when the defendant is charged with the crime of passing false papers through a customhouse. The bracketed fifth element should be used when defendant is charged with an attempt to do so. For an attempt to commit 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. United States v. Hofus, 598 F.3d 1171, 1176 (9th Cir. 2010).
This instruction relates to the second clause of the first paragraph of 18 U.S.C. § 545. If the charge is based on the first clause of the first paragraph, use Instruction 21.1 (Smuggling or Attempting to Smuggle Goods). Instructions 21.4 (Importing Merchandise Illegally) and 21.5 (Receiving, Concealing, Buying, or Selling Smuggled Merchandise) concern violations of the second paragraph of § 545.
In Neder v. United States, 527 U.S. 1 (1999), the Court explained that materiality is a necessary aspect of the legal concept of fraud, which is incorporated into criminal statutes concerning fraud unless the statute says otherwise. Id. at 22-23 (holding materiality of falsehood must be proved in prosecution under bank, mail, and wire fraud statutes). 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).
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 [[fraudulently] [knowingly]] [[importing] [bringing]] into the United States merchandise in violation of Section 545 of the United States Code. For the defendant to be found guilty of that charge, the government must prove beyond a reasonable doubt that the defendant [[fraudulently] [knowingly]] [[imported] [brought]] merchandise into the United States contrary to [specify law].
Comment
This instruction deals with the first clause of the second paragraph of 18 U.S.C. § 545. If the charge is a violation of the second clause of the second paragraph, use Instruction 21.5 (Receiving, Concealing, Buying or Selling Smuggled Merchandise). Instructions 21.1 (Smuggling or Attempting to Smuggle Goods) and 21.3 (Passing or Attempting to Pass False Papers Through Customhouse) deal with violations of the first paragraph of § 545.
The term “law” in § 545 includes a regulation as well as a statute, but only when there is a statute that specifies that a violation of the regulation is a crime. United States v. Alghazouli, 517 F.3d 1179, 1183 (9th Cir. 2008).
See United States v. Garcia-Paz, 282 F.3d 1212, 1214-15 (9th Cir. 2002) (court properly instructed jury that marijuana constitutes “merchandise” for purposes of 18 U.S.C. § 545).
The defendant is charged in [Count _______ of] the indictment with [[receiving] [concealing] [buying] [selling] [facilitating [the transportation] [concealment] [sale] of]] smuggled merchandise in violation of Section 545 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, merchandise had been brought into the United States contrary to [specify law]; and
Second, the defendant [[received] [concealed] [bought] [sold] [facilitated the [transportation] [concealment] [sale] of] the merchandise knowing that it had been brought into the United States contrary to law.
Comment
This instruction relates to the second clause of the second paragraph of 18 U.S.C. § 545. If the charge is a violation of the first clause of the second paragraph, use Instruction 21.4 (Importing Merchandise Illegally). Instructions 21.1 (Smuggling or Attempting to Smuggle Goods) and 21.3 (Passing or Attempting to Pass False Papers Through Customhouse) deal with violations of the first paragraph of § 545.
The term “law” in § 545 includes a regulation as well as a statute, but only when there is a statute that specifies that a violation of the regulation is a crime. United States v. Alghazouli, 517 F.3d 1179, 1183 (9th Cir. 2008).
See United States v. Garcia-Paz, 282 F.3d 1212, 1214-15 (9th Cir. 2002) (court properly instructed jury that marijuana constitutes “merchandise” for purposes of 18 U.S.C. § 545).
Links
[1] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/_WPD/21.1_criminal_rev_5_2023.docx
[2] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/_WPD/21.2_criminal_rev_5_2023.docx
[3] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/_WPD/21.3_criminal_rev_5_2023.docx
[4] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/_WPD/21.4_criminal_rev_3_2022_0.docx
[5] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/_WPD/21.5_criminal_rev_3_2022_0.docx