The defendant is charged in [Count _______ of] the indictment with violating Section 1952(a)(3) of Title 18 of the United States Code.  For the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt: 

            First, the defendant [traveled in interstate or foreign commerce] [used the mail] [used [specify facility] in interstate or foreign commerce] with the intent to [[promote, manage, establish, or carry on] [facilitate the promotion, management, establishment, or carrying on of]] [specify unlawful activity];and 

            Second, after doing so the defendant [performed [specify act]] [attempted to perform [specify act]][.] [; and] 

            [Third, 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 demonstrate that the crime will take place unless interrupted by independent circumstances.  Mere preparation is not a substantial step toward committing the crime.

            Jurors do not need to agree unanimously as to which particular act or actions constituted a substantial step toward the commission of a crime.] 

Comment 

            In United States v. Nader, 542 F.3d 713, 722 (9th Cir. 2008), the Ninth Circuit held that telephone calls that were entirely intrastate in nature and were made using a facility in interstate commerce were adequate to support the conviction. 

            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 [conducting] [financing] [managing] [supervising] [directing] [owning] an illegal gambling business in violation of Section 1955 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 [conducted] [financed] [managed] [supervised] [directed] [owned] a business consisting of [specify illegal gambling business]; 

            Second, [specify illegal gambling business] is illegal gambling in [specify state or political subdivision]; 

            Third, the business involved five or more persons who [conducted] [financed] [managed] [supervised] [directed] [owned] all or part of the business; and 

            Fourth, the business [had been in substantially continuous operation by five or more persons for more than thirty days] [had a gross revenue of $2,000 in any single day]. 

Comment 

            Where jurors could find from the evidence two separate thirty-day periods, the jury must be instructed that they must unanimously agree on the same period.  United States v. Gilley, 836 F.2d 1206, 1211-12 (9th Cir. 1988). 

Revised June 2021

                       The defendant is charged in [Count _______ of] the indictment with [conducting] [attempting to conduct] a financial transaction to promote [unlawful activity] in violation of Section 1956(a)(1)(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 [conducted] [intended to conduct] a financial transaction involving property that represented the proceeds of [specify prior, separate criminal activity]; 

            Second, the defendant knew that the property represented the proceeds of some form of unlawful activity; [and] 

            Third, the defendant acted with the intent to promote the carrying on of [specify unlawful activity being promoted] [.] [; 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.] 

            A financial transaction is a transaction involving [the movement of funds by wire or other means that] [one or more monetary instruments that] [the use of a financial institution that is engaged in, or the activities of which] affect[s] interstate or foreign commerce in any way. 

The phrase “knew that the property represented the proceeds of some form of unlawful activity” means that the defendant knew that the property involved in the transaction represented proceeds from some form, though not necessarily which form, of activity that constitutes a felony.  I instruct you that [specify relevant unlawful activity] is a felony. 

Comment 

            See United States v. Sayakhom,186 F.3d 928, 940 (9th Cir. 1999), approving a similar version of this instruction. 

            For cases involving conduct on or after May 20, 2009, “proceeds” means “any property derived from or obtained or retained, directly or indirectly, through some form of unlawful activity, including the gross receipts of such activity.”  18 U.S.C. § 1956(c)(9) (subsection (c)(9) was added by Pub. L. 111-21, 123 Stat. 1618).  For cases involving conduct prior to May 20, 2009, consider United States v. Santos, 553 U.S. 507, 513-14 (2008) (plurality opinion) (stating that when prior, separate criminal activity is gambling, “proceeds” must be defined as “profits”), and United States v. Van Alstyne, 584 F.3d 803, 814 (9th Cir. 2009) (“We therefore view the holding that commanded five votes in Santos as being that ‘proceeds’ means ‘profits’ where viewing ‘proceeds’ as ‘receipts’ would present a ‘merger’ problem of the kind that troubled the plurality and concurrence in Santos.”). 

            Because it is a specific intent crime, it is reversible error to give Instruction 4.8 (Knowingly) in a money laundering case.  United States v. Stein, 37 F.3d 1407, 1410 (9th Cir. 1994); see also United States v. Turman, 122 F.3d 1167, 1170 (9th Cir. 1997) (applying Stein retroactively). 

            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) (internal quotations omitted).  

            The “strongly corroborated” language in this instruction comes from United States v. Snell, 627 F.2d 186, 187 (9th Cir. 1980) (“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 [transporting] [attempting to transport] funds to promote unlawful activity in violation of Section 1956(a)(2)(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 [transported] [intended to transport] money [from a place in the United States to or through a place outside the United States] [to a place in the United States from or through a place outside the United States]; [and] 

            Second, the defendant acted with the intent to promote the carrying on of [specify criminal activity charged in the indictment] [.] [; and] 

            [Third, 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 

            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 [transporting] [attempting to transport] money for the purpose of laundering in violation of Section 1956(a)(2)(B) of Title 18 of the United States Code.  For the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt: 

            First, the defendant [transported] [intended to transport] money [from a place in the United States to or through a place outside the United States] [to a place in the United States from or through a place outside the United States]; 

            Second, the defendant knew that the money represents the proceeds of some form of unlawful activity; [and] 

            Third, the defendant knew the transportation was designed in whole or in part [to conceal or disguise the [nature] [location] [source] [ownership] [control] of the proceeds of [specify criminal activity charged in the indictment]] [to avoid a transaction reporting requirement under state or federal law] [.] [; 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 of transporting money for the purpose of laundering. 

            Jurors do not need to agree unanimously as to which particular act or actions constituted a substantial step toward the commission of a crime.] 

            [The laws of the [United States] [State of _______] require the reporting of [reporting requirement].] 

Comment 

            For cases involving conduct on or after May 20, 2009, “proceeds” means “any property derived from or obtained or retained, directly or indirectly, through some form of unlawful activity, including the gross receipts of such activity.”  18 U.S.C. § 1956(c)(9) (subsection (c)(9) was added by Pub. L. 111-21, 123 Stat. 1618). 

            For cases involving conduct before May 20, 2009, consider United States v. Santos, 553 U.S. 507, 513-14 (2008) (plurality opinion) (discussing where the prior, separate criminal activity is gambling, “proceeds” must be defined as “profits.”), and United States v. Van Alstyne, 584 F.3d 803, 814 (9th Cir. 2009) (“We therefore view the holding that commanded five votes in Santos as being that ‘proceeds’ means ‘profits’ where viewing ‘proceeds’ as ‘receipts’ would present a ‘merger’ problem of the kind that troubled the plurality and concurrence in Santos.”).  See also United States v. Phillips, 704 F.3d 754 (9th Cir. 2012) (stating when money laundering activity did not further predicate criminal scheme or occur during normal course of running scheme, “proceeds” were correctly defined as “gross receipts” under 18 U.S.C. § 1957); United States v. Webster, 623 F.3d 901, 906 (9th Cir. 2010) (reading Santos as holding that when money laundering count is based on transfers among co-conspirators of money from sale of drugs, “proceeds” includes all “receipts” from such sales). 

            Because it is a specific intent crime, it is reversible error to give Instruction 4.8 (Knowingly) in a money laundering case.  United States v. Stein, 37 F.3d 1407, 1410 (9th Cir. 1994).  See also United States v. Turman, 122 F.3d 1167, 1169 (9th Cir. 1997) (applying Stein retroactively). 

            The elements of this instruction follow the language of the statute, although in most cases the crime described in each element would be the same.  See United States v. Jenkins, 633 F.3d 788, 806-07 (9th Cir. 2011). 

            With respect to the third element of the instruction, see Cuellar v. United States, 553 U.S. 550, 561-68 (2008) (evidence of how money was moved insufficient to prove knowledge). 

            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) (internal quotations omitted).  

            The “strongly corroborated” language in this instruction comes from United States v. Snell, 627 F.2d 186, 187 (9th Cir. 1980) (“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 money laundering in violation of Section 1957 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 engaged or attempted to engage in a monetary transaction; 

            Second, the defendant knew the transaction involved criminally derived property; 

            Third, the property had a value greater than $10,000; 

            Fourth, the property was, in fact, derived from [describe the specified unlawful activity alleged in the indictment]; and 

            Fifth, the transaction occurred [[in the [United States] [special maritime and territorial jurisdiction of the United States]] [specify defendant’s status which qualifies under 18 U.S.C. § 1957(d)(2)]. 

            The term “monetary transaction” means the [deposit] [withdrawal] [transfer] [exchange], in or affecting interstate commerce, of funds or a monetary instrument by, through, or to a financial institution.  [The term “monetary transaction” does not include any transaction necessary to preserve a person’s right to representation as guaranteed by the Sixth Amendment to the Constitution.] 

            The term “financial institution” means [identify type of institution listed in 31 U.S.C. § 5312 as alleged in the indictment]. 

            The term “criminally derived property” means any property constituting, or derived from, the proceeds obtained from a criminal offense.  The government must prove that the defendant knew that the property involved in the monetary transaction constituted, or was derived from, proceeds obtained by some criminal offense.  The government does not have to prove that the defendant knew the precise nature of that criminal offense, or knew the property involved in the transaction represented the proceeds of [specified unlawful activity as alleged in the indictment]. 

            Although the government must prove that, of the property at issue, more than $10,000 was criminally derived, the government does not have to prove that all the property at issue was criminally derived. 

Comment 

            The above definition of “criminally derived property” refers to the “proceeds” of a criminal offense.  For cases involving conduct on or after May 20, 2009, “proceeds” means “any property derived from or obtained or retained, directly or indirectly, through some form of unlawful activity, including the gross receipts of such activity.”  18 U.S.C. § 1957(f)(3); 18 U.S.C. § 1956(c)(9) (Section 1957 subsection (f)(3) was modified by Pub. L. 111-21, 123 Stat. 1618, which also added § 1956 subsection (c)(9)).  For cases involving conduct before May 20, 2009, “proceeds” means “gross receipts” unless the money laundering transactions were a “central component” of the criminal scheme.  United States v. Phillips, 704 F.3d 754, 765-66 (9th Cir. 2012); see also United States v. Van Alstyne, 584 F.3d 803, 814 (9th Cir. 2009) (stating that when defining “proceeds” as “receipts” would present a merger problem, “proceeds” means “profits”);  Instruction 18.6 (Transporting or Attempting to Transport Monetary Instruments for the Purpose of Laundering (18 U.S.C. § 1956(a)(2)(B))). 

            The term “specified unlawful activity” in 18 U.S.C. § 1957 has the same meaning as that term is given in 18 U.S.C. § 1956.  See 18 U.S.C. § 1957(f)(3).  In § 1956(c)(7)(B)(iv), the “specified unlawful activity” of bribery of a public official “should be interpreted to take the ordinary, contemporary, common meaning” of that phrase at the time Congress enacted the statute.  See United States v. Chi, 936 F.3d 888, 893-97 (9th Cir. 2019) (applying term “bribery of a public official” to include bribery under foreign law and not restricted to federal bribery statute, 18 U.S.C. § 201, or foreign law that mirrors federal bribery statute). 

Because it is a specific intent crime, it is reversible error to give Instruction 4.8 (Knowingly) in a money laundering case in a manner that indicates the defendant need not know that the money being laundered was proceeds of criminal transactions.  United States v. Stein, 37 F.3d 1407, 1410 (9th Cir. 1994); see also United States v. Turman, 122 F.3d 1167, 1169 (9th Cir. 1997) (applying Stein retroactively), abrogated on other grounds by Henderson v. United States, 568 U.S. 266 (2013).  But see United States v. Lonich, 23 F.4th 881, 899-901 (9th Cir. 2022) (concluding district court did not err by using general “knowingly” instruction in money laundering case because district court modified instruction to clarify that it applies only to act of engaging in monetary transactions); see also United States v. Jaimez, 45 F.4th 1118, 1123 (9th Cir. 2022). 

Revised Sept. 2022

18.7A Money Laundering Conspiracy

(18 U.S.C. § 1956(h))

The defendant is charged in [Count of] the indictment with money laundering conspiracy in violation of Section 1956(h) 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, there was an agreement to commit money laundering;

Second, the defendant knew the objective of the agreement;

Third, the defendant joined the agreement with the intent to further its unlawful purpose.

Comment

The above elements were set out in United States Jaimez,45 F.4th 1118, 1123 (9th Cir. 2022).  See also United States Collazo, 984 F.3d 1308, 1319 (9th Cir. 2021) (en banc).  See United States v. Kimbrew, 406 F.3d 1149, 1152 (9th Cir. 2005), and United States v. Alghazouli, 517 F.3d 1179, 1189 (9th Cir. 2008), regarding element one.  See United States v. Moreland, 622 F.3d 1147, 1169 (9th Cir. 2010), regarding element two.

            The defendant is charged in Count _______ of the indictment with [committing] [threatening to commit] [attempting to commit] [conspiring to commit] a crime of violence, specifically, [specify crime of violence] in aid of a racketeering enterprise in violation of Section 1959 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 time period described in Count _______, an enterprise affecting interstate commerce existed; 

            Second, the enterprise engaged in racketeering activity; 

            Third, the defendant [committed] [threatened to commit] [attempted to commit] [conspired to commit] the following crime of violence:  [specify crime of violence] as defined in [specify jury instruction stating all elements of predicate crime of violence]; [and] 

            Fourth, the defendant’s purpose in [[committing] [threatening to commit] [attempting to commit] [conspiring to commit]] [specify crime of violence] was to gain entrance to, or to maintain, or to increase [his] [her] position in the enterprise[.] [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 

            Use this instruction in conjunction with Instructions 18.9 (Racketeering Enterprise—Enterprise Affecting Interstate Commerce—Defined), 18.10 (Racketeering Activity—Defined), 18.11 (Racketeering Enterprise—Proof of Purpose); and an instruction setting forth the elements of the predicate crime of violence.  When the charge alleges an attempt or conspiracy to commit a crime of violence, include an appropriate instruction as to attempt or conspiracy.  See Instruction 4.4 (Attempt) and Instruction 11.1 (Conspiracy—Elements). 

            In United States v. Banks, 514 F.3d 959, 964 (9th Cir. 2008), the Ninth Circuit summarized existing case law that identified the four elements necessary for a conviction of committing violent crimes in aid of racketeering activity (VICAR): 

The VICAR statute provides that "[w]hoever, . . . for the purpose of gaining entrance to or maintaining or increasing position in an enterprise engaged in racketeering activity, murders [or] . . . assaults with a dangerous weapon . . . in violation of the laws of any State or the United States, or attempts or conspires so to do, shall be punished.’"18 U.S.C. § 1959(a) (emphasis added).  In our prior decisions we have identified four elements required for a conviction under this statute: "(1) that the criminal organization exists; (2) that the organization is a racketeering enterprise; (3) that the defendant [ ] committed a violent crime; and (4) that [the defendant] acted for the purpose of promoting [his] position in a racketeering enterprise." United States v. Bracy, 67 F.3d 1421, 1429 (9th Cir. 1995); see also United States v. Fernandez, 388 F.3d 1199, 1220 (9th Cir. 2004). 

            The third element identified in Banks and listed in Instruction 18.8 “incorporates the elements of the relevant predicate violation.” United States v. Elmore, 118 F.4th 1193, 1199 (9th Cir. 2024). In Elmore, the Ninth Circuit held that the VICAR statute is divisible. 118 F.4th at 1199-1200. Therefore, when considering whether a charged or convicted VICAR offense qualifies as a predicate crime of violence under 18 U.S.C. § 924(c)(3)(A), courts employ a “modified categorical approach” and determine whether the VICAR offense charged or convicted “has as an element the use, attempted use, or threatened use of physical force against the person or property of another.” Id. at 1201-02 (quoting § 924(c)(3)(A)).         

            In United States v. Houston,648 F.3d 806, 819-20 (9th Cir. 2011), the Ninth Circuit held it was not error to refuse to instruct on second degree murder as a lesser predicate to VICAR first degree murder. 

            A charge under § 1959 also applies to violent crimes committed “as consideration for the receipt of, or as consideration for a promise or agreement to pay, anything of pecuniary value from an enterprise engaged in racketeering activity.”  18 U.S.C. § 1957(f)(3); 18 U.S.C. § 1956(c)(9) (Section 1957 subsection (f)(3) was modified by Pub. L. 111-21, 123 Stat. 1618, which also added § 1956 subsection (c)(9)).  For cases involving conduct prior to May 20, 2009, “proceeds” means “gross receipts” unless the money laundering transactions were a “central component” of the criminal scheme.  United States v. Phillips, 704 F.3d 754, 765-66 (9th Cir. 2012); see also United States v. Van Alstyne, 584 F.3d 803, 814 (9th Cir. 2009) (when defining “proceeds” as “receipts” would present a merger problem, “proceeds” means “profits”);  see Instruction 18.6 (Transporting or Attempting to Transport Monetary Instruments for the Purpose of Laundering (18 U.S.C. § 1956(a)(2)(B))). 

            The term “specified unlawful activity” in 18 U.S.C. § 1957 has the same meaning as that term is given in 18 U.S.C. § 1956.  See 18 U.S.C. § 1957(f)(3).  In § 1956(c)(7)(B)(iv), the “specified unlawful activity” of bribery of a public official “should be interpreted to take the ordinary, contemporary, common meaning” of that phrase at the time Congress enacted the statute.  See United States v. Chi, 936 F.3d 888, 893-97 (9th Cir. 2019) (applying term “bribery of a public official” to include bribery under foreign law and not restricted to federal bribery statute, 18 U.S.C. § 201, or foreign law that mirrors federal bribery statute). 

Revised November 2024

            With respect to the first element in Instruction _______ [insert cross reference to pertinent instruction, e.g., Instruction 18.8], the government must prove that an “enterprise” existed that was engaged in or had an effect on interstate commerce.  An enterprise is a group of people who have associated together for a common purpose of engaging in a course of conduct over a period of time.  This group of people, in addition to having a common purpose, must have an ongoing organization, either formal or informal.  The personnel of the enterprise, however, may change and need not be associated with the enterprise for the entire period alleged in the indictment.  This group of people does not have to be a legally recognized entity, such as a partnership or corporation.  This group may be organized for a legitimate and lawful purpose, or it may be organized for an unlawful purpose.  [The name of the organization itself is not an element of the offense and does not have to be proved.] 

            Therefore, the government must prove beyond a reasonable doubt that this was a group of people (1) associated for a common purpose of engaging in a course of conduct; (2) that the association of these people was an ongoing formal or informal organization, and (3) the group was engaged in or had an effect upon interstate or foreign commerce.  The government need not prove that the enterprise had any particular organizational structure. 

            Interstate commerce includes the movement of goods, services, money, and individuals between states.  These goods can be legal or illegal.  Only a minimal effect on commerce is required and the effect need only be probable or potential, not actual.  It is not necessary to prove that the defendant’s own acts affected interstate commerce as long as the enterprise’s acts had such effect. 

Comment 

            Use this instruction in conjunction with Instructions 18.8 (Violent Crime or Attempted Violent Crime in Aid of Racketeering Enterprise), 18.10 (Racketeering Activity—Defined), and 18.11 (Racketeering Enterprise—Proof of Purpose). 

            Definitions of “enterprise” are found in 18 U.S.C. §§ 1959(b)(2) and 1961(4).  See also United States v. Turkette, 452 U.S. 576, 583 (1981); Odom v. Microsoft Corp., 486 F.3d 541, 550-52 (9th Cir. 2000); United Energy Owners Comm., Inc. v. U.S. Energy Mgmt. Sys., Inc., 837 F.2d 356, 362 (9th Cir. 1988).

           With respect to the second element in Instruction _______ [insert cross reference to pertinent instruction, e.g. Instruction 18.8], the government must prove that the enterprise was engaged in racketeering activity.  “Racketeering activity” means the commission of certain crimes.  These include [insert applicable statutory definitions of state or federal crimes at issue as listed in 18 U.S.C. § 1961.] 

            The government must prove beyond a reasonable doubt that the enterprise was engaged in [at least one of] the crime[s] named [above] [previously]. 

Comment 

            Use this instruction in conjunction with Instructions 18.8 (Violent Crime or Attempted Violent Crime in Aid of Racketeering Enterprise), 18.9 (Racketeering Enterprise—Enterprise Affecting Interstate Commerce—Defined), and 18.11 (Racketeering Enterprise—Proof of Purpose). 

            For a definition of “racketeering activity,” see 18 U.S.C. § 1959(b)(1), which states that term has the meaning set forth in 18 U.S.C. § 1961(1).  See also United States v. Banks, 514 F.3d 959, 968 (9th Cir. 2008).

            With respect to the fourth element in Instruction _______ [insert cross reference to pertinent instruction, e.g. Instruction 18.8], the government must prove beyond a reasonable doubt that the defendant’s purpose was to gain entrance to, or to maintain, or to increase [his] [her] position in the enterprise. 

            It is not necessary for the government to prove that this motive was the defendant’s sole purpose, or even the primary purpose, in committing the charged crime.  You need only find that enhancing [his] [her] status in [name of enterprise] was a substantial purpose of the defendant or that [he] [she] committed the charged crime as an integral aspect of membership in [name of enterprise]. 

            In determining the defendant’s purpose in committing the alleged crime, you must determine what [he] [she] had in mind.  Because you cannot look into a person’s mind, you have to determine purpose by considering all the facts and circumstances before you. 

Comment 

            Use this instruction in conjunction with Instructions 18.8 (Violent Crime or Attempted Violent Crime in Aid of Racketeering Enterprise), 18.9 (Racketeering Enterprise—Enterprise Affecting Interstate Commerce—Defined), and 18.10 (Racketeering Activity—Defined).  See Comment to Instruction 18.8.  If the fourth element of Instruction 18.8 is modified, this instruction should also be modified. 

            “[T]he purpose element is met if ‘the jury could properly infer that the defendant committed his violent crime because he knew it was expected of him by reason of his membership in the enterprise or that he committed it in furtherance of that membership.’”  United States v. Banks, 514 F.3d 959, 965 (9th Cir. 2008) (quoting United States v. Pimentel, 346 F.3d 285, 295-96 (2d Cir. 2003)). 

            “VICAR’s purpose element is satisfied even if the maintenance or enhancement of his position in the criminal enterprise was not the defendant’s sole or principal purpose.”  Banks, 514 F.3d at 965.  The law, however, requires a defendant’s purpose be “more than merely incidental.”  Id. at 969.  “[T]he gang or racketeering enterprise purpose does not have to be the only purpose or the main purpose of [a] murder or assault.  But it does have to be a substantial purpose.”  Id.  “Murder while a gang member is not necessarily a murder for the purpose of maintaining or increasing position in a gang, even if it would have the effect of maintaining or increasing position in a gang.”  Id. 

            The Ninth Circuit held that it was not error to instruct on an alternate Pinkerton theory (co-conspirator’s liability), even though under Pinkerton it is not necessary that the defendant personally act for the purpose of maintaining his position in the enterprise provided that he had that intent when he joined the conspiracy.  United States v. Houston, 648 F.3d 806, 818-19 (9th Cir. 2011). 

            In United States v. Smith, 831 F.3d 1207, 1217-18 (9th Cir. 2016), the Ninth Circuit considered whether it was error for the district court to instruct the jury that the defendant’s purpose “must be more than merely incidental.”  The court noted this phrasing could imply a standard that was too low, which could result in error.  Id. at 1219.  The court noted, however, that the instruction should not use the word “dominant” to describe the defendant’s purpose because it “has a flavor” “suggest[ing] that the standard is very high.”  Id.  Ultimately, the court declined to decide which word should be used but said that “[s]ubstantial would convey the idea with more precision.”  Id. 

Revised Jan. 2019

          The crimes of [specify crimes charged] charged in [Count _______ of] the indictment are racketeering acts.  If you find the defendant guilty of [at least two of] the crimes charged in Counts _______ you must then decide whether those counts formed a pattern of racketeering activity. 

            All of you must agree on the same two crimes which form a pattern of racketeering activity. 

Comment 

            Unanimity as to the crimes forming a pattern of racketeering activity is appropriate under the reasoning of Richardson v. United States, 526 U.S. 813, 815 (1999) (explaining that in continuing criminal enterprise prosecution, there must be unanimity as to specific violations that make up the "continuing series of violations").  See also Instruction 6.27 (Specific Issue Unanimity).

            The crime of [specify crime charged] is a racketeering act.  For you to find that the defendant [committed] [aided and abetted others in committing] the crime of [specify crime charged], the government must prove each of the following elements beyond a reasonable doubt: 

            [Specify elements of the crime.] 

            [All of you must agree on the same two racketeering acts that the defendant [committed] [aided and abetted in committing].] 

Comment 

            There is no requirement that the defendant must have been convicted of the crime constituting an act of racketeering activity before the act can be used as part of the pattern of racketeering activity.  Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 495-97 (1985).  Even though a defendant has previously been acquitted of a crime in a state court, he or she can still be charged with violating the RICO statute “with the [same] crime as predicate acts.”  United States v. Licavoli, 725 F.2d 1040, 1047 (6th Cir. 1984). 

            A pattern of racketeering activity requires at least two acts of racketeering activity.  18 U.S.C. § 1961(5).  More than one crime may be charged as a racketeering act.

18.14 RICO—Pattern of Racketeering Activity (18 U.S.C. § 1961(5))

            To establish a pattern of racketeering activity, the government must prove each of the following beyond a reasonable doubt:

            First, at least two acts of racketeering were committed within a period of ten years of each other;

            Second, the acts of racketeering were related to each other, meaning that there was a relationship between or among the acts of racketeering; and

            Third, the acts of racketeering amounted to or posed a threat of continued criminal activity.

            With respect to the second element, acts of racketeering are related if they embraced the same or similar purposes, results, participants, victims, or methods of commission, or were otherwise interrelated by distinguishing characteristics.

            Sporadic, widely separated, or isolated criminal acts do not form a pattern of racketeering activity.

            Two racketeering acts are not necessarily enough to establish a pattern of racketeering activity.

Comment

            In determining whether two racketeering activities occurred within ten years, any period of imprisonment after the commission of a prior act must be excluded.  18 U.S.C. § 1961(5).

            See United States v. Camez, 839 F.3d 871, 876 (9th Cir. 2016) (holding that pattern of racketeering activity requires at least two predicate acts, one of which may have occurred while defendant was minor if criminal conduct in issue continued past age of majority); United States v. Jaimez, 45 F.4th 1118 (9th Cir. 2022) (holding that even if insufficient evidence presented for other predicate acts, if jury finds two predicate acts RICO conviction stands); Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 496 n.14 (1985) (explaining that although at least two acts are necessary under the definition of “pattern of racketeering activity,” two acts may not be sufficient to constitute a pattern);  see also H.J. Inc. v. NW Bell Tel. Co.,492 U.S. 229, 239 (1989) (pattern of racketeering activity requires a “showing that the racketeering predicates are related, and that they amount to or pose a threat of continued criminal activity”); Sever v. Alaska Pulp Corp.,978 F.2d 1529, 1535-36 (9th Cir. 1992) (applying Northwestern Bell); Ikuno v. Yip, 912 F.2d 306, 309 (9th Cir. 1990) (same); United States v. Rodriguez, 971 F.3d 1007, 1013-14 (9th Cir. 2020) (holding that pattern of racketeering activity extends to attempts and conspiracies, even if no racketeering offense is completed).

Revised Sept. 2022

            The defendant is charged in [Count _______ of] the indictment with using or investing income from racketeering activity in violation of Section 1962(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 received income, directly or indirectly, from a pattern of racketeering activity, or through collection of an unlawful debt; 

            Second, the defendant used or invested, directly or indirectly, any part of that income or the proceeds of such income to [[buy an interest or invest in] [establish] [operate]] [specify enterprise]; and 

            Third, [specify enterprise] was engaged in or its activities in some way affected commerce between one state and [an]other state[s], or between the United States and a foreign country. 

Comment 

            When the predicate racketeering acts are charged as separate counts in the indictment, use this instruction in combination with Instructions 18.12 (RICO—Racketeering Act—Charged as Separate Count in Indictment) and 18.14 (RICO—Pattern of Racketeering Activity).  When the predicate racketeering acts are not charged as separate counts in the indictment, use this instruction in combination with Instructions 18.13 (RICO—Racketeering Act—Not Charged as Separate Count in Indictment) and 18.14 (RICO—Pattern of Racketeering Activity). 

            Unlike a case in which a corporation is charged under 18 U.S.C. § 1962(c), “where a corporation engages in racketeering activities and is the direct or indirect beneficiary of the pattern of racketeering activity, it can be both the ‘person’ and the ‘enterprise’ under section 1962(a).”  Schreiber Distrib. Co. v. Serv–Well Furniture Co., 806 F.2d 1393, 1396, 1398 (9th Cir. 1986). 

Revised Dec. 2016

           The defendant is charged in [Count _______ of] the indictment with acquiring or maintaining an interest in or control of an enterprise in violation of Section 1962(b) of Title 18 of the United States Code.  For the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt: 

            First, the defendant, directly or indirectly, acquired or maintained an interest in or control of [specify enterprise]; 

            Second, the defendant did so through a pattern of racketeering activity or through collection of an unlawful debt; and 

            Third, [specify enterprise] engaged in or its activities in some way affected commerce between one state and [an]other state[s], or the United States and a foreign country. 

Comment 

            When the predicate racketeering acts are charged as separate counts in the indictment, use this instruction in combination with Instructions 18.12 (RICO—Racketeering Act—Charged as Separate Count in Indictment) and 18.14 (RICO—Pattern of Racketeering Activity).  When the predicate racketeering acts are not charged as separate counts in the indictment, use this instruction in combination with Instructions 18.13 (RICO—Racketeering Act—Not Charged as Separate Count in Indictment) and 18.14 (RICO—Pattern of Racketeering Activity). 

            The enterprise in which a defendant invests must be an entity distinct from the defendant. 

            RICO predicate acts only require a de minimus impact on interstate commerce.  United States v. Fernandez, 388 F.3d 1199, 1218 (9th Cir. 2004); United States v. Juv, Male,118 F.3d 1344, 1347 (9th Cir. 1997). 

            Control under § 1962(b) does not require “formal control.”  Ikuno v. Yip, 912 F.2d 306, 310 (9th Cir. 1990).

            The defendant is charged in [Count _______ of] the indictment with having [conducted] [participated in the conduct of] the affairs of [specify enterprise or union] through a pattern of racketeering activity in violation of Section 1962(c) of Title 18 of the United States Code.  For the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt: 

            First, the defendant was employed by or associated with [specify enterprise or union]; 

            Second, the defendant [conducted] [participated, directly or indirectly, in the conduct of] the affairs of [specify enterprise or union] through a pattern of racketeering activity or collection of unlawful debt.  To conduct or participate means that the defendant had to be involved in the operation or management of the [specify enterprise or union]; and

            Third, [specify enterprise or union] engaged in or its activities in some way affected commerce between one state and [an]other state[s], or between the United States and a foreign country. 

Comment 

            When racketeering acts are charged as separate counts in the indictment, use this instruction in combination with Instructions 18.12 (RICO—Racketeering Act—Charged as Separate Count in Indictment) and 18.14 (RICO—Pattern of Racketeering Activity).  When the racketeering acts are not charged as separate counts in the indictment, use this instruction in combination with Instructions 18.13 (RICO—Racketeering Act—Not Charged as Separate Count in the Indictment) and 18.14 (RICO—Pattern of Racketeering Activity). 

            As defined in 18 U.S.C. § 1961(4), an enterprise “includes any individual, partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact although not a legal entity”; therefore, the name of the legal entity should be used when applicable. 

            The enterprise cannot also be the RICO defendant when the charge is that the defendant violated 18 U.S.C. § 1962(c).  See Schreiber Distrib. Co. v. Serv–Well Furniture Co., Inc., 806 F.2d 1393 (9th Cir. 1986). 

            See United States v. Shryock, 342 F.3d 948, 985-86 (9th Cir. 2003) (defining “conducts or participates” in the affairs of the enterprise). 

            See Reves v. Ernst & Young, 507 U.S. 170, 184 (1993) (holding that liability under § 1962(c) may also extend to lower rung participants who are under the direction of upper management). 

Revised Jan. 2019

            The defendant is charged in [Count _______ of] the indictment with having [conducted] [participated in the conduct of] the affairs of an enterprise through a pattern of racketeering activity in violation of Section 1962(c) of Title 18 of the United States Code.  For the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt: 

            First, there was an ongoing enterprise with some sort of formal or informal framework for carrying out its objectives consisting of a group of persons associated together for a common purpose of engaging in a course of conduct; 

            Second, the defendant was employed by or associated with the enterprise; 

            Third, the defendant [conducted] [participated, directly or indirectly, in the conduct of] the affairs of the enterprise through a pattern of racketeering activity or collection of unlawful debt.  To conduct or participate means that the defendant had to be involved in the operation or management of the enterprise; and

            Fourth, the enterprise engaged in or its activities in some way affected commerce between one state and [an]other state[s], or between the United States and a foreign country. 

            An enterprise need not be a formal entity such as a corporation and need not have a name, regular meetings, or established rules.   

Comment 

            When racketeering acts are charged as separate counts in the indictment, use this instruction in combination with Instructions 18.12 (RICO–Racketeering Act–Charged as Separate Count in Indictment) and 18.14 (RICO–Pattern of Racketeering Activity).  When the racketeering acts are not charged as separate counts in the indictment, use this instruction in combination with Instructions 18.13 (RICO–Racketeering Act–Not Charged as Separate Count in the Indictment) and 18.14 (RICO–Pattern of Racketeering Activity). 

            RICO requires that an association-in-fact enterprise must have a structure, but the word “structure” need not be used in the jury instruction.  Boyle v. United States, 556 U.S. 938, 946 (2009).  The definition of “enterprise” in the first element of the instruction is based on Boyle, 556 U.S. at 949, and United States v. Turkette, 452 U.S. 576, 583 (1981). 

            For RICO purposes, an association-in-fact enterprise “need not have a name, regular meetings, dues, established rules and regulations, disciplinary procedures, or induction or initiation ceremonies.”  Boyle, 556 U.S. at 948. 

            Defendants in RICO actions must have had “some knowledge of the nature of the enterprise . . . to avoid an unjust association of the defendant[s] with the crimes of others,” but the requirement of a common purpose may be met so long as the defendants were “each aware of the essential nature and scope of [the] enterprise and intended to participate in it.”  United States v. Christensen, 828 F.3d 763, 780-81 (9th Cir. 2015), as amended on denial of reh’g (9th Cir. 2016).  A RICO enterprise is not defeated even when some of the enterprise’s participants lack detailed knowledge of all of the other participants or their activities.  Instead, “it is sufficient that the defendant knows the general nature of the enterprise and know that the enterprise extends beyond his individual role.”  Id. at 780. 

            See United States v. Shryock, 342 F.3d 948, 985-86 (9th Cir. 2003) (defining “conducts or participates” in the affairs of the enterprise). 

Revised Dec. 2015