The defendant is charged in [Count _______ of] the indictment with kidnapping in violation of Section 1201(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 [seized] [confined] [inveigled] [decoyed] [kidnapped] [abducted] [carried away] [name of kidnapped person];           

            Second, the defendant [held] [detained] [name of kidnapped person] against [his] [her][other pronoun] will; and 

            [Third, the defendant intentionally transported [name of kidnapped person] across state lines]
 

or  

            [Third, the defendant traveled in [interstate][foreign] commerce [in committing] [in furtherance of committing] the offense].  

or  

[Third, the defendant used [[the mail] [any [means] [facility] [instrumentality] of [interstate][foreign] commerce]] [[in committing] [in furtherance of committing]] the offense].  

            [The government is not required to prove that the defendant kidnapped [name of kidnapped person] for reward or ransom, or for any other purpose.]  

            [The fact that [name of kidnapped person] [may have] initially voluntarily accompanied the defendant does not necessarily [prevent the occurrence] [negate the existence] of a later kidnapping.] 

Comment  

            “The act of holding a kidnapped person . . . necessarily implies an unlawful physical or mental restraint for an appreciable period against the person’s will and with a willful intent so to confine the victim.  If the victim is of such an age or mental state as to be incapable of having a recognizable will, the confinement then must be against the will of the parents or legal guardian of the victim.”  Chatwin v. United States, 326 U.S. 455, 460 (1946).  The “involuntariness of seizure and detention . . . is the very essence of the crime of kidnaping.”  Id. at 464.   

            As to the last paragraph of the instruction, see United States v. Redmond, 803 F.2d 438, 439 (9th Cir. 1986) (“The fact that one originally accompanies another without being forced does not prevent the occurrence of a kidnapping where force is later used to seize or confine the victim.”).  

Under 18 U.S.C. § 1201, there are three bases for federal jurisdiction: (1) transporting the victim across state lines, (2) the offender’s interstate movement in committing or in furtherance of committing the offense, or (3) using instrumentalities of interstate commerce in committing or in furtherance of committing the offense. United States v. Stackhouse, 105 F.4th 1193, 1199 (9th Cir. 2024); see also id. at 1200-02 (holding that the Commerce Clause permits Congress to regulate intrastate kidnappings where an instrumentality of interstate commerce (a cellphone) is used intrastate).  

See Comment to Instruction 17.2 (Kidnapping—Within Special Maritime and Territorial Jurisdiction of United States) concerning the need for an instruction distinguishing kidnapping from other offenses involving seizure, confinement, detention, or asportation.  

Revised Sep 2024

         The defendant is charged in [Count _______ of] the indictment with kidnapping [name of kidnapped person] within the special maritime and territorial jurisdiction of the United States in violation of Section 1201(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 [seized] [confined] [inveigled] [decoyed] [kidnapped] [abducted] [carried away] [name of kidnapped person] within [specify place of federal jurisdiction]; and           

            Second, the defendant [held] [detained] [name of kidnapped person] against [his][her] will. 

            [The government is not required to prove that the defendant kidnapped [name of kidnapped person] for reward or ransom, or for any other purpose.] 

            [The fact that [name of kidnapped person] [may have] initially voluntarily accompanied the defendant does not necessarily [prevent the occurrence] [negate the existence] of a later kidnapping.] 

[Not every seizure of a person against his or her will is a kidnapping.  To decide whether such a seizure in this case amounts to a kidnapping, you should consider the following factors: 

First, the duration of the [seizure] [confinement] [detention] [asportation],

Second, whether the [seizure] [confinement] [detention] [asportation] occurred during the commission of a separate offense,

Third, whether the [seizure] [confinement] [detention] [asportation] that occurred is an essential part of in the separate offense, and

Fourth, whether the [seizure] [confinement] [detention] [asportation] created a significant danger to the victim independent of that posed by the separate offense.]

Comment 

            See Comment to Instruction 17.1 (Kidnapping—Interstate Transportation).  

            “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 beginning with “Not every seizure of a person” is derived from United States v. Jackson, 24 F.4th 1308 (9th Cir. 2022), which also illustrates when such an instruction would be appropriate.

In Jackson, the defendant was charged with kidnapping under 18 U.S.C. § 1028(a)(2) after he violently assaulted his then-girlfriend.  Id. at 1309-10.  The defendant moved for acquittal under Federal Rule of Criminal Procedure 29, arguing that the facts could not support a kidnapping conviction because there was no “seizure” of the victim, and whatever “seizure” occurred “didn’t occur beyond whatever beating there was.”  Id. at 1310.  The attack on the victim lasted about six or seven minutes, during which the defendant “dragged her around by her hair, yanked her arms, punched her, and tried to pull her into” a small dwelling.  Id.

Citing Supreme Court and Ninth Circuit precedent, the court reasoned that “kidnapping requires more than a transitory holding, and more than a simple mugging or assault” because “the facts must reflect the ‘essence of the crime of kidnaping.’”  Id. at 1312 (quoting Chatwin v. United States, 326 U.S. 455, 464 (1946)); see also id. at 1311-12 (discussing United States v. Etsitty, 130 F.3d 420 (9th Cir. 1997)).  Accordingly, in Jackson the court held that four factors should be evaluated when determining whether charged conduct constitutes kidnapping.  Id. at 1312.  This “factual inquiry” may be taken up by a court in response to a Rule 29 motion, or “if appropriate based on the circumstances of the case, incorporated into jury instructions.”  Id. at 1314.  The factors, derived from the Third Circuit’s opinion in Government of the Virgin Islands v. Berry, 604 F.2d 221, 224 (3d Cir. 1979), are:

(1) the duration of the detention or asportation;

(2) whether the detention or asportation occurred during the commission of a separate offense;

(3) whether the detention or asportation which occurred is inherent in the separate offense; and

(4) whether the asportation or detention created a significant danger to the victim independent of that posed by the separate offense.

Id. at 1312 (quoting Berry, 604 F.2d at 227)).  The Berry factors are the basis for the proposed optional jury instruction, to be applied when appropriate, to distinguish kidnapping from other offenses.  

Revised Sept. 2022

           The defendant is charged in [Count _______ of] the indictment with kidnapping [a foreign official] [an internationally protected person] [an official guest] in violation of Section 1201(a)(4) of Title 18 of the United States Code.  For the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:  

            First, the defendant [[seized] [confined] [inveigled] [decoyed] [kidnapped] [abducted] [carried away]] [name of kidnapped person];  

            Second, [name of kidnapped person] was [specify status]; and  

            Third, the defendant [[held] [detained]] [name of kidnapped person] against [his][her] will.  

            [The government is not required to prove that the defendant kidnapped [name of kidnapped person] for reward or ransom, or for any other purpose.]  

            [The fact that [name of kidnapped person] [may have] initially voluntarily accompanied the defendant does not necessarily [prevent the occurrence] [negate the existence] of a later kidnapping.]

Comment  

            See Comment to Instruction 17.1 (Kidnapping—Interstate Transportation).   

            “Foreign official,” “internationally protected person,” and “official guest” are defined in 18 U.S.C. § 1116(b).  

See Comment to Instruction 17.2 (Kidnapping—Within Special Maritime and Territorial Jurisdiction of United States) concerning the need for an instruction distinguishing kidnapping from other offenses involving seizure, confinement, detention, or asportation.   

Revised Mar. 2022

           The defendant is charged in [Count _______ of] the indictment with kidnapping a federal officer or employee in violation of Section 1201(a)(5) of Title 18 of the United States Code.  For the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt: 

            First, the defendant [[seized] [confined] [inveigled] [decoyed] [kidnapped] [abducted] [carried away]] [name of kidnapped person]; 

            Second, at the time [name of kidnapped person] was [specify federal office or employment position]; 

            Third, the defendant acted while [name of kidnapped person] was engaged in, or on account of, the performance of official duties; and 

            Fourth, the defendant [[held] [detained]] [name of kidnapped person] against [his][her] will. 

            [The government is not required to prove that the defendant kidnapped [name of kidnapped person] for reward or ransom, or for any other purpose.] 

            [The fact that [name of kidnapped person] [may have] initially voluntarily accompanied the defendant does not necessarily [prevent the occurrence] [negate the existence] of a later kidnapping.]

Comment 

            See Comment to Instruction 17.1 (Kidnapping—Interstate Transportation).  

            Federal officers or employees who may be the victim of a kidnapping are described in 18 U.S.C. § 1114. 

As to the third element, for an instruction defining “official duties,” see United States v. Ornelas, 906 F.3d 1138, 1149 (9th Cir. 2018) (upholding “official duties” instruction providing that test for determining whether officer is “[e]ngaged in the performance of official duties” is “whether the officer is acting within the scope of his employment, that is, whether the officer’s actions fall within his agency’s overall mission, in contrast to engaging in a personal frolic of his own”); see also United States v. Juvenile Female, 566 F.3d 943, 950 (9th Cir. 2009) (describing official duties test as “whether [the officer] is acting within the scope of what he is employed to do, as distinguished from engaging in a personal frolic of his own”). 

See Comment to Instruction 17.2 (Kidnapping—Within Special Maritime and Territorial Jurisdiction of United States) concerning the need for an instruction distinguishing kidnapping from other offenses involving seizure, confinement, detention, or asportation. 

Revised Mar. 2022

            The defendant is charged in [Count _______ of] the indictment with attempting to kidnap [a foreign official] [an official guest] [an internationally protected person] in violation of Section 1201(d) of Title 18 of the United States Code.  For the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt: 

            First, the defendant intended to [seize] [confine] [inveigle] [decoy] [kidnap] [abduct] [carry away] and hold [a foreign official] [an official guest] [an internationally protected person] against [his] [her] will; and 

            Second, 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 17.1 (Kidnapping—Interstate Transportation).  

            “Foreign official,” “official guest,” and “internationally protected person” are defined in 18 U.S.C. § 1116(b). 

            “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) (pe 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).

See Comment to Instruction 17.2 (Kidnapping—Within Special Maritime and Territorial Jurisdiction of United States) concerning the need for an instruction distinguishing kidnapping from other offenses involving seizure, confinement, detention, or asportation.  

Revised May 2023

          The defendant is charged in [Count _______ of] the indictment with attempting to kidnap a [federal officer] [federal employee] in violation of Section 1201(d) of Title 18 of the United States Code.  For the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt: 

            First, the defendant intended to [seize] [confine] [inveigle] [decoy] [kidnap] [abduct] [carry away] and to hold a [federal officer] [federal employee] against [his] [her] will, on account of or during the performance of [his] [her] official duties; and 

            Second, 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 17.1 (Kidnapping—Interstate Transportation).  

            Federal officers or employees who may be victims of kidnapping are described in 18 U.S.C. § 1114. 

            As to the first element, for an instruction defining “official duties,” see United States v. Ornelas, 906 F.3d 1138, 1149 (9th Cir. 2018) (upholding “official duties” instruction providing that test for determining whether officer is “[e]ngaged in the performance of official duties” is “whether the officer is acting within the scope of his employment, that is, whether the officer’s actions fall within his agency’s overall mission, in contrast to engaging in a personal frolic of his own”).  See also United States v. Juvenile Female, 566 F.3d 943, 950 (9th Cir. 2009) (describing official duties test as “whether [the officer] is acting within the scope of what he is employed to do, as distinguished from engaging in a personal frolic of his own”). 

As to the second element, “[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). 

See Comment to Instruction 17.2 (Kidnapping—Within Special Maritime and Territorial Jurisdiction of United States) concerning the need for an instruction distinguishing kidnapping from other offenses involving seizure, confinement, detention, or asportation.  

Revised May 2023

           The defendant is charged in [Count _______ of] the indictment with taking a person hostage in violation of Section 1203(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 intentionally seized or detained a person; 

            Second, the defendant threatened to kill, injure, or continue to detain that person; and 

            Third, the defendant did so with the purpose and intention of compelling [a third person] [a government organization] to act, or refrain from acting, in some way, as an explicit or implicit condition for the release of the seized or detained person. 

            A person is “seized” or “detained” when the person is held or confined against his or her will by physical restraint, fear, or deception for an appreciable period of time.  

            [The fact that the person may initially agree to accompany the hostage taker does not prevent a later “seizure” or “detention.”] 

Comment 

            In a case involving foreign national defendants, the Ninth Circuit has held that along with these three elements, 18 U.S.C. § 1203(b) “requires some international element,” but does not require proof of nexus to international terrorism.  United States v. Mikhel, 889 F.3d 1003, 1022 (9th Cir. 2018). 

            The crime of hostage taking is not limited to taking aliens as hostages.  United States v. Sierra-Velasquez, 310 F.3d 1217, 1220 (9th Cir. 2002).  In the context of alien smuggling, it is not necessary that the smuggler demand an increase in fee for the smuggler to be found guilty of hostage taking.  Id.; see 18 U.S.C. § 1203(b)(1), (2) (limiting the application of this offense). 

            As to the specific intent element, see United States v. Fei Lin, 139 F.3d 1303, 1305-06 (9th Cir. 1998) (holding that statute “does contemplate that the defendant must not merely engage in conduct knowingly, but purposefully and intentionally”). 

            As to the penultimate paragraph of the instruction, see United States v. Carrion-Caliz, 944 F.2d 220, 225 (5th Cir. 1991) (holding that hostage is “seized” or “detained” within meaning of Hostage Taking Act “when she is held or confined against her will for an appreciable period of time”). 

            As to the last paragraph of the instruction, see United States v. Lopez-Flores,63 F.3d 1468, 1477 (9th Cir. 1995) (“[T]hat the hostage may initially agree to accompany the hostage taker does not prevent a later ‘seizure’ or ‘detention’ within the meaning of the Hostage Taking Act” (quoting Carrion-Caliz, 944 F.2d at 226)).  See also Sierra-Valasquez, 310 F.3d at 1220 (“There was a seizure or detention within the meaning of § 1203(a) from the time the defendants began to hold the aliens in a manner that was not contemplated in the alien smuggling agreement.  At that point, the aliens were no longer consensually in the custody of the smuggling defendants.”). 

 Revised June 2019