5.4 SPECIFIC INTENT

Comment

The Committee recommends avoiding instructions that distinguish between "specific intent" and "general intent." The Ninth Circuit has stated: "Both the manual [on jury trial procedures] accompanying the Model Instructions and our case law discourage the use of generic intent instructions." United States v. Bell, 303 F.3d 1187, 1191 (9th Cir.2002). The "preferred practice" is to give an intent instruction that reflects the intent requirements of the offense charged. Id.

If the statute at issue is silent regarding the necessary mens rea of the crime, the court should examine the statute's legislative history. United States v. Nguyen, 73 F.3d 887, 891 (9th Cir.1995). See also United States v. Barajas-Montiel,185 F.3d 947, 952 (9th Cir.1999) (following Nguyen and holding that criminal intent is required for conviction of the felony offenses of 8 U.S.C. § 1324(a)(2)(B)). If the court perceives an ambiguity regarding Congress's intent to require a mens rea, the court should read such a requirement into the statute. Nguyen, 73 F.3d at 890-91. Accord, United States v. Johal, 428 F.3d 823, 826 (9th Cir.2005) (requirement of some mens rea for conviction of a crime is "firmly embedded").

Most attempt crimes require specific intent. See United States v. Gracidas-Ulibarry, 231 F.3d 1188, 1192 (9th Cir.2000) (en banc) (crime of attempted illegal reentry, for example, is a specific intent offense).