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INTRODUCTION

As part of the role of the Fifth Circuit District Judges Association, a committee of district judges of this circuit has continued to review and revise the Fifth Circuit District Judges Association Pattern Jury Instructions (Criminal Cases), 1997 edition. Time brings new statutes, new interpretations of old statutes, and new directions of prosecutions. The Committee's research and drafting are intended to be current through Spring 2001.

When the United States Supreme Court announced its decision in Apprendi v. New Jersey, 120 S.Ct. 2348 (2000), years of "settled" law were discarded. In each circuit including our own, what had previously been sentencing factors became elements of the offense when they had the capacity to increase a defendant's maximum possible punishment. A major focus of our effort in this edition has been to alert the judge to those circumstances when an instruction needs an Apprendi element.

We have continued to decline the temptation to define "willfully" with one single definition adequate to all instructions. The Committee has attempted to define the mental state required by each particular statute.

While these pattern charges do not presume to be a legal treatise, the Committee has obviously attempted to make accurate statements of the law. These pattern charges should be used for what they are--an aid to guide your instructing the jury on each individual case.

The Committee was able to enlist the services of Susan R. Klein, Assistant Professor of Law at the University of Texas in Austin. Her efforts have been very beneficial to our task. We acknowledge the special efforts of many of our clerks and office staff whose work has been significant during the years of our work, including Stacy Bruton, J. Scott Hacker, Mark A. J. Fassold, and Amy Livsey. Alice Simons, legal secretary to Judge Head, has spent many hours proofreading and coordinating our work with West Group.

Our predecessors' work is the foundation of our effort. Those district judges--Dan M. Russell, Jr. (S.D.Miss.), Jack M. Gordon (E.D.La.), Anthony A. Alaimo (S.D.Ga.), Wm. Terrell Hodges (M.D.Fla.), James Hughes Hancock (N.D.Ala.), Tom Stagg (W.D.La.), and William S. Sessions (W.D.Tex.)--deserve our continued thanks.

Hayden W. Head, Jr., Chairman

Southern District of Texas

1990, 1997, 2001 Editions

Ginger Berrigan

Eastern District of Louisiana

1997, 2001 Editions

Adrian G. Duplantier, Senior Judge

Eastern District of Louisiana

1990, 1997, 2001 Editions

Harry Lee Hudspeth, Chief Judge

Western District of Texas

1990, 1997, 2001 Editions

George P. Kazen, Chief Judge

Southern District of Texas

1990, 1997, 2001 Editions

Edward C. Prado

Western District of Texas

2001 Edition

Walter S. Smith, Jr.

Western District of Texas

1997, 2001 Editions

Henry T. Wingate

Southern District of Mississippi

1990, 1997, 2001 Editions

I. GENERAL AND PRELIMINARY

INSTRUCTIONS

1.01

PRELIMINARY INSTRUCTION

Members of the Jury:

You are now the jury in this case. I want to take a few minutes to tell you something about your duties as jurors and to give you some instructions. At the end of the trial I will give you more detailed instructions. You must follow all of my instructions in doing your job as jurors.

This criminal case has been brought by the United States government. I may sometimes refer to the government as the prosecution. The government is represented at this trial by an assistant United States attorney, . The defendant, , is represented by an attorney, .

The defendant has been charged by the government with a criminal violation of a federal law, [e.g., having intentionally sold heroin]. The charge against the defendant is contained in the indictment. The indictment is simply the description of the charge made by the government against the defendant, but it is not evidence that the defendant committed a crime. The defendant pleaded not guilty to the charge. A defendant is presumed innocent and may not be found guilty by you unless all twelve of you unanimously find that the government has proved defendant's guilt beyond a reasonable doubt. [Addition for multidefendant cases: The defendants are being tried together. But you will have to give separate consideration to the case against each defendant. Each is entitled to your separate consideration. Do not think of them as a group.]

The first step in the trial will be the opening statements. The government in its opening statement will tell you about the evidence which it intends to put before you, so that you will have an idea of what the government's case is going to be. Just as the indictment is not evidence, neither is the opening statement evidence. Its purpose is only to help you understand what the evidence will be and what the government will try to prove.

After the government's opening statement, the defendant's attorney may make an opening statement. [Change if the defendant reserves his statement until later or omit if the defendant has decided not to make an opening statement.] At this point in the trial, no evidence has been offered by either side.

Next, the government will offer evidence that it claims will support the charges against the defendant. The government's evidence may consist of the testimony of witnesses as well as documents and exhibits. Some of you have probably heard the terms "circumstantial evidence" and "direct evidence." Do not be concerned with these terms. You are to consider all the evidence given in this trial.

After the government's evidence, the defendant's lawyer may [make an opening statement and] present evidence in the defendant's behalf, but the lawyer is not required to do so. I remind you that the defendant is presumed innocent and that the government must prove the guilt of the defendant beyond a reasonable doubt. The defendant does not have to prove his innocence. If the defendant decides to present evidence, the government may introduce rebuttal evidence.

After you have heard all the evidence on both sides, the government and the defense will each be given time for their final arguments. I just told you that the opening statements by the lawyers are not evidence. The same applies to closing arguments. They are not evidence either, but you should pay close attention to them.

The final part of the trial occurs when I instruct you about the rules of law which you are to use in reaching your verdict. After hearing my instructions, you will leave the courtroom together to make your decision. Your deliberations will be secret. You will never have to explain your verdict to anyone.

Now that I have described the trial itself, let me explain the jobs that you and I are to perform during the trial.

I will decide which rules of law apply to this case, in response to questions or objections raised by the attorneys as we go along, and also in the final instructions given to you after the evidence and arguments are completed. You must follow the law as I explain it to you whether you agree with it or not.

You, and you alone, are judges of the facts. Therefore, you should give careful attention to the testimony and exhibits, because based upon this evidence you will decide whether the government has proved, beyond a reasonable doubt, that the defendant has committed the crime(s) charged in the indictment. You must base that decision only on the evidence in the case and my instructions about the law. You will have the exhibits with you when you deliberate.

[If desired, insert here instruction entitled "Note-Taking by Jurors."]

It will be up to you to decide which witnesses to believe, which witnesses not to believe, and how much of any witness's testimony to accept or reject. I will give you some guidelines for determining the credibility of witnesses at the end of the case.

The defendant is charged with . I will give you detailed instructions on the law at the end of the case, and those instructions will control your deliberations and decision. But in order to help you follow the evidence I will now give you a brief summary of the elements of the offense which the government must prove to make its case. [It is suggested that a discussion of the elements of the offense be inserted here.]

During the course of the trial, do not talk with any witness, or with the defendant, or with any of the lawyers in the case. Please do not talk with them about any subject at all. You may be unaware of the identity of everyone connected with the case. Therefore, in order to avoid even the appearance of impropriety, do not engage in any conversation with anyone in or about the courtroom or courthouse. It is best that you remain in the jury room during breaks in the trial and not linger in the halls. In addition, during the course of the trial do not talk about the trial with anyone else- not your family, not your friends, not the people with whom you work. Also, do not discuss this case among yourselves until I have instructed you on the law and you have gone to the jury room to make your decision at the end of the trial. Otherwise, without realizing it, you may start forming opinions before the trial is over. It is important that you wait until all the evidence is received and you have heard my instructions on rules of law before you deliberate among yourselves. Let me add that during the course of the trial you will receive all the evidence you properly may consider to decide the case. Because of this, do not attempt to gather any information on your own which you think might be helpful. Do not engage in any outside reading on this case, do not attempt to visit any places mentioned in the case, and do not in any other way try to learn about the case outside the courtroom.

Now that the trial has begun, you must not read about it in the newspapers or watch or listen to television or radio reports of what is happening here. The reason for these rules, as I am certain you will understand, is that your decision in this case must be made solely on the evidence presented at the trial.

At times during the trial, a lawyer may make an objection to a question asked by another lawyer, or to an answer by a witness. This simply means that the lawyer is requesting that I make a decision on a particular rule of law. Do not draw any conclusion from such objections or from my rulings on the objections. These relate only to the legal questions that I must determine and should not influence your thinking. If I sustain an objection to a question, the witness may not answer it. Do not attempt to guess what answer might have been given had I allowed the question to be answered. Similarly, if I tell you not to consider a particular statement, you should put that statement out of your mind, and you may not refer to that statement in your later deliberations. If an objection is overruled, treat the answer like any other.

During the course of the trial I may ask a question of a witness. If I do, that does not indicate that I have any opinion about the facts in the case. Nothing I say or do should lead you to believe that I have any opinion about the facts, nor be taken as indicating what your verdict should be.

During the trial I may have to interrupt the proceedings to confer with the attorneys about the rules of law which should apply here. Sometimes we will talk here, at the bench. Some of these conferences may take time. So, as a convenience to you, I will excuse you from the courtroom. I will try to avoid such interruptions as much as possible and will try to keep them short, but please be patient, even if the trial seems to be moving slowly. Conferences outside your presence are sometimes unavoidable.

Finally, there are three basic rules about a criminal case which you should keep in mind.

First, the defendant is presumed innocent until proven guilty. The indictment against the defendant brought by the government is only an accusation, nothing more. It is not proof of guilt or anything else. The defendant therefore starts out with a clean slate.

Second, the burden of proof is on the government until the very end of the case. The defendant has no burden to prove his innocence, or to present any evidence, or to testify. Since the defendant has the right to remain silent, the law prohibits you in arriving at your verdict from considering that the defendant may not have testified.

Third, the government must prove the defendant's guilt beyond a reasonable doubt. I will give you further instructions on this point later, but bear in mind that in this respect a criminal case is different from a civil case.

Thank you for your attention.

Note

This is but one of a number of preliminary instructions which can be utilized for the same purposes. See, e.g., Bench Book for United States District Judges and Pattern Criminal Jury Instructions, both published by the Federal Judicial Center, the Manual of Model Criminal Jury Instructions for the Eighth and Ninth Circuits, and the Pattern Jury Instructions (Criminal Cases) for the Eleventh Circuit, all published by West.

1.02

NOTE-TAKING BY JURORS

(Optional Addition to Preliminary Instruction)

ALTERNATIVE A

You may not take notes during the course of the trial. There are several reasons for this. It is difficult to take notes and, at the same time, pay attention to what a witness is saying. Furthermore, in a group the size of yours, certain persons will take better notes than others, and there is the risk that the jurors who do not take good notes will depend upon the jurors who do take good notes. The jury system depends upon all twelve jurors paying close attention and arriving at a unanimous decision. I believe that the jury system works better when the jurors do not take notes.

You will note that we do have an official court reporter making a record of the trial; however, we will not have typewritten transcripts of this record available for your use in reaching a decision in this case.

ALTERNATIVE B

If you would like to take notes during the trial, you may do so. On the other hand, you are not required to take notes if you prefer not to do so. Each of you should make your own decision about this.

If you do decide to take notes, be careful not to get so involved in the note taking that you become distracted from the ongoing proceedings. Your notes should be used only as memory aids. You should not give your notes precedence over your independent recollection of the evidence. If you do not take notes, you should rely upon your own independent recollection of the proceedings and you should not be unduly influenced by the notes of other jurors.

Notes are not entitled to any greater weight than the memory or impression of each juror as to what the testimony may have been. Whether you take notes or not, each of you must form and express your own opinion as to the facts of the case.

You will note that we do have an official court reporter making a record of the trial; however, we will not have typewritten transcripts of this record available for your use in reaching a decision in this case.

Note

Whether the jurors take notes is a matter of discretion with the judge. See United States v. Rhodes, 631 F.2d 43, 45 (5^th Cir. 1980).

1.03

INTRODUCTION TO FINAL INSTRUCTIONS

Members of the Jury:

In any jury trial there are, in effect, two judges. I am one of the judges; the other is the jury. It is my duty to preside over the trial and to decide what evidence is proper for your consideration. It is also my duty at the end of the trial to explain to you the rules of law that you must follow and apply in arriving at your verdict.

First, I will give you some general instructions which apply in every case, for example, instructions about burden of proof and how to judge the believability of witnesses. Then I will give you some specific rules of law about this particular case, and finally I will explain to you the procedures you should follow in your deliberations.

1.04

DUTY TO FOLLOW INSTRUCTIONS

You, as jurors, are the judges of the facts. But in determining what actually happened--that is, in reaching your decision as to the facts--it is your sworn duty to follow all of the rules of law as I explain them to you.

You have no right to disregard or give special attention to any one instruction, or to question the wisdom or correctness of any rule I may state to you. You must not substitute or follow your own notion or opinion as to what the law is or ought to be. It is your duty to apply the law as I explain it to you, regardless of the consequences.

It is also your duty to base your verdict solely upon the evidence, without prejudice or sympathy. That was the promise you made and the oath you took before being accepted by the parties as jurors, and they have the right to expect nothing less.

Note

See United States v. Meshack, 225 F.3d 556, 580-81 (5^th Cir. 2000), cert. denied, 121 S.Ct. 834 (2001), amended on reh'g in part 244 F.3d 367 (5^th Cir. 2001), petition for cert. filed, (U.S. June 25, 2001) (No. 00-10499) (instructing jury that "[i]t is also your duty to base your verdict solely upon the evidence, without prejudice or sympathy" is not plain error).

1.05

PRESUMPTION OF INNOCENCE,

BURDEN OF PROOF, REASONABLE DOUBT

The indictment or formal charge against a defendant is not evidence of guilt. Indeed, the defendant is presumed by the law to be innocent. The law does not require a defendant to prove his innocence or produce any evidence at all [and no inference whatever may be drawn from the election of a defendant not to testify]. The government has the burden of proving the defendant guilty beyond a reasonable doubt, and if it fails to do so, you must acquit the defendant.

While the government's burden of proof is a strict or heavy burden, it is not necessary that the defendant's guilt be proved beyond all possible doubt. It is only required that the government's proof exclude any "reasonable doubt" concerning the defendant's guilt.

A "reasonable doubt" is a doubt based upon reason and common sense after careful and impartial consideration of all the evidence in the case. Proof beyond a reasonable doubt, therefore, is proof of such a convincing character that you would be willing to rely and act upon it without hesitation in the most important of your own affairs.

Note

Delete bracketed material if defendant testifies.

This instruction was approved in United States v. Williams, 20 F.3d 125, 129 n. 1 (5^th Cir. 1994), cert. denied, 115 S.Ct. 239 (1994). The use of this instruction has been affirmed, but has been criticized in dictum. United States v. Shaw, 894 F.2d 689 (5^th Cir. 1990), cert. denied, 111 S.Ct. 85 (1990); United States v. Walker, 861 F.2d 810 (5^th Cir. 1988). But see United States v. Castro, 874 F.2d 230 (5^th Cir. 1989), cert. denied, 110 S.Ct. 138 (1989), and United States v. Stewart, 879 F.2d 1268 (5^th Cir. 1989), cert. denied, 110 S.Ct. 256 (1989), both of which question Walker's dictum.

1.06

EVIDENCE--EXCLUDING WHAT IS NOT EVIDENCE

As I told you earlier, it is your duty to determine the facts. In doing so, you must consider only the evidence presented during the trial, including the sworn testimony of the witnesses and the exhibits. Remember that any statements, objections, or arguments made by the lawyers are not evidence. The function of the lawyers is to point out those things that are most significant or most helpful to their side of the case, and in so doing to call your attention to certain facts or inferences that might otherwise escape your notice. In the final analysis, however, it is your own recollection and interpretation of the evidence that controls in the case. What the lawyers say is not binding upon you.

During the trial I sustained objections to certain questions and exhibits. You must disregard those questions and exhibits entirely. Do not speculate as to what the witness would have said if permitted to answer the question or as to the contents of an exhibit. Also, certain testimony or other evidence has been ordered stricken from the record and you have been instructed to disregard this evidence. Do not consider any testimony or other evidence which has been stricken in reaching your decision. Your verdict must be based solely on the legally admissible evidence and testimony.

Also, do not assume from anything I may have done or said during the trial that I have any opinion concerning any of the issues in this case. Except for the instructions to you on the law, you should disregard anything I may have said during the trial in arriving at your own findings as to the facts.

Note

See United States v. Rocha, 916 F.2d 219, 235 (5^th Cir. 1990), cert. denied, 111 S.Ct. 2057 (1991).

1.07

EVIDENCE--INFERENCES--DIRECT AND CIRCUMSTANTIAL

While you should consider only the evidence, you are permitted to draw such reasonable inferences from the testimony and exhibits as you feel are justified in the light of common experience. In other words, you may make deductions and reach conclusions that reason and common sense lead you to draw from the facts which have been established by the evidence.

ALTERNATIVE A

Do not be concerned about whether evidence is "direct evidence" or "circumstantial evidence." You should consider and weigh all of the evidence that was presented to you.

ALTERNATIVE B

In considering the evidence you may make deductions and reach conclusions which reason and common sense lead you to make; and you should not be concerned about whether the evidence is direct or circumstantial. "Direct evidence" is the testimony of one who asserts actual knowledge of a fact, such as an eye witness. "Circumstantial evidence" is proof of a chain of events and circumstances indicating that something is or is not a fact. The law makes no distinction between the weight you may give to either direct or circumstantial evidence.

Note

Alternative B is provided for judges who prefer to explain the distinction between direct and circumstantial evidence.

1.08

CREDIBILITY OF WITNESSES

I remind you that it is your job to decide whether the government has proved the guilt of the defendant beyond a reasonable doubt. In doing so, you must consider all of the evidence. This does not mean, however, that you must accept all of the evidence as true or accurate.

You are the sole judges of the credibility or "believability" of each witness and the weight to be given the witness's testimony. An important part of your job will be making judgments about the testimony of the witnesses [including the defendant] who testified in this case. You should decide whether you believe all or any part of what each person had to say, and how important that testimony was. In making that decision I suggest that you ask yourself a few questions: Did the person impress you as honest? Did the witness have any particular reason not to tell the truth? Did the witness have a personal interest in the outcome of the case? Did the witness have any relationship with either the government or the defense? Did the witness seem to have a good memory? Did the witness clearly see or hear the things about which he testified? Did the witness have the opportunity and ability to understand the questions clearly and answer them directly? Did the witness's testimony differ from the testimony of other witnesses? These are a few of the considerations that will help you determine the accuracy of what each witness said.

[The testimony of the defendant should be weighed and his credibility evaluated in the same way as that of any other witness.]

Your job is to think about the testimony of each witness you have heard and decide how much you believe of what each witness had to say. In making up your mind and reaching a verdict, do not make any decisions simply because there were more witnesses on one side than on the other. Do not reach a conclusion on a particular point just because there were more witnesses testifying for one side on that point.

Note

Obviously, the language in brackets should be used only if the defendant has testified. The last two sentences of the instruction are not intended for use when the defendant has not presented any testimony.

1.09

CHARACTER EVIDENCE

Where a defendant has offered evidence of good general reputation for truth and veracity, or honesty and integrity, or as a law-abiding citizen, you should consider such evidence along with all the other evidence in the case.

Evidence of a defendant's reputation, inconsistent with those traits of character ordinarily involved in the commission of the crime charged, may give rise to a reasonable doubt, since you may think it improbable that a person of good character in respect to those traits would commit such a crime.

You will always bear in mind, however, that the law never imposes upon a defendant in a criminal case the burden or duty of calling any witnesses or producing any evidence.

Note

United States v. Callahan, 588 F.2d 1078 (5^th Cir. 1979), cert. denied, 100 S.Ct. 49 (1979), approved this instruction. However, it is generally not error to refuse this instruction. United States v. Baytank, 934 F.2d 599, 614 (5^th Cir. 1991).

1.10

IMPEACHMENT BY PRIOR INCONSISTENCIES

The testimony of a witness may be discredited by showing that the witness testified falsely concerning a material matter, or by evidence that at some other time the witness said or did something, or failed to say or do something, which is inconsistent with the testimony the witness gave at this trial.

Earlier statements of a witness were not admitted in evidence to prove that the contents of those statements are true. You may consider the earlier statements only to determine whether you think they are consistent or inconsistent with the trial testimony of the witness and therefore whether they affect the credibility of that witness.

If you believe that a witness has been discredited in this manner, it is your exclusive right to give the testimony of that witness whatever weight you think it deserves.

Note

A limiting instruction on the use of prior inconsistent statements is required upon request. Even in the absence of a request, failure to give a limiting instruction can sometimes be plain error. See United States v. Livingston, 816 F.2d 184 (5^th Cir. 1987); United States v. Miller, 664 F.2d 94 (5^th Cir. 1981), cert. denied, 103 S.Ct. 121 (1982); United States v. Garcia, 530 F.2d 650 (5^th Cir. 1976). The limiting instruction would not be necessary if the prior statement "was given under oath subject to the penalty of perjury at trial, hearing, or other proceeding, or in a deposition." Rule 801(d)(1)(A), Fed. R. Evid.; United States v. Bigham, 812 F.2d 943 (5^th Cir. 1987), reh'g denied, 816 F.2d 677 (5^th Cir. 1987) (grand jury testimony). Similarly, the prior statement of the defendant would be covered by Rule 801(d)(2)(A), Fed. R. Evid.

1.11

IMPEACHMENT BY PRIOR CONVICTION

(DEFENDANT'S TESTIMONY)

You have been told that the defendant was found guilty in of ___________ [e.g., bank robbery]. This conviction has been brought to your attention only because you may wish to consider it when you decide, as with any witness, how much of the defendant's testimony you will believe in this trial. The fact that the defendant was previously found guilty of another crime does not mean that the defendant committed the crime for which the defendant is on trial, and you must not use this prior conviction as proof of the crime charged in this case.

Note

This charge should be given when the prior conviction is used for impeachment only (Fed. R. Evid. 609). If the conviction was admitted as a similar offense (Fed. R. Evid. 404(b)), then see Instruction No. 1.30, Similar Acts.

1.12

IMPEACHMENT BY PRIOR CONVICTION

(WITNESS OTHER THAN DEFENDANT)

You have been told that the witness was convicted in of [e.g., armed robbery]. A conviction is a factor you may consider in deciding whether to believe that witness, but it does not necessarily destroy the witness's credibility. It has been brought to your attention only because you may wish to consider it when you decide whether you believe the witness's testimony. It is not evidence of anything else.

Note

The last sentence addresses the issue raised in United States v. West, 22 F.3d 586 (5^th Cir. 1994), cert. denied, 115 S.Ct. 584 (1994).

1.13

IMPEACHMENT BY EVIDENCE OF UNTRUTHFUL CHARACTER

You have heard the testimony of . You also heard testimony from others concerning [their opinion about whether that witness is a truthful person or the witness's reputation, in the community where the witness lives, for telling the truth]. It is up to you to decide from what you heard here whether was telling the truth in this trial. In deciding this, you should bear in mind the testimony concerning the witness's [reputation for] truthfulness as well as all the other factors already mentioned.

Note

See United States v. Pipkin, 114 F.3d 528, 535 (5^th Cir. 1997) (refusal to give this instruction not grounds for reversal when jury was given general credibility instruction).

1.14

ACCOMPLICE--INFORMER--IMMUNITY

The testimony of an alleged accomplice, and the testimony of one who provides evidence against a defendant as an informer for pay or for immunity from punishment or for personal advantage or vindication, must always be examined and weighed by the jury with greater care and caution than the testimony of ordinary witnesses. You, the jury, must decide whether the witness's testimony has been affected by any of those circumstances, or by the witness's interest in the outcome of the case, or by prejudice against the defendant, or by the benefits that the witness has received either financially or as a result of being immunized from prosecution. You should keep in mind that such testimony is always to be received with caution and weighed with great care.

You should never convict any defendant upon the unsupported testimony of such a witness unless you believe that testimony beyond a reasonable doubt.

Note

United States v. Garcia Abrego, 141 F.3d 142, 153 (5^th Cir. 1998), cert. denied, 119 S.Ct. 182 (1998), reh'g denied, 119 S.Ct. 582 (1998), United States v. Goff, 847 F.2d 149, 161 n. 13 (5^thCir. 1988), cert. denied, 109 S.Ct. 324 (1988), and United States v. D'Antignac, 628 F.2d 428, 435-36 n.10 (5^th Cir. 1980), cert. denied, 101 S.Ct. 1485 (1981), all approved this instruction. See alsoWilkerson v. United States, 591 F.2d 1046 (5^th Cir. 1979), reh'g denied, 595 F.2d 1221 (5^th Cir. 1979), approving an instruction that testimony of a co-conspirator must be weighed with caution.

"[T]he credibility of the compensated witness, like that of the witness promised a reduced sentence, is for a properly instructed jury to determine." United States v. Cervantes-Pacheco, 826 F.2d 310, 315 (5^th Cir. 1987), cert. denied, 108 S.Ct. 749 (1988). It is not error to refuse to give a specific instruction as to the suspect credibility of a compensated witness where the jury is given an instruction substantially similar to the first sentence of this instruction, United States v. Narviz-Guerra, 148 F.3d 530, 538 (5^th Cir. 1998), cert. denied, 119 S.Ct. 601 (1998); but the district court must give specific instructions to the jury about the credibility of paid witnesses, United States v. Villafranca, No. 99-40593, 2001 WL 838867, at *2 (5^th Cir. July 25, 2001).

1.15

ACCOMPLICE--CO-DEFENDANT--PLEA AGREEMENT

In this case the government called as one of its witnesses an alleged accomplice, named as a co-defendant in the indictment, with whom the government has entered into a plea agreement providing for the dismissal of some charges and a lesser sentence than the co-defendant would otherwise be exposed to for the offense to which the co-defendant plead guilty. Such plea bargaining, as it is called, has been approved as lawful and proper, and is expressly provided for in the rules of this court.

An alleged accomplice, including one who has entered into a plea agreement with the government, is not prohibited from testifying. On the contrary, the testimony of such a witness may alone be of sufficient weight to sustain a verdict of guilty. You should keep in mind that such testimony is always to be received with caution and weighed with great care. You should never convict a defendant upon the unsupported testimony of an alleged accomplice unless you believe that testimony beyond a reasonable doubt. The fact that an accomplice has entered a plea of guilty to the offense charged is not evidence of the guilt of any other person.

Note

The phrase "in and of itself" has been deleted from the last sentence of the 1997 version of this instruction. The Fifth Circuit and Eleventh Circuit have approved that language. United States v. Pettigrew, 77 F.3d 1500, 1518 (5^th Cir. 1996); United States v. Prieto, 232 F.3d 816, 823 (11^th Cir. 2000). However, the First Circuit discouraged as "potentially misleading" the use of such "in and of itself" language. United States v. Gonzalez-Gonzalez, 136 F.3d 6, 10-11 (1^st Cir. 1998). Pattern jury instructions for the Sixth, Seventh, Eighth, and Ninth Circuits do not contain the "in and of itself" language.

Portions of this instruction were approved in the following cases: United States v. Posada-Rios, 158 F.3d 832, 872-73 (5^th Cir. 1998), cert. denied, 119 S.Ct. 1280 (1999); United States v. Pettigrew, 77 F.3d 1500, 1518 (5^th Cir. 1996); United States v. Pierce, 959 F.2d 1297, 1304 (5^th Cir. 1992), cert. denied, 113 S.Ct. 621 (1992); and United States v. Abravaya, 616 F.2d 250, 251 (5^th Cir. 1980).

1.16

WITNESS'S USE OF ADDICTIVE DRUGS

The testimony of someone who is shown to have used addictive drugs during the period of time about which the witness testified must always be examined and weighed by the jury with greater care and caution than the testimony of ordinary witnesses.

You should never convict any defendant upon the unsupported testimony of such a witness unless you believe that testimony beyond a reasonable doubt.

Note

United States v. Gadison, 8 F.3d 186 (5^th Cir. 1993) (fact that witness is recovering drug addict raises an issue of credibility not admissibility); United States v. Garner, 581 F.2d 481 (5^th Cir. 1978) (witness's use of heroin raises a credibility issue for the jury; testimony to be weighed with caution; no specific instruction quoted or approved). See also United States v. Diecidue, 603 F.2d 535 (5^th Cir. 1979), cert. denied, 100 S.Ct. 1345 (1980); United States v. Gentry, 839 F.2d 1065 (5^thCir. 1988).

1.17

EXPERT WITNESS

During the trial you heard the testimony of , who has expressed opinions concerning . If scientific, technical, or other specialized knowledge might assist the jury in understanding the evidence or in determining a fact in issue, a witness qualified by knowledge, skill, experience, training, or education may testify and state an opinion concerning such matters.

Merely because such a witness has expressed an opinion does not mean, however, that you must accept this opinion. You should judge such testimony like any other testimony. You may accept it or reject it, and give it as much weight as you think it deserves, considering the witness's education and experience, the soundness of the reasons given for the opinion, and all other evidence in the case.

Note

This instruction does not refer to the witness as an "expert." When a court so refers to a witness, the jury may be inclined to give undue weight to that witness's testimony. When the judge gives written instructions to the jury, the judge may wish to delete the title "Expert Witness."

1.18

ON OR ABOUT

You will note that the indictment charges that the offense was committed on or about a specified date. The government does not have to prove that the crime was committed on that exact date, so long as the government proves beyond a reasonable doubt that the defendant committed the crime on a date reasonably near (repeat date), the date stated in the indictment.

Note

"Generally speaking, proof of any date before the return of the indictment and within the statute of limitations is sufficient." United States v. Bowman, 783 F.2d 1192, 1197 (5^th Cir. 1986).

See also United States v. Powers, 168 F.3d 741, 746 (5^th Cir. 1999), cert. denied, 120 S.Ct. 360 (1999); United States v. Morris, 46 F.3d 410, 419 (5^th Cir. 1995), cert. denied, 115 S.Ct. 2595 (1995).

If the defendant has raised an alibi defense dependent upon a particular day, this instruction should be coordinated with the "Alibi" instruction. See United States v. King, 703 F.2d 119 (5^th Cir. 1983), cert. denied, 104 S.Ct. 148 (1983).

1.19

CAUTION-CONSIDER ONLY CRIME CHARGED

You are here to decide whether the government has proved beyond a reasonable doubt that the defendant is guilty of the crime charged. The defendant is not on trial for any act, conduct, or offense not alleged in the indictment. Neither are you concerned with the guilt of any other person or persons not on trial as a defendant in this case, except as you are otherwise instructed.

Note

See United States v. Fotovich, 885 F.2d 241 (5^th Cir. 1989), cert. denied, 110 S.Ct. 754 (1990), approving a substantially similar instruction.

The exception in the last sentence of this instruction is intended to avoid possible jury confusion in cases where the guilt of another person could have some relevance, e.g., deciding whether defendant was a member of a criminal conspiracy even when the other alleged conspirators are not also being tried.

1.20

CAUTION--PUNISHMENT

If a defendant is found guilty, it will be my duty to decide what the punishment will be. You should not be concerned with punishment in any way. It should not enter your consideration or discussion.

1.21

SINGLE DEFENDANT--MULTIPLE COUNTS

A separate crime is charged in each count of the indictment. Each count, and the evidence pertaining to it, should be considered separately. The fact that you may find the defendant guilty or not guilty as to one of the crimes charged should not control your verdict as to any other.

Note

In some cases, such as prosecutions under 18 U.S.C. § 1862 (RICO) and 21 U.S.C. § 848 (Continuing Criminal Enterprise), a conviction on one or more counts ("predicate offenses") is necessary to support a conviction on another count. In such cases, the last sentence of the instruction should be modified.

1.22

MULTIPLE DEFENDANTS--SINGLE COUNT

The case of each defendant and the evidence pertaining to that defendant should be considered separately and individually. The fact that you may find one of the defendants guilty or not guilty should not control your verdict as to any other defendant.

Note

See United States v. Hass, 150 F.3d 443, 449 n.1 (5^th Cir. 1998) (undue prejudice resulting from admission of evidence relevant to co-defendant but having only a tenuous relationship to another defendant cured by limiting instruction that "evidence pertaining to each defendant should be considered separately and individually"). See also United States v. Gallardo-Trapero, 185 F.3d 307, 316 n.2 (5^th Cir. 1999), cert. denied, 120 S.Ct. 961 (2000); United States v. Manges, 110 F.3d 1162 (5^th Cir. 1997), cert. denied, 118 S.Ct. 1675 (1998).

1.23

MULTIPLE DEFENDANTS--MULTIPLE COUNTS

A separate crime is charged against one or more of the defendants in each count of the indictment. Each count, and the evidence pertaining to it, should be considered separately. The case of each defendant should be considered separately and individually. The fact that you may find one or more of the accused guilty or not guilty of any of the crimes charged should not control your verdict as to any other crime or any other defendant. You must give separate consideration to the evidence as to each defendant.

Note

United States v. Dillman, 15 F.3d 384 (5^th Cir. 1994), cert. denied, 115 S.Ct. 183 (1994), approved this charge.

In some cases, such as prosecutions under 18 U.S.C. § 1862 (RICO) and 21 U.S.C. § 848 (Continuing Criminal Enterprise), a conviction on one or more counts ("predicate offenses") is necessary to support a conviction on another count. In such cases, the fourth sentence of the instruction should be modified.

1.24

DUTY TO DELIBERATE--VERDICT FORM

To reach a verdict, whether it is guilty or not guilty, all of you must agree. Your verdict must be unanimous on each count of the indictment. Your deliberations will be secret. You will never have to explain your verdict to anyone.

It is your duty to consult with one another and to deliberate in an effort to reach agreement if you can do so. Each of you must decide the case for yourself, but only after an impartial consideration of the evidence with your fellow jurors. During your deliberations, do not hesitate to reexamine your own opinions and change your mind if convinced that you were wrong. But do not give up your honest beliefs as to the weight or effect of the evidence solely because of the opinion of your fellow jurors, or for the mere purpose of returning a verdict.

Remember at all times, you are judges--judges of the facts. Your duty is to decide whether the government has proved the defendant guilty beyond a reasonable doubt .

When you go to the jury room, the first thing that you should do is select one of your number as your foreperson, who will help to guide your deliberations and will speak for you here in the courtroom.

A form of verdict has been prepared for your convenience.

[Explain verdict form.]

The foreperson will write the unanimous answer of the jury in the space provided for each count of the indictment, either guilty or not guilty. At the conclusion of your deliberations, the foreperson should date and sign the verdict.

If you need to communicate with me during your deliberations, the foreperson should write the message and give it to the marshal. I will either reply in writing or bring you back into the court to answer your message.

Bear in mind that you are never to reveal to any person, not even to the court, how the jury stands, numerically or otherwise, on any count of the indictment, until after you have reached a unanimous verdict.

Note

Concerning the admonition against disclosure of the numerical division of the jury, seeBrasfield v. United States, 47 S.Ct. 135 (1926); United States v. Chanya, 700 F.2d 192, 193 (5^th Cir. 1983), appeal after remand, 723 F.2d 374 (5^th Cir. 1984), cert. denied, 104 S.Ct. 1925 (1984), reh'g denied, 104 S.Ct. 2693 (1984).

1.25

UNANIMITY OF THEORY

You have been instructed that your verdict, whether it is guilty or not guilty, must be unanimous. The following instruction applies to the unanimity requirement as to Count .

Count of the indictment accuses the defendant of committing the crime of in [e.g., three] different ways. The first is that the defendant . The second is that the defendant . The third is that the defendant .

The government does not have to prove all of these for you to return a guilty verdict on this charge. Proof beyond a reasonable doubt on one is enough. But in order to return a guilty verdict, all twelve of you must agree that the same one has been proved. All of you must agree that the government proved beyond a reasonable doubt that the defendant ; or, all of you must agree that the government proved beyond a reasonable doubt that the defendant ; or all of you must agree that the government proved beyond a reasonable doubt that the defendant .

Note

The first paragraph of the instruction reflects that indictments often state different means of committing the crime in the conjunctive.

This instruction should be used when the alternative means are conceptually separate and distinct, and there are special circumstances creating a genuine risk that a conviction may occur as a result of different jurors concluding that the defendant committed different acts. See Richardson v. United States, 119 S.Ct. 1707 (1999); United States v. Correa-Ventura, 6 F.3d 1070 (5^th Cir. 1993), for discussion of when this instruction is required. See also United States v. Meshack, 225 F.3d 556 (5^th Cir. 2000), cert. denied, 121 S.Ct. 834 (2001), amended on reh'g in part 244 F.3d 367 (5^th Cir. 2001), petition for cert. filed, (U.S. June 25, 2001) (No. 00-10499) (failure to instruct jury that it must unanimously agree as to mental state possessed by defendant charged with money laundering not plain error), United States v. Narvez-Guerra, 148 F.3d 530 (5^th Cir.), cert. denied, 119 S.Ct. 601 (1998) (failure to give specific unanimity instruction in case involving conspiracy to launder money not plain error), United States v. Dillman, 15 F.3d 384 (5^th Cir.), cert. denied, 115 S.Ct. 183 (1994) (district court refusal to give specific unanimity instruction on conspiracy count not error); United States v. Holley, 942 F.2d 916 (5^th Cir. 1991) (district court refusal to give specific unanimity instruction held to be reversible error).

1.26

CONFESSION--STATEMENT--VOLUNTARINESS

(SINGLE DEFENDANT)

In determining whether any statement, claimed to have been made by a defendant outside of court and after an alleged crime has been committed, was knowingly and voluntarily made, you should consider the evidence concerning such a statement with caution and great care, and should give such weight to the statement as you feel it deserves under all the circumstances.

You may consider in that regard such factors as the age, sex, training, education, occupation, and physical and mental condition of the defendant, his treatment while under interrogation, and all the other circumstances in evidence surrounding the making of the statement.

1.27

CONFESSION-STATEMENT-VOLUNTARINESS

(MULTIPLE DEFENDANTS)

In determining whether any statement, claimed to have been made by a defendant outside of court and after an alleged crime has been committed, was knowingly and voluntarily made, you should consider the evidence concerning such a statement with caution and great care, and should give such weight to the statement as you feel it deserves under all the circumstances.

You may consider in that regard such factors as the age, sex, training, education, occupation, and physical and mental condition of the defendant, his treatment while under interrogation, and all the other circumstances in evidence surrounding the making of the statement.

Of course, any such statement should not be considered in any way whatsoever as evidence with respect to any other defendant on trial.

Note

United States v. Watson, 591 F.2d 1058 (5^th Cir. 1979), cert. denied, 99 S.Ct. 2414 (1979), approved instruction in substantially same form. See also United States v. Terrazas-Carrasco, 861 F.2d 93 (5^th Cir. 1988).

1.28

ENTRAPMENT

The defendant asserts that he was a victim of entrapment.

Where a person has no previous intent or purpose to violate the law, but is induced or persuaded by law enforcement officers or their agents to commit a crime, that person is a victim of entrapment, and the law as a matter of policy forbids that person's conviction in such a case.

On the other hand, where a person already has the readiness and willingness to break the law, the mere fact that government agents provide what appears to be a favorable opportunity is not entrapment. For example, it is not entrapment for a government agent to pretend to be someone else and to offer, either directly or through an informer or other decoy, to engage in an unlawful transaction.

If, then, you should find beyond a reasonable doubt from the evidence in the case that, before anything at all occurred respecting the alleged offense involved in this case, the defendant was ready and willing to commit a crime such as charged in the indictment, whenever opportunity was afforded, and that government officers or their agents did no more than offer the opportunity, then you should find that the defendant is not a victim of entrapment.

On the other hand, if the evidence in the case should leave you with a reasonable doubt whether the defendant had the previous intent or purpose to commit an offense of the character charged, apart from the inducement or persuasion of some officer or agent of the government, then it is your duty to find the defendant not guilty.

The burden is on the government to prove beyond a reasonable doubt that the defendant was not entrapped.

You are instructed that a paid informer is an "agent" of the government for purposes of this instruction.

Note

This instruction has been cited and approved in a number of cases. See, e.g., United States v. Wise, 221 F.3d 140 (5^th Cir. 2000), petition for cert. filed (U.S. Dec. 4, 2000) (No. 00-7342);United States v. Brace, 145 F.3d 247 (5^th Cir.), cert. denied, 119 S.Ct. 426 (1998); United States v. Hernandez, 92 F.3d 309 (5^th Cir. 1996), cert. denied, 117 S.Ct. 1437 (1997); United States v. Arditti, 955 F.2d 331 (5^th Cir. 1992), cert. denied, 113 S.Ct. 597 (1992); United States v. Collins, 972 F.2d 1385, 1412, n. 58 (5^th Cir. 1992), cert. denied, 113 S.Ct. 1812 (1993); United States v. Stowell, 947 F.2d 1251, 1257 (5^th Cir. 1991), cert. denied, 112 S.Ct. 1269 (1992).

In Jacobson v. United States, 112 S.Ct. 1535, 1540 (1992), the Supreme Court held that where the government "has induced an individual to break the law, and the defense of entrapment is at issue, the prosecution must prove beyond a reasonable doubt that the defendant was disposed to commit the criminal act prior to first being approached by government agents." The Fifth Circuit interpreted Jacobson as requiring "that the government must prove at trial beyond a reasonable doubt that the defendant was actually predisposed to commit the underlying crime absent the government's role in assisting such commission." United States v. Byrd, 31 F.3d 1329, 1336 (5^th Cir. 1994) (quoting United States v. Aibejeris, 28 F.3d 97, 99 (11^th Cir. 1994)), cert. denied, 115 S.Ct. 1432 (1995). The Fifth Circuit stressed that "the crucial holding of Jacobson is that predisposition must be independent of government action." Id. In United States v. Hernandez, 92 F.3d 309 (5^th Cir. 1996), cert. denied, 117 S.Ct. 1437 (1997), the Fifth Circuit affirmed the adequacy of this instruction with respect to the requirement expressed in Jacobson.

Post-Jacobson, the Seventh Circuit held that "[p]redisposition is not a purely mental state ... [i]t has positional as well as dispositional force." United States v. Hollingsworth, 27 F.3d 1196, 1200 (7^th Cir. 1994). "Postitional predisposition" requires that the "defendant must be so situated by reason of previous training or experience or occupation or acquaintances that it is likely that if the government had not induced him to commit the crime some criminal would have done so." Id. For a discussion of the Fifth's Circuit's view on "positional predisposition" see United States v. Reyes, 239 F.3d 722, 742-43 (5^th Cir 2001), cert. denied, 121 S.Ct. 2618 (2001).

An issue may arise in a case in which a defendant denies the requisite intent to commit the crime in question or that he was involved in one or more of the acts essential to the commission of the charged crime and alternatively contends that he was in any event entrapped. In Mathews v. United States, 108 S.Ct. 883, 886 (1988), the Supreme Court held that "even if the defendant denies one or more elements of the crime, he is entitled to an entrapment instruction whenever there is sufficient evidence from which a reasonable jury could find entrapment." In United States v. Collins, 972 F.2d 1385, 1413 (5^th Cir. 1992), cert. denied, 113 S.Ct. 1812 (1993), the trial judge declined to give a requested instruction to the effect that the defendant has a right to deny participation in the crime and alternatively plead entrapment. The Fifth Circuit held that there was no reversible error, but stressed that "the jury repeatedly was told that the defendants were denying culpability for the crime." Id. Considering the unusual nature of such an alternative contention, on request of a defendant the judge should give a specific instruction to the effect that a defendant may deny that he engaged in the activity constituting the charged offense and alternatively plead entrapment.

Generally, an entrapment issue should be submitted under the general rule that a jury must be instructed on defensive theories, if there is sufficient evidence for a reasonable jury to rule in favor of the defendant on that theory. United States v. Bradfield, 113 F.3d 515, 520 (5^th Cir. 1997).

1.29

IDENTIFICATION TESTIMONY

In any criminal case the government must prove not only the essential elements of the offense or offenses charged, as hereafter defined, but must also prove, of course, the identity of the defendant as the perpetrator of the alleged offense or offenses.

In evaluating the identification testimony of a witness you should consider all of the factors already mentioned concerning you assessment of the credibility of any witness in general, and should also consider, in particular, whether the witness had an adequate opportunity to observe the person in question at the time or times about which the witness testified. You may consider, in that regard, such matters as the length of time the witness had to observe the person in question, the prevailing conditions at that time in terms of visibility or distance and the like, and whether the witness had known or observed the person at earlier times.

You may also consider the circumstances surrounding the identification itself including, for example, the manner in which the defendant was presented to the witness for identification, and the length of time that elapsed between the incident in question and the next opportunity the witness had to observe the defendant.

If, after examining all of the testimony and evidence in the case, you have a reasonable doubt as to the identity of the defendant as the perpetrator of the offense charged, you must find the defendant not guilty.

Note

Barber v. United States, 412 F.2d 775 (5^th Cir. 1969), approved a similar instruction.

1.30

SIMILAR ACTS

You have heard evidence of acts of the defendant which may be similar to those charged in the indictment, but which were committed on other occasions. You must not consider any of this evidence in deciding if the defendant committed the acts charged in the indictment. However, you may consider this evidence for other, very limited, purposes.

If you find beyond a reasonable doubt from other evidence in this case that the defendant did commit the acts charged in the indictment, then you may consider evidence of the similar acts allegedly committed on other occasions to determine:

Whether the defendant had the state of mind or intent necessary to commit the crime charged in the indictment;

or

whether the defendant had a motive or the opportunity to commit the acts charged in the indictment;

or

whether the defendant acted according to a plan or in preparation for commission of a crime;

or

whether the defendant committed the acts for which he is on trial by accident or mistake.

These are the limited purposes for which any evidence of other similar acts may be considered.

Note

United States v. LeBaron, 156 F.3d 621, 626 (5^th Cir. 1998), cert. denied, 119 S.Ct. 1074 (1999), cites this instruction with approval. See also United States v. Chiak, 137 F.3d 252, 257-58 n. 3 (5^th Cir.), cert. denied, 119 S.Ct. 118 (1998) and United States v. West, 22 F.3d 586, 595 (5^th Cir. ), cert. denied, 115 S.Ct. 584 (1994), approving similar instructions.

United States v. Gibson, 55 F.3d 173 (5^th Cir. 1995), and United States v. Waldrip, 981 F.2d 799 (5^th Cir. 1993), discuss the use of a limiting instruction when extraneous offenses are introduced. Ordinarily, the defendant must request this instruction. Under some circumstances, the failure to give this instruction, even in the absence of a request, may constitute plain error. Id. Thus, the better practice may be to give this instruction whenever Rule 404(b) evidence is introduced.

A limiting instruction need not be given each and every time a prior bad act is introduced into evidence. United States v. Hernandez-Guevara, 162 F.3d 863 (5^th Cir. 1998), cert. denied, 119 S.Ct. 1375 (1999).

In United States v. Peterson, 244 F.3d 385 (5^th Cir. 2001), several defendants were tried jointly but the Rule 404(b) evidence only applied to one of them. In reviewing a claim by the other defendants that they were prejudiced by the denial of a severance, the Fifth Circuit commented that "it might be better to use the actual names rather than 'those defendants' in the instructions in order to make crystal clear to the jury that Rule 404(b) evidence against" one defendant "could not be considered, even for 'other, very limited purposes,' against" other codefendants. Id. at 395.

1.31

POSSESSION

Possession, as that term is used in this case, may be of two kinds: actual possession and constructive possession. A person who knowingly has direct physical control over a thing, at a given time, is then in actual possession of it.

A person who, although not in actual possession, knowingly has both the power and the intention, at a given time, to exercise dominion or control over a thing, either directly or through another person or persons, is then in constructive possession of it.

Possession may be sole or joint. If one person alone has actual or constructive possession of a thing, possession is sole. If two or more persons share actual or constructive possession of a thing, possession is joint.

You may find that the element of possession, as that term is used in these instructions, is present if you find beyond a reasonable doubt that the defendant had actual or constructive possession, either alone or jointly with others.

Note

The instruction on joint or constructive possession should be given only when the evidence raises the issue. See United States v. Jones, 185 F.3d 459 (5^th Cir. 1999), cert. denied, 121 S.Ct. 125 (2000); United States v. Ybarra, 70 F.3d 362, (5^th Cir. 1995), cert. denied, 116 S.Ct. 1582 (1996),United States v. Steen, 55 F.3d 1022 (5^th Cir. 1995), cert. denied, 116 S.Ct. 577 (1995); United States v. Posner, 868 F.2d 720 (5^th Cir. 1989), on constructive possession.

A number of Fifth Circuit cases have cited this instruction with approval. See United States v. Cano-Guel, 167 F.3d 900, 905-906 (1999); United States v. Prudhome, 13 F.3d 147, 149-50 (5^thCir. 1994), cert. denied, 114 S.Ct. 1866 (1994); United States v. Shabazz, 993 F.2d 431, 440 n. 14 (5^th Cir. 1993); United States v. McKnight, 953 F.2d 898, 903-04 (5^th Cir. 1992), cert. denied, 112 S.Ct. 2975 (1992).

When the jury is instructed that constructive possession requires proof of "dominion and control," refusal to instruct jury that "mere touching" is insufficient to establish constructive possession is not error. United States v. DeLeon, 170 F.3d 494, 498 (5^th Cir.), cert. denied, 120 S.Ct. 156 (1999).

In a prosecution for possession of a controlled substance, when the substance is hidden and the defense is lack of knowledge of the presence of the substance, defendant is entitled to a "knowledge" instruction more specific than the "'Knowingly'-To Act" instruction. See United States v. Pennington, 20 F.3d 593 (5^th Cir. 1994). For example, if an unlawful drug is hidden from view in a vehicle, a charge such as the following should be considered:

The government may not rely only upon a defendant's ownership and control of the vehicle to prove the defendant knew that he possessed a controlled substance. While these are factors you may consider, the government must prove that there is other evidence indicating the defendant's guilty knowledge of a controlled substance hidden in the vehicle.

1.32

ATTEMPT

It is a crime for anyone to attempt to commit a violation of certain specified laws of the United States. In this case, the defendant is charged with attempting to [describe the substantive offense alleged in the indictment; e.g., possess with intent to distribute a controlled substance].

The elements of [the substantive offense] are: [give required elements unless they are already given elsewhere in the charge].

For you to find the defendant guilty of attempting to commit [the substantive offense], you must be convinced that the government has proved each of the following beyond a reasonable doubt:

First: That the defendant intended to commit [the substantive offense]; and

Second: That the defendant did an act constituting a substantial step towards the commission of that crime which strongly corroborates the defendant's criminal intent.

Note

The elements of the offense are discussed in United States v. Crow, 164 F.3d 229, 235 (5^thCir. 1999), United States v. Fuller, 974 F.2d 1474, 1478 (5^th Cir. 1993), and United States v. Contreras, 950 F.2d 232, 236-37 (5^th Cir. 1991), cert. denied, 112 S.Ct. 2276 (1992).

The "requirement that the conduct be strongly corroborative of the firmness of the defendant's criminal intent also relates to the requirement that the conduct be more than 'mere preparation,' ...."" United States v. Mandujano, 499 F.2d 370, 377 (5th Cir. 1974), cert. denied, 95 S.Ct. 792 (1975) (affirming defendant's conviction of attempted distribution of a controlled substance under 21 U.S.C. § 846); see also Contreras, 950 F.2d at 237 (stating that a substantial step must be conduct strongly corroborative of the firmness of the defendant's criminal intent).

Attempt is usually a lesser included offense of the completed crime. However, a defendant may be convicted of a substantive offense and also attempting to commit the same kind of substantive offense, so long as there is a different factual basis for the two separate crimes. United States v. Anderson, 987 F.2d 251, 254-56 (5th Cir.), cert. denied, 114 S.Ct. 157 (1993) (affirming convictions for manufacturing one batch of methamphetamine and attempting to manufacture a second batch).

1.33

LESSER INCLUDED OFFENSE

We have just talked about what the government has to prove for you to convict the defendant of the crime charged in the indictment, [e.g., committing a bank robbery in which someone was exposed to risk of death by the use of a dangerous weapon]. Your first task is to decide whether the government has proved, beyond a reasonable doubt, that the defendant committed that crime. If your verdict on that is guilty, you are finished. But if your verdict is not guilty, or if after all reasonable efforts, you are unable to reach a verdict, you should go on to consider whether the defendant is guilty of [lesser crime, e.g., simple bank robbery]. You should find the defendant guilty of [lesser crime] if the government has proved, beyond a reasonable doubt, that the defendant did everything we discussed before except that it did not prove that the defendant [describe missing element, e.g., exposed someone to risk of death by use of a dangerous weapon].

To put it another way, the defendant is guilty of [lesser crime] if the following things are proved beyond a reasonable doubt: [List elements]. The defendant is guilty of [greater crime] if it is proved beyond a reasonable doubt that the defendant did all those things and, in addition [describe missing element]. If your verdict is that the defendant is guilty of [greater crime], you need go no further. But if your verdict on that crime is not guilty, or if after all reasonable efforts, you are unable to reach a verdict on it, you should consider whether the defendant has been proved guilty of [lesser crime].

Of course, if the government has not proved beyond a reasonable doubt that the defendant committed [lesser crime], your verdict must be not guilty of all of the charges.

Note

See Schmuck v. United States, 109 S.Ct. 1443 (1989), reh'g denied, 109 S.Ct. 2091 (1989), on when to give a lesser included offense instruction. See also Carter v. United States, 120 S.Ct. 2159 (2000) (18 U.S.C. § 2113(b) is not a lesser included offense of 18 U.S.C. § 2113(a)); United States v. Estrada-Fernandez, 150 F.3d 491, 494 (5^th Cir. 1998) (lesser included offense instruction may be given only if (1) elements of offense are a subset of the elements of the charged offense, and (2) the evidence at trial permits a jury to rationally find the defendant guilty of the lesser offense and acquit him of the greater offense).

The phrase "after all reasonable efforts" has been included in the first two paragraphs to address the concerns raised in United States v. Buchner, 7 F.3d 1149, 1153 n.5 (5^th Cir. 1993), cert. denied, 114 S.Ct. 1331 (1994).

1.34

INSANITY

The defendant claims that he was insane at the time of the events alleged in the indictment. If you conclude that the government has proved beyond a reasonable doubt that the defendant committed the crime as charged, you must then consider whether the defendant should be found "not guilty only by reason of insanity."

The defendant was insane as the law defines that term only if, as a result of a severe mental disease or defect, the defendant was unable to appreciate the nature and quality or the wrongfulness of his acts. Mental disease or defect does not otherwise constitute a defense.

On the issue of insanity, it is the defendant who must prove his insanity by clear and convincing evidence. You should render a verdict of "not guilty only by reason of insanity" if you are persuaded by clear and convincing evidence that the defendant was insane when the crime was committed.

Remember, then, that there are three possible verdicts in this case: guilty, not guilty, and not guilty only by reason of insanity.

Note

The Insanity Defense Reform Act of 1984, codified at 18 U.S.C. § 17, redefined the insanity defense and reallocated the burden of proof, modifying United States v. Lyons, 731 F.2d 243 (5^th Cir. 1984) (en banc), cert. denied, 105 S.Ct. 323 (1984).

The Fifth Circuit affirmed a district court's use of this instruction on insanity in United States v. Shannon, 981 F.2d 759, 761 (5^th Cir. 1993), affirmed, 114 S.Ct. 2419 (1994). In Shannon, the Fifth Circuit also held that a defendant is not entitled to a jury instruction which describes mandatory commitment procedures accompanying a verdict of not guilty by reason of insanity (NGI). Id. at 764.

The Supreme Court affirmed the Fifth Circuit's decision and held that "the IDRA [Insanity Defense Reform Act of 1984, 18 U.S.C. §§ 4241-4247] does not require an instruction concerning the consequences of an NGI verdict, and that such an instruction is not to be given as a matter of general practice." Shannon v. United States, 114 S.Ct. 2419, 2428 (1994).

The Supreme Court did recognize that an instruction "of some form may be necessary under certain limited circumstances," e.g., if a witness or prosecutor states to the jury that a defendant would go free after an NGI verdict, a district court might need to "intervene with an instruction to counter such misstatement." Id.

See also United States v. Dixon, 185 F.3d 393 (5^th Cir. 1999), and United States v. Levine, 80 F.3d 129 (5^th Cir.), cert. denied, 117 S.Ct. 83 (1996), for Fifth Circuit decisions on the insanity defense.

See 18 U.S.C. § 4242(b), providing that the jury shall be instructed to find the defendant guilty, not guilty, or not guilty only by reason of insanity.

1.35

ALIBI

Evidence has been introduced tending to establish an alibi--that the defendant was not present at the time when, or at the place where, the defendant is alleged to have committed the offense charged in the indictment.

It is, of course, the government's burden to establish beyond a reasonable doubt each of the essential elements of the offense, including the involvement of the defendant; and if, after consideration of all the evidence in the case, you have a reasonable doubt as to whether the defendant was present at the time or place as alleged in the indictment, you must find the defendant not guilty.

Note

United States v. Brown, 49 F.3d 135 (5^th Cir. 1995), approved an instruction in substantially the same form.

1.36

JUSTIFICATION, DURESS, OR COERCION

The defendant claims that if he committed the acts charged in the indictment, he did so only because he was forced to commit the crime. If you conclude that the government has proved beyond a reasonable doubt that the defendant committed the crime as charged, you must then consider whether the defendant should nevertheless be found "not guilty" because his actions were justified by duress or coercion.

The defendant's actions were justified, and therefore he is not guilty, only if the defendant has shown by a preponderance of evidence that each of the following four elements is true. To prove a fact by a preponderance of the evidence means to prove that the fact is more likely so than not so. This is a lesser burden of proof than to prove a fact beyond a reasonable doubt. The four elements which the defendant must prove by a preponderance of the evidence are as follows:

1. The defendant was under an unlawful present, imminent, and impending threat of such a nature as to induce a well-grounded fear of death or serious bodily injury to himself [or to a family member]; and

2. The defendant had not recklessly or negligently placed himself in a situation in which it was probable that he would be forced to choose the criminal conduct; and

3. The defendant had no reasonable legal alternative to violating the law, that is, he had no reasonable opportunity to avoid the threatened harm; and

4. A reasonable person would believe that by committing the criminal action he would directly avoid the threatened harm.

Note

Two recent Fifth Circuit cases set forth the elements of this defense in essentially the same terms as this instruction. United States v. Wyly, 193 F.3d 289, 300 (5^th Cir. 1999), United States v. Posada-Rios, 158 F.3d 832, 873 (5^th Cir. 1998), cert. denied, 119 S.Ct. 1280 (1999). Contrary to other circuits, the Fifth Circuit places the burden of proving this affirmative defense on the defendant and requires the defendant to prove that he did not recklessly or negligently place himself in the situation. Hence, this instruction differs from the pattern instructions in those other circuits. United States v. Wyly, 193 F.3d 289, 300 (5^th Cir. 1999); United States v. Willis, 38 F.3d 170, 179 (5^th Cir. 1994), cert. denied, 115 S.Ct. 2585 (1995). See also United States v. Harper, 802 F.2d 115 (5^th Cir. 1986), Manual of Model Criminal Jury Instructions for the Ninth Circuit, § 6.5 (West 2000);Manual of Model Criminal Jury Instructions for the District Courts of the Eighth Circuit, Committee Comments to § 9.02, p. 496 (West 2000); Pattern Criminal Jury Instructions Sixth Circuit, § 6.06 (West 1991).

The test of whether or not the defense of duress exists is an objective one, not a subjective one. United States v. Posada-Rios, 158 F.3d 832, 873 (5^th Cir. 1998), cert. denied, 119 S.Ct. 1280 (1999); United States v. Willis, 38 F.3d 170, 176 (5^th Cir. 1994), cert. denied, 115 S.Ct. 2585 (1995).

As with any affirmative defense, the trial court may refuse to give the justification instruction if the defendant fails to submit sufficient evidence for a reasonable juror to find duress. United States v. Posada-Rios, 158 F.3d 832, 873 (5^th Cir. 1998), cert. denied, 119 S.Ct. 1280 (1999); United States v. Liu, 960 F.2d 449 (5^th Cir. 1992), cert. denied, 113 S.Ct. 418 (1992); United States v Harvey, 897 F.2d 1300 (5^th Cir. 1990), cert. denied, 111 S.Ct. 568 (1990), overruled in part on other grounds, United States v. Lambert, 984 F.2d 658 (5^th Cir. 1993) (en banc).

1.37

"KNOWINGLY"--TO ACT

The word "knowingly," as that term has been used from time to time in these instructions, means that the act was done voluntarily and intentionally, not because of mistake or accident.

[You may find that a defendant had knowledge of a fact if you find that the defendant deliberately closed his eyes to what would otherwise have been obvious to him. While knowledge on the part of the defendant cannot be established merely by demonstrating that the defendant was negligent, careless, or foolish, knowledge can be inferred if the defendant deliberately blinded himself to the existence of a fact.]

Note

United States v. Brown, 186 F.3d 661, 665 (5^th Cir. 1999), held that a jury given this instruction was "properly instructed." See also United States v. Jobe, 101 F.3d 1046, 1059 (5^th Cir. 1996), cert. denied, 118 S.Ct. 81 (1997); United States v. Aggrawal, 17 F.3d 737, 744 (5^th Cir. 1994) (this instruction is "correct" definition of "knowingly").

Refusal to give this "knowingly" instruction may not be error if the substantive offense instruction adequately covers the element of knowledge. See United States v. Cano-Guel, 167 F.3d 900 (5^th Cir. 1999); United States v. Sanchez-Sotelo, 8 F.3d 202 (5^th Cir. 1993), cert. denied, 114 S.Ct. 1410 (1994).

With regard to the deliberate ignorance instruction and the appropriate occasions for its submission, see United States v. Peterson, 244 F.3d 385 (5^th Cir.), petition for cert. filed (U.S. June 5, 2001) (No. 00-10428); United States v. Sharpe, 193 F.3d 852 (5^th Cir. 1999), cert. denied, 120 S.Ct. 1202 (2000); United States v. Moreno, 185 F.3d 465 (5^th Cir. 1999), cert. denied, 120 S.Ct. 835 (2000); United States v. Threadgill, 172 F.3d 357 (5^th Cir.), cert. denied, 120 S.Ct. 172 (1999);United States v. Lara-Velasquez, 919 F.2d 946 (5^th Cir. 1990). The bracketed material should be used sparingly-only when the facts and statute under which the defendant is being prosecuted justify it. See United States v. Chen, 913 F.2d 183 (5^th Cir. 1990). If a deliberate ignorance instruction is given, a "balancing" instruction should be considered upon request of defendant. See United States v. Farfan-Carreon, 935 F.2d 678 (5^th Cir. 1991).

The deliberate ignorance instruction "does not lessen the government's burden to show, beyond a reasonable doubt, that the knowledge elements of the crimes have been satisfied." United States v. Reveles, 190 F.3d 678, 686 (5^th Cir. 1999).

A judge is cautioned that, in instructing on a statute which punishes "otherwise innocent conduct," the knowledge requirement applies to each element. United States v. Ahmad, 101 F.3d 386, 390 (5^th Cir. 1996), reh'g and suggestion for reh'g en banc denied, 108 F.3d 335 (5^th Cir. 1997).

When a deliberate ignorance instruction is appropriate only with respect to one of a group of co-defendants, the Fifth Circuit has approved the giving of the instruction accompanied by a statement that the instruction may not apply to all of the defendants. United States v. Reissig, 186 F.3d 617 (5^th Cir. 1999), cert. denied, 120 S.Ct. 832 (2000).

1.38

"WILLFULLY"--TO ACT

Note

Prosecutors frequently include the word "willfully" in the indictment, even when not required by statute or case law. This practice should be discouraged. Historically, the usual definition of that term was:

The word "willfully," as that term has been used from time to time in these instructions, means that the act was committed voluntarily and purposely, with the specific intent to do something the law forbids; that is to say, with bad purpose either to disobey or disregard the law.

Court decisions indicate, however, that this definition is not accurate in every situation. As stated in United States v. Granda, 565 F.2d 922, 924 (5th Cir. 1978), the term "willfully" has "defied any consistent interpretation by the courts." In United States v. Bailey, 100 S.Ct. 624, 631 (1980), the Court stated that "[F]ew areas of criminal law pose more difficulty than the proper definition of the mens rea required for any particular crime." In Ratzlaf v. United States, 114 S.Ct. 655, 659 (1994), the Supreme Court, quoting from Spies v. United States, 63 S.Ct. 364, 367 (1943), recognized that "willful is a word of many meanings, and its construction is often influenced by its context." See also United States v. Arditti, 955 F.2d 331, 340 (5^th Cir. 1992) (stating that the meaning of "willfully" varies depending upon the context).

In Cheek v. United States, 111 S.Ct. 604 (1991), the Supreme Court defined "willful" for prosecutions under the Internal Revenue Code. Because of the complexity of the tax laws, "willful" criminal tax offenses are treated as an exception to the general rule that "ignorance of the law or a mistake of law is no defense to criminal prosecution." 111 S.Ct. at 609. "Congress has accordingly softened the impact of the common-law presumption by making specific intent to violate the law an element of certain federal criminal tax offenses." 111 S.Ct. at 609. "The standard for the statutory willfulness requirement is the 'voluntary, intentional violation of a known legal duty.'" 111 S.Ct. at 610 (quoting United States v. Pomponio, 97 S.Ct. 22, 23 (1976), and United States v. Bishop, 93 S.Ct. 2008, 2017 (1973)). The Court reversed a conviction because the trial court instructed the jury that the defendant's good faith belief that he was not violating the law must have been objectively reasonable. However, a good faith belief that the law is unconstitutional does not negate the willfulness requirement. Thus it is not error to instruct a jury not to consider a defendant's claims that a tax law is unconstitutional. 111 S.Ct. at 612-13. See also United States v. Townsend, 31 F.3d 262, 267 (5th Cir. 1994) (stating that "[t]he U.S. Supreme Court has recognized that the term 'willfully' connotes a voluntary, intentional violation of known legal duty" in a case involving evasion of federal excise taxes), cert. denied, 115 S.Ct. 773 (1995); United States v. Charroux, 3 F.3d 827, 831 (5th Cir. 1993) (defining willfulness as "'voluntary, intentional violation of a known legal duty'" in a gasoline excise tax evasion case). In United States v. Masat, the Fifth Circuit stated that in a tax evasion case, "willfulness simply means a voluntary, intentional violation of a known legal duty" and that the jury instruction defining "willfully" does not have to include any language about bad purpose or evil motive. 948 F.2d 923, 931-32 (5th Cir. 1991), cert. denied, 113 S.Ct. 108 (1992).

In Bryan v. United States, 118 S.Ct. 1939 (1998), the Supreme Court addressed whether the term "willfully" in 18 U.S.C. §§ 922 (a)(1)(A) and 924 (a)(1)(D) requires proof that the defendant knew that his conduct was unlawful, or whether it also requires proof that the defendant knew of the federal licensing requirement. The Bryan Court noted that a "willful" act, as a general matter, is one undertaken with a "bad purpose." See id. at 1945. For a "willful"violation of a statute, the government must prove that the defendant acted with the knowledge that his conduct was unlawful. See id. In this case, the defendant argued that "willfully" in the context of § 924 (a)(1)(D) required knowledge of the law because of the Court's previous interpretation of "willfully" in violations of tax laws (Cheek, 111 S.Ct. at 610) and in violations involving structuring of cash transactions to avoid a reporting requirement (Ratzlaf, 114 S.Ct. at 658 & 663). The Court distinguished these two types of cases because they involved highly technical statutes that presented the danger of ensnaring individuals engaged in apparently innocent conduct. See id. at 1946-47. As a result, the Court held "that these statutes carve out an exception to the traditional rule that ignorance of the law is no excuse and require that the defendant have knowledge of the law." Id. at 1947. In this case, under § 924 (a)(1)(D), the danger of convicting individuals engaged in apparently innocent activity is not present because the jury found that the defendant knew that his conduct was unlawful. See id. Thus, the Bryan Court held that "the willfulness requirement of § 924 (a)(1)(D) does not carve out an exception to the traditional rule that ignorance of the law is no excuse; knowledge that the conduct is unlawful is all that is required." Id.

The Supreme Court has cautioned that the required mental state may be different even for different elements of the same crime, and that the mental element encompasses more than just the two possibilities of "specific" and "general" intent. Liparota v. United States, 105 S.Ct. 2084, 2087 n.5 (1985). The Committee has therefore abandoned the indiscriminate use of the term "willfully" accompanied by an inflexible definition of that term. Instead, we have attempted to define clearly what state of mind is required, i.e., what the defendant must know and intend to be guilty of the particular crime charged. This approach finds support in United States v. Jobe, 101 F.3d 1046, 1059 (5^th Cir. 1996), which found no error when the trial court declined to separately define "willfulness" but did give the pattern jury definition of "knowingly" and otherwise "correctly charged the jurors on the element of intent in each offense." Nevertheless, the historical definition of "willfully," quoted above, was recently given and approved in a money laundering case, United States v. Giraldi, 86 F.3d 1368, 1376 (5^th Cir. 1996), and a prosecution for unlawfully paying inducements for referrals of Medicare patients, United States v. Davis, 132 F.3d 1092, 1094 (5^th Cir. 1998).

1.39

INTERSTATE COMMERCE--DEFINED

Interstate commerce means commerce or travel between one state, territory or possession of the United States and another state, territory or possession of the United States, including the District of Columbia.

Note

In cases involving statutes which have as an element of the offense a requirement that activity takes place in interstate commerce or has an effect on interstate commerce, the issue of whether the activity takes place in interstate commerce or has an effect on interstate commerce should be submitted to the jury. See United States v. Gaudin, 115 S.Ct. 2310 (1995) ("materiality" is a jury issue in a prosecution under 18 U.S.C. § 1001). Recent cases have implicitly accepted that the interstate commerce effect is a jury question and have dealt with instructions that a jury finding of certain specified acts beyond a reasonable doubt constitutes "an effect on interstate commerce as a matter of law." United States v. Hebert, 131 F.3d 514, 521-22 (5^th Cir. 1997); United States v. Miles, 122 F.3d 235, 239-40 (5^th Cir. 1997).

1.40

FOREIGN COMMERCE--DEFINED

Foreign commerce means commerce or travel between any part of the United States, including its territorial waters, and any other country, including its territorial waters.

Note

See United States v. Montford, 27 F.3d 137 (5^th Cir. 1994), and United States v. De La Rosa, 911 F.2d 985 (5^th Cir. 1990), cert. denied, 111 S.Ct. 2275 (1991), and the Note in Instruction No. 1.39, Interstate Commerce.

1.41

COMMERCE--DEFINED

Commerce includes travel, trade, transportation and communication.

1.42

CAUTIONARY INSTRUCTION DURING TRIAL--

TRANSCRIPT OF TAPE RECORDED CONVERSATION

Exhibit has been identified as a typewritten transcript [and partial translation from Spanish into English] of the oral conversation which can be heard on the tape recording received in evidence as Exhibit . The transcript also purports to identify the speakers engaged in such conversation.

I have admitted the transcript for the limited and secondary purpose of aiding you in following the content of the conversation as you listen to the tape recording, [particularly those portions spoken in Spanish] and also to aid you in identifying the speakers.

You are specifically instructed that whether the transcript correctly or incorrectly reflects the content of the conversation or the identity of the speakers is entirely for you to determine based upon your own evaluation of the testimony you have heard concerning the preparation of the transcript, and from your own examination of the transcript in relation to your hearing of the tape recording itself as the primary evidence of its own contents; and, if you should determine that the transcript is in any respect incorrect or unreliable, you should disregard it to that extent.

Note

This instruction should be given when the tape is played and again in the final charge.

See United States v. Murray, 988 F.2d 518, 525-27 (5^th Cir. 1993), and United States v. Rena, 981 F.2d 765, 767-70 (5^th Cir. 1993). Under certain circumstances, including when the taped conversation is in a foreign language, a transcript (in English) may be admitted but the tape excluded. See, e.g., United States v. Valencia, 957 F.2d 1189 (5^th Cir. 1992), cert. denied, 113 S.Ct. 254 (1992). In such a case, of course, this instruction must be modified.

1.43

SUMMARIES AND CHARTS NOT RECEIVED IN EVIDENCE

Certain charts and summaries have been shown to you solely to help explain the facts disclosed by the books, records, and other documents which are in evidence in the case. These charts and summaries are not evidence or proof of any facts. You should determine the facts from the evidence.

Note

See United States v. Winn, 948 F.2d 145, 157-58 n.30 (5^th Cir. 1991), cert. denied, 112 S.Ct. 1599 (1992), and United States v. Duncan, 919 F.2d 981, 988 (5^th Cir. 1990), cert. denied, 111 S.Ct. 2036 (1991), approving similar instructions.

Under some circumstances, the failure to give a limiting instruction in conjunction with the government's use of a demonstrative chart may be plain error, but not when other factors suggest the permissible use of the chart. United States v. Meshack, 225 F.3d 556, 582 (5^th Cir. 2000), cert. denied, 121 S.Ct. 834 (2001), amended on reh'g in part 244 F.3d 367 (5^th Cir. 2001), petition for cert. filed, (U.S. June 25, 2001) (No. 00-10499).

1.44

SUMMARIES AND CHARTS RECEIVED IN EVIDENCE

Certain charts and summaries have been received into evidence. Charts and summaries are valid only to the extent that they accurately reflect the underlying supporting evidence. You should give them only such weight as you think they deserve.

Note

This instruction is not appropriate when the summaries and charts have been introduced into evidence under Federal Rule of Evidence 1006 and the underlying documents or records have not been introduced into evidence. In such a case the charts or summaries are themselves evidence of facts in the case. See United States v. Osum, 943 F.2d 1394, 1405 n.9 (5^th Cir. 1991).

1.45

MODIFIED "ALLEN" CHARGE

Members of the Jury:

I am going to ask that you continue your deliberations in an effort to agree upon a verdict and dispose of this case; and I have a few additional comments I would like for you to consider as you do so.

This is an important case. The trial has been expensive in time, effort, and money to both the defense and the prosecution. If you should fail to agree on a verdict, the case is left open and must be tried again. Obviously, another trial would only serve to increase the cost to both sides, and there is no reason to believe that the case can be tried again by either side better or more exhaustively than it has been tried before you.

Any future jury must be selected in the same manner and from the same source as you were chosen, and there is no reason to believe that the case could ever be submitted to twelve men and women more conscientious, more impartial, or more competent to decide it, or that more or clearer evidence could be produced.

Those of you who believe that the government has proved the defendant guilty beyond a reasonable doubt should stop and ask yourselves if the evidence is really convincing enough, given that other members of the jury are not convinced. And those of you who believe that the government has not proved the defendant guilty beyond a reasonable doubt should stop and ask yourselves if the doubt you have is a reasonable one, given that other members of the jury do not share your doubt.

Remember at all times that no juror is expected to yield a conscientious opinion he or she may have as to the weight or effect of the evidence. But remember also that, after full deliberation and consideration of the evidence in the case, it is your duty to agree upon a verdict if you can do so without surrendering your conscientious opinion. You must also remember that if the evidence in the case fails to establish guilt beyond a reasonable doubt, the accused should have your unanimous verdict of Not Guilty.

You may be as leisurely in your deliberations as the occasion may require and should take all the time which you may feel is necessary.

I will ask now that you retire once again and continue your deliberations with these additional comments in mind to be applied, of course, in conjunction with all of the instructions I have previously given to you.

Note

In United States v. Winters, 105 F.3d 200, 203-04 (5^th Cir. 1997), the Fifth Circuit rejected defendant's claim that the jury was coerced into finding him guilty by the following instruction: "[i]f you should fail to agree on a verdict as to the remaining counts the case is left open and must be tried again." See United States v. Clayton, 172 F.3d 347, 352 (5^th Cir. 1999).

See also United States v. Nguyen, 28 F.3d 477, 483-84 (5^th Cir. 1994), and United States v. Pace, 10 F.3d 1106, 1125 (5^th Cir. 1993), cert. denied, 114 S.Ct. 2180 (1994) (discussing the 1990 version of this instruction).

II. SUBSTANTIVE OFFENSE

INSTRUCTIONS

2.01

FOOD STAMP CRIMES

7 U.S.C. § 2024(b)

Title 7, United States Code, Section 2024(b), makes it a crime for anyone knowingly to use [transfer] [acquire] [possess] United States Department of Agriculture food stamp coupons, authorization cards, or access devices in any manner not authorized by law or by Department regulations, where the food stamp coupons, cards, or devices have a value of $100 or more.

For you to find the defendant guilty of this crime, you must be convinced that the government has proved each of the following beyond a reasonable doubt:

First: That the defendant used [transferred] [acquired] [altered] [possessed] food stamp coupons [authorization cards] [access devices] in a manner not authorized by law or by Department of Agriculture regulations, as charged;

Second: That the defendant knew he was acting unlawfully and intended to violate the law; and

Third: That the food stamp coupons [authorization cards] [access devices] had a value of $100 [$5,000] [$___] or more.

You are instructed that there is no law or departmental regulation which authorizes anyone to sell or purchase food stamp coupons, cards or access devices for cash [to use, transfer, or acquire food stamp coupons, authorization cards or access devices for clothes, drugs, cigarettes, or liquor].

For the purpose of determining the value of food stamp coupons, authorization cards or access devices, you should place a value on them equal to their face value.

Note

The third element, prompted by the Apprendi doctrine, is required when the indictment alleges a value that would result in an enhanced penalty.

If a disputed issue is whether the food stamp coupons had a value of $5,000 or more, the Court should consider giving a lesser included offense instruction.

See Liparota v. United States, 105 S.Ct. 2084 (1985) (explaining mens rea requirement);United States v. Barnes, 117 F.3d 328, 333 (7^th Cir. 1997); United States v. Abdelkoui, 19 F.3d. 1178 (7th Cir. 1994); United States v. Brown, 897 F.2d 162, 163 (5th Cir. 1990) (same). See also United States v. Bryan, 118 S.Ct. 1939 (1998), a firearms case discussing the meaning of "knowing" in 7 U.S.C. § 2024(b) and (c).

2.02

BRINGING IN ALIENS

8 U.S.C. § 1324(a)(1)(A)(i)

Title 8, United States Code, Section 1324(a)(1)(A)(i) makes it a crime for anyone knowingly to bring [attempt to bring] an alien into the United States at a place other than a designated port of entry.

For you to find the defendant guilty of this crime, you must be convinced that the government has proved each of the following beyond a reasonable doubt:

First: That the defendant brought [attempted to bring] an alien into the United States;

Second: That entry was [attempted] at a place other than at a designated port of entry;

Third: That the defendant knew that the person was an alien; and

Fourth: That the defendant intended to commit a criminal act by bringing an alien into the United States at a place other than a designated port of entry.

An alien is any person who is not a natural-born or naturalized citizen, or a national of the United States. The term "national of the United States" includes not only a citizen, but also a person who, though not a citizen of the United States, owes permanent allegiance to the United States.

Note

There are no reported Fifth Circuit cases that would require the fourth element. It is included based on two cases from other circuits. See United States v. Nguyen, 73 F.3d 887, 894 (9th Cir. 1995); United States v. Zayas-Moralas, 685 F.2d 1272, 1275 (11th Cir. 1982).

The statute describes aggravating factors raising the statutory maximum penalty, which must be submitted as additional elements if charged in the indictment. These include: whether the offense was done for the purpose of commercial advantage or private gain, 8 U.S.C. § 1324(a)(1)(B)(i); whether the defendant caused serious bodily injury, 8 U.S.C. § 1324(a)(1)(B)(iii); or whether death resulted, 8 U.S.C. § 1324(a)(1)(B)(iv). Apprendi v. New Jersey, 120 S.Ct. 2348 (2000).

2.03

UNLAWFULLY TRANSPORTING ALIENS

8 U.S.C. § 1324(a)(1)(A)(ii)

Title 8, United States Code, Section 1324(a)(1)(A)(ii), makes it a crime for anyone to transport an alien within the United States, knowing or in reckless disregard of the fact that the alien is here illegally, and in furtherance of the alien's violation of the law.

For you to find the defendant guilty of this crime, you must be convinced that the government has proved each of the following beyond a reasonable doubt:

First: That an alien had entered or remained in the United States in violation of the law;

Second: That the defendant knew or recklessly disregarded the fact that the alien was in the United States in violation of the law; and

Third: That the defendant transported the alien within the United States with intent to further the alien's unlawful presence.

A person acts with "reckless disregard" when he is aware of, but consciously disregards, facts and circumstances indicating that the person transported was an alien who had entered or remained in the United States in violation of the law.

An alien is any person who is not a natural-born or naturalized citizen, or a national of the United States. The term "national of the United States" includes not only a citizen, but also a person who, though not a citizen of the United States, owes permanent allegiance to the United States.

In order for transportation to be in furtherance of the alien's unlawful presence, there must be a direct and substantial relationship between the defendant's act of transportation and its furtherance of the alien's presence in the United States. In other words, the act of transportation must not be merely incidental to a furtherance of the alien's violation of the law.

Note

The statute does not contain the term "willfully." Nevertheless, a series of recent Fifth Circuit decisions, while reciting the elements of this offense, state that the Defendant must have acted "willfully in furtherance of the alien's violation of law." United States v. Romero-Cruz, 201 F.3d 374, 378 (5^th Cir. 2000); United States v. Williams, 132 F.3d 1055, 1059 (5^th Cir. 1999); United States v. Diaz, 936 F.2d 786, 788 (5^th Cir. 1991); United States v. Morales-Rosales, 838 F.2d 1359, 1361 (5^th Cir. 1988). However, in United States v. Rivera, 879 F.2d 1247, 1251 (5^th Cir. 1989), cert. denied, 110 S.Ct. 554 (1989), the court specifically rejected an argument that "willful transportation" was an element of this crime, explaining that the essential element was whether there is a "direct and substantial relationship between the transportation and its furtherance of the alien's presence in the United States." Moreover, the Williams opinion, despite reciting "willfully" as an element, approved a jury instruction "substantially the same" as the 1997 Fifth Circuit Pattern Jury Instruction, and which did not use the term "willfully" as part of the elements of the offense. 132 F.3d at 1061-62.

The statute describes aggravating factors raising the statutory maximum penalty, which must be submitted as additional elements if charged in the indictment. These include: whether the offense was done for the purpose of commercial advantage or private gain, 8 U.S.C. § 1324(a)(1)(B)(i); whether the defendant caused serious bodily injury, 8 U.S.C. § 1324(a)(1)(B)(iii); or whether death resulted, 8 U.S.C. § 1324(a)(1)(B)(iv). Apprendi v. New Jersey, 120 S.Ct. 2348 (2000).

2.04

CONCEALING OR HARBORING ALIENS

8 U.S.C. § 1324(a)(1)(A)(iii)

Title 8, United States Code, Section 1324(a)(1)(A)(iii), makes it a crime for anyone to conceal [harbor] an alien, knowing or in reckless disregard of the fact that the alien has entered or remained in the United States in violation of law.

For you to find the defendant guilty of this crime, you must be convinced that the government has proved each of the following beyond a reasonable doubt:

First: That the alien entered or remained in the United States in violation of law;

Second: That the defendant concealed [harbored] [sheltered from detection] the alien within the United States;

Third: That the defendant either knew or acted in reckless disregard of the fact that the alien entered or remained in the United States in violation of law; and

Fourth: That the defendant's conduct tended to substantially facilitate the alien remaining in the United States illegally.

A person acts with "reckless disregard" when he is aware of, but consciously disregards, facts and circumstances indicating that the person concealed [harbored] was an alien who had entered or remained in the United States in violation of the law.

An alien is any person who is not a natural-born or naturalized citizen, or a national of the United States. The term "national of the United States" includes not only a citizen, but also a person who, though not a citizen of the United States, owes permanent allegiance to the United States.

Note

See note under Instruction No. 2.03, 8 U.S.C. § 1324(a)(1)(A)(ii), for the submission of required additional elements when aggravating factors are charged in the indictment. Apprendi v. New Jersey, 120 S.Ct. 2348 (2000).

See United States v. Rubio-Gonzalez, 674 F.2d 1067 (5^th Cir. 1982); United States v. Varkonyi, 645 F.2d 453 (5^th Cir. 1981); United States v. Cantu, 557 F.2d 1173 (5^th Cir. 1977); andUnited States v. Kim, 193 F.3d 567 (2^d Cir. 1999), for the fourth element.

2.05

ILLEGAL REENTRY FOLLOWING DEPORTATION

8 U.S.C. § 1326(a)

Title 8, United States Code, Section 1326(a), makes it a crime for an alien to enter [to be found within] the United States without consent of the Attorney General to apply for readmission after being deported.

For you to find the defendant guilty of this crime, you must be convinced that the government has proved each of the following beyond a reasonable doubt:

First: That the defendant was an alien at the time alleged in the indictment;

Second: That the defendant had previously been denied admission [excluded] [removed] [deported] from the United States;

Third: That thereafter the defendant knowingly entered [was found in] the United States; and

Fourth: That the defendant had not received the consent of the Attorney General of the United States to apply for readmission to the United States since the time of the defendant's previous deportation.

Note

As of April 1, 1997, arrest is no longer an element of the crime. P.L. 104-208, § 308(d) (4)(J)(i), (ii); United States v. Ramirez-Gamez, 171 F.3d 236 (5^th Cir. 1999); per curiam United States v. Cabrera-Teran, 168 F.3d 141 (5^th Cir. 1999). The remaining elements of proof are described in United States v. Benitez-Villafuente, 186 F.3d 651 (5^th Cir. 1999), and United States v. Flores-Peraza, 58 F.3d 164, 166 (5^th Cir. 1995), cert. denied, 116 S.Ct. 782 (1996).

Specific intent is not an element of this crime; it is a general intent crime. United States v. Berrios-Centeno, 250 F.3d 294, 297-98 (5^th Cir. 2001); United States v. Guzman-Ocampo, 236 F.3d 233 (5^th Cir. 2000). The government must show that the defendant had the general intent to reenter, i.e., he is here voluntarily. Id.; United States v. Ortegon-Uvalde, 179 F.3d 956 (5^th Cir. 1999);United States v. Trevino-Martinez, 86 F.3d 65 (5^th Cir. 1996), cert. denied, 117 S.Ct. 1109. SeeUnited States v. Tovias-Marroquin, 218 F.3d 455 (5^th Cir. 2000).

An alien within the United States is not "found in" the United States if he approaches a recognized port of entry and produces his identity seeking admission. United States v. Angeles-Mascote, 206 F.3d 529 (5^th Cir. 2000).

The Supreme Court has held in Almendarez-Torres v. United States, 118 S.Ct. 1219 (1998), that proof of the defendant's commission of an aggravated felony prior to deportation is not an element of the offense but is a punishment provision in addressing recidivism. The decision is further discussed but not overruled by Apprendi v. New Jersey, 120 S.Ct. 2348 (2000). UntilAlmendarez-Torres is overruled, the Fifth Circuit has held that it has the duty to follow it as United States Supreme Court precedent. United States v. Nava-Perez, 242 F.3d 277 (5^th Cir. 2001); United States v. Dabeit, 231 F.3d 979, 984 (5^th Cir. 2000). The Committee has not recommended an additional element of proof that the felony committed was an aggravated felony.

2.06

AIDING AND ABETTING (AGENCY)

18 U.S.C. § 2

The guilt of a defendant in a criminal case may be established without proof that the defendant personally did every act constituting the offense alleged. The law recognizes that, ordinarily, anything a person can do for himself may also be accomplished by him through the direction of another person as his or her agent, or by acting in concert with, or under the direction of, another person or persons in a joint effort or enterprise.

If another person is acting under the direction of the defendant or if the defendant joins another person and performs acts with the intent to commit a crime, then the law holds the defendant responsible for the acts and conduct of such other persons just as though the defendant had committed the acts or engaged in such conduct.

Before any defendant may be held criminally responsible for the acts of others it is necessary that the accused deliberately associate himself in some way with the crime and participate in it with the intent to bring about the crime.

Of course, mere presence at the scene of a crime and knowledge that a crime is being committed are not sufficient to establish that a defendant either directed or aided and abetted the crime unless you find beyond a reasonable doubt that the defendant was a participant and not merely a knowing spectator.

In other words, you may not find any defendant guilty unless you find beyond a reasonable doubt that every element of the offense as defined in these instructions was committed by some person or persons, and that the defendant voluntarily participated in its commission with the intent to violate the law.

For you to find the defendant guilty of this crime, you must be convinced that the government has proved each of the following beyond a reasonable doubt:

First: That the offense of ________ was committed by some person;

Second: That the defendant associated with the criminal venture;

Third: That the defendant purposefully participated in the criminal venture; and

Fourth: That the defendant sought by action to make that venture successful.

"To associate with the criminal venture" means that the defendant shared the criminal intent of the principal. This element cannot be established if the defendant had no knowledge of the principal's criminal venture.

"To participate in the criminal venture" means that the defendant engaged in some affirmative conduct designed to aid the venture or assisted the principal of the crime.

Note

Absent a showing of unfair surprise, this instruction can be given whether or not the indictment charges aiding and abetting. United States v. Neal, 951 F.2d 630 (5^th Cir. 1992); United States v. Botello, 991 F.2d 189 (5^th Cir. 1993), cert. denied, 114 S.Ct. 886 (1994); United States v. Casilla, 20 F.3d 600 (5^th Cir. 1994), cert. denied, 115 S.Ct. 240 (1994); United States v. Lombardi,138 F.3d 559 (5^th Cir. 1998); United States v. Sorrells, 145 F.3d 744 (5^th Cir. 1998).

The elements of this offense are set forth in United States v. Gar