CRIMINAL PATTERN JURY INSTRUCTIONS

CRIMINAL PATTERN

JURY INSTRUCTIONS

Prepared by the

Criminal Pattern Jury

Instruction Committee

of the United States

Court of Appeals for the

Tenth Circuit

———————————

2021 Edition

For Customer Assistance Call 1-800-328-4880

Mat #42869766

The Uniform Criminal Jury Instructions Committee wishes to

thank all who have assisted in the preparation of these

instructions. We are especially appreciative of the efforts of Rob-

ert J. Tepper, Esq., permanent law clerk of Judge Kelly, and the

Ofﬁce of Staff Counsel for the Tenth Circuit. Special thanks are

accorded to Niki Esmay Heller, Esq., Chief Staff Counsel to the

Tenth Circuit, and our Reporter, Professor Justin Marceau, Esq.,

of the University of Denver, Sturm College of Law.

iii

COMMITTEE

———————————

Honorable Paul J. Kelly, Jr.

Chair, U.S. Circuit Judge

Honorable Gregory A. Phillips

U.S. Circuit Judge

Honorable Veronica S. Rossman

U.S. Circuit Judge

Honorable Phillip A. Brimmer

United States District Judge, District of Colorado

Honorable Timothy D. DeGiusti

United States District Judge, Western District of Oklahoma

Professor Justin Marceau, Esq. (Reporter)

University of Denver, Sturm College of Law

Niki Esmay Heller

Chief Staff Counsel

J. Bishop Grewell

Assistant United States Attorney

John Arceci

Senior Counsel, Office of the Federal Public Defender

Norm Mueller, Esq.

Haddon, Morgan, Mueller, Jordan, Mackey & Foreman, P.C.

JUDICIAL COUNCIL OF THE

TENTH CIRCUIT RESOLUTION

———————————

Resolved that the Committee on Pattern Jury Instructions of

the Judicial Council of the Tenth Circuit is hereby authorized to

distribute to the District Judges of the Circuit for their aid and

assistance, and to otherwise publish, the Committee’s Pattern Jury

Instruction, Criminal Cases, Tenth Circuit (2005); provided,

however, that this resolution shall not be construed as an

adjudicative approval of the content of such instructions, which

must await case-by-case review by the Court.

Chief Judge

United States Court of Appeals

For the Council

Date: September 1, 2005

vii

BRIEF INTRODUCTION TO THE THIRD EDITION

———————————

In the ten years since the second edition of these Instructions

was issued, the Committee has engaged in a process of continual

review and revision of the Instructions, Comments and Use Notes.

Feedback has come not only from Supreme Court and Tenth

Circuit decisions, but from trial judges, practitioners, and the

Committee Members themselves. The Committee has met

regularly to discuss various changes which, when adopted, have

been placed on the Tenth Circuit website pending the third edition.

The ﬁrst edition’s Introduction should be read by users of these

pattern instructions as the principles set forth there are still

applicable. The Committee has endeavored to evaluate the

Instructions and commentary for conformity with current and

evolving statutory and case law and has revised accordingly. The

Committee has endeavored to render correct statements of the law,

and these pattern instructions are intended to assist judges and

practitioners in instructing the jury in individual cases. As the law

continually develops, the Committee will continue its work.

The Committee expresses its thanks to its former members and

advisers for their foundational work on these instructions.

INTRODUCTORY NOTE

———————————

The Committee notes that the use of these Instructions is a

matter committed to the discretion of the trial court. They never

need to be given verbatim, and the presence or absence of a par-

ticular instruction is not indicative of the Committee’s view that

the instruction should or should not be given. The Committee

recommends that the titles of individual instructions not be given

to the jury.

The Committee does not recommend the use of language lifted

from cases when drafting instructions. Case law employs

language written for lawyers, not for jurors. The Committee

recommends drafting instructions in plain English.

While we recognize that the matter is ultimately left to the

district court’s discretion, the Committee suggests that the

defendant’s name be used in the instructions (rather than generi-

cally referring to the “defendant”).

The pronoun “he” has been used throughout. It should be

replaced as appropriate.

Brackets indicate optional material, or material that needs to

be adapted to a given case. Where additional instructions would be

helpful in light of certain defenses having been raised, the ad-

ditional instructions may be found in the Use Notes following the

model instructions. “Comment” indicates source material for

instructions. “Use Note” indicates suggestions regarding use of

instructions.

The Committee has attempted to insert a “Use Note” wherever

Apprendi v. New Jersey, 530 U.S. 466 (2000), would require that

‘‘sentence enhancers’’ be proved before a jury at trial, beyond a

reasonable doubt. The Committee recommends that wherever an

issue raised under Apprendi v. New Jersey, 530 U.S. 466 (2000),

and its progeny, is submitted to the jury, the resolution of that is-

sue be included in the verdict form.

The absence of a Tenth Circuit case citation with a particular

instruction indicates that no relevant Tenth Circuit case was

found. Updates will be issued periodically by the Circuit, or by

PATTERN CRIMINAL JURY INSTRUCTIONS

the publisher of these Instructions.

In its work, the Committee relied on the model instructions of

other circuits, instructions submitted to the Committee by District

Judges throughout the Tenth Circuit, the independent research by

the members of the Committee, and comments made during the

public comment period. In order to avoid confusion, source

references are not indicated in the model instructions. The

Committee was concerned that, should sources be indicated,

alterations in the source material might be construed as implying

alterations in the model instructions. Nevertheless, the Commit-

tee acknowledges that the RICO instructions and comments are

derived from 3 Leonard B. Sand, John S. Siffert, Walter P.

Loughlin & Steven A. Reiss, Modern Federal Jury Instructions,

Criminal, ch. 52 (2002).

The Committee has used “Comments” and “Use Notes” to

indicate source material and identify issues. The Committee’s ap-

proach was to generate generic minimalist instructions that would

be tailored to individual cases.

TABLE OF CONTENTS

GENERAL MATTERS

Instruction

Page

1.01

Preliminary Instructions Before Trial....................................

1.02

Note-Taking by Jurors............................................................

1.03

Introduction to Final Instructions..........................................

1.04

Duty to Follow Instructions...................................................

1.05

Presumption of Innocence—Burden of Proof—

Reasonable Doubt.............................................................

1.05.1

Preponderance of Evidence....................................................

1.06

Evidence—Deﬁned................................................................

1.07

Evidence—Direct and Circumstantial—Inferences..............

1.08

Credibility of Witnesses......................................................

1.08.1

Non-Testifying Defendant......................................................

1.09

Evidence of Good Character...................................................

1.09.1

Evidence of Reputation for Honesty.......................................

1.10

Impeachment by Prior Inconsistencies..................................

1.11

Impeachment by Prior Conviction.........................................

1.12

Impeachment by Prior Conviction..........................................

1.13

Impeachment by Evidence of Untruthful Character...........

1.14

Accomplice—Informant—Immunity.......................................

1.15

Accomplice—Co-Defendant—Plea Agreement........................

1.16

Witness’s Use of Addictive Drugs...........................................

1.17

Expert Witness......................................................................

1.18

On or About.............................................................................

1.19

Caution—Consider Only Crime Charged...............................

1.20

Caution—Punishment..........................................................

1.21

Multiple Defendants—Single Count.....................................

1.22

Multiple Defendants—Multiple Counts.................................

1.23

Duty to Deliberate—Verdict Form.........................................

1.24

Unanimity of Theory...............................................................

1.25

Voluntariness of Statement by Defendant.............................

1.26

Confession-Statement—Voluntariness by Defendant............

1.27

Entrapment.............................................................................

1.28

Self-Defense or Defense of Another......................................

1.29

Identiﬁcation Testimony.........................................................

1.30

Similar Acts.............................................................................

xii

PATTERN CRIMINAL JURY INSTRUCTIONS

Instruction

Page

1.31

Actual or Constructive Possession ................................................ 49

1.32

Attempt ............................................................................................... 50

1.33

Lesser Included Offense .................................................................. 52

1.34

Insanity ............................................................................................... 54

1.35

Defendant’s Non-Involvement (Alibi) ........................................... 56

1.36

Coercion or Duress ........................................................................... 57

1.37

Knowingly—Deliberate Ignorance ................................................ 59

1.38

Willfully—To Act ............................................................................... 60

1.39

Interstate and Foreign Commerce—Deﬁned 18 U.S.C.

§ 10 ................................................................................................. 62

1.39.1

Interstate and Foreign Commerce—Effect on 18 U.S.C.

§ 10 ................................................................................................. 63

1.40

Cautionary Instruction During Trial ........................................... 64

1.41

Summaries and Charts ................................................................... 65

1.42

Modiﬁed Allen Instruction .............................................................. 66

1.43

Partial Verdict Instruction ............................................................. 68

1.44

Communication with the Court .................................................... 70

SUBSTANTIVE OFFENSES

2.01 Food Stamps—Unauthorized Use 7 U.S.C. § 2024(b).............72

2.02 Bringing in an Alien 8 U.S.C. § 1324(a)(1)(A)(i)......................74

2.02.1 Bringing in an Alien 8 U.S.C. § 1324(a)(2)..............................76

2.03 Alien—Illegal Transportation 8 U.S.C. § 1324(a)(1)(A)(ii)......78

2.04 Alien—Concealment 8 U.S.C. § 1324(a)(1)(A)(iii)....................81

2.05 Reentry of Deported Alien 8 U.S.C. § 1326(a)

..........................83

2.06 Aid and Abet 18 U.S.C. § 2(a)

....................................................85

2.07 A

ccessory After the Fact 18 U.S.C. § 3.....................................87

2.08 Misprision of a Felony 18 U.S.C. § 4.........................................88

2.09 Assaulting a Federal Ofﬁcer 18 U.S.C. § 111...........................89

2.10 Bankruptcy Fraud (Property Concealment) 18 U.S.C.

§ 152(1)....................................................................................93

2.10.1 Bankruptcy Fraud (Scheme or Artifice to Defraud) 18

U.S.C. § 157(1)........................................................................95

2.11 Bribery of a Public Ofﬁcial 18 U.S.C. § 201(b)(1).....................97

2.12 Receiving a Bribe by a Public Ofﬁcial 18 U.S.C.

§ 201(b)(2).............................................................................100

2.13 Illegal Gratuity to a Public Ofﬁcial 18 U.S.C.

§ 201(c)(1)(A).........................................................................101

2.14 Receiving an Illegal Gratuity by a Public Ofﬁcial 18

U.S.C. § 201(c)(1)(B).............................................................102

2.15 Bribery or Reward of a Bank Ofﬁcer 18 U.S.C.

§ 215(a)(1)..............................................................................103

2.16 Conspiracy to Deprive Person of Civil Rights 18 U.S.C.

§ 241.......................................................................................105

TABLE OF CONTENTS

Instruction

Page

xiii

2.17

Deprivation of Civil Rights 18 U.S.C. § 242 ............................. 107

2.18

False Claims Against the Government 18 U.S.C. § 287 ........ 109

2.19

Conspiracy 18 U.S.C. § 371 .......................................................... 111

2.20

Conspiracy: Evidence of Multiple Conspiracies ....................... 113

2.21

Conspirator’s Liability for Substantive Count ......................... 115

2.22

Withdrawal Instruction ................................................................. 116

2.23

Counterfeiting 18 U.S.C. § 471 .................................................... 118

2.24

Passing Counterfeit Obligations or Securities 18 U.S.C.

§ 472 ............................................................................................ 120

2.24.1

Importation, Possession or Concealment of Counterfeit

Obligations or Securities 18 U.S.C. § 472 .......................... 122

2.25

Forgery 18 U.S.C. § 495 ................................................................ 123

2.26

Passing a Forged Writing 18 U.S.C. § 495 ............................... 124

2.27

Forgery of Endorsement on United States Treasury

Check, Bond, or Security 18 U.S.C. § 510(a)(1)................. 125

2.28

Passing a Forged United States Treasury Check, Bond,

or Security 18 U.S.C. § 510(a)(2) .......................................... 126

2.29

Smuggling 18 U.S.C. § 545 (First Paragraph) ......................... 128

2.30

Unlawful Importation 18 U.S.C. § 545 (Second

Paragraph) ................................................................................ 130

2.31

Theft of Government Property 18 U.S.C. § 641 ....................... 132

2.32

Embezzlement and Misapplication of Bank Funds 18

U.S.C. § 656 ............................................................................. 134

2.33

Theft from Interstate or Foreign Shipment 18 U.S.C.

§ 659 (Paragraph One) ........................................................... 137

2.34

Buying, Receiving, Possessing Goods Stolen from

Interstate Shipment 18 U.S.C. § 659 (Paragraph

Two) ............................................................................................ 139

2.35

Escape 18 U.S.C. § 751(a) ............................................................. 141

2.36

Threats Against the President 18 U.S.C. § 871 ....................... 143

2.37

Interstate Transmission of Extortionate Communication

18 U.S.C. § 875(b) ..................................................................... 145

2.37.1

Interstate Transmission of Threatening Communication

18 U.S.C. § 875(c) ...................................................................... 147

2.38

Mailing Threatening Communications 18 U.S.C. § 876

(Second Paragraph) ................................................................ 149

2.39

Misrepresentation of Citizenship 18 U.S.C. § 911 .................. 151

2.40

False Impersonation of Federal Ofﬁcer or Employee—

Demanding or Obtaining Anything of Value 18 U.S.C.

§ 912 ............................................................................................ 152

2.41

Dealing in Firearms Without License 18 U.S.C.

§ 922(a)(1)(A) ............................................................................ 154

2.42

False Statement to Firearms Dealer 18 U.S.C.

§ 922(a)(6) ................................................................................... 155

2.43

Unlawful Sale or Disposition of Firearm 18 U.S.C.

§ 922(d) ...................................................................................... 157

PATTERN CRIMINAL JURY INSTRUCTIONS

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2.44

Possession of a Firearm by a Convicted Felon 18 U.S.C.

§ 922(g)(1) .................................................................................. 158

2.45

Using/Carrying a Firearm During Commission of a Drug

Trafﬁcking Crime or Crime of Violence 18 U.S.C.

§ 924(c)(1) ................................................................................... 160

2.45.1

Possession of a Firearm in Furtherance of a Drug

Trafﬁcking Crime or Crime of Violence 18 U.S.C.

§ 924(c)(1) ................................................................................... 162

2.45.2

Aiding and Abetting Using/Carrying a Firearm During

Commission of a Drug Trafﬁcking Crime or Crime of

Violence 18 U.S.C. § 2(a); 18 U.S.C. § 924(c)(1) ................ 164

2.45.3

Aiding and Abetting Possession of a Firearm in

Furtherance of a Drug Trafﬁcking Crime or Crime of

Violence 18 U.S.C. § 2(a); 18 U.S.C. § 924(c)(1) ................ 166

2.46

Concealment of a Material Fact 18 U.S.C. § 1001(a)(1) ........ 168

2.46.1

False Statement 18 U.S.C. § 1001(a)(2) .................................... 171

2.46.2

Using a False Writing 18 U.S.C. § 1001(a)(3) .......................... 173

2.47

False Statements in Bank Records 18 U.S.C. § 1005

(Third Paragraph) .................................................................... 175

2.48

False Statement to a Bank 18 U.S.C. § 1014 ........................... 177

2.49

False Identiﬁcation Documents 18 U.S.C. § 1028(a)(3) ......... 179

2.50.1

Fraud in Connection with Counterfeit Access Devices 18

U.S.C. § 1029(a)(1) ................................................................... 181

2.50.2

Use of Unauthorized Access Device 18 U.S.C.

§ 1029(a)(2) ............................................................................... 184

2.51

Transmission of Wagering Information 18 U.S.C. § 1084 186

2.52

First Degree Murder 18 U.S.C. § 1111 ...................................... 188

2.52.1

First Degree Murder (Felony Murder) 18 U.S.C. § 1111 ....... 191

2.53

Murder in the Second Degree 18 U.S.C. § 1111 ...................... 193

2.54

Voluntary Manslaughter 18 U.S.C. § 1112 ............................... 196

2.54.1

Involuntary Manslaughter 18 U.S.C. § 1112 ........................... 198

2.55

Kidnapping 18 U.S.C. § 1201(a)(1) ............................................. 200

2.56

Mail Fraud 18 U.S.C. § 1341 ....................................................... 203

2.57

Wire Fraud 18 U.S.C. § 1343 ....................................................... 207

2.58

Bank Fraud 18 U.S.C. § 1344 ...................................................... 210

2.59

Mailing Obscene Material 18 U.S.C. § 1461 ............................ 213

2.60

Interstate Transportation of Obscene Material 18 U.S.C.

§ 1462 ........................................................................................... 217

2.61

Interstate Transportation of Obscene Material for Sale

or Distribution 18 U.S.C. § 1465 ........................................... 220

2.62

Corruptly Obstructing Administration of Justice 18

U.S.C. § 1503(a) ........................................................................ 223

2.63

Obstructing Administration of Justice by Threats or

Force 18 U.S.C. § 1503(a) ...................................................... 225

2.64

Corruptly Inﬂuencing a Juror 18 U.S.C. § 1503...................... 227

TABLE OF CONTENTS

Instruction

Page

2.65

Witness Tampering 18 U.S.C. § 1512(b)(1) ............................... 229

2.66

False Declaration (Perjury) Before a Court or Grand

Jury 18 U.S.C. § 1623(a) ......................................................... 231

2.67

Mail Theft 18 U.S.C. § 1708 ......................................................... 233

2.68

Possession of Stolen Mail 18 U.S.C. § 1708 (Third

Paragraph) ................................................................................. 236

2.69

Embezzlement/Theft of Mail Matter by Postal Service

Employee 18 U.S.C. § 1709 .................................................. 238

2.70

[Robbery] [Extortion] by Force, Violence, or Fear 18

U.S.C. § 1951(a) (Hobbs Act) .................................................. 240

2.71

Extortion Under Color of Ofﬁcial Right 18 U.S.C.

§ 1951(a) (Hobbs Act) .............................................................. 243

2.72

Illegal Gambling Business 18 U.S.C. § 1955 ............................ 246

2.73

Money Laundering Using Illegal Proceeds to Promote

Illegal Activity 18 U.S.C. § 1956(a)(1)(A)(i) ...................... 248

2.73.1

Money Laundering Concealing Illegal Proceeds 18

U.S.C. § 1956(a)(1)(B)(i) ........................................................ 251

2.73.2

Money Laundering “Sting” Concealing Purported

Proceeds of Illegal Activity 18 U.S.C.

§ 1956(a)(3)(B) ......................................................................... 255

2.74

Racketeer Inﬂuenced and Corrupt Organizations Act 18

U.S.C. § 1962(a) (Introductory Paragraph) ........................ 258

2.74.1

Racketeer Inﬂuenced and Corrupt Organizations Act ........... 259

2.74.2

Racketeer Inﬂuenced and Corrupt Organizations Act—

“Section A” ................................................................................ 260

2.74.3

Racketeer Inﬂuenced and Corrupt Organizations Act—

“Section A” ................................................................................ 261

2.74.4

Racketeer Inﬂuenced and Corrupt Organizations Act—

“Section A” ................................................................................ 265

2.74.5

Racketeer Inﬂuenced and Corrupt Organizations Act—

“Section A” ................................................................................ 267

2.74.6

Racketeer Inﬂuenced and Corrupt Organizations Act—

“Section A” ................................................................................ 269

2.74.7

Racketeer Inﬂuenced and Corrupt Organizations Act—

“Section A” ................................................................................ 270

2.75

Racketeer Inﬂuenced and Corrupt Organizations Act 18

U.S.C. § 1962(b) (Introductory Paragraph) ........................ 271

2.75.1

Racketeer Inﬂuenced and Corrupt Organizations Act—

“Section B” ................................................................................ 272

2.75.2

Racketeer Inﬂuenced and Corrupt Organizations Act—

“Section B” ................................................................................ 273

2.75.3

Racketeer Inﬂuenced and Corrupt Organizations Act—

“Section B” ................................................................................ 274

2.75.4

Racketeer Inﬂuenced and Corrupt Organizations Act—

“Section B” ................................................................................ 275

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2.75.5

Racketeer Inﬂuenced and Corrupt Organizations Act—

“Section B” ................................................................................ 278

2.75.6

Racketeer Inﬂuenced and Corrupt Organizations Act—

“Section B” ................................................................................ 279

2.76

Racketeer Inﬂuenced and Corrupt Organizations Act 18

U.S.C. § 1962(c) (Introductory Paragraph) ........................ 280

2.76.1

Racketeer Inﬂuenced and Corrupt Organizations Act—

“Section C” ................................................................................ 281

2.76.2

Racketeer Inﬂuenced and Corrupt Organizations Act—

“Section C” ................................................................................ 283

2.76.3

Racketeer Inﬂuenced and Corrupt Organizations Act—

“Section C” ................................................................................ 284

2.76.4

Racketeer Inﬂuenced and Corrupt Organizations Act—

“Section C” ................................................................................ 285

2.76.5

Racketeer Inﬂuenced and Corrupt Organizations Act—

“Section C” ................................................................................ 287

2.76.6

Racketeer Inﬂuenced and Corrupt Organizations Act—

“Section C” ................................................................................ 289

2.76.7

Racketeer Inﬂuenced and Corrupt Organizations Act—

“Section C” ................................................................................. 290

2.77

Bank Robbery 18 U.S.C. § 2113 .................................................. 292

2.78

Bank Theft 18 U.S.C. § 2113(b) .................................................. 295

2.79

Carjacking 18 U.S.C. § 2119 ........................................................ 297

2.80

Transportation of Stolen Vehicles 18 U.S.C. § 2312 ............... 300

2.81

Receipt or Sale of a Stolen Motor Vehicle or Aircraft 18

U.S.C. § 2313............................................................................. 302

2.82

Interstate Transportation of Stolen Property 18 U.S.C.

§ 2314 (First Paragraph) ......................................................... 303

2.83

Sale or Receipt of Stolen Property 18 U.S.C. § 2315

(First Paragraph) ...................................................................... 305

2.84

Failure to Appear 18 U.S.C. § 3146 ............................................ 307

2.85

Controlled Substances—Possession with Intent to

Distribute 21 U.S.C. § 841(a)(1) ........................................... 309

2.85.1

Distribution of a Controlled Substance 21 U.S.C.

§ 841(a)(1) ................................................................................... 312

2.85.2

Controlled Substance Analogues Possession with Intent

to Distribute 21 U.S.C. § 841(a)(1) ...................................... 314

2.85.3

Controlled Substance Analogues Distribution of a

Controlled Substance Analogue 21 U.S.C.

§ 841(a)(1) ................................................................................. 317

2.86

Unlawful Use of Communications Facility 21 U.S.C.

§ 843(b) ....................................................................................... 320

2.87

Controlled Substances—Conspiracy 21 U.S.C. § 846 ............. 322

2.88

Continuing Criminal Enterprise 21 U.S.C. § 848 ................... 326

2.89

Controlled Substances—Maintaining Drug Involved

Premises 21 U.S.C. § 856(a)(1) ............................................. 328

TABLE OF CONTENTS

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xvii

2.90

Controlled Substances—Unlawful Importation 21 U.S.C.

§ 952(a) and § 960(a)(1) .......................................................... 330

2.91

Possession of an Unregistered Firearm 26 U.S.C.

§ 5861(d) ..................................................................................... 331

2.92

Tax Evasion 26 U.S.C. § 7201 ...................................................... 333

2.93

False Statements on Income Tax Return 26 U.S.C.

§ 7206(1) ..................................................................................... 335

2.94

Aiding or Assisting in Preparation of False Documents

Under Internal Revenue Service Laws 26 U.S.C.

§ 7206(2) ..................................................................................... 337

2.95

Reports on Exporting and Importing Monetary

Instruments 31 U.S.C. § 5316(a)(1) ..................................... 339

2.96

Structuring Transactions to Evade Reporting

Requirements 31 U.S.C. § 5324(a)(3) ................................... 341

2.97

Assimilative Crimes Act—Elements 18 U.S.C. § 13 ............... 344

DEATH PENALTY INSTRUCTIONS

Comment ........................................................................................................ 346

3.01

Sentencing Choices and Responsibility .................................. 347

3.02

Summary of Deliberative Process ............................................ 348

3.03

Evidence ........................................................................................ 352

3.04

Special Findings Form ............................................................... 353

3.05

Age at Time of Offense ............................................................... 354

3.06

Intent Requirement .................................................................... 355

3.07

Aggravating and Mitigating Factors Generally.................... 357

3.08

Statutory Aggravating Factors ................................................. 359

3.08.1

Death Occurring During Commission of Another

Crime ...................................................................................... 361

3.08.2

Previous Conviction of Violent Felony Involving

Firearm ................................................................................... 362

3.08.2.1

Firearm Deﬁned .......................................................................... 363

3.08.2.2

Firearm Silencer and Firearm Mufﬂer Deﬁned ................... 364

3.08.2.3

Destructive Device Deﬁned ....................................................... 365

3.08.3

Previous Conviction of Offense for Which a Sentence of

Death or Life Imprisonment Was Authorized ................ 367

3.08.4

Previous Conviction of Other Serious Offenses .................... 368

3.08.4.1

Exclusions to the Term “Felony” .............................................. 369

3.08.5

Grave Risk of Death to Additional Persons ........................... 370

3.08.6

Heinous, Cruel, or Depraved Manner of Committing

the Offense ............................................................................. 371

3.08.7

Procurement of the Offense by Payment ............................... 373

3.08.8

Pecuniary Gain ............................................................................ 374

3.08.9

Substantial Planning and Premeditation .............................. 375

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3.08.10

Conviction for Two Felony Drug Offenses ............................. 376

3.08.11

Victim’s Vulnerability ................................................................. 377

3.08.12

Conviction for Serious Federal Drug Offense ....................... 378

3.08.13

Continuing Criminal Enterprise Involving Drug Sales

to Minors ................................................................................ 379

3.08.14

High Public Ofﬁcials ................................................................... 380

3.08.15

Prior Conviction of Sexual Assault or Child

Molestation .............................................................................. 382

3.08.16

Multiple Killings or Attempted Killings ................................. 383

3.09

Non-Statutory Aggravating Factors ........................................ 384

3.10

Mitigating Factors ....................................................................... 385

3.10.1

Impaired Capacity ....................................................................... 389

3.10.2

Duress ............................................................................................ 390

3.10.3

Minor Participation ..................................................................... 391

3.10.4

Equally Culpable Defendants ................................................... 392

3.10.5

No Prior Criminal History ........................................................ 393

3.10.6

Disturbance ................................................................................... 394

3.10.7

Victim’s Consent .......................................................................... 395

3.10.8

Other Mitigating Factors ........................................................... 396

3.11

Weighing Aggravation and Mitigation .................................... 397

3.12

Right to Justice Without Discrimination ............................... 399

PATTERN CRIMINAL

JURY INSTRUCTIONS

(Criminal Cases)

GENERAL MATTERS

1.01

PATTERN CRIMINAL JURY INSTRUCTIONS

1.01

PRELIMINARY INSTRUCTIONS BEFORE TRIAL

Members of the Jury:

At the end of the trial I will give you detailed guidance

on the law and on how you will go about reaching your

decision. But now I simply want to generally explain how the

trial will proceed.

This criminal case has been brought by the United States

government. I will sometimes refer to the govern- ment as the

prosecution. The government is represented by an assistant

United States attorney,

———

. The defendant,

———

, is represented by his lawyer,

———

. [Alternative: The

defendant,

———

, has decided to represent himself and not use

the services of a lawyer. He has a perfect right to do this. His

decision has no bearing on whether he is guilty or not guilty,

and it should have no effect on your consideration of the case.]

The indictment charges the defendant with [read or

summarize the indictment e.g.: having intentionally sold

heroin]. The indictment is simply the description of the

charge made by the government against the defendant; it is

not evidence of guilt or anything else. The defendant pleaded

not guilty and is presumed innocent. He may not be found

guilty by you unless all twelve of you unanimously ﬁnd that

the government has proved his guilt beyond a rea- sonable

doubt. [Addition for multi-defendant cases: There are

multiple defendants in this case and you will have to give

separate consideration to the case against each defendant

as each is entitled to individual consideration.]

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. Just as the

indictment is not evidence, neither is the opening statement.

Its purpose is only to help you understand what the evi-

dence will be. It is a road map to show you what is ahead.

1.01

GENERAL MATTERS

After the government’s opening statement, the defen-

dant’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.]

Evidence will be presented from which you will have to

determine the facts. The evidence will consist of the

testimony of the witnesses, documents and other things

received into the record as exhibits, and any facts about

which the lawyers agree or to which they stipulate.

The government will offer its evidence. After the

government’s evidence, the defendant’s lawyer may [make an

opening statement and] present evidence, but he is not

required to do so. I remind you that the defendant is

presumed innocent and it is the government that must prove

the defendant’s guilt beyond a reasonable doubt. If the

defendant submits evidence, the government may introduce

rebuttal evidence.

At times during the trial, a lawyer may make an objec-

tion to a question asked by another lawyer, or to an answer

by a witness. This simply means that the lawyer is request-

ing 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. If I sustain an objection to a ques- tion, the

witness may not answer it. Do not attempt to guess what

answer might have been given if I had allowed the answer. If

I overrule the objection, treat the answer as any other. If I

tell you not to consider a particular statement, you may not

refer to that statement in your later deliberations. Similarly,

if I tell you to consider a particular piece of evidence for a

speciﬁc purpose, you may consider it only for that purpose.

During the course of the trial I may have to interrupt the

proceedings to confer with the attorneys about the rules of

law that should apply. Sometimes we will talk brieﬂy, at the

bench. But some of these conferences may take more time, so

I will excuse you from the courtroom. I will try to

1.01

PATTERN CRIMINAL JURY INSTRUCTIONS

avoid such interruptions whenever possible, but please be

patient even if the trial seems to be moving slowly because

conferences often actually save time in the end.

You are to consider all the evidence received in this trial.

It will be up to you to decide what evidence to believe and

how much of any witness’s testimony to accept or reject.

After you have heard all the evidence on both sides, the

government and the defense will each be given time for their

ﬁnal arguments.

[The ﬁnal part of the trial occurs when I instruct you on

the rules of law which you are to use in reaching your verdict.]

During the course of the trial I may ask a question of a

witness. If I do, that does not indicate I have any opinion

about the facts in the case but am only trying to bring out

facts that you may consider.

[Insert Instruction 1.02 here if material on note-taking

by jurors is desired.]

[Insert discussion of the elements of the offense here if

they are to be set out for the jury in the preliminary

instruction.]

[Ordinarily, the attorneys will develop all the relevant

evidence that will be necessary for you to reach your verdict.

However, in rare situations, a juror may believe a question is

critical to reaching a decision on a necessary element of the

case. In that exceptional circumstance, you may write out a

question and provide it to the courtroom deputy while the

witness is on the stand. I will then consider that ques- tion

with the lawyers. If it is determined to be a proper and

necessary question, I will ask it. If I do not ask it, you should

recognize that I have determined it is not a legally appropri-

ate question and not worry about why it was not asked or

what the answer would have been.]

During the course of the trial, you should not talk with

1.01

GENERAL MATTERS

any witness, or with the defendant, or with any of the lawyers

at all. In addition, during the course of the trial you should

not talk about the trial with anyone else. Do not discuss the

case with anyone or provide any information about the trial

to anyone outside the courtroom until the verdict is received.

Do not use the internet or any other form of electronic

communication to provide any information. Simply put,

do not communicate with anyone about the trial until your

verdict is received. Also, you should 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. It is important that you wait until all the

evidence is received and you have heard my instructions on

the controlling 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, you should not attempt to

gather any information or do any research on your own. Do

not attempt to visit any places mentioned in the case, either

actually or on the internet, and do not in any other way try

to learn about the case outside the courtroom.

The court reporter is making stenographic notes of

everything that is said. This is basically to assist any appeals.

However, a typewritten copy of the testimony will not be

available for your use during deliberations. On the other

hand, any exhibits will be available to you during your

deliberations.

Now that the trial has begun you must not hear or read

about it in the media. The reason for this is that your deci-

sion in this case must be made solely on the evidence pre-

sented at the trial.

With that introduction, Mr.

—————

, you may present

the opening statement for the government.

Comment

The Tenth Circuit has recognized that the trial judge “must fairly

and impartially state the issues and applicable law in logical sequence

1.01

PATTERN CRIMINAL JURY INSTRUCTIONS

and in the common speech of man if the jury is to understand the issues

and intelligently apply the law.” Elbel v. United States, 364 F.2d 127, 134

(10th Cir. 1966). It is hoped these instructions will assist trial judges

throughout the Circuit to fulﬁll this duty.

In United States v. Blitstein, 626 F.2d 774, 779 (10th Cir. 1980), the

Tenth Circuit noted the district court had given a preliminary instruc-

tion noting the basic jury function is a search for the truth, that jurors

were the sole judges of the facts and that, because of the presumption of

innocence, defendant must be acquitted unless jurors, after an impartial

trial of all the evidence, were convinced of guilt beyond a reasonable

doubt. In United States v. Coppola, 526 F.2d 764, 775–76 (10th Cir. 1975),

the Tenth Circuit recognized that while it is the better practice to repeat

the admonition against receiving media coverage throughout the trial,

the failure to do so was harmless where the preliminary instruction

contained such a caution.

1.02

GENERAL MATTERS

1.02

NOTE-TAKING BY JURORS

(Optional Addition to Preliminary Instructions)

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 wit- ness 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 notes of others. 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.

ALTERNATIVE B

If you would like to take notes during the trial, you may.

On the other hand, you are not required to take notes.

If you do decide to take notes, be careful not to get so

involved in note taking that you become distracted, and

remember that your notes will not necessarily reﬂect exactly

what was said, so your notes should be used only as mem- ory

aids. Therefore, you should not give your notes prece- dence

over your independent recollection of the evidence. You

should also not be unduly inﬂuenced by the notes of other

jurors. If you do take notes, leave them in the jury room at

night and do not discuss the contents of your notes until you

begin deliberations.

Comment

The Tenth Circuit held it was within the discretion of the district

court to permit the jurors to take notes in United States v. Riebold, 557

F.2d 697, 705–06 (10th Cir. 1977).

1.03

PATTERN CRIMINAL JURY INSTRUCTIONS

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, you are the other. I am the judge of the law.

You, as jurors, are the judges of the facts. I presided over the

trial and decided what evidence was 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.

In explaining the rules of law that you must follow, ﬁrst,

I will give you some general instructions which apply in every

criminal case—for example, instructions about burden of

proof and insights that may help you to judge the

believability of witnesses. Then I will give you some speciﬁc

rules of law that apply to this particular case and, ﬁnally, I

will explain the procedures you should follow in your

deliberations, and the possible verdicts you may return.

These instructions will be given to you for use in the jury

room, so you need not take notes.

1.04

GENERAL MATTERS

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 correct-

ness 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. However, you should not

read into these instructions, or anything else I may have said

or done, any suggestion as to what your verdict should be.

That is entirely up to you.

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.

Comment

“The [jury] instructions as a whole need not be ﬂawless, but . . . upon

hearing the instructions, the jury [must be able to understand] the issues

to be resolved and its duty to resolve them.” United States v. Fredette, 315

F.3d 1235, 1240 (10th Cir. 2003) (quotation omitted).

1.05

PATTERN CRIMINAL JURY INSTRUCTIONS

1.05

PRESUMPTION OF INNOCENCE—BURDEN OF

PROOF—REASONABLE DOUBT

The government has the burden of proving the defen-

dant guilty beyond a reasonable doubt. The law does not

require a defendant to prove his innocence or produce any

evidence at all. The government has the burden of proving

the defendant guilty beyond a reasonable doubt, and if it fails

to do so, you must ﬁnd the defendant not guilty.

Proof beyond a reasonable doubt is proof that leaves you

ﬁrmly convinced of the defendant’s guilt. There are few

things in this world that we know with absolute certainty,

and in criminal cases the law does not require proof that

overcomes every possible doubt. It is only required that the

government’s proof exclude any “reasonable doubt” concern-

ing the defendant’s guilt. A reasonable doubt is a doubt based

on reason and common sense after careful and impartial

consideration of all the evidence in the case. If, based on your

consideration of the evidence, you are ﬁrmly convinced that

the defendant is guilty of the crime charged, you must ﬁnd

him guilty. If on the other hand, you think there is a real

possibility that he is not guilty, you must give him the beneﬁt

of the doubt and ﬁnd him not guilty.

Comment

“[T]he reasonable doubt standard is a constitutional cornerstone of

the criminal justice system. A defendant is entitled to have his jury ap-

prised of this standard and its corollary, the presumption of innocence,

and is entitled to have the meaning of reasonable doubt explained to the

jury.” United States v. Pepe, 501 F.2d 1142, 1143 (10th Cir. 1974). In

deﬁning reasonable doubt, “[i]t is not required that the government prove

guilt beyond all possible doubt.” United States v. Jacobson, 578 F.2d 863,

866 (10th Cir. 1978) (quotation omitted). The Tenth Circuit has

repeatedly criticized instructions which deﬁne reasonable doubt in terms

of “substantial doubt” combined with “an abiding conviction of the

defendant’s guilt such as you would be willing to act upon in the more

weighty and important matters relating to your own affairs.” Tillman v.

Cook, 215 F.3d 1116, 1126 (10th Cir. 2000); United States v.

Barrera- Gonzales, 952 F.2d 1269, 1271 (10th Cir. 1992); Monk v. Zelez,

901 F.2d 885, 890 (10th Cir. 1990); United States v. Smaldone, 485 F.2d

1.05

GENERAL MATTERS

1333, 1347–48 (10th Cir. 1973); see also Victor v. Nebraska, 511 U.S. 1,

24 (1994) (Ginsburg, J., concurring) (suggesting a fundamental differ-

ence between decisions people normally make and jury decisions). The

deﬁnition of reasonable doubt derives primarily from Tillman and is also

consistent with the instruction approved in United States v. Litchﬁeld,

959 F.2d 1514, 1520–21 (10th Cir. 1992).

1.05.1

PATTERN CRIMINAL JURY INSTRUCTIONS

1.05.1

PREPONDERANCE OF EVIDENCE

Preponderance of evidence is evidence sufﬁcient to

persuade you that a fact is more likely present than not

present.

1.06

GENERAL MATTERS

1.06

EVIDENCE—DEFINED

You must make your decision based only on the evi-

dence that you saw and heard here in court. Do not let

rumors, suspicions, or anything else that you may have seen

or heard outside of court inﬂuence your decision in any way.

The evidence in this case includes only what the wit-

nesses said while they were testifying under oath, the

exhibits that I allowed into evidence, the stipulations that the

lawyers agreed to, and the facts that I have judicially noticed.

Nothing else is evidence. The lawyers’ statements and

arguments are not evidence. Their questions and objections

are not evidence. My legal rulings are not evidence. And my

comments and questions are not evidence.

During the trial, I did not let you hear the answers to

some of the questions that the lawyers asked. I also ruled

that you could not see some of the exhibits that the lawyers

wanted you to see. And sometimes I ordered you to disre-

gard things that you saw or heard, or I struck things from the

record. You must completely ignore all of these things. Do not

even think about them. Do not speculate about what a

witness might have said or what an exhibit might have

shown. These things are not evidence, and you are bound by

your oath not to let them inﬂuence your decision in any way.

Use Note

This instruction is consistent with federal practice generally. United

States v. Caballero, 277 F.3d 1235, 1244 (10th Cir. 2002); United States

v. Sanders, 929 F.2d 1466, 1470 (10th Cir. 1991).

Paragraph (2) should be tailored to delete any references to kinds of

evidence not relevant to the particular trial. If the court has taken judicial

notice of a fact, the term “judicial notice” should be explained to the jury.

1.06

PATTERN CRIMINAL JURY INSTRUCTIONS

Paragraph (4) should also be tailored depending on what has hap-

pened during trial.

It is settled practice to give a general instruction deﬁning what is and

is not evidence.

In some cases, there may not be any stipulations, or any judicially

noticed facts. In such cases, paragraph (2) should be tailored to elimi- nate

the unnecessary and irrelevant language. The strongly worded ad-

monition in paragraph (4) regarding proffered evidence that was rejected

or stricken may be necessary to counteract the jurors’ natural curiosity

and inclination to speculate about these matters. This paragraph should

be tailored to ﬁt the particular facts of the case. If, for example, there was

no occasion during the course of the trial to order that things the jurors

saw or heard be stricken from the record, the language in this paragraph

dealing with such matters should be omitted.

1.07

GENERAL MATTERS

1.07

EVIDENCE—DIRECT AND CIRCUMSTANTIAL—

INFERENCES

[There are, generally speaking, two types of evidence

from which a jury may properly determine the facts of a case.

One is direct evidence, such as the testimony of an

eyewitness. The other is indirect or circumstantial evidence,

that is, the proof of a chain of facts which point to the exis-

tence or non-existence of certain other facts.]

[As a general rule, the law makes no distinction be-

tween direct and circumstantial evidence. The law simply

requires that you ﬁnd the facts in accord with all the evi-

dence in the case, both direct and circumstantial.]

While you must consider only the evidence in this case,

you are permitted to draw reasonable inferences from the

testimony and exhibits, inferences you feel are justiﬁed in the

light of common experience. An inference is a conclusion that

reason and common sense may lead you to draw from facts

which have been proved.

By permitting such reasonable inferences, 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 testimony and evidence in this case.

Comment

See United States v. Rahseparian, 231 F.3d 1267, 1271–72 (10th

Cir. 2000); United States v. Ortiz-Ortiz, 57 F.3d 892, 895 (10th Cir.

1995); United States v. McIntyre, 997 F.2d 687, 702–03 & nn.16–18

(10th Cir. 1993).

Use Note

The bracketed ﬁrst two paragraphs are optional. Some judges

instruct before closing argument, some after. If instructions are given

after closing argument, the Committee suggests that this instruction be

modiﬁed depending on whether the attorneys have referred to the

distinction between direct and circumstantial evidence during their

closing arguments.

1.08

PATTERN CRIMINAL JURY INSTRUCTIONS

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 ac-

cept all of the evidence as true or accurate.

You are the sole judges of the credibility or “believ-

ability” of each witness and the weight to be given to 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 think about the testimony of each witness you have

heard and decide whether you believe all or any part of what

each witness had to say, and how important that testimony

was. In making that decision, I suggest that you ask yourself

a few questions: Did the witness 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 in

this case? Did the witness have any rela- tionship 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/she 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? When weighing the

conﬂicting testimony, you should consider whether the

discrepancy has to do with a material fact or with an

unimportant detail. And you should keep in mind that

innocent misrecollection—like failure of recollection—is not

uncommon.

[The testimony of the defendant should be weighed and

his credibility evaluated in the same way as that of any other

witness.]

[The defendant did not testify and I remind you that you

cannot consider his decision not to testify as evidence of

1.08

GENERAL MATTERS

guilt. I want you to clearly understand, please, that the

Constitution of the United States grants to a defendant the

right to remain silent. That means the right not to testify or

call any witnesses. That is a constitutional right in this

country, it is very carefully guarded, and you should

understand that no presumption of guilt may be raised and

no inference of any kind may be drawn from the fact that a

defendant does not take the witness stand and testify or call

any witnesses.]

In reaching a conclusion on particular point, or ulti-

mately in reaching a verdict in this case, do not make any

decisions simply because there were more witnesses on one

side than on the other.

Comment

This instruction is consistent with United States v. Arias-Santos, 39

F.3d 1070, 1074 (10th Cir. 1994); see also United States v. Coleman, 7

F.3d 1500, 1505–06 (10th Cir. 1993).

Use Note

If the defendant did not testify, please refer to Instruction 1.08.1,

which follows.

1.08.1

PATTERN CRIMINAL JURY INSTRUCTIONS

1.08.1

NON-TESTIFYING DEFENDANT

The defendant did not testify and I remind you that

you

cannot consider his decision not to testify as evidence of guilt.

You must understand that the Constitution of the United

States grants to a defendant the right to remain silent. That

means the right not to testify. That is a constitutional right

in this country, it is very carefully guarded, and you must not

presume or infer guilt from the fact that a defendant does not

take the witness stand and testify or call any witnesses.

Comment

This instruction is consistent with United States v. Coleman, 7 F.3d

1500, 1505–06 (10th Cir. 1993).

1.09

GENERAL MATTERS

1.09

EVIDENCE OF GOOD CHARACTER

[The defendant has offered evidence of his reputation for

good character.] [The defendant has offered evidence of

someone’s opinion as to his good character.] You should

consider such evidence along with all the other evidence in

the case.

Evidence of good character may be sufﬁcient to raise a

reasonable doubt whether the defendant is guilty, because

you may think it improbable that a person of good character

would commit such a crime. Evidence of a defendant’s

character, inconsistent with those traits of character

ordinarily involved in the commission of the crime charged,

may give rise to a reasonable doubt.

You should also consider any evidence offered to rebut

the evidence offered by the defendant.

You should 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.

Comment

The Committee suggests that United States v. McMurray, 656 F.2d

540, 550–51 (10th Cir. 1980), neither mandates nor precludes the use of

the word “alone.” See United States v. Daily, 921 F.2d 994, 1010 (10th Cir.

1990), overruling on other grounds recognized by United States v.

Schleibaum, 130 F.3d 947, 949 (10th Cir. 1997). The matter is, however,

subject to some debate.

There is no per se rule that the “evidence of good character alone”

instruction must be given either sua sponte or upon request. The trial

courts should consider this issue on a case-by-case basis, and give the

“evidence of good character alone” instruction when the circumstances of

a particular case so require. See, e.g., Michelson v. United States, 335

U.S. 469, 476 (1948); Edgington v. United States, 164 U.S. 361, 366

(1896); Oertle v. United States, 370 F.2d 719, 727 (10th Cir. 1966) (en

banc); Bird City Equity Mercantile Exch. v. United States, 338 F.2d 790,

791–92 (10th Cir. 1964).

Cf. Instruction 1.13 (Impeachment By Evidence of Untruthful

Character).

1.09

PATTERN CRIMINAL JURY INSTRUCTIONS

Use Note

The word “alone” can be inserted in the second paragraph, when

appropriate:

Evidence of good character alone may be sufﬁcient . . . .

1.09.1

GENERAL MATTERS

1.09.1

EVIDENCE OF REPUTATION FOR HONESTY

The defendant has offered evidence in the form of repu-

tation for honesty and integrity. You should consider such

evidence along with all the other evidence in the case.

Evidence in the form of reputation for honesty and in-

tegrity may be sufﬁcient to raise a reasonable doubt

whether the defendant is guilty, because you may think it

improbable that a person of honesty and integrity would

commit such a crime. Evidence in the form of reputation of a

defendant’s honesty and integrity may be inconsistent with

those traits of character ordinarily involved in the

commission of the crime charged, and may give rise to a

reasonable doubt.

You should also consider any evidence offered to rebut

the evidence offered by the defendant.

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.

Comment

Cf. Comment to preceding instruction, 1.09, for discussion of use of

the word “alone.”

It seems to be the better practice to give this instruction when the

defense offers character evidence, especially if the character evidence

may be the defense theory of the case. The instruction is consistent with

United States v. McMurray, 656 F.2d 540, 550–51 (10th Cir. 1980), and

United States v. Daily, 921 F.2d 994, 1010 (10th Cir. 1990), overruling on

other grounds recognized by United States v. Schleibaum, 130 F.3d 947,

949 (10th Cir. 1997).

However, there is no per se rule that the “evidence of good character

alone” instruction must be given either sua sponte or upon request. The

trial courts should consider this issue on a case-by-case basis, and give

the “evidence of good character alone” instruction when the circum-

stances of a particular case so require. See, e.g., Michelson v. United

States, 335 U.S. 469, 476 (1948); Edgington v. United States, 164 U.S.

1.09.1

PATTERN CRIMINAL JURY INSTRUCTIONS

361, 366 (1896); Oertle v. United States, 370 F.2d 719, 727 (10th Cir.

1966); Bird City Equity Mercantile Exch. v. United States, 338 F.2d 790,

791–92 (10th Cir. 1964).

Cf. Instruction 1.13 (Impeachment by Evidence of Untruthful

Character).

Use Note

The word “alone” can be inserted in the second paragraph, when

appropriate: “Evidence in the form of reputation for honesty and integ-

rity alone may be sufﬁcient . . . .”

GENERAL MATTERS

1.10

IMPEACHMENT BY PRIOR INCONSISTENCIES

You have heard the testimony of [name of witness]. You

have also heard that, before this trial, he made a statement

that may be different from his testimony here in court.

This earlier statement was brought to your attention

only to help you decide how believable his testimony in this

trial was. You cannot use it as proof of anything else. You can

only use it as one way of evaluating his testimony here in

court.

Use Note

This instruction must be given when a prior inconsistent statement

which does not fall within Fed. R. Evid. 801(d)(2)(A) has been admitted.

If several prior inconsistent statements were admitted, some for

impeachment purposes and others as substantive evidence, this instruc-

tion should identify which statements were offered for impeachment

purposes. It should also be given during trial as a limiting instruction, if

requested under Fed. R. Evid. 105. This seems consistent with United

States v. Carter, 973 F.2d 1509, 1512 (10th Cir. 1992); United States v.

Orr, 864 F.2d 1505, 1509 (10th Cir. 1988); United States v. Sounding-

sides, 825 F.2d 1468, 1470 (10th Cir. 1987).

1.11

PATTERN CRIMINAL JURY INSTRUCTIONS

1.11

IMPEACHMENT BY PRIOR CONVICTION

(Defendant’s Testimony)

You have heard evidence that the defendant has been

convicted of a felony, that is, a crime punishable by

imprisonment for a term of years. 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 his testimony you will believe in this trial. The fact that

the defendant has been convicted of another crime does not

mean that he committed the crime charged in this case, and

you must not use his prior conviction as proof of the crime

charged in this case. You may ﬁnd him guilty of the crime

charged here only if the government has proved beyond a

reasonable doubt that he committed it.

Use Note

The court should consider giving this instruction at the conclusion of

the defendant’s testimony as well as at the conclusion of the trial.

GENERAL MATTERS

1.12

IMPEACHMENT BY PRIOR CONVICTION

(Witness Other Than Defendant)

The testimony of a witness may be discredited or

impeached by showing that the witness previously has been

convicted of a [felony, that is, of a crime punishable by

imprisonment for a term of years] or of a [crime of dishon-

esty or false statement]. A prior conviction does not mean

that a witness is not qualiﬁed to testify, but is merely one

circumstance that you may consider in determining the

credibility of the witness. You may decide how much weight

to give any [prior felony conviction] [crime of dishonesty] that

was used to impeach a witness.

Use Note

Fed. R. Evid. 609 expressly requires that evidence of a felony convic-

tion shall be admitted, subject to Rule 403. It is important that the court

conduct, on the record, a Rule 403 balancing before determining whether

to admit or exclude evidence of a felony conviction. United States v.

Howell, 285 F.3d 1263, 1269–70 (10th Cir. 2002). Rule 403 balancing is

not required if the prior crime involves dishonesty or false statements.

United States v. Begay, 144 F.3d 1336, 1338 (10th Cir. 1998). A crime of

dishonesty or false statement does not need to be a felony. Care must be

exercised, however, because some offenses that may sound like crimes of

dishonesty may not be. See, e.g., United States

v. Dunson, 142 F.3d 1213, 1215–16 (10th Cir. 1998) (holding that shop-

lifting is not “automatically” a crime of dishonesty or false statement).

The court should consider giving this instruction at the conclusion of

the witness’s testimony, as well as at conclusion of the trial.

1.13

PATTERN CRIMINAL JURY INSTRUCTIONS

1.13

IMPEACHMENT BY EVIDENCE OF UNTRUTHFUL

CHARACTER

You have heard the testimony of [name of witness], who

was a witness in the [government’s] [defense’s] case. You also

heard testimony from others concerning [their opinion about

his character for truth-telling] [his reputa- tion, in the

community where he lives, for telling the truth]. It is up to

you to decide from what you heard here whether [name of

witness] was telling the truth in this trial. In decid- ing this,

you should bear in mind the testimony concerning his

[reputation for] truthfulness.

Comment

Under Fed. R. Evid. 608(a), a witness is not limited to reputation

testimony, but may also state his opinion as to the character of another

witness for truthfulness.

This instruction should be rarely, if ever, needed.

Cf. Instructions 1.09 (Evidence of Good Character) and 1.09.1 (Evi-

dence of Reputation for Honesty)

GENERAL MATTERS

1.14

ACCOMPLICE—INFORMANT—IMMUNITY

[as appropriate] Accomplice

An accomplice is someone who joined with another

person in committing a crime, voluntarily and with common

intent. The testimony of an accomplice may be received in

evidence and considered by you, even though it is not sup-

ported by other evidence. You may decide how much weight

it should have.

You are to keep in mind, however, that accomplice

testimony should be received with caution and considered

with great care. You should not convict a defendant based on

the unsupported testimony of an alleged accomplice, un- less

you believe the unsupported testimony beyond a rea- sonable

doubt.

Informant

An informant is someone who provides evidence against

someone else for a personal reason or advantage. The

testimony of an informant alone, if believed by the jury, may

be of sufﬁcient weight to sustain a verdict of guilt,

even

though not corroborated or supported by other evidence. You

must examine and weigh an informant’s testimony with

greater care than the testimony of an ordinary witness. You

must determine whether the infor- mant’s testimony has

been affected by self- interest, by an agreement he has with

the government, by his own interest in the outcome of the

case, or by prejudice against the defendant.

You should not convict a defendant based on the unsup-

ported testimony of an informant, unless you believe the

unsupported testimony beyond a reasonable doubt.

Immunity

A person may testify under a grant of immunity (an

1.14

PATTERN CRIMINAL JURY INSTRUCTIONS

agreement with the government). His testimony alone, if

believed by the jury, may be of sufﬁcient weight to sustain a

verdict of guilt even though it is not corroborated or sup-

ported by other evidence. You should consider testimony

given under a grant of immunity with greater care and cau-

tion than the testimony of an ordinary witness. You should

consider whether testimony under a grant of immunity has

been affected by the witness’s own interest, the govern-

ment’s agreement, the witness’s interest in the outcome of

the case, or by prejudice against the defendant.

On the other hand, you should also consider that an

immunized witness can be prosecuted for perjury for mak-

ing a false statement. After considering these things, you

may give testimony given under a grant of immunity such

weight as you feel it deserves.

You should not convict a defendant based on the unsup-

ported testimony of an immunized witness, unless you

believe the unsupported testimony beyond a reasonable

doubt.

Comment

United States v. Bridwell, 583 F.2d 1135, 1142 (10th Cir. 1978).

Use Note

When the immunity instruction is given, the nature of the agree-

ment with the government should be spelled out in the instruction.

United States v. Valdez, 225 F.3d 1137, 1139–41 (10th Cir. 2000).

1.15

GENERAL MATTERS

1.15

ACCOMPLICE—CO-DEFENDANT—PLEA

AGREEMENT

The government called as one of its witnesses an al-

leged accomplice, who was named as a co-defendant in the

indictment. The government has entered into a plea agree-

ment with the co-defendant, providing [e.g., for the dis-

missal of some charges and a recommendation of a lesser

sentence than the co-defendant would otherwise likely

receive]. Plea bargaining is lawful and proper, and the rules

of this court expressly provide for it.

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 an al- leged

accomplice may, by itself, support a guilty verdict. You

should receive this type of testimony with caution and weigh

it with great care. You should never convict a defendant

upon the unsupported testimony of an alleged ac- complice,

unless you believe that testimony beyond a rea- sonable

doubt. The fact that an accomplice has entered a guilty plea

to the offense charged is not evidence of the guilt of any other

person.

Use Note

The bracketed material in the ﬁrst paragraph should be adapted to

the particular case.

1.16

PATTERN CRIMINAL JURY INSTRUCTIONS

1.16

WITNESS’S USE OF ADDICTIVE DRUGS

The testimony of a drug abuser must be examined and

weighed by the jury with greater caution than the testimony

of a witness who does not abuse drugs.

[Name of witness] may be considered to be an abuser of

drugs.

You must determine whether the testimony of that wit-

ness has been affected by the use of drugs or the need for

drugs.

Comment

The use of an addict instruction was discussed with approval by the

Tenth Circuit in United States v. Smith, 692 F.2d 658, 660–61 (10th Cir.

1982); there, however, the Court declined to ﬁnd error in the trial court’s

refusal to give such instruction in light of the instructions read as a

whole. See also United States v. Nicholson, 983 F.2d 983, 991 (10th Cir.

1993).

1.17

GENERAL MATTERS

1.17

EXPERT WITNESS

[During the trial you heard the testimony of who

expressed opinions concerning

—————

.] In some cases,

such as this one, scientiﬁc, technical, or other specialized

knowledge may assist the jury in understanding the evi-

dence or in determining a fact in issue. A witness who has

knowledge, skill, experience, training or education, may

testify and state an opinion concerning such matters.

You are not required to accept such an opinion. You

should consider opinion testimony just as you consider other

testimony in this trial. Give opinion testimony as much

weight as you think it deserves, considering the education

and experience of the witness, the soundness of the reasons

given for the opinion, and other evidence in the trial.

Use Note

In the typical one-expert case (e.g., drugs), the bracketed sentence

may be omitted. Where expert opinions are in issue, the names of the

experts and a description of their opinions might be inserted.

1.18

PATTERN CRIMINAL JURY INSTRUCTIONS

1.18

ON OR ABOUT

You will note that the indictment charges that the crime

was committed on or about [date]. The government must

prove beyond a reasonable doubt that the defendant

committed the crime reasonably near [date].

Comment

A similar instruction was approved in United States v. Agnew, 931

F.2d 1397, 1401, 1410–11 (10th Cir. 1991). In United States v. Poole, 929

F.2d 1476, 1482 (10th Cir. 1991), the court wrote: “the ‘on or about’

instruction . . . has been approved by this Circuit on numerous occasions.”

Care should be taken in giving this instruction if the defendant has

raised an alibi defense. See Brian H. Redmond, Annotation, Propriety

And Prejudicial Effect Of “On or About” Instruction Where Alibi Evi-

dence In Federal Criminal Case Purports To Cover Speciﬁc Date Shown

By Prosecution Evidence, 92 A.L.R. Fed. 313 (1989).

The district court, however, retains the discretion to give an “on or

about” instruction even when an alibi defense is raised. United States v.

Phillips, 869 F.2d 1361, 1368–69 (10th Cir. 1988); United States v.

Lucero, 601 F.2d 1147, 1150 (10th Cir. 1979). The district court will

consider the coincidence, or lack thereof, of a speciﬁc date upon which the

crime was committed, as alleged and proved, with the speciﬁc date of the

alibi.

1.19

GENERAL MATTERS

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 crime not charged in the indictment.

It is not up to you to decide whether anyone who is not

on trial in this case should be prosecuted for the crime

charged. The fact that another person also may be guilty is

no defense to a criminal charge.

Comment

See United States v. Oberle, 136 F.3d 1414, 1422–23 (10th Cir. 1998),

approving instruction directing jury not to concern themselves with the

guilt of anyone except the defendant over objection that it directed jurors

to ignore defendant’s defense of mistaken identity.

Use Note

The Committee suggests that this instruction be given if the

defendant has an instruction as to a person other than the defendant

being guilty of the crime.

Modiﬁcation of this instruction will be necessary in those cases where

the evidence necessarily raises the question of the guilt of others such as

conspiracy or aiding and abetting.

Modiﬁcation should also be considered in cases in which an alibi or

mistaken identiﬁcation is raised.

1.20

PATTERN CRIMINAL JURY INSTRUCTIONS

1.20

CAUTION—PUNISHMENT

(Non-Capital Cases)

If you ﬁnd the defendant guilty, it will be my duty to

decide what the punishment will be. You should not discuss

or consider the possible punishment in any way while decid-

ing your verdict.

1.21

GENERAL MATTERS

1.21

MULTIPLE DEFENDANTS—SINGLE COUNT

The rights of each of the defendants in this case are

separate and distinct. You must separately consider the ev-

idence against each defendant and return a separate verdict

for each.

Your verdict as to one defendant, whether it is guilty or

not guilty, should not affect your verdict as to any other

defendant.

Comment

This instruction is based on Kotteakos v. United States, 328 U.S. 750,

772 (1946); United States v. Edwards, 69 F.3d 419, 434 n.8 (10th

Cir. 1995).

1.22

PATTERN CRIMINAL JURY INSTRUCTIONS

1.22

MULTIPLE DEFENDANTS—MULTIPLE COUNTS

A separate crime is charged against one or more of the

defendants in each count of the indictment. You must

separately consider the evidence against each defendant on

each count and return a separate verdict for each defendant.

Your verdict as to any one defendant or count, whether

it is guilty or not guilty, should not inﬂuence your verdict as

to any other defendants or counts.

Comment

This instruction combines the concepts contained in “Single

Defendants—Multiple Counts” and “Multiple Defendants—Single Count”

instructions.

Use Note

The second paragraph should be modiﬁed when guilt of one charge is

a prerequisite for conviction of another charge. See, e.g., 18 U.S.C.

§ 1961 (RICO conviction requires proof of two predicate offenses).

1.23

GENERAL MATTERS

1.23

DUTY TO DELIBERATE—VERDICT FORM

In a moment the [bailiff or court security officer] will

escort you to the jury room and provide each of you with a

copy of the instructions that I have just read. Any exhibits

admitted into evidence will also be placed in the jury room

for your review.

When you go to the jury room, you should ﬁrst select a

foreperson, who will help to guide your deliberations and will

speak for you here in the courtroom. [The second thing you

should do is review the instructions. Not only will your

deliberations be more productive if you understand the legal

principles upon which your verdict must be based, but for

your verdict to be valid, you must follow the instructions

throughout your deliberations. Remember, you are the judges

of the facts, but you are bound by your oath to follow the law

stated in the instructions.]

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.

You must consult with one another and 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. Dur-

ing 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 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. You must decide whether the government has proved

the defendant guilty beyond a reasonable doubt.

A form of verdict has been prepared for your

1.22

PATTERN CRIMINAL JURY INSTRUCTIONS

convenience.

1.23

PATTERN CRIMINAL JURY INSTRUCTIONS

[Explain the 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 delibera-

tions, 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 [bailiff or court security officer]. I will either

reply in writing or bring you back into the court to respond to

your message. Under no circumstances should you reveal to

me the numerical division of the jury.

Comment

Concerning the admonition against disclosure of the numerical divi-

sion of the jury, see Brasﬁeld v. United States, 272 U.S. 448, 449–50

(1926).

Use Note

The bracketed material in the second paragraph might be appropri-

ate when the trial judge provides the jurors with written copies of the

instructions.

The Committee recognizes that many judges do not routinely instruct

on the verdict form. For those who do, the bracketed notation “Explain

the Verdict Form” indicates an appropriate place for that instruction to

be given.

1.24

GENERAL MATTERS

1.24

UNANIMITY OF THEORY

Your verdict must be unanimous. Count

———

of the

indictment accuses the defendant of committing the follow-

ing acts: [description of individual acts].

The government does not have to prove all of these dif-

ferent acts for you to return a guilty verdict on count

———

But in order to return a guilty verdict, all twelve of you

must agree upon which of the listed acts, if any, the

defendant committed and that he committed at least

[number of acts identiﬁed above] of the acts listed.

Comment

This instruction is modeled on language from Richardson v. United

States, 526 U.S. 813, 817–18, 824 (1999).

Use Note

This instruction should be used when the government introduces

evidence that the defendant has committed multiple acts which may

constitute an element of the crime. See, e.g., 21 U.S.C. § 848 (Continu- ing

Criminal Enterprise) (may require proof of a series of federal drug

violations). See Richardson v. United States, 526 U.S. 813, 817–18, 824

(1999). In that instance the jury must agree on which acts were commit-

ted and the requisite number of acts, if multiple acts are required by the

statute, before a guilty verdict may be returned. This instruction should

not be given when evidence concerning various means of com- mitting the

crime has been introduced. See United States v. Weller, 238 F.3d 1215,

1219–20 (10th Cir. 2001); United States v. Powell, 226 F.3d

1181, 1194–95 (10th Cir. 2000).

1.25

PATTERN CRIMINAL JURY INSTRUCTIONS

1.25

VOLUNTARINESS OF STATEMENT BY

DEFENDANT

(Single Defendants)

Evidence has been presented about a statement attrib-

uted to the defendant alleged to have been made after the

commission of the crime (or crimes) charged in this case but

not made in court. Such evidence should always be consid-

ered by you with caution and weighed with care. You should

give any such statement the weight you think it deserves,

after considering all the circumstances under which the

statement was made.

In determining whether any such statement is reliable

and credible, consider factors bearing on the voluntariness of

the statement. For example, consider the age, gender,

training, education, occupation, and physical and mental

condition of the defendant, and any evidence concerning his

treatment while under interrogation if the statement was

made in response to questioning by government ofﬁcials, and

all the other circumstances in evidence surrounding the

making of the statement.

After considering all this evidence, you may give such

weight to the statement as you feel it deserves under all the

circumstances. If you determine that the statement is

unreliable or not credible, you may disregard the statement

entirely.

Comment

The Committee has not used the terms “confession” and “admission.”

These labels that the law gives to statements may be confusing in jury

instructions. ‘‘ ‘[S]tatements’ is a more neutral description than ‘confes-

sion,’ and should be used in its place . . . unless the statements can be

considered a ‘complete and conscious admission of guilt—a strict confes-

sion,’ ’’ Opper v. United States, 348 U.S. 84, 91 (1954), in which case the

instruction may be adapted by the trial judge.

In Lego v. Twomey, 404 U.S. 477 (1972), the Supreme Court set the

1.25

GENERAL MATTERS

minimum burden of proof required to establish that a confession is vol-

untary when such confession has been challenged as involuntary. The

Court stated that the burden must be “at least by a preponderance of the

evidence.” The court stated that the states are free to adopt a higher

standard as a matter of state law. In United States v. McCullah, 76 F.3d

1087, 1100 (10th Cir. 1996), the Tenth Circuit incorporated the language

of Lego, “at least by a preponderance of the evidence,” thereby

establishing the burden for this circuit.

United States v. Toles, 297 F.3d 959, 965–66 (10th Cir. 2002),

discusses voluntariness analysis but does not include gender speciﬁcally

among factors to be considered. Nothing in Toles seems to suggest that

those factors speciﬁcally referred to are exhaustive. According to Toles,

the determination of voluntariness is based on the totality of circum-

stances, including the characteristics of the accused and the details of the

interrogation. See also United States v. Gonzales, 164 F.3d 1285, 1289

(10th Cir. 1999). Such factors include age, intelligence, education of the

defendant, length of detention, length and nature of questioning, whether

defendant was advised of constitutional rights and whether defendant

was subjected to physical punishment. United States v. Glover, 104 F.3d

1570, 1579 (10th Cir. 1997) abrogated on other grounds, Corley

v. United States, 556 U.S. 303 (2009).

The instruction is consistent with United States v. March, 999 F.2d

456, 462–63 (10th Cir. 1993), and United States v. Janoe, 720 F.2d

1156, 1163–64 (10th Cir. 1983).

For a discussion of how the length of time between a defendant’s

arrest and his presentation before a magistrate may affect the voluntari-

ness of statements made in the interim, see Corley, 556 U.S. at 320–21.

Use Note

See Instruction 1.05.1 for “preponderance of evidence.”

1.26

PATTERN CRIMINAL JURY INSTRUCTIONS

1.26

CONFESSION-STATEMENT—VOLUNTARINESS BY

DEFENDANT

(Multiple Defendants)

Evidence relating to any statement attributed to the

defendant alleged to have been made after the commission of

the crime (or crimes) charged in this case but not made

court, should always be considered by you with caution and

weighed with care. You should give any such statement the

weight you think it deserves, after considering all the

circumstances under which the statement was made.

In determining whether any such statement is reliable

and credible, consider factors bearing on the voluntariness of

the statement. For example, consider the age, gender,

training, education, occupation, and physical and mental

condition of the defendant, and any evidence concerning his

treatment while under interrogation if the statement was

made in response to questioning by government ofﬁcials, and

all the other circumstances in evidence surrounding the

making of the statement.

After considering all this evidence, you may give such

weight to the statement as you feel it deserves under all the

circumstances. If you determine that the statement is

unreliable or not credible, you may disregard the statement

entirely.

Of course, any such statement should not be considered

in any way whatsoever as evidence with respect to any other

defendant on trial.

Comment

See Comment to Instruction 1.25.

1.27

GENERAL MATTERS

1.27

ENTRAPMENT

As a defense to the crimes charged in the indictment, the

defendant has asserted that he was entrapped.

The defendant was entrapped if

—

the idea for committing the crime(s) originated with

government agents, and

—

the government agents then persuaded or talked

the defendant into committing the crime(s), and

—

the defendant was not already willing to commit

the crime(s).

When a person has no previous intent or purpose to

violate the law, but is induced or persuaded by ofﬁcers or

agents to commit a crime, he is entrapped and the law, as a

matter of policy, forbids his conviction in such a case. On the

other hand, when a person already has the readiness and

willingness to violate the law, and the ofﬁcers or agents

merely provide him with an opportunity to commit the crime

and do so even by disguise or ruse, there is no entrapment.

In order to return a verdict of guilty as to [the defen-

dant] for the crime(s) of [name crime or crimes charged], you

must ﬁnd beyond a reasonable doubt that the defendant was

not entrapped.

[Add as appropriate:

For purposes of this case, [

—

], the informant, was an

agent of the law enforcement ofﬁcers.]

Comment

The Committee has chosen not to use the word “predisposition” as it

sounds overly technical and thus may be confusing to the average juror.

This instruction is based on United States v. Scull, 321 F.3d 1270,

1.27

PATTERN CRIMINAL JURY INSTRUCTIONS

1274–76 (10th Cir. 2003), and United States v. Cerrato-Reyes, 176 F.3d

1253, 1262–63 (10th Cir. 1999) (and Tenth Circuit cases cited therein).

To establish a defense of entrapment, Scull seems to require proof of

more than persuasion by the government agent. ‘‘ ‘Inducement’ is

‘government conduct which creates a substantial risk that an undisposed

person or otherwise law-abiding citizen would commit the offense.’ ’’ 321

F.3d at 1275 (quoting United States v. Ortiz, 804 F.2d 1161, 1165 (10th

Cir. 1986)). Inducement is neither established by evidence of solicita-

tion, standing alone, nor ‘‘ ‘by evidence that the government agent initi-

ated the contact with the defendant or proposed the crime.’ ’’ Id. (quot-

ing Ortiz, 804 F.2d at 1165).

1.28

GENERAL MATTERS

1.28

SELF-DEFENSE OR DEFENSE OF ANOTHER

The defendant [name the defendant] has offered evi-

dence that he was acting in [self-defense] [defense of

another].

A person is entitled to defend [himself] [another person]

against the immediate use of unlawful force. But the right to

use force in such a defense is limited to using only as much

force as reasonably appears to be necessary under the

circumstances.

[A person may use force which is intended or likely to

cause death or great bodily harm only if he reasonably

believes that force is necessary to prevent death or great

bodily harm to [himself] [another]].

To ﬁnd the defendant guilty of the crime charged in the

indictment, you must be convinced that the government has

proved beyond a reasonable doubt:

Either, the defendant did not act in [self-defense]

[defense of another],

Or, it was not reasonable for the defendant to think that

the force he used was necessary to defend [himself] [another

person] against an immediate threat.

Comment

As with most afﬁrmative defenses, once the defendant raises the

defense, the government must establish beyond a reasonable doubt that

the defendant’s action was not in self-defense. United States v. Corri- gan,

548 F.2d 879, 881–84 (10th Cir. 1977).

1.29

PATTERN CRIMINAL JURY INSTRUCTIONS

1.29

IDENTIFICATION TESTIMONY

The government must prove, beyond a reasonable

doubt, that the offense(s) charged in this case was actually

committed and that it was the defendant who committed it.

Thus, the identiﬁcation of the defendant as the person who

committed the offense(s) charged is a necessary and

important part of the government’s case.

You should evaluate the credibility of any witness mak-

ing an identiﬁcation in the same manner as you would any

other witness. You should also consider at least the follow-

ing questions:

Did the witness have the ability and an adequate op-

portunity to observe the person who committed the offen-

se(s) charged? You should consider, in this regard, such

matters as the length of time the witness had to observe the

person in question, the lighting conditions at that time, the

prevailing visibility, the distance between the witness and

the person observed, and whether the witness had known or

observed the person before.

Is the testimony about an identiﬁcation made after the

commission of the crime(s) the product of the witness’s own

recollection? In this regard, you should consider very care-

fully the circumstances under which the later identiﬁcation

was made, including the manner in which the defendant was

presented to the witness for identiﬁcation and the length of

time that elapsed between the crime(s) and the witness’s

subsequent identiﬁcation.

If, after examining all of the testimony and evidence in

this case, you have a reasonable doubt as to the identity of

the defendant as the person who committed the offense(s)

charged, you must ﬁnd the defendant not guilty.

Comment

This instruction should be given whenever identiﬁcation testimony

1.29

GENERAL MATTERS

has become an issue because of lack of corroboration or limited op-

portunity for observation, because the witness’s memory has faded by the

time of trial, or because of law-enforcement induced problems that might

affect the reliability of identiﬁcation testimony.

This instruction takes account of United States v. Telfaire, 469 F.2d

552, 558 (D.C. Cir. 1972). An instruction consisting only of the ﬁrst and

last paragraphs may be consistent with United States v. Pena, 930 F.2d

1486, 1492–93 (10th Cir. 1991), and United States v. Thoma, 713 F.2d

604, 607–08 (10th Cir. 1983) (discussing when cautionary instruction is

needed).

The Committee believes that elaboration on the speciﬁc circum-

stances surrounding an identiﬁcation is best left to argument at trial.

1.30

PATTERN CRIMINAL JURY INSTRUCTIONS

1.30

SIMILAR ACTS

You have heard evidence of other [crimes] [acts]

[wrongs] engaged in by the defendant. You may consider that

evidence only as it bears on the defendant’s [e.g., mo- tive,

opportunity, intent, preparation, plan, knowledge, identity,

absence of mistake or accident] and for no other purpose. Of

course, the fact that the defendant may have previously

committed an act similar to the one charged in this case does

not mean that the defendant necessarily com- mitted the act

charged in this case.

Comment

This instruction is based on the Ninth Circuit’s Model Jury Instruc-

tion (criminal) 4.3. It follows Tenth Circuit precedent. See, e.g., United

States v. Cuch, 842 F.2d 1173, 1177 (10th Cir. 1988). It respects the four

factors of proper limited purpose, relevance, prejudice analysis, and the

right to a limiting instruction mentioned in Huddleston v. United States,

485 U.S. 681, 691–92 (1988).

Use Note

Merely reading the text of Federal Rule of Evidence 404(b) is not the

best way to instruct the jury. United States v. Doran, 882 F.2d

1511,

1524 (10th Cir. 1989). This instruction should be given during trial when

requested under Fed. R. Evid. 105, see Huddleston v. United States, 485

U.S. 681, 691–92 (1988), and in closing instructions.

The government bears the burden of demonstrating how the prof-

fered evidence is relevant to an issue in the case. In demonstrating the

relevance of proffered other acts evidence, ‘‘ ‘[t]he Government must ar-

ticulate precisely the evidentiary hypothesis by which a fact of conse-

quence may be inferred from the evidence of other acts.’ ’’ Cuch, 842 F.2d

at 1176 (quoting United States v. Kendall, 766 F.2d 1426, 1436 (10th Cir.

1985)). Before such evidence is admitted “it must tend to es- tablish

intent, knowledge, motive or one of the enumerated exceptions; must

have real probative value, not just possible worth; and must be

reasonably close in time to the crime charged.” Id.

1.31

GENERAL MATTERS

1.31

ACTUAL OR CONSTRUCTIVE POSSESSION

A person who, although not in actual possession, know-

ingly has the power and intent at a given time to exercise

dominion or control over an object, either directly or through

another person or persons, is then in constructive posses-

sion of it.

[More than one person can be in possession of an object

if each knows of its presence and has the power and intent to

control it.]

[In the situation where the object is found in a place

(such as a room or car) occupied by more than one person, you

may not infer power and intent to exercise control over the

object based solely on joint occupancy. Mere control over the

place in which the object is found is not sufﬁcient to es-

tablish constructive possession. Instead, in this situation, the

government must prove some connection between the

particular defendant and the object demonstrating the power

and intent to exercise control over the object.]

Comment

“Constructive possession is established when a person, though lack-

ing such physical custody, still has the power and intent to exercise

control over the object.” Henderson v. United States, 575 U.S. 622 (2015).

In United States v. Little, 829 F.3d 1177, 1182 (10th Cir. 2016), the Tenth

Circuit recognized that both the power and intent to exercise dominion or

control over the object are essential. Prior to that, the Tenth Circuit

considered constructive possession in a variety of circumstances. United

States v. Valadez-Gallegos, 162 F.3d 1256, 1262 (10th Cir. 1998) (in joint

occupancy case, government must show con- nection “individually linking

the defendant to the contraband”); United States v. McKissick, 204 F.3d

1282, 1291 (10th Cir. 2000) (control of premises alone is insufﬁcient);

United States v. Adkins, 196 F.3d 1112, 1114–16 (10th Cir. 1999)

(discussing “ﬂeeting possession” instruction); see United States v. Avery,

295 F.3d 1158, 1177–81 (10th Cir. 2002) (discussing possession in various

situations).

1.32

PATTERN CRIMINAL JURY INSTRUCTIONS

1.32

ATTEMPT

The defendant may be found guilty of attempting to

commit a crime, even though he did not do all of the acts

necessary in order to commit the crime. However, the

defendant may not be found guilty of attempting to commit

any crime merely by thinking about it, or even by making

some plans or some preparation for the commission of a

crime.

Instead, in order to prove an attempt, the government

must prove beyond a reasonable doubt that (1) the defendant

intended to commit the crime; and that (2) the defendant took

a substantial step towards commission of that crime.

A “substantial step” is something beyond mere

preparation. A substantial step is an act which, in the

ordinary and likely course of events, would lead to the com-

mission of the particular crime. The step must be a strong

indication of the defendant’s criminal intent, and must

unequivocally mark the defendant’s acts as criminal. It

should demonstrate commitment to the crime charged.

Comment

United States v. Monholland, 607 F.2d 1311, 1318 (10th Cir. 1979)

(discussing necessary element of overt act for attempt); United States v.

DeSantiago-Flores, 107 F.3d 1472, 1478–79 (10th Cir. 1997) (deﬁning

elements and “substantial step”), overruled on other grounds by United

States v. Holland, 116 F.3d 1353, 1359 n.4 (10th Cir. 1997); United

States v. Smith, 264 F.3d 1012, 1016–17 (10th Cir. 2001) (same).

“Under Fed. R. Crim. P. 31(c), ‘[t]he defendant may be found guilty

of an offense necessarily included in the offense charged or of an at- tempt

to commit either the offense charged or an offense necessarily included

therein if the attempt is an offense.’ ’’ United States v. Dhinsa, 243 F.3d

635, 674 (2d Cir. 2001).

“[I]t is well settled that the only attempts to commit crimes which are

made Federal crimes are those speciﬁcally so proscribed by Federal Law.”

United States v. Joe, 452 F.2d 653, 654 (10th Cir. 1971); see also United

States v. Padilla, 374 F.2d 782, 787 n.7 (2d Cir. 1967) (“An at- tempt to

commit a federal crime is punishable only where the section deﬁning the

crime speciﬁcally includes an attempt within its

1.32

GENERAL MATTERS

proscription.”); United States v. Hopkins, 703 F.2d 1102, 1104 (9th Cir.

1983) (“There is no general federal ‘attempt’ statute,” and hence, the trial

court properly refused to give the proposed lesser included offense

instruction of attempted bank larceny under 18 U.S.C. § 2113 (b)). “A

number of federal criminal statutes speciﬁcally mention attempts.”

Padilla, 374 F.2d at 787 n.7. And see 18 U.S.C. § 751 (escape or attempt

to escape by prisoners); 18 U.S.C. § 472 (uttering counterfeit obligations

or attempt to do so); 18 U.S.C. § 1113 (attempt to commit murder or

manslaughter); 18 U.S.C. § 2113(a) (bank robbery or attempt).

1.33

PATTERN CRIMINAL JURY INSTRUCTIONS

1.33

LESSER INCLUDED OFFENSE

If you unanimously ﬁnd the defendant not guilty of the

offense charged, or if, after all reasonable efforts, you are

unable to agree on a verdict as to that offense, then you must

determine whether the defendant is guilty or not guilty of [

—

——

The difference between these two offenses is that, to

convict the defendant of [

———

], the government does not

have to prove [insert element]. This is an element of the

greater offense, but not of the lesser included offense.

For you to ﬁnd the defendant guilty of [

———

], the

government must prove each of the following elements be-

yond a reasonable doubt: [insert elements of lesser offense].

If you are convinced that the government has proved all

of these elements beyond a reasonable doubt, you may ﬁnd

the defendant guilty of the lesser included offense. If you

have a reasonable doubt about any of these elements, then

you must ﬁnd the defendant not guilty of the lesser included

offense.

Comment

Schmuck v. United States, 489 U.S. 705, 716 (1989) (offense is not

necessarily included within another unless the elements of the lesser are

a subset of the greater offense); United States v. Moore, 108 F.3d 270, 273

(10th Cir. 1997) (noting that “[o]nly when an appellate court is convinced

that the evidence issues are such that a rational jury could acquit on the

charged crime but convict on the lesser crime may the denial of a lesser

included offense be reversed,” and, based on the evi- dence, holding no

error in refusing to charge on simple possession as a lesser included

offense of possession with intent to distribute).

This instruction has been drafted to allow a lesser included instruc-

tion to be given, not only when the jury ﬁnds the defendant not guilty of

the greater offense, but also when the jury cannot unanimously reach a

verdict, and the defendant requests such instruction. Although the Tenth

Circuit has not decided whether such an instruction is appropri- ate, the

weight of authority supports giving such instruction, at least when the

defendant requests it. See Darks v. Mullin, 327 F.3d 1001, 1008 n.2 (10th

Cir. 2003).

1.33

GENERAL MATTERS

Use Note

This Court applies a four-part test in determining whether a lesser-

included-offense instruction should be given. See United States v. Bruce,

458 F.3d 1157, 1162 (10th Cir. 2006):

(1) the defendant must make a proper request, (2) the elements

of the lesser included offense must be a subset of the elements of

the charged offense, (3) the element required for the greater,

charged offense, which is not an element of the lesser offense,

must be in dispute, and (4) the evidence must be such that the

jury could rationally acquit the defendant of the greater offense

and convict him of the lesser offense.

1.34

PATTERN CRIMINAL JURY INSTRUCTIONS

1.34

INSANITY

If you conclude that the government has proved beyond

a reasonable doubt that the defendant committed the crime

charged, you must then consider whether the defendant

should be found “not guilty by reason of insanity.” Under the

law, a person is not criminally liable for his conduct while

insane. Insanity is therefore a defense to the crime charged.

The defendant has presented evidence of insanity at the time

he committed the crime charged.

For you to return a verdict of not guilty by reason of

insanity, the defendant must prove 1) that he suffered from

a severe mental disease or defect when he committed the

crime; and (2) that, as a result of this mental disease or

defect, he was not able to understand what he was doing or

to understand that it was wrong.

Insanity may be temporary or permanent. You may

consider evidence of the defendant’s mental condition before,

during, and after the crime, in deciding whether he was

legally insane at the time of the crime.

Unlike other aspects of a criminal trial, the defendant

has the burden of proving an insanity defense. The defen-

dant does not have to prove insanity beyond a reasonable

doubt, however, but only by clear and convincing evidence.

Clear and convincing evidence is evidence that makes it

highly probable that the defendant was insane. You should

render a verdict of “not guilty by reason of insanity” if you

ﬁnd, by clear and convincing evidence, that the defendant

was insane when he committed the crime charged.

Although the defendant has raised the issue of insan- ity,

the government still has the burden of proving all of the

essential elements of the offense charged beyond a reason-

able doubt. Remember that there are three possible verdicts

in this case: guilty, not guilty, and not guilty only by reason

of insanity.

1.34

GENERAL MATTERS

Comment

18 U.S.C. § 17(a) provides that insanity is an afﬁrmative defense:

It is an afﬁrmative defense to a prosecution under any Federal

statute that, at the time of the commission of the acts constitut-

ing the offense, the defendant, as a result of a severe mental

disease or defect, was unable to appreciate the nature and qual-

ity or the wrongfulness of his acts. Mental disease or defect does

not otherwise constitute a defense.

A defendant is not entitled to an insanity instruction unless the ev-

idence shows a mental disease or defect that rendered him unable to

appreciate the nature and quality or wrongfulness of his acts. United

States v. Holsey, 995 F.2d 960, 963 (10th Cir. 1993).

18 U.S.C. § 17(b) places the burden of proof by clear and convincing

evidence upon the defendant. While the “clear and convincing” standard

is a fairly high one, it does not call for the highest levels of proof. “If ev-

idence would permit the jury to ﬁnd to a high probability that the

defendant was insane, an insanity instruction is required.” United States

v. Denny-Shaffer, 2 F.3d 999, 1016 (10th Cir. 1993) (discussing multiple

personality disorder for purposes of insanity defense) (italics and

quotations omitted).

The Supreme Court has held that the Insanity Defense Reform Act

of 1984, 18 U.S.C. §§ 4241 to 4247, does not require an instruction

concerning the consequences of a not guilty by reason of insanity (NGI)

verdict, and that “such an instruction is not to be given as a matter of

general practice.” Shannon v. United States, 512 U.S. 573, 587 (1994);

see Neely v. Newton, 149 F.3d 1074, 1085–86 (10th Cir. 1998) (rejecting

claims that the New Mexico guilty but mentally ill (GBMI) statute

violated due process, and that the jury should have been told of conse-

quences of NGRI and GBMI).

The three possible verdicts are set forth in 18 U.S.C. § 4242(b),

special verdict.

1.35

PATTERN CRIMINAL JURY INSTRUCTIONS

1.35

DEFENDANT’S NON-INVOLVEMENT (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 com-

mitted the offense charged in the indictment.

The government has the burden of proving that the

defendant was present at that time and place. Unless the

government proves this beyond a reasonable doubt, you must

ﬁnd the defendant not guilty.

Comment

United States v. Haala, 532 F.2d 1324, 1329–30 (10th Cir. 1976)

(discussing when alibi defense instruction not necessary). Alibi is not an

afﬁrmative defense, but an evidentiary matter. Popularization of the

term “alibi” has led to a negative connotation. This draft instruction tries

to avoid that negative connotation and to avoid confusion as to the burden

of proof.

1.36

GENERAL MATTERS

1.36

COERCION OR DURESS

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 govern-

ment 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 are excusable because they

were performed under duress or coercion.

If you ﬁnd that the defendant committed the crime as

charged, his actions are justiﬁed by duress or coercion only if

you ﬁnd that he has proven the following three elements:

the defendant was under an unlawful and present,

imminent and impending threat of such a nature as

to induce a well-grounded apprehension of death or

serious bodily injury to himself [or a family member,

or others];

the defendant had no reasonable, legal alternative to

violating the law, that he had no chance both to

refuse to do the criminal act and also to avoid the

threatened harm;

a direct causal relationship could have been reason-

ably anticipated between engaging in the criminal

action and avoiding the threatened harm.

The defendant must prove these elements by a prepon-

derance of the evidence. 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.

Comment

This instruction, if given, should be given immediately after the

instruction setting forth the elements of the offense.

1.36

PATTERN CRIMINAL JURY INSTRUCTIONS

This instruction does not limit “others” to members of the defen-

dant’s immediate family.

The Committee has concluded that an instruction limited to kin- ship

could be too narrow in some circumstances. For instance, in some

situations a person might violate the law in order to protect a small child

who is a complete stranger.

The defense bears the ultimate burden of proving duress or coer- cion

by a preponderance of the evidence. Dixon v. United States, 548

U.S. 1, 17 (2006); United States v. Portillo-Vega, 478 F.3d 1194, 1197

(10th Cir. 2007). The government is not required to disprove any of the

elements of the defense beyond a reasonable doubt in order for the

defense to fail. United States v. Al-Rekabi, 454 F.3d 1113, 1123 (10th Cir.

2006).

It should be emphasized that if it is uncontested that a defendant had

a full opportunity to avoid the criminal act without danger to himself or

others, he is not entitled to the coercion instruction. Shannon

v. United States, 76 F.2d 490, 493 (10th Cir. 1935).

In United States v. Bailey, 444 U.S. 394 (1980) (prosecution for escape

from federal prison), the Supreme Court held that in order to be entitled

to an instruction on duress or necessity as a defense to the crime charged,

the escapee must ﬁrst offer evidence justifying his continued absence

from custody as well as his initial departure and that an indispensable

element of such an offer is testimony of a bona ﬁde ef- fort to surrender

or return to custody as soon as the claimed duress or necessity has lost

its coercive force. Id. at 412–13; United States v. Butler, 485 F.3d 569, 573

(10th Cir. 2007) (“Butler failed to relinquish the gun ‘at the earliest

possible opportunity.’ ’’) (quoting Bailey, 444 U.S. at 415).

There may be crimes which require the government to disprove the

elements of duress or coercion in order to satisfy its burden of proving the

mens rea component of the crime. See Dixon v. United States, 548

U.S. 1, 7 n.4 (2006). For example, where the government is required to

prove that the crime was committed maliciously, the court may reason-

ably require that the government disprove duress in order to meet its

burden beyond a reasonable doubt. See BLACK’S LAW DICTIONARY

968 (7th ed. 1999) (deﬁning malice as “[t]he intent, without justiﬁcation

or excuse, to commit a wrongful act”); see also Dixon, 548 U.S. at 7 n.1.

However, “in the usual case, the defendant will bear the burden of prov-

ing the duress defense by a preponderance of the evidence.” Portillo-

Vega, 478 F.3d at 1197 (citing Dixon, 548 U.S. 1).

1.37

GENERAL MATTERS

1.37

KNOWINGLY—DELIBERATE IGNORANCE

When the word “knowingly” is used in these instruc-

tions, it means that the act was done voluntarily and

intentionally, and not because of mistake or accident. Al-

though 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. Knowledge can be inferred if the defendant was

aware of a high probability of the existence of [the fact in

question], unless the defendant did not actu- ally believe [the

fact in question].

Comment

Although the deliberate ignorance instruction in general was

discouraged, it may be given “when the Government presents evidence

that the defendant purposely contrived to avoid learning all of the facts

in order to have a defense in the event of prosecution.” United States v.

Delreal-Ordones, 213 F.3d 1263, 1268 (10th Cir. 2000) (internal quota-

tion marks omitted). See also United States v. McConnel, 464 F.3d 1152,

1159 (10th Cir. 2006) (deliberate ignorance instruction only appropriate

in rare circumstances). Where warranted, the instruction may be given.

United States v. Baz, 442 F.3d 1269, 1271–72 (10th Cir. 2006). If given, a

similar deliberate ignorance instruction was approved as the preferred

language in Delreal-Ordones. Id. at 1267; see also United States v. Glick,

710 F.2d 639, 643 (10th Cir. 1983). “The purpose of the instruction is to

alert the jury that the act of avoidance could be motivated by sufﬁcient

guilty knowledge to satisfy the knowing element of the crime.” Delreal-

Ordones, 213 F.3d at 1268–69 (quotation marks and brackets omitted).

“The district court need not insist upon direct evidence of conscious

avoidance of a fact before tendering a deliberate ignorance instruction. To

establish a defendant’s ‘deliberate ignorance,’ the Government is entitled

to rely on circumstantial evidence and the beneﬁt of the favor- able

inferences to be drawn therefrom.” Id. at 1268 (citation omitted).

1.38

PATTERN CRIMINAL JURY INSTRUCTIONS

1.38

WILLFULLY—TO ACT

Comment

The Committee does not recommend any general instruction deﬁn-

ing the term “willfully” because no single instruction can accurately

encompass the different meanings this term has in federal criminal law.

This term is “a word ‘of many meanings, its construction often being

inﬂuenced by its context.’ ’’ Screws v. United States, 325 U.S. 91, 101

(1945) (quoting Spies v. United States, 317 U.S. 492, 497 (1943)).

In light of the confusion in the law regarding the meaning of the word

“willful,” the Committee suggests that, when a statute uses this word,

care should be taken to distinguish between its meanings. A “willfulness”

requirement may impose on the government the burden of proving that

the defendant had knowledge of his conduct, or that his conduct was

unlawful, or of the precise legal duty, the violation of which forms the

substance of the charges against the defendant.

The following commentary is intended to highlight the difﬁculty

surrounding the willfulness requirement.

“The word ‘willfully’ is sometimes said to be ‘a word of many mean-

ings’ whose construction is often dependent on the context in which it

appears.” Bryan v. United States, 524 U.S. 184, 191 (1998). “Most obvi-

ously it differentiates between deliberate and unwitting conduct, but in

the criminal law it also typically refers to a culpable state of mind.” Id.

“As a general matter, when used in the criminal context, a ‘willful’ act is

one undertaken with a ‘bad purpose.’ ’’ Id.

Although the term “willful” can denote a speciﬁc intent require-

ment, this is not always the case. See United States v. Blair, 54 F.3d 639,

643 (10th Cir. 1995) (discussing speciﬁc intent); United States v. Jackson,

248 F.3d 1028, 1031 n.2 (10th Cir. 2001) (“the word ‘willfully’ does not

always require speciﬁc intent”); United States v. Youts, 229 F.3d 1312,

1315–16 (10th Cir. 2000) (term “willfully” used in train wreck statute

does not require for conviction proof of speciﬁc intent to wreck a train).

An example of willfulness understood as intentional conduct is found

in United States v. Hilliard, 31 F.3d 1509, 1517 n.5 (10th Cir. 1994)

(“willfully” is proved where the defendant “knowingly performed an act,

deliberately and intentionally ‘on purpose’ as contrasted with ac- cidently,

carelessly or unintentionally”).

Willfulness understood as intentional conduct that the actor knows to

be a violation of law is developed in a series of Supreme Court cases.

1.38

GENERAL MATTERS

In Cheek v. United States, 498 U.S. 192 (1991), the Court held that,

because of the complexity of the tax laws, “willfulness” requires proof of

a “voluntary, intentional violation of a known legal duty.” Id. at 201.

The Supreme Court applied the teachings of Cheek to the Bank Se-

crecy Act in Ratzlaf v. United States, 510 U.S. 135, 149 (1994) (willful

violation of antistructuring provision required proof that defendant

“knew the structuring in which he engaged was unlawful”).

More recently, in Bryan, 524 U.S. at 196–98, the Supreme Court

examined the federal ﬁrearm licensing requirement of 18 U.S.C.

§ 924(a)(1)(D), and interpreted the willfulness element to require proof

that the defendant knew his conduct was unlawful, but not that the

defendant knew the precise legal duty which he was charged with

violating.

1.39

PATTERN CRIMINAL JURY INSTRUCTIONS

1.39

INTERSTATE AND FOREIGN COMMERCE—

DEFINED 18 U.S.C. § 10

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. Commerce includes

travel, trade, transportation and communication.

Foreign commerce means commerce between any part of

the United States (including its territorial waters), and any

other country (including its territorial waters).

Comment

18 U.S.C. section 10 provides as follows: “The term ‘interstate com-

merce’, as used in this title, includes commerce between one State, Ter-

ritory, Possession, or the District of Columbia and another State, Terri-

tory, Possession, or the District of Columbia.”

“The term ‘foreign commerce’, as used in this title, includes com-

merce with a foreign country.”

“Commerce” is taken from United States v. Grassie, 237 F.3d 1199,

1206 n.5 (10th Cir. 2001).

“Interstate commerce” is discussed at length in Grassie, id. at 1205–

12, from which the interstate commerce portion of this instruction is

taken almost verbatim. See id. at 1206 n.5. Grassie follows Jones v. United

States, 529 U.S. 848 (2000), which also discusses interstate com- merce

at length.

1.39.1

GENERAL MATTERS

1.39.1

INTERSTATE AND FOREIGN COMMERCE—

EFFECT ON 18 U.S.C. § 10

If you decide that there was any effect at all on [inter-

state] [foreign] commerce, then that is enough to satisfy this

element. All that is necessary is that the natural and

probable consequence of the acts the defendant took would be

to affect [interstate] [foreign] commerce.

Comment

18 U.S.C. section 10 provides as follows: “The term ‘interstate com-

merce’, as used in this title, includes commerce between one State, Ter-

ritory, Possession, or the District of Columbia and another State, Terri-

tory, Possession, or the District of Columbia.”

“The term ‘foreign commerce’, as used in this title, includes com-

merce with a foreign country.”

“Interstate commerce” is discussed at length in United States v.

Grassie, 237 F.3d 1199, 1205–12 (10th Cir. 2001). Grassie follows Jones

v. United States, 529 U.S. 848 (2000), which also discusses interstate

commerce at length.

1.40

PATTERN CRIMINAL JURY INSTRUCTIONS

1.40

CAUTIONARY INSTRUCTION DURING TRIAL

Transcript of Recorded Conversation

During this trial, you have heard sound recordings of

certain conversations. These conversations were legally re-

corded; they are a proper form of evidence and may be

considered by you as you would any other evidence. You were

also given transcripts of those recorded conversations.

Keep in mind that the transcripts are not evidence. They

were given to you only as a guide to help you follow what was

being said. The recordings themselves are the evidence. If

you noticed any differences between what you heard on the

recordings and what you read in the tran- scripts, you must

rely on what you heard, not what you read. If you could not

hear or understand certain parts of the recordings, you must

ignore the transcript as far as those parts are concerned.

Comment

The decision to admit sound recordings into evidence rests with the

trial court. See United States v. Watson, 594 F.2d 1330, 1335 (10th Cir.

1979). Transcripts may be admitted to assist the trier of fact. United

States v. Gomez, 67 F.3d 1515, 1526 (10th Cir. 1995). When transcripts

are used, a cautionary instruction that the transcripts are only an aid in

understanding the sound recording is preferred. Id. at 1527 n.15; United

States v. Davis, 929 F.2d 554, 559 (10th Cir. 1991); United States

v. Mayes, 917 F.2d 457, 463 (10th Cir. 1990); see also United States v.

Caballero, 277 F.3d 1235, 1248 (10th Cir. 2002). A similar instruction was

approved in United States v. Devous, 764 F.2d 1349, 1353 n.3 (10th Cir.

1985); see also Gomez, 67 F.3d at 1527 n.15 (citing United States v.

Robinson, 707 F.2d 872, 877 (6th Cir. 1983)); United States v. Lucero,

601 F.2d 1147, 1149 (10th Cir. 1979) (discussing a cautionary

instruction). In the event of a dispute concerning the accuracy of a

transcript, the Tenth Circuit has suggested various procedures, includ-

ing the possibility of a government and defense transcript. See Devous,

764 F.2d at 1355; Lucero, 601 F.2d at 1149.

Use Note

This instruction should be given when the sound recording is played

and again in the ﬁnal charge.

1.41

GENERAL MATTERS

1.41

SUMMARIES AND CHARTS

Not Received in Evidence

Certain charts and summaries have been shown to you

to help explain the evidence in this case. Their only purpose

is to help explain the evidence. These charts and summaries

are not evidence or proof of any facts.

Received in Evidence

No instruction.

Comment

Summaries not in evidence should only be used with a limiting

instruction. Daniel v. Ben E. Keith Co., 97 F.3d 1329, 1335 (10th Cir.

1996).

No instruction should be given if the summaries and charts have

been admitted into evidence under Fed. R Evid. 1006 and the underly-

ing materials have not been. Under Fed. R. Evid. 1006, the underlying

materials need not be admitted, but they must be admissible. United

States v. Samaniego, 187 F.3d 1222, 1223 (10th Cir. 1999). In such a case,

the charts or summaries are themselves evidence. See United States v.

Osum, 943 F.2d 1394, 1405 n.9 (5th Cir. 1991).

Where the underlying evidence has been introduced along with the

summaries or charts, the Tenth Circuit has suggested, in the context of

tax prosecutions, that limiting instructions are proper. See United States

v. Mann, 884 F.2d 532, 539 (10th Cir. 1989); United States v. Kapnison,

743 F.2d 1450, 1458 (10th Cir. 1984); United States v. Harenberg, 732

F.2d 1507, 1513–14 (10th Cir. 1984); United States v. Kaatz, 705 F.2d

1237, 1245 (10th Cir. 1983). Such a cautionary instruction might explain:

“Summaries or charts are not themselves evidence, but are summaries,

the accuracy and reliability of which are to be determined by the

testimony and exhibits admitted into evidence.” Mann, 884 F.2d at 539

n.4; Kapnison, 743 F.2d at 1457.

1.42

PATTERN CRIMINAL JURY INSTRUCTIONS

1.42

MODIFIED ALLEN INSTRUCTION

Members of the jury, I am going to ask that you return

to the jury room and deliberate further. I realize that you are

having some difﬁculty reaching a unanimous agree- ment,

but that is not unusual. Sometimes, after further discussion,

jurors are able to work out their differences and agree.

This is an important case. If you should fail to agree upon

a verdict, the case is left open and must be tried again.

Obviously, another trial would require the parties to make

another large investment of time and effort, 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.

You are reminded that the defendant is presumed in-

nocent, and that the government, not the defendant, has the

burden of proof and it must prove the defendant guilty

beyond a reasonable doubt. Those of you who believe that the

government has proved the defendant guilty beyond a

reasonable doubt should stop and ask yourselves if the evi-

dence 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. In short, every

individual juror should reconsider his or her views.

It is your duty, as jurors, to consult with one another and

deliberate with a view toward reaching an agreement, if you

can do so without violence to individual judgment. Each of

you must decide the case for yourself, but do so only after an

impartial consideration of the evidence with your fellow

jurors. In the course of your deliberations do not hes- itate to

reexamine your own views and change your opinion

if you are convinced it is erroneous. But do not surrender

1.42

GENERAL MATTERS

your honest conviction as to the weight or effect of evidence

solely because of the opinion of your fellow jurors, or for the

mere purpose of returning a verdict.

What I have just said is not meant to rush or pressure

you into agreeing on a verdict. Take as much time as you need

to discuss things. There is no hurry.

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 you.

Use Note

This instruction is designed for use when the court concludes that the

jury has reached an impasse and that a modiﬁed Allen charge is

appropriate. It is the preferred practice that the substance of this

instruction be given as part of the court’s original set of jury instruc- tions,

before the jury reaches impasse or deadlock. United States v. Rodriguez-

Mejia, 20 F.3d 1090, 1092 (10th Cir. 1994). The ultimate is- sue

concerning the use of an Allen charge is whether it is impermissibly

coercive given the facts and circumstances of each case. Lowenﬁeld v.

Phelps, 484 U.S. 231, 237–41 (1988). Several cases have upheld the use

of a modiﬁed Allen charge after the jury reached deadlock upon ﬁnding

the circumstances did not render the instruction coercive. See, e.g., United

States v. Arney, 248 F.3d 984, 987 (10th Cir. 2001); United States

v. Butler, 904 F.2d 1482, 1488 (10th Cir. 1990); United States v. McKinney,

822 F.2d 946, 951 (10th Cir. 1987). In United States v. McElhiney, 275

F.3d 928, 949 (10th Cir. 2001), the Tenth Circuit strongly urged that to

avoid impermissible coercion, the instruction should incorporate

cautionary language “(1) that no juror should relinquish his or her

conscientiously held convictions simply to secure a verdict and (2) that

every individual juror should reconsider his or her views, whether in the

majority or in the minority.” Id. Additionally, there should be “a re-

minder to the jury of the burden of proof.” Id.

1.43

PATTERN CRIMINAL JURY INSTRUCTIONS

1.43

PARTIAL VERDICT INSTRUCTION

Members of the Jury:

(1)

You do not have to reach a unanimous agreement

on [all the charges] or [all defendants] before

returning a verdict on some of the charges. If you

have reached a unanimous agreement [on some of

the charges] [as to one of the defendants], you may

return a verdict on [those charges] or [that defen-

dant] and then continue deliberating on the others.

You do not have to do this, but you can if you wish.

(2)

If you do choose to return a partial verdict, that

verdict will be ﬁnal. YOU WILL NOT BE ABLE TO

CHANGE YOUR MINDS ABOUT IT LATER ON.

(3)

Your other option is to wait until the end of your

deliberations, and return all your verdicts then. The

choice is entirely yours.

Comment

The Tenth Circuit upheld the use of a partial verdict instruction in

United States v. Patterson, 472 F.3d 767 (10th Cir. 2006), and held it was

error to require the jury to return partial verdicts in United States

v. LaVallee, 439 F.3d 670, 691 (10th Cir. 2006). The present instruction

was patterned on that given by the District Court in United States v.

Walters, 89 F. Supp. 2d 1206 (D. Kan. 2000).

Use Note

In trials with multiple defendants, Federal Rule of Criminal Proce-

dure 31(b) permits a jury to return a verdict at any time during its

deliberations as to any defendant. Lavalee, 439 F.3d at 691. That Rule

also provides that “[i]f the jury cannot agree as to all counts as to any

defendant, the jury may return a verdict on those counts on which it has

agreed.” This instruction should only be given when appropriate, e.g.,

should the jury ask if it may return a partial verdict. It would be error for

the trial court to order a jury to return a partial verdict, or to refuse to

accept a partial verdict if the jury indicates it wishes to return such a

verdict. Id. (citing United States v. DiLapi, 651 F.2d 140, 147 (2d Cir.

1981) (“We think that juries should be neither encouraged nor

1.43

GENERAL MATTERS

discouraged to return a partial verdict, but should understand their op-

tions, especially when they have reached a state in their deliberations at

which they may well wish to report a partial verdict as to some counts or

some defendants.”)

1.44

PATTERN CRIMINAL JURY INSTRUCTIONS

1.44

COMMUNICATION WITH THE COURT

If you want to communicate with me at any time dur- ing

your deliberations, please write down your message or

question and give it to [the marshal] [the bailiff or court

security officer] [my law clerk], who will bring it to my

attention. I will respond as promptly as possible, either in

writing or by having you return to the courtroom so that I can

address you orally. I caution you, however, that with any

message or question you might send, you should not tell me

any details of your deliberations or indicate how many of you

are voting in a particular way on any issue.

Let me remind you again that nothing I have said in

these instructions, nor anything I have said or done during

the trial and sentencing proceedings, was meant to suggest

to you what I think your decision should be. That is your

exclusive responsibility.

SUBSTANTIVE OFFENSES

2.01

PATTERN CRIMINAL JURY INSTRUCTIONS

2.01

FOOD STAMPS—UNAUTHORIZED USE

7 U.S.C. § 2024(b)

The defendant is charged in count

—————

with a

violation of 7 U.S.C. section 2024(b).

This law makes it a crime to knowingly use, transfer,

acquire, alter, or possess United States Department of

Agriculture food stamp coupons, authorization cards, or ac-

cess devices in any manner contrary to the laws and/or

Department regulations governing the food stamp program,

where the coupons, cards, or devices have a value of $100 or

more. [The statute makes it a more serious crime if the value

of the coupons, cards, or devices equals or exceeds

$5,000.]

To ﬁnd the defendant guilty of this crime you must be

convinced that the government has proved each of the fol-

lowing beyond a reasonable doubt:

First: the defendant used [transferred] [acquired]

[altered] [possessed] food stamp coupons [authorization

cards] [access devices] in a way that was contrary to the

law

or Department of Agriculture regulations;

Second: the defendant knew he acted contrary to the law

or Department regulations; and

Third: the [food stamp coupons] [authorization cards]

[access devices] had a value of $100 [$5,000] or more.

It is contrary to the law and Department regulations for

anyone [to sell or purchase] [food stamp coupons] [au-

thorization cards] [access devices for cash] [to use, transfer,

or acquire food stamp coupons, authorization cards, or ac-

cess devices for non-food items, including, for example,

clothes, drugs, cigarettes, or liquor]. The government does

not have to prove that the defendant knew of speciﬁc laws or

regulations prohibiting his conduct; it is sufﬁcient if the

government shows by reference to facts and circumstances

2.01

SUBSTANTIVE OFFENSES

surrounding the case that the defendant knew his conduct

was unauthorized or illegal.

Comment

The applicable regulations identify a number of ways in which a

person might acquire food stamp beneﬁts in a manner that is “contrary

to law.” Exchange of the beneﬁts for cash is the most common applica-

tion of the criminal statute. See 7 C.F.R. § 278.2(a).

The “knowledge” element requires proof that the defendant knew he

was acquiring the beneﬁts in a way that was unauthorized by stat- ute or

regulation. See Liparota v. United States, 471 U.S. 419, 433–34 (1985);

see also United States v. O’Brien, 686 F.2d 850, 852 (10th Cir. 1982)

(knowledge that an acquisition of food stamp coupons is in a man- ner not

authorized by statute or regulation is an essential element of 7

U.S.C. § 2024(b), and failure to so instruct the jury constitutes revers-

ible error).

2.02

PATTERN CRIMINAL JURY INSTRUCTIONS

2.02

BRINGING IN AN ALIEN

8 U.S.C. § 1324(a)(1)(A)(i)

(Bringing in—not port of entry)

The defendant is charged in count

—————

with a

violation of 8 U.S.C. section 1324(a)(1)(A)(i).

This law makes it a crime to bring an alien into the

United States at a place other than a designated port of

entry. An alien is a person who is not a citizen or national of

the United States.

To ﬁnd the defendant guilty of this crime you must be

convinced that the government has proved each of the fol-

lowing beyond a reasonable doubt:

First: the defendant [brought] [attempted to bring] an

alien into the United States;

Second: that entry was [attempted] at a place other than

a designated port of entry;

Third: the defendant knew at the time of the [at-

tempted] [entry] that the person was an alien.

Comment

Section 1182 lists aliens who are excluded from the United States.

An alien who falls within one of the categories is not lawfully entitled to

enter or reside in the United States. Where there is evidence that the

alien falls within one of the excluded classes, the last clause of the

instruction may be so worded as to require the jury to make a ﬁnding that

the person is within that class. If the defendant raises the defenses that

he or she is “a national,” see United States v. Jimenez-Alcala, 353 F.3d

858, 861–62 (10th Cir. 2003); see also United States v. Sierra- Ledesma,

645 F.3d 1213 (10th Cir. 2011).

The statute also 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

2.02

SUBSTANTIVE OFFENSES

U.S.C. § 1324(a)(1)(B)(iii); or whether death resulted, 8 U.S.C.

§ 1324(a)(1)(B)(iv).

2.02.1

PATTERN CRIMINAL JURY INSTRUCTIONS

2.02.1

BRINGING IN AN ALIEN

8 U.S.C. § 1324(a)(2)

(Bringing in—without authorization)

The defendant is charged in count

—————

with a

violation of 8 U.S.C. section 1324(a)(2).

This law makes it a crime to bring an alien into the

United States who has not received prior ofﬁcial authoriza-

tion to enter. An alien is a person who is not a citizen or

national of the United States.

To ﬁnd the defendant guilty of this crime you must be

convinced that the government has proved each of the fol-

lowing beyond a reasonable doubt:

First: the defendant [brought] [attempted to bring] an

alien into the United States;

Second: the defendant knew at the time of the [at-

tempted] [entry] that the person was an alien;

Third: the alien had not received prior ofﬁcial authori-

zation to enter; and

Fourth: the defendant knew, or recklessly disregarded,

the fact that the alien had no prior authorization to enter.

“Reckless disregard” means deliberate indifference to

facts which, if considered and weighed in a reasonable man-

ner, indicate the highest probability that the alleged aliens

were in fact aliens and were in the United States unlawfully.

Comment

This is a completely separate crime from the “bringing in—not port

of entry” covered by Instruction 2.02. The two crimes share some of the

same elements but (a)(1)(A)(i) requires that the entry be at a place not

designated as a port of entry and (a)(2) requires that the alien lack prior

authorization to enter the United States. Validity, Construction and

Application of §§ 274(a)(1)(A)(I) and 274 (A)(2) of Immigration and

2.02.1

SUBSTANTIVE OFFENSES

Nationality Act Making It Unlawful To Bring Alien To United States, 136

A.L.R. Fed. 511, § 2 (1997).

“Reckless disregard” is not deﬁned in Title 8, United States Code.

The legislative history of 8 U.S.C. § 1324 refers to “wilful blindness.” See

H.R. REP. 99-682, 66, 1986 U.S.C.C.A.N. 5649, 5670 (“the bill clari-

ﬁes that a person who knowlingly transports an undocumented alien to

any place in the United States will be subject to criminal prosecution if

that person knew the alien was undocumented or acted with wilful

blindness concerning the alien’s immigration status.”).

For a discussion of the “reckless disregard” standard, see United

States v. Kalu, 791 F.3d 1194, 1209 (10th Cir. 2015); see also United

States v. Uresti-Hernandez, 968 F.2d 1042, 1046 (10th Cir. 1992)

Reckless disregard is not established by merely showing the

defendant should have known the alien was unlawfully in the United

States. See Kalu, 792 F.3d at 1208 (holding “the district court erred by

instructing the jury with a negligence standard rather than the actual

knowledge or reckless disregard standard speciﬁed in the statute.”); see

also United States v. Franco-Lopez, 687 F.3d 1222, 1228 (10th Cir. 2012).

If the defendant raises the defense that he or she is “a national,” see

United States v. Jimenez-Alcala, 353 F.3d 858, 861–62 (10th Cir. 2003);

see also United States v. Sierra-Ledesma, 645 F.3d 1213 (10th Cir. 2011).

The statute also 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 com-

mitted with the intent or with reason to believe that the alien unlaw- fully

brought into the United States will commit an offense against the United

States or any State, 8 U.S.C. § 1324(a)(2)(B)(i); whether the of- fense was

done for the purpose of commercial advantage or private gain, 8 U.S.C.

§ 1324(a)(2)(B)(ii); or whether the alien was not im- mediately brought

and presented to an immigration ofﬁcer at a designated port of entry, 8

U.S.C. § 1324(a)(2)(B)(iii).

2.03

PATTERN CRIMINAL JURY INSTRUCTIONS

2.03

ALIEN—ILLEGAL TRANSPORTATION

8 U.S.C. § 1324(a)(1)(A)(ii)

The defendant is charged in count

—————

with a

violation of 8 U.S.C. section 1324(a)(1)(A)(ii).

This law makes it a crime to illegally transport an alien.

An alien is a person who is not a citizen or national of the

United States.

To ﬁnd the defendant guilty of this crime you must be

convinced that the government has proved each of the fol-

lowing beyond a reasonable doubt:

First: the alien entered or remained in the United States

unlawfully, or was present in the United States in violation

of law;

Second: the defendant knew, or recklessly disregarded

the fact, that the alien was not lawfully in the United States;

and

Third: the defendant [transported or moved] [attempted

to transport or move] the alien within the United States

intending to help [him/her] remain in the United States il-

legally in furtherance of the alien’s violation of law.

When determining whether the defendant intended to

help the alien remain in the United States illegally, the jury

should consider all relevant evidence including the time of

the trip, place, distance of the intended trip, reason for the

trip, the overall impact of the trip and the defendant’s role.

“Reckless disregard” means deliberate indifference to

facts which, if considered and weighed in a reasonable man-

ner, indicate the highest probability that the alleged aliens

were in fact aliens and were in the United States unlawfully.

2.03

SUBSTANTIVE OFFENSES

Comment

“The statute requires that the transported alien ‘has come to,

entered, or remains in’ the United States illegally.” United States v.

Franco-Lopez, 687 F.3d 1222, 1227 (10th Cir. 2012) (quoting 8 U.S.C.

§ 1324(a)(1)(A)(ii)). “Our precedent construes this element to require

proof that the alien “was present in violation of law.” Id. at 1227 (citing

United States v. Barajas–Chavez, 162 F.3d 1285, 1287 (10th Cir. 1999)).

“[P]roof of the transported alien’s unlawful entry into the United

States is one, but not the only, method to prove that ‘‘ ‘the alien was

present in violation of law.’ ” Franco-Lopez, 687 F.3d at 1228; see gener-

ally United States v. Gaspar-Miguel, 947 F.3d 632 (10th Cir. 2020)

(holding continuous surveillance by border agents did not subject a

defendant to ofﬁcial restraint and thereby prevent her from “entering”

the United States, in violation of 8 U.S.C. § 1325(a)(1)).

But § 1324(a)(1)(A)(ii) does not require proof that the transported

alien “entered” the United States illegally when the government has

established the alien’s illegal presence in the United States by other

means. See Franco-Lopez, 687 F.3d at 1226.

For a discussion of the “reckless disregard” standard, see Comment

to Instruction 2.02 (Alien—Bringing in—not port of entry).

To be unlawful under § 1324(a)(1)(A)(ii), the transportation “must be

in furtherance of the alien’s violation of the law.” United States v. De La

Cruz, 703 F.3d 1193, 1198 (10th Cir. 2013). The statute does not deﬁne

the term “in furtherance of,” but this Court has “construe[d] it in accord

with its ordinary or natural meaning.” Barajas-Chavez, 162 F.3d at 1288.

“Under such an approach, a factﬁnder may consider any and all relevant

evidence bearing on the “in furtherance of” element (time, place, distance,

reason for trip, overall impact of trip, defendant’s role in organizing

and/or carrying out the trip). Naturally, the relevant evi- dence will vary

from case to case.” Id. at 1289; see also United States v. Hernandez, 327

F.3d 1110, 1113–14 (10th Cir. 2003).

In a prosecution under this statute, this Court approved using a

supplemental instruction to clarify the place of transportation because

the jury asked about the difference in wording between the ﬁrst two

counts in the indictment and the district court’s original instructions. See

United States v. Martinez-Nava, 838 F.2d 411, 414 (10th Cir. 1988)

(holding supplemental instruction did not impermissibly expand the

indictment, and reasoning that “[t]he crux of this aspect of the charge

against defendants is that they knowingly transported illegal aliens

within the United States. That this transportation occurred within Al-

buquerque, rather than between El Paso and Albuquerque, merely

represents further evidentiary details which the indictment need not

state.”).

If the defendant raises the defense that he or she is a national, see