2143

Jury Instruction—Intent to Promote the Carrying on of the Specified Unlawful Activity—18 U.S.C. § 1956(a)(2)(A)

The term with the intent to promote the carrying on of specified unlawful activity means that the defendant must have carried out the transportation, transmission, or transfer, or the attempted transportation, transmission or transfer, for the purpose of promoting (that is, to make easier, facilitate or to help bring about) the carrying on of one of the crimes listed as specified crimes within the statute. By carrying on crime, it may be that the crime to be carried on is one that will be committed in the future, or it may be a crime already committed or a crime that is still underway or on going that the defendant intended to continue or complete.[FN1] In this case, it is the government's theory that: (specify what crime was promoted and how the financial transaction promoted the carrying on of that crime). FN1. See United States v. Jackson, 935 F.2d 832 (7th Cir. 1991) (buying beeper for use in drug business is transaction with intent to promote). In Travel Act cases, 18 U.S.C. §1952(a)(3), "promoting" and "facilitating the promotion" of unlawful activity is satisfied by proof that the defendant's action made the unlawful activity easy or less difficult. See, e.g., United States v. Rogers, 788 F.2d 1472, 1476 (11th Cir. 1986); United States v. Jenkins, 943 F.2d 167, (2d Cir. 1991). OPTIONAL ADDITIONS: It is not necessary to show that the defendant intended to commit the additional crime himself. The government need only show that in conducting the financial transaction, the defendant intended to make the unlawful activity easier or less difficult for someone to commit.[FN2] FN2. United States v. Corona, 885 F.2d 766, 773 (11th Cir. 1989) (the defendant himself does not have to be involved in the offense being facilitated). The financial transaction need not be linked to a specific future offense. The government is required to prove only that in conducting the financial transaction, the defendant intended to promote a specified illegal activity generally. For example, buying beepers or two-way radios for use in the drug business promotes specified unlawful activity because it makes future drug dealing, in general, less difficult.[FN3] FN3. United States v. Jackson, 935 F.2d 832 (7th Cir. 1991). Practitioner's Note: Some defendants have argued that "intent to promote" means only "intent to facilitate," and that facilitation does not include the commission of an offense, but refers only to conduct that makes another offense easier to commit. As originally proposed, § 1956(a)(2)(A) would have contained the words "intent to facilitate the carrying on of specified unlawful activity." The Senate Committee report said that: the "intent to facilitate" language of the section is intended to encompass situations like those prosecuted under the aiding and abetting statute in which a defendant knowingly furnishes substantial assistance to a person whom he or she is aware will use that assistance to commit a crime. See, e.g., Backun v. United States, 112 F.2d 635 (4th Cir. 1940). S. Rep. No. 433, 99th Cong., 2d Sess. 10 (1986). Congress's decision to replace the word "facilitate" with the word "promote" before the statute was enacted may suggest an intent to have §  (a)(2)(A) apply not only to financial transactions that make specified unlawful activity easier to commit, but also to transactions that themselves constitute specified unlawful activity. For a situation in which the financial transaction under §  1956(a)(2)(A) appears to have constituted the offense being promoted, see United States v. Monroe, 943 F.2d 1007 (9th Cir. 1991)(transporting or transferring funds to buy drugs violates §1956(a)(2)(A)). See also United States v. Atterson, 926 F.2d 649, 656 (7th Cir. 1991)(using drug proceeds to purchase more drugs violates § 1956(a)(2)(A)). Title 18, U.S.C. § 1956(a)(2)(A) Granted ____ Denied ____