6th Cir. Pattern Crim. Jury Instr. 4.01A

(1) For you to find _______ guilty of _______, it is not necessary for you to find that he personally committed the act charged in the indictment. You may also find him guilty if he willfully caused an act to be done which would be a federal crime if directly performed by him or another.

(2) But for you to find _______ guilty of _______, you must be convinced that the government has proved each and every one of the following elements beyond a reasonable doubt:

(A) First, that the defendant caused _____ to commit the act of ______.

(B) Second, if the defendant or another person had committed the act it would have been the crime of ___________.

(C) And third, that the defendant willfully caused the act to be done.

(3) Proof that the defendant may have known about the crime, even if he was there when it was committed, is not enough for you to find him guilty. You may consider this in deciding whether the government has proved that he caused the act to be done, but without more it is not enough.

(4) What the government must prove is that the defendant willfully did something to cause the act to be committed.

(5) If you are convinced that the government has proved all of these elements, say so by returning a guilty verdict on this charge. If you have a reasonable doubt about any one of these elements, then you cannot find the defendant guilty of _______.

Committee Commentary

(current through May 29, 2026)

This instruction is based on 18 U.S.C. § 2(b). Section 2 provides:

(a) Whoever commits an offense against the United States, or aids, abets, counsels, commands, induces, or procures its commission, is punishable as a principal.

(b) Whoever willfully causes an act to be done, which if directly performed by him or another would be an offense against the United States, is punishable as a principal.

In United States v. Hourani, 1999 WL 16472, 1999 U.S. App. LEXIS 431 (6th Cir. 1999) (unpublished), a panel of the Sixth Circuit stated that § 2(b) was added “to clarify the implicit meaning of § 2(a)” and then quoted the Historical and Statutory Notes accompanying the statute:

Section 2(b) is added to permit the deletion from many sections throughout the revision of such phrases as “causes or procures.” The section as revised makes clear the legislative intent to punish as a principal not only one who directly commits an offense

and one who “aids, abets, counsels, commands, induces or procures” another to commit an offense, but also anyone who causes the doing of an act which if done by him directly would render him guilty of an offense against the United States. It removes all doubt that one who puts in motion or assists in the illegal enterprise or causes the commission of an indispensable element of the offense by an innocent agent or instrumentality, is guilty as a principal even though he intentionally refrained from the direct act constituting the completed offense.

Hourani, 1999 WL at 3-4, 1999 LEXIS at 9-10.

In United States v. Maselli, 534 F.2d 1197, 1200 (6th Cir. 1976), the court stated that § 2(b) deals with a class of activities which do not involve direct violations of the law, but which contribute to the commission of the offense and are punishable in the same manner as direct violations. Maselli also noted that subsections 2(a) and 2(b) are not mutually exclusive. “They are . . . two statements of indirect illegal actions which carry the same consequences for the actor as direct violation of criminal statutes.” Id. The court noted that it is proper to instruct on both subsection 2(a) and 2(b) if the evidence justifies it. Id.

“[I]t has long been held that an indictment need not specifically charge ‘aiding and abetting’ or ‘causing’ the commission of an offense against the United States, in order to support a jury verdict based upon a finding of either.” United States v. Lester, 363 F.2d 68, 72 (6th Cir. 1966).

The difference between “inducing” in § 2(a) and “causing” in 2(b) has been described by the Sixth Circuit as “somewhat unclear.” United States v. Brown, 151 F.3d 476, 486 (6th Cir. 1998). However, the Sixth Circuit recognized that § 2 has two parts. See id. (describing § 2 as having “two components”). The court also stated that the two subsections are alternatives, explaining that a defendant can be guilty as an accomplice “so long as the evidence shows that she aided, abetted, counseled, induced, or procured the commission of the fraud, or, alternatively, caused the false statements to be made.” Id., citing United States v. Twitty, 107 F.3d 1482, 1491 n.10 (11th Cir. 1997).

Paragraph (1) of the instruction is based on the language of the statute and United States v. Keefer, 799 F.2d 1115, 1124 (6th Cir. 1986). Keefer held that under § 2(b) one can be punished as a principal even though the agent who committed the act lacks criminal intent. See also United States v. Norton, 700 F.2d 1072, 1077 (6th Cir. 1983) (defendants treated as principals even though they may not have physically done the criminal act).

Paragraph (2) sets forth the elements that must be proved beyond a reasonable doubt by the government. The elements are based upon the language of the statute and are further supported by United States v. Gandy, 926 F.3d 248, 265 (6th Cir. 2019). In Gandy, the trial court gave Inst. 4.01A with minor variations in language. The Sixth Circuit held that the instruction was not plain error because the trial judge had instructed the jury properly on the elements of the underlying offense, aggravated identity theft (see Inst. 15.04). Gandy, supra. The Sixth Circuit also concluded under an abuse-of-discretion standard that sufficient evidence supported giving Inst. 4.01A. Gandy, id.See also United States v. Murph, 707 F.2d 895, 896 (6th Cir.1983),

which held that the further act done by the agent was foreseen by the defendant and thus the defendant “caused” the act to be done.

The word “willfully” in paragraph 2(C) is taken from the statute, and there is no case law in the Sixth Circuit to guide the Committee further on defining this mens rea in the context of § 2(b). The Committee recommends that the term “willfully” be defined by reference to the particular underlying act involved in the case. Cf. Instruction 2.05 Willfully (recommending no general instruction on the meaning of willfully and suggesting in commentary that the term be defined based on the particular offense involved).

Paragraph (3) is based upon United States v. Elkins, 732 F.2d 1280, 1287 (6th Cir. 1984) (knowledge of the criminal conduct is insufficient).

Paragraph (4) of the instruction is based on the instruction quoted with approval in Hourani, 1999 WL at 4, 1999 LEXIS at 10-11. The panel approved the instruction on

accomplice liability under § 2(b) although the instructions did not specify either §§ 2(a) or 2(b).