2.04 On Or About

• Currency: 2023
• Year: 2023
• Section: Chapter 2 Defining The Crime And Related Matters

2.04 ON OR ABOUT

(1) Next, I want to say a word about the date mentioned in the indictment.

(2) The indictment charges that the crime happened "on or about" _______. The government

does not have to prove that the crime happened on that exact date. But the government must

prove that the crime happened reasonably close to that date.

Use Note

Use caution in giving this instruction if the defendant has raised an alibi defense

dependent on particular dates; or if there is a statute of limitations question; or if the date

charged is an essential element of the crime and the defendant may have been misled by the date

charged in the indictment; or if giving this instruction would constructively amend the

indictment.

Committee Commentary 2.04

(current through March 1, 2023)

In United States v. Dennard, 1993 WL 35172, 1993 U.S. App. LEXIS 23798 (6th Cir.

1993) (unpublished), a panel approved Instruction 2.04 and held that the instruction was

supported by the evidence or, alternatively, the error was harmless. 1993 WL at 2, 1993 LEXIS

at 6. See also United States v. Manning, 142 F.3d 336, 338-39 (6th Cir. 1998) (conviction

affirmed where indictment alleged crime occurred “on or about” September 6, 1995 and

evidence showed conduct occurred slightly more than one month earlier).

In Ledbetter v. United States, 170 U.S. 606, 612-613 (1898), the Supreme Court rejected

the defendant's argument that an indictment charging that the offense occurred "on the ___ day

of April, 1896" was insufficient. The Court said that it was not necessary for the government to

prove that the offense was committed on a particular day, unless the date is made material by the

statute defining the offense. The Court said that ordinarily, proof of any date before the

indictment and within the applicable statute of limitations will suffice.

In United States v. Ford, 872 F.2d 1231, 1236 (6th Cir. 1989), the Sixth Circuit held that

proof of the exact date of an offense is not required, as long as a date "reasonably near" that

named in the indictment is established. Applying this rule to the case before it, the Sixth Circuit

reversed the defendant's firearms possession conviction because the district court's "on or about"

instruction permitted the jury to convict if it found that the defendant possessed a firearm on any

date during an eleven month period preceding the date alleged in the indictment. The Sixth

Circuit held that a date eleven months before the date alleged in the indictment did not satisfy the

"reasonably near" requirement.

Compare United States v. Arnold, 890 F.2d 825, 829 (6th Cir. 1989), where the Sixth

Circuit held that the defendant was not unfairly prejudiced by a one month difference between

the date alleged in the indictment and the evidence presented at trial where a prior trial of his co-

defendants put him on notice that the alleged conspiracy was a continuing one.