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November 2019
A roundup of recent additions and revisions to state jury instructions
Money Laundering 101

October 2019
Travel Act 101
Hobbs Act 101
What would be the retroactive effect if Ramos wins his case?
Ninth Circuit revises Criminal Instruction 9.4
Federal collateral review of state and federal convictions
Willful blindness and Global-Tech
Ninth Circuit has posted revisions to its criminal jury instructions

September 2019
Obstruction of justice 101
A roundup of recent additions and revisions to state jury instructions
Previewing Banister v. Davis
Ninth Circuit errata
Mail and wire fraud 101 part 2 (elements in common)
2019 amendments to the Eighth Circuit civil instructions
July 2019 amendments to the Third Circuit civil instructions

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Welcome to the trialdex blog. While you are here, be sure to check out the other free trial resources linked on the trialdex front page, including the jury instruction alerts.

November 2019

A roundup of recent additions and revisions to state jury instructions

The California Criminal Jury Instructions Resource Center has posted a 2019 Supplement to its 2019 instructions ("CALCRIM"). "This Supplement of CALCRIM includes all of the revised Judicial Council of California Criminal Jury Instructions approved by the Judicial Council of California at its September 2019 meeting."

On June 6, 2019, the Supreme Court of Florida issued a per curiam opinion authorizing new and amended standard instructions amending standard criminal jury instructions 3.6(a) (Insanity), 3.6(e)(1) (Involuntary Intoxication Negating Specific Intent), 3.6(e)(2) (Involuntary Intoxication Resulting in Insanity), and 3.6(j) (Entrapment), and creating two new instructions, 3.14 (Scoresheet Findings), and 7.7(c) (Assisted Self-Murder). The changes are discussed in the opinion.

In October 2019 Michigan amended the following Model Civil Jury Instructions:

  • 97.01 (Preliminary Instructions to Prospective Jurors)
  • 97.13 (Judging Credibility and Weight of Evidence)
  • 97.19 (Jurors Not to Discuss Case)
  • 97.33 (Witnesses-Credibility)
  • 97.35 (Statutory Grounds)
  • 97.36 (Definitions)
  • 171.02 (Mental Illness: Involuntary Treatment—Elements and Burden of Proof)

Prior copies of these instructions are archived here.

The Vermont Bar Association's criminal instructions notes:

  • New instruction CR03-061 (Partial Rule 29 Dismissal) (10-22-19), "for situations where one or more charges have been dismissed pursuant to a V.R.Cr.P. 29(a) motion for judgment of acquittal, but where other charges remain for the jury's consideration."
  • Revised DUII instructions (9/20/19).

Prior copies of these instructions are archived here.

(11/12/19)

Money Laundering 101

This is one of a series of blog posts surveying federal criminal law topics, grounded for the most part on a study of official federal circuit jury instructions. This one surveys Money Laundering, and introduces the trialdex money laundering tool.

Before we get started, you may wish to look at the previous "101" posts:

Conspiracy
Mail and wire fraud part one (jurisdictional elements)
Mail and wire fraud part two (elements in common)
Obstruction of justice
Hobbs Act
Travel Act

Also, be sure to check out all of the trialdex litigation tools.

Money laundering occurs when a person takes money or property ("proceeds") generated (or represented to be generated) by a "Specified Unlawful Activity" (SUA) and moves, attempts to move, or conspires to move them in a prohibited manner.

The principal federal statutes, 18 U.S.C. §§ 1956 and 1957, define eleven money laundering crimes, which are grouped in four broad categories: domestic money laundering (§ 1956(a)(1)), international money laundering (§ 1956(a)(2)), money laundering stings (reverse money laundering) (§ 1956(a)(3)), and money laundering spending (§ 1957).

You can use the trialdex money laundering tool to identify the specific provision that applies to any particular set of facts. The trialdex money laundering flowchart provides an overview. Before proceeding further, however, you may wish to review the notes below.

All money laundering crimes (except § 1956(a)(2)(B)(ii)) involve "proceeds" of "Specified Unlawful Activities" (SUAs) or, in money laundering stings (reverse money laundering), funds that are represented to be the proceeds of SUAs.

Proceeds are "any property derived from or obtained or retained, directly or indirectly, through some form of unlawful activity, including the gross receipts of such activity." 18 U.S.C. § 1956(c)(9). This provision was enacted in 2009 as a legislative rejection of United States v. Santos, 553 U.S. 507 (2008), where a divided Supreme Court had suggested that proceeds could, at least in some cases, be limited to profits.

Unlawful activity is "activity that constitutes a felony under State, Federal, or foreign law, regardless of whether or not such activity is [an SUA]." 18 U.S.C. § 1956(c)(1).

Specified Unlawful Activity (SUA) is a narrower term, and includes the crimes listed or cross-referenced in 18 U.S.C. § 1956(c)(7). That list includes by reference all of the racketeering predicates listed in 18 U.S.C. § 1961(1). It also includes financial transactions associated with drug crimes, enumerated violent crimes, fraud, smuggling, bribery, sex trafficking; and much more.

In domestic money laundering (§ 1956(a)(1)) cases, the government must prove that there was a financial transaction involving an SUA. A "Financial transaction" is

(A) a transaction which in any way or degree affects interstate or foreign commerce (i) involving the movement of funds by wire or other means or (ii) involving one or more monetary instruments, or (iii) involving the transfer of title to any real property, vehicle, vessel, or aircraft, or (B) a transaction involving the use of a financial institution which is engaged in, or the activities of which affect, interstate or foreign commerce in any way or degree;

18 U.S.C. § 1956(c)(4). Note that this definition adds a commerce element to every money laundering crime involving a financial transaction. "The only serious limitation, in the case law, is that the simple transportation of cash from point A to point B by a single individual may not be a financial transaction. There has to be a transfer or disposition of the cash between two people." The Money Laundering Statutes, U.S. Attorneys' Bulletin 55:5 at 22 (Sept. 2007).

The defendant must know, at the time of the financial transaction, that the money or property represented the proceeds of some form of unlawful activity (as defined in § 1956(c)(1)), but the government need not prove that the defendant knew that the property was an SUA (as defined or cross-referenced in § 1956(c)(7)).

  • If the transaction was conducted with the intent to promote the carrying on of an SUA, the conduct violates § 1956(a)(1)(A)(i).
  • If the transaction was conducted with the intent to engage in conduct constituting a violation of 26 U.S.C. §§ 7201 or 7206 (tax evasion and false returns), the conduct violates § 1956(a)(1)(A)(ii).
  • If the transaction was designed in whole or in part to conceal or disguise the nature, the location, the source, the ownership, or the control of the proceeds of an SUA, the conduct violates § 1956(a)(1)(B)(i).
  • If it was done knowing that the transaction was designed in whole or in part to avoid a transaction reporting requirement under State or Federal law, the conduct violates § 1956(a)(1)(B)(ii).

    "Transaction reporting requirements" include things like Currency Transaction Reports (CTRs) for cash transactions over $10,000, and Reports of International Transportation of Currency or Monetary Instruments (CMIRs) filed by individuals or businesses that transport $10,000 or more in currency or other negotiable instruments into or out of the United States.

Note that the unit of prosecution in money laundering cases is the transaction. The four intents listed above are typically pleaded conjunctively as alternate elements. The Money Laundering Statutes, supra at 26.

International money laundering (§ 1956(a)(2)) differs from domestic money laundering because it does not require a "financial transaction," substituting as the actus reus that the transaction flows from a place in the United States to or through a place outside the United States or to a place in the United States from or through a place outside the United States

It requires proof that the defendant transported, transmitted, or transfered (or attempted or conspired to do so) a monetary instrument or funds. A monetary instrument is "(i) coin or currency of the United States or of any other country, travelers’ checks, personal checks, bank checks, and money orders, or (ii) investment securities or negotiable instruments, in bearer form or otherwise in such form that title thereto passes upon delivery." 18 U.S.C. § 1956(c)(5).

There are three international money laundering crimes, determined by the defendant's intent:

  • If the transaction was done with the intent to promote the carrying on of an SUA, the conduct violates § 1956(a)(2)(A).
  • If the transaction involved the proceeds of unlawful activity, knowing that the transaction was designed in whole or in part to conceal or disguise the nature, the location, the source, the ownership, or the control of the proceeds of an SUA, the conduct violates § 1956(a)(2)(B)(i). "Designed" means that the transaction itself was intended to avoid the detection of the funds. Cuellar v. United States, 553 U.S. 550 (2008).

  • If the transaction involved the proceeds of unlawful activity, knowing that the transaction was designed in whole or in part to avoid a transaction reporting requirement under State or Federal law, the conduct violates § 1956(a)(2)(B)(ii).

There is a separate group of money laundering sting (sometimes called "reverse money laundering") provisions that cover circumstances where representations about purported SUA money or property are made by law enforcement officers or cooperators. The representation must be "made by a law enforcement officer or by another person at the direction of, or with the approval of, a Federal official authorized [in 18 U.S.C. § 1956(e)] to investigate or prosecute violations of [18 U.S.C. § 1956]." 18 U.S.C. § 1956(a)(3). As with normal domestic money laundering, the defendant must conduct (or attempt or conspire to conduct) a financial transaction as defined in § 1956(c)(4).

There are three money laundering sting crimes, determined by the defendant's intent:

  • If the transaction was done with the intent to promote the carrying on of an SUA, the conduct violates § 1956(a)(3)(A).
  • If it was done knowing that the transaction was designed in whole or in part to conceal or disguise the nature, the location, the source, the ownership, or the control of the proceeds of an SUA, the conduct violates § 1956(a)(3)(B).
  • If it was done knowing that the transaction was designed in whole or in part to avoid a transaction reporting requirement under State or Federal law, the conduct violates § 1956(a)(3)(C).

The final provision is § 1957, the money spending crime. It must be shown that the defendant knowingly conducted (or attempted or conspired to conduct) a monetary transaction involving money or property derived from an SUA of a value greater than $10,000. "Section 1957 may be used to prosecute someone for using SUA proceeds to buy a car, to invest in securities, or simply to make a deposit into a bank." The Money Laundering Statutes, supra at 29.

A "monetary transaction" is not the same thing as a "financial transaction." It is the "deposit, withdrawal, transfer, or exchange, in or affecting interstate or foreign commerce," of funds or a monetary instrument by, through, or to a financial institution, "including any transaction that would be a financial transaction" but does not include "any transaction necessary to preserve a person's right to representation as guaranteed by the sixth amendment to the Constitution." The principle distinction is that financial transactions require interstate commerce, and monetary transactions require the use of a financial institution. All "financial transactions" are monetary transactions, except those meeting the Sixth Amendment exception.

The defendant must know that the money or property involved in the transaction represented the proceeds of "criminally derived property," that is, "any property constituting, or derived from, proceeds obtained from a criminal offense." 18 U.S.C. § 1957(f)(2). But the government need not prove that the defendant knew it was proceeds of an SUA.

In addition, the transaction must have taken place in the United States, the special maritime and territorial jurisdiction (SMTJ) of the United States, or, if outside the United States or SMTJ, the defendant must have been a "United States person" as defined by 18 U.S.C. § 3077 (excluding § 3077(2)(D))].

"The transaction that created the criminally-derived property must be distinct from the charged money laundering transaction, because § 1957 criminalizes transactions in criminally-derived property, not the transactions that create the property—the latter transactions comprise the underlying specified activity itself." Fed. Crim. Jury Instr. 7th Cir. 18 U.S.C. § 1957 Definitions Comment (2018).

Conspiracies to violate §§ 1956 and 1957 may be charged under 18 U.S.C. §§ 371 or 1956(h). If charged under § 1956(h), proof of an overt act in furtherance of the conspiracy is not required. Whitfield v. United States, 543 U.S. 209, 210 (2005).

Section 1956 crimes are twenty year felonies. Section 1957 crimes are ten year felonies. The Sentencing Guidelines range can be readily ascertained by using the Federal Sentencing Guidelines Calculator.

(11/10/19)

October 2019

Travel Act 101

This is one of a series of blog posts surveying federal criminal law topics, grounded for the most part on a study of official federal circuit jury instructions. This one surveys the Travel Act. Before we get started, you may wish to look at the previous "101" posts:

Conspiracy
Mail and wire fraud part one (jurisdictional elements)
Mail and wire fraud part two (elements in common)
Obstruction of justice
Hobbs Act

Interstate travel in aid of racketeering (ITAR) (the Travel Act), codified at 18 U.S.C. § 1952, was enacted in the 1960s to create a federal crime where "'top men' of a given criminal operation resided in one State but conducted their illegal activities in another; by creating a federal interest in limiting the interstate movement necessary to such operations, criminal conduct beyond the reach of local officials could be controlled.” United States v. Nardello, 393 U.S. 286, 290-91 (1969). Specifically, it provides that anyone who

travels in interstate or foreign commerce or uses the mail or any facility in interstate or foreign commerce, with intent to (1) distribute the proceeds of any unlawful activity; or (2) commit any crime of violence to further any unlawful activity; or (3) otherwise promote, manage, establish, carry on, or facilitate the promotion, management, establishment, or carrying on, of any unlawful activity, and thereafter performs or attempts to perform [one of these acts]

Facility "is a broad term that can have many meanings. The most common 'facilities' are telephone systems, highways, banking systems, and the postal service." Fed. Crim. Jury Instr. 7th Cir. 18 U.S.C. § 1952 (2018). It would cover the use of the Internet for emails, text messages, etc. See, e.g., United States v. Halloran, 821 F.3d 321, 342 (2d Cir. 2016).

Unlawful activity means

(1) any business enterprise involving gambling, liquor on which the Federal excise tax has not been paid, narcotics or controlled substances (as defined in [21 U.S.C. § 802(6)]), or prostitution offenses in violation of the laws of the State in which they are committed or of the United States, (2) extortion, bribery, or arson in violation of the laws of the State in which they are committed or of the United States, or (3) any act which is indictable under [31 U.S.C. §§ 5311-32] [monetary transaction reports] or under [18 U.S.C. §§ 1956 or 1957] [money laundering].

18 U.S.C. § 1952(b). In other words, where the allegation involves gambling, liquor, narcotics, controlled substances and prostitution, the unlawful activity must involve a business enterprise.

A business enterprise is

a continuous course of conduct or series of transactions to make a profit, not a casual, sporadic, or isolated activity. For this crime, the term includes illegal activities. It doesn't matter whether the illegal activity lasted for a particular length of time or was or was not the defendant's primary occupation. What the government must prove beyond a reasonable doubt is that the defendant was involved in a business enterprise, as just defined, rather than casual, sporadic, or isolated activities.

Pattern Crim. Jury Instr. 11th Cir. OI O71 (2019). "The government need not prove, however, that the defendant personally engaged in a continuous course of conduct; it is sufficient for the defendant to have simply participated in such conduct." Pattern Crim. Jury Instr. 5th Cir. 2.74 note (2015). "There is no requirement that the interstate travel or use of interstate facilities be essential to the scheme. It is enough if the interstate travel or use of interstate facilities made the unlawful activity easier." Id.

Federal and state law (not common law) is consulted to determine whether the conduct violated the generic definition of the crime. See Perrin v. United States, 444 U.S. 37, 50 (1979) (bribery includes state commercial bribery).

"Congress did not intend that the Travel Act should apply to criminal activity solely because that activity is at times patronized by persons from another State." Rewis v. United States, 401 U.S. 808, 812 (1971).

The maximum period of incarceration for an act described in § 1952(a)(1) (distribution the proceeds of any unlawful activity) or § 1952(a)(3) (otherwise promoting, managing, establishing, carrying on, or facilitating the promotion, management, establishment, or carrying on, of any unlawful activity) is five years. The maximum period of incarceration for an act described in § 1952(a)(2) (commit any crime of violence to further any unlawful activity) is twenty years, or life if death results. The Sentencing Guidelines range can be readily ascertained by using the Federal Sentencing Guidelines Calculator.

(10/31/19)

Hobbs Act 101

This is one of a series of blog posts surveying federal criminal law topics, grounded for the most part on a study of official federal circuit jury instructions. This one surveys Hobbs Act crimes. Before we get started, you may wish to look at the previous "101" posts:

Conspiracy 101
Mail and wire fraud 101 part one (jurisdictional elements)
Mail and wire fraud 101 part 2 (elements in common)
Obstruction of justice 101

If this is your first visit to trialdex, be sure to check out all of the "litigation tools" on the trialdex front page.

The Hobbs Act, codified at 18 U.S.C. § 1951 was enacted in 1946 to combat labor union racketeering, but its terms do not limit it to labor unions, and it does not require proof of racketeering (although a violation of the Hobbs Act may be part of a "pattern of racketeering activity" in racketeering prosecutions). There are three Hobbs Act crimes:

  1. Extortion by force or threats of force
  2. Extortion under color of official right
  3. Robbery

Each of these acts is paired with a common jurisdictional element: The government must prove that the defendant's conduct "in any way or degree" affected commerce. The government does not have to prove that the defendant knew about or intended an effect on commerce, or that there was an actual effect on commerce. The government need only show that "the natural result of the offense would be to cause an effect on interstate commerce to any degree, however minimal or slight." Model Crim. Jury Instr. 9th Cir. 8.143B (2016). See also Taylor v. United States, 136 S.Ct. 2074, 2081 (2016) (robbery of drug dealer satisfied the commerce element; "as a matter of law, the market for illegal drugs is 'commerce over which the United States has jurisdiction'").

The statute is silent on mens rea. Circuit instructions may omit it (Fifth and Tenth), require willfulness (Third), knowingly (Fifth and Eleventh), voluntarily and intentionally (Eighth), or require the specific intent to acquire property (Ninth).

The statute includes language that supports charging Hobbs Act crimes as an attempt or a conspiracy. The conspiracy clause of § 1951 does not require proof of an overt act. Attempts and conspiracies are sometimes charged where the liability is based on an undercover operation using government funds, or where there is no actual effect on commerce. See Pattern Crim. Jury Instr. 6th Cir. 17.01 Comment (2019).

Property includes tangible and intangible things of value. Scheidler v. National Organization for Women, Inc., 537 U.S. 393, 402 (2003), but the property must be transferrable. Sekhar v. United States, 570 U.S. 729, 734 (2013). Extortion requires deprivation and acquisition of property. Scheidler, id. at 404.

Robbery and extortion are defined in 18 U.S.C. § 1951(b)(2).

Extortion under color of official right "is the wrongful taking by a public officer of money or property not due him or his office, whether or not the taking was accompanied by force, threats or use of fear. So if a public official voluntarily and intentionally misuses his public office and power for the wrongful purpose of inducing a victim to part with property, such activity constitutes extortion." Model Crim. Jury Instr. 8th Cir. 6.18.1951 (2017).

Extortion by color of official right can only be committed by public officials (although non-public officials may aid and abet or conspire to commit the crime). It is the "rough equivalent of what we would now describe as 'taking a bribe.'" Evans v. United States, 504 U.S. 255, 260 (1992). Evans affirmed a conviction based on an official's passive acceptance of a payment known to have been offered in exchange for a specific requested exercise of official power. A person who impersonates a public official does not act under color of official right. Fed. Crim. Jury Instr. 7th Cir. 18 U.S.C. § 1951 Color of Official Right—Definition Comment (2018).

"A Hobbs Act conviction for extortion under color of official right requires proof of a quid pro quo.... Fulfillment of the quid pro quo is not an element of the offense. The quo in a Hobbs Act extortion under color of official right prosecution is doing or not doing or agreeing to do or not do an official act." Pattern Crim. Jury Instr. 11th Cir. OI O70.2 Comment (2019) (citations omitted).

Official act is a term that is also used in bribery prosecutions under 18 U.S.C. § 201. It refers to a decision or action on a question, matter, cause, suit, proceeding or controversy that involves

  • "a formal exercise of governmental power that is similar in nature to a lawsuit before a court, a determination before an agency, or a hearing before a committee." McDonnell v. United States, 136 S.Ct. 2355, 2371-72 (2016).
  • It must be something specific and focused that is "pending" or "may by law be brought" before a public official. Id. at 2372.
  • The public official must make a decision, take an action on it, or agree to do so. Id.

The decision or action could be using his or her official position to exert pressure on another official to perform an "official act," or advising another official, knowing or intending that such advice will form the basis for an "official act" by another official. Id. But "[s]etting up a meeting, talking to another official, or organizing an event (or agreeing to do so)—without more—does not fit that definition of 'official act.'" Id. It does not matter that the acts would have or should have taken without the bribe. See City of Columbia v. Omni Outdoor Advertising, Inc., 499 U.S. 365, 378 (1991).

Where an elected official is charged with extorting campaign contributions, the government must prove "an explicit promise or undertaking" by the public official. McCormick v. United States, 500 U.S. 257 (1991).

The government need not prove that the conspirators sought or obtained money from someone outside the conspiracy or that each member of the conspiracy was capable of carrying out the extortion. Ocasio v. United States, 136 S.Ct. 1423 (2016).

The statutory maximum penalty is twenty years. The guidelines range can be readily ascertained by using the Federal Sentencing Guidelines Calculator.

(10/23/19)

What would be the retroactive effect if Ramos wins his case?

The Supreme Court heard arguments in Ramos v. Louisiana on October 7, 2019. The issue presented is "[w]hether the 14th Amendment fully incorporates the Sixth Amendment guarantee of a unanimous verdict."

The issue had been presented to the Supreme Court years ago in Apodaca v. Oregon, 406 U.S. 404 (1972), and the Court had split 4-1-4 on the issue. Four justices concluded that the Sixth Amendment requires unanimous verdicts, and that this right was fully incorporated and available to state defendants. Four justices did not believe that the Sixth Amendment required unanimous verdicts. Justice Powell concluded that there was a Sixth Amendment right to a unanimous verdict for federal defendants, but that this was one of the small number of constitutional rights that is not incorporated and binding on states. So Powell's vote, joined with the four justices who did not believe that the Sixth Amendment guaranteed unanimous verdicts, gave us a rule that federal verdicts must be unanimous, but state courts need not be.

U.S. military courts (which are not bound by the Sixth Amendment), Oregon, Puerto Rico, and (until this year) Louisiana have permitted non-unanimous jury verdicts in felony cases ever since. Ramos was convicted of second-degree murder on a 10-2 verdict. At some point (according to the Supreme Court Brief for Petitioner, "Upon learning of the jury's divided vote, Mr. Ramos moved for a new trial"; in any event, Louisiana makes no issue of timeliness), Ramos objected to the non-unanimous verdict, and raised the issue on direct appeal. Louisiana courts rejected the claim, citing Apodaca. The U.S. Supreme Court granted cert.

SCOTUSblog's Amy Howe wrote a review of the arguments that predicted that Ramos would win (Ramos pounced on Louisiana's concession of the incorporation argument). The question of the practical consequences of a decision favoring Ramos came up several times during arguments.

JUSTICE ALITO: Well, we don't know ... how a decision in your favor in this case would play out in collateral review, either in federal court or in state court. But do you think—I mean, I—I can well envision seeing you up here in a term or two arguing this is a water—the rule that you are trying to persuade us to accept today is a watershed rule of criminal procedure. Do you think that's a frivolous argument?
MR. FISHER: I don't think it's frivolous, Justice Alito. I think the best thing the state will have to say for itself in that respect is that Duncan itself, when the Court incorporated the right to jury trial, Duncan itself was not held to be retroactive in the DeStefano opinion, and in Schiro against Summerlin the court reaffirmed that precedent.
* * * *
MS. MURRILL: We have 32,000 people that are currently serving time for serious crimes. And each of these convictions would be subject to challenge if Apodaca is reversed.
* * * *

JUSTICE BREYER: [H]ave you any idea? Is there—with all the work gone into this, has anybody got any rough idea of what percentage of those people who are convicted are convicted by non-unanimous juries?

MS. MURRILL: There's just no reliable data ....
* * * *
We do know that we are already receiving a flood of these cases, as is this Court. We know that—you know, we filed 25 briefs in the Louisiana Supreme Court last Friday. So we have a—this case—this is certainly unsettling the cases, but because a number of those people pleaded guilty based on their expectation of potential—of facing a 10/2 verdict, the criminal defense attorneys filed an amicus brief arguing that point. We also have people who would receive—everyone that went to trial received this jury instruction. So we're not saying they all win.
* * * *
MR. FISHER: Thank you. I'd like to make a couple of quick factual points and then talk about stare decisis and reliance.
Justice Breyer, you asked a couple of questions about numbers and facts. So we say in our reply brief, using one of the state's own filings, that there are 36 cases on direct review right now in Louisiana where this issue has been presented.
And then even within those 36 is—even within that 36 you're going to have arguments about whether it was adequately preserved and all the rest. And so we think, at least in the direct review level, the numbers are actually quite modest and low.

So lets move ahead a bit, and assume that Ramos wins his case. Who benefits from the new rule? The impact is likely limited to persons convicted in Oregon and Louisiana (special issues make the application of Ramos to military and Puerto Rico defendants unlikely), but there are thousands of those.

retroactivity thumbnail Trialdex has a helpful Retroactive effect of new Supreme Court decisions litigation tool that you can use to predict the retroactive effect of a decision banning non-unanimous verdicts in state jury trials. Go ahead and give it a spin, but this is what you will come up with:

Ramos, as the prevailing party, gets the benefit of the new rule, and the rule applies to cases on direct appeal. Griffith v. Kentucky, 479 U.S. 314, 322 (1987). However, even those defendants may encounter difficulties if the record below suggests a waiver or forfeiture of the issue.

Where the appeal clock has run out, and/or the conviction has been affirmed on appeal, the remedy is some sort of collateral attack. Initially, this should take place in state courts, which have their own rules (interestingly, the State of Oregon's amicus brief in Ramos raises and discusses an anticipated wave of direct appeal and federal habeas corpus proceedings without identifying state habeas corpus as a particular issue). Assuming that collateral relief is denied on the state level, recourse is available in the federal courts.

The federal remedy is sought by filing a petition for habeas corpus under 28 U.S.C. § 2254 ("State custody; remedies in Federal courts"). The trialdex retroactivity tool concludes that petitioners will run into the formidable barrier of persuading courts that the rule is "watershed." Here is how the reasoning goes:

  • Petitioners must show that they are in custody under a sentence on the date that the petition is filed. 28 U.S.C. § 2254(a). "Custody" does not require actual imprisonment; it also includes release that significantly restricts liberty. See Jones v. Cunningham, 371 U.S. 236 (1963) (parole).
  • Is it an old rule or a new rule? A rule is new when it breaks new ground or imposes a new obligation on the government. A rule is old if the result was dictated by precedent existing at the time the defendant's conviction became final, i.e., it would have been apparent to all reasonable jurists. A case does not announce a new rule when it is merely an application of the principle that governed a prior decision to a different set of facts. See Chaidez v. United States, 568 U.S. 342, 347 (2013). A rule requiring unanimous verdicts in state cases would be a new rule.
  • Is the rule substantive or procedural? Substantive rules "set forth categorical constitutional guarantees that place certain criminal laws and punishments altogether beyond the State's power to impose." Montgomery v. Louisiana, 136 S.Ct. 718, 729 (2016). Procedural rules are designed to enhance the accuracy of a conviction or sentence by regulating the manner of determining culpability. Id. A rule requiring unanimous verdicts in state cases would be a procedural rule.
  • New procedural rules are not available on collateral review unless they are watershed. See Whorton v. Bockting, 549 U.S. 406, 416 (2007); Teague v. Lane, 489 U.S. 288 (1989).

The Supreme Court has never recognized a rule as being "watershed," and is unlikely to do so here. Watershed rules must be necessary to prevent an impermissibly large risk of an inaccurate conviction and alter the Supreme Court's understanding of the bedrock procedural elements essential to the fairness of a proceeding. Bockting, id. at 418. New procedural rules "generally do not apply retroactively" because they "do not produce a class of persons convicted of conduct the law does not make criminal, but merely raise the possibility that someone convicted with use of the invalidated procedure might have been acquitted otherwise." Schriro v. Summerlin, 542 U.S. 348, 352 (2004). Such fundamental rules are unlikely to emerge. Bockting, id. at 417.

The Supreme Court has often identified its decision in Gideon v. Wainwright, 372 U.S. 335 (1963) (indigent defendant's right to counsel) as the only rule which, if Gideon had been decided after Teague, would qualify as watershed. See United States v. Hopkins, 920 F.3d 690, 700 (10th Cir. 2019). Examples of new rules that are not watershed are listed in Bockting at 418, but some similar cases to Ramos include:

  • Mills v. Maryland, 486 U.S. 367 (1988) (invalidating capital sentencing schemes that required juries to disregard mitigating factors that are not found unanimously), not watershed per Beard v. Banks, 542 U.S. 406, 420 (2004).
  • Ring v. Arizona, 536 U.S. 584 (2002) (aggravating factor for death penalty must be proved to a jury rather than to a judge), not watershed per Summerlin, id.

The prediction here is that the class of persons who will get a retroactive benefit of the rule is limited to defendants in Louisiana and Oregon on direct appeal who can establish that they have not waived or forfeited the issue.

(10/21/19)

Ninth Circuit revises Criminal Instruction 9.4

Ninth Circuit Model Criminal Instruction 9.4 (ALIEN—ENCOURAGING ILLEGAL ENTRY (8 U.S.C. § 1324(a)(1)(A)(iv))) had been withdrawn with an explanatory Comment because of the Ninth Circuit decision in United States v. Sineneng Smith, 910 F.3d 461, 485 (9th Cir. 2018), which held that the statute was unconstitutionally overbroad.

Now the Comment says that the "instruction remains under review in light of the Supreme Court's certiorari grant in United States v. Sineneng-Smith, No. 19-67, ___ S. Ct. ___, 2019 WL 4889927 (Oct. 4, 2019).

I am assuming that Sineneng-Smith put the brakes on these prosecutions in the Ninth Circuit, so there is no practical effect from this update. Folks with interest in the case should check out the links on the SCOTUSblog Sineneng-Smith case page.

(10/20/19)

Federal collateral review of state and federal convictions

"Collateral review" means an attack on a conviction that has become final on appeal. It can be:

  • a state court attack on a state conviction (too broad a topic to be addressed here);
  • a federal court attack on a state conviction; or
  • a federal court attack on a federal conviction

The traditional means of attacking these convictions is a petition for a writ of habeas corpus. Habeas corpus is explicitly recognized in the United States Constitution at U.S. Const. Art. I, § 9, cl. 2., which provides that "the privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." As codified as part of the Judiciary Act of 1789, it was only available to prisoners confined by federal officials without trial or admission to bail (i.e., it did not apply to wrongful convictions, state or federal). It was later expanded to protect federal officers doing their duty (e.g., jailed by local authorities for enforcing an unpopular tariff).

In 1867 Congress authorized writs of habeas corpus where persons were restrained of their liberty in violation of the Constitution, or of any treaty or law of the United States. However, it must be remembered that during that period most federal rights were not binding on the states; the "incorporation doctrine" was a twentieth century legal development. So for years whatever habeas corpus traffic there was consisted of federal prisoners attacking federal convictions. Still, there was enough of that to prompt the enactment of 28 U.S.C. §§ 2241-55 in 1948 (which, among other things, addressed the problem of filings in the warden's district, rather than the place where the conviction took place).

Petitions by state prisoners increased considerably in the 1950s and 1960s after Supreme Court holdings indicating that federal relief was available to address state convictions that were obtained in violation of federal law, and relaxing procedural bars against prisioners who had not exhausted state remedies or who had filed multiple writs. Congress responded in 1966 by amending §§ 2244 and 2254 and, beginning in the 1970s, the Supreme Court issued decisions that addressed abuse of the writ. The cases to know are:

  • Wainwright v. Sykes, 433 U.S. 72 (1977) (failure to make timely objection under the Florida contemporaneous-objection rule, absent a showing of cause and some showing of actual prejudice, bars federal habeas corpus review of a Miranda claim; rejecting the "intentional bypass rule")
  • Teague v. Lane, 489 U.S. 288 (1989) (new constitutional rules of criminal procedure generally should not be applied retroactively to cases on collateral review unless they are substantive or watershed)
  • McClesky v. Zant, 499 U.S. 467 (1991) (limiting the circumstances in which prisoners may file second or subsequent habeas petitions)
  • Felker v. Turpin, 518 U.S. 651 (1996) (history of habeas corpus; Supreme Court jurisdiction post-AEDPA)

All of this culminated in the enactment of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), which significantly tightened procedural requirements for collateral review, and gave us the framework that we have today.

The principal statutes are in Title 28 chapter 153:

  • Section 2241 ("Power to grant writ") is the direct ancestor of the original 1789 habeas corpus statute. It has largely been supplanted by other statutes more specifically regulating habeas corpus. Federal prisoners may attempt to use it where other statutes are "inadequate or ineffective" to test the legality of the detention. 28 U.S.C. § 2255(e). (We discussed this § 2255 "saving clause" in a July 2019 blog post.)
  • Sections 2242, 2243, 2247-50, and 2252 are procedural statutes unchanged since 1948.
  • Section 2244 ("Finality of determination") addresses "second or successive petitions." Paragraph (a) bars second or successive petitions attacking federal convictions "except as provided in section 2255." Paragraphs (b) and (c) bar second or successive petitions attacking state convictions with certain enumerated exceptions, and sets out the procedures governing the review. Paragraph (d) sets a one-year period of limitations for attacks on state convictions similar to the time limit on attacks on federal convictions set out in § 2255(f).
  • Section 2251 authorizes federal courts to stay state court proceedings (e.g., the execution of the prisoner).
  • Section 2253 regulates appeals.
  • Section 2254 ("State custody; remedies in Federal courts") covers state prisoners. Paragraph (a) limits relief to persons in custody in violation of the Constitution or laws or treaties of the United States. The ensuing paragraphs address procedural issues, including exhaustion (paragraphs (b) and (c)), deference (paragraphs (d) and (e)), and the failure to raise the issue in state proceedings (paragraph (e)(2)). Federal habeas corpus is unavailable where the claim was decided on the merits in state court unless the decision was contrary to (or involved an unreasonable application of) clearly established federal law as determined by the U.S. Supreme Court, or there is clear and convincing evidence that the factual finding of the state court was incorrect. 28 U.S.C. § 2254(e)(1).
  • Section 2255 ("Federal custody; remedies on motion attacking sentence") covers federal prisoners. Permissible grounds and the custody requirement appear in paragraph (a). Paragraph (e) describes how a failure to raise the issue might be excused. Paragraph (f) sets out the time limitations. Paragraph (h) describes procedures for second or successive motions.

(10/16/19)

Willful blindness and Global-Tech

Persons act knowingly if they realize what they are doing and are aware of the nature of their conduct, and do not act through ignorance, mistake, or accident. Fed. Crim. Jury Instr. 7th Cir. 4.10 (2018). Alternatively, the government may satisfy this "knowing" mens rea requirement by showing willful blindness, a concept that is presented to the jury in the form of a jury instruction, sometimes referred to as a "deliberate ignorance" or "ostrich instruction."

Since 2011, willful blindness has been rather authoritatively defined in Glob.-Tech Appliances, Inc. v. SEB S.A., 563 U.S. 754, 769 (2011):

While the Courts of Appeals articulate the doctrine of willful blindness in slightly different ways, all appear to agree on two basic requirements: (1) The defendant must subjectively believe that there is a high probability that a fact exists and (2) the defendant must take deliberate actions to avoid learning of that fact. We think these requirements give willful blindness an appropriately limited scope that surpasses recklessness and negligence.

Global-Tech is a patent case, but there is general agreement that it applies to criminal cases.

The principal issue in such cases is whether the instruction should be given at all. But where it is given, courts unnecessarily risk creating appellate issues where they depart from the precise language of the decision, e.g., if the chosen language does not require "deliberate action" or permits conviction based on mere reckless conduct. See, e.g., United States v. Macias, 786 F.3d 1060 (7th Cir. 2015).

Here is a quick survey of official jury instructions:

The Third Circuit (2015) cites Global-Tech), and makes small changes ("actually" and "consciously") in the test, presumably for clarity: "[actually,] subjectively believed that there was a high probability that this (fact) (circumstance) existed, and ... consciously took deliberate actions to avoid learning [used deliberate efforts to avoid knowing] about the existence of this (fact) (circumstance)."

The Fifth Circuit (2015) does not reference Global-Tech, and the instruction recites the test using very different language: "You may find that a defendant had knowledge of a fact if you find that the defendant deliberately closed his eyes to what would otherwise have been obvious to him. While knowledge on the part of the defendant cannot be established merely by demonstrating that the defendant was negligent, careless, or foolish, knowledge can be inferred if the defendant deliberately blinded himself to the existence of a fact." This is so, even though the Comment notes a Fifth Circuit case that states the test using Global-Tech's language. See also United States v. Martinez, 921 F.3d 452, 477-81 (5th Cir. 2019).

The Sixth Circuit (2019) cites Global-Tech in its Committee Commentary, but uses its own formulation, believing it to be equivalent: "the defendant was aware of a high probability that _______, and that the defendant deliberately closed his eyes to what was obvious. Carelessness, or negligence, or foolishness on his part is not the same as knowledge, and is not enough to convict." This formulation seems deficient, since it does not require deliberate action, and rules out negligence without ruling out recklessness as well.

The Seventh Circuit (2019) cites Global-Tech, and has an instruction which closely follows it (omitting the term "subjective," which is not likely to mean much to jurors in this context): "believed it was highly probable that [state fact as to which knowledge is in question, ...] and that he took deliberate action to avoid learning that fact. You may not find that the defendant acted knowingly if he was merely mistaken or careless in not discovering the truth, or if he failed to make an effort to discover the truth."

The Eighth Circuit (2017) cites Global-Tech, and uses its language while expanding the discussion a bit: "believed there was a high probability that (state fact as to which knowledge is in question ...) and that [he] [she] took deliberate actions to avoid learning of that fact. Knowledge may be inferred if the defendant [(name)] deliberately closed [his] [her] eyes to what would otherwise have been obvious to [him] [her]. A willfully blind defendant is one who takes deliberate actions to avoid confirming a high probability of wrongdoing and who can almost be said to have actually known the critical facts. You may not find the defendant acted "knowingly" if you find he/she was merely negligent, careless or mistaken ...."

The Ninth Circuit (2018) does not cite Global-Tech, and uses this language: "1. was aware of a high probability that [e.g., drugs were in the defendant's automobile], and 2. deliberately avoided learning the truth." Note the absence of a reference to "deliberate actions."

Tenth Circuit (2018) does not cite Global-Tech. It phrases the test as: "Although 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 actually believe [the fact in question]."

Eleventh Circuit does not cite Global-Tech, and uses a test that likely falls short of the Global-Tech standard: "if a defendant possesses a package and believes it contains a controlled substance but deliberately avoids learning that it contains the controlled substance so he or she can deny knowledge of the package's contents.... But I must emphasize that negligence, carelessness, or foolishness isn't enough ...."

(10/6/19)

Ninth Circuit has posted revisions to its criminal jury instructions

The Ninth Circuit has posted September revisions to its Model Criminal Jury Instructions. Noteworthy changes include three new preliminary instructions, recognition of gender identity discrimination and unconscious bias, and new Rehaif elements for some firearms charges.

The revisions do not directly discuss unconscious bias, but encourage trial courts to show jurors a WD Washington video that has an "attorney" telling the jurors the results of "studies."

You'll see these changes to the table of contents:

  • Three new preliminary instructions:

    1.14 Questions to Witnesses by Jurors During Trial
    1.15 Pro Se Defendant
    1.16 Bench Conferences and Recesses (moved from 2.2)

  • As noted above, former 2.2 (Bench Conferences and Recesses) has been renumbered as 1.16 (which means that all the subsequent instructions in Chapter 2 have been renumbered).
  • Instruction 5.1 has been broken in two; it is now 5.1  (Aiding and Abetting (18 U.S.C. § 2(a))) and 5.1A (Aiding and Abetting (18 U.S.C. § 2(b))).
  • There is a new instruction, 8.108A  (Murder for Hire (18 U.S.C. § 1958)).

The revisions to existing instructions are briefly noted below, and I have posted a redline/strikeout copy showing the changes. Prior versions are archived here.

1.1 DUTY OF JURY (gender identity, unconscious bias, jury nullification)
1.2 THE CHARGE—PRESUMPTION OF INNOCENCE Comment (affirmative defense)
1.4 WHAT IS NOT EVIDENCE Comment (curative instructions)
1.7 CREDIBILITY OF WITNESSES (unconscious bias)
1.9 NO TRANSCRIPT AVAILABLE TO JURY Comment
7.1 DUTY TO DELIBERATE Comment
7.2 CONSIDERATION OF EVIDENCE—CONDUCT OF THE JURY Comment
7.4 JURY CONSIDERATION OF PUNISHMENT Comment
7.8 SCRIPT FOR POST-ALLEN CHARGE INQUIRY Comment (second unrequested Allen charge)
7.9 SPECIFIC ISSUE UNANIMITY Comment
7.11 CONTINUING DELIBERATIONS AFTER JUROR IS DISCHARGED AND NOT REPLACED Comment
8.63 FIREARMS—UNLAWFUL RECEIPT (18 U.S.C. § 922(g)) (new Rehaif element, antique firearms as an affirmative defense)
8.64 FIREARMS—UNLAWFUL SHIPMENT OR TRANSPORTATION (18 U.S.C. § 922(g)) (new Rehaif8.65A FIREARMS—UNLAWFUL POSSESSION—CONVICTED FELON (18 U.S.C. § 922(g)(1)) (new Rehaif element)
8.162 BANK ROBBERY (18 U.S.C. § 2113(a), (d)) Comment (dangerous weapon must be actively employed)
9.8 ALIEN—DEPORTED ALIEN FOUND IN UNITED STATES (8 U.S.C. § 1326(a)) Comment (official restraint doctrine)

(10/1/19)


September 2019

Obstruction of justice 101

This is one of a series of blog posts surveying federal criminal law topics, grounded for the most part on a study of official federal circuit jury instructions. This one surveys "obstruction of justice" crimes. Before we get started, you may wish to look at the previous "101" posts:

Mail and wire fraud 101 part one (jurisdictional elements)
Mail and wire fraud 101 part 2 (elements in common)
Conspiracy 101

If this is your first visit to trialdex, be sure to check out all of the "litigation tools" on the trialdex front page.

Introduction. It is probably wise to tighten the focus a bit. We'll only look at commonly charged federal crimes listed in Title 18 chapter 73 ("Obstruction of Justice"). Here is the complete list chapter 73 crimes, with the commonly charged crimes bolded:

§ 1501. Assault on process server
§ 1502. Resistance to extradition agent
§ 1503. Influencing or injuring officer or juror generally
§ 1504. Influencing juror by writing
§ 1505. Obstruction of proceedings before departments, agencies, and committees
§ 1506. Theft or alteration of record or process; false bail
§ 1507. Picketing or parading
§ 1508. Recording, listening to, or observing proceedings of grand or petit juries while deliberating or voting
§ 1509. Obstruction of court orders
§ 1510. Obstruction of criminal investigations
§ 1511. Obstruction of State or local law enforcement
§ 1512. Tampering with a witness, victim, or an informant
§ 1513. Retaliating against a witness, victim, or an informant
§ 1514. Civil action to restrain harassment of a victim or witness
§ 1514A. Civil action to protect against retaliation in fraud cases
§ 1515. Definitions for certain provisions; general provision
§ 1516. Obstruction of Federal audit
§ 1517. Obstructing examination of financial institution
§ 1518. Obstruction of criminal investigations of health care offenses
§ 1519. Destruction, alteration, or falsification of records in Federal investigations and bankruptcy
§ 1520. Destruction of corporate audit records
§ 1521. Retaliating against a Federal judge or Federal law enforcement officer by false claim or slander of title

Ostructing jurors and court officers. We'll start with Section 1503. It covers obstructions directed at jurors (including grand jurors) and court officers (including judges and magistrates). Subsection 1503(a) is a rambling 200-word paragraph without internal enumeration that describes at least three distinct crimes:

  • "corruptly, or by threats or force, or by any threatening letter or communication, endeavors to influence, intimidate, or impede any [juror or court officer] in the discharge of his duty"
  • injures a juror on account of "any verdict or indictment assented to by him" or "his being or having been such juror," or a court officer "on account of the performance of his official duties" in their person or property
  • "corruptly or by threats or force, or by any threatening letter or communication, influences, obstructs, or impedes, or endeavors to influence, obstruct, or impede, the due administration of justice" (omnibus clause)

Although not expressly so stated in the statute, the Supreme Court has read in a requirement that the government prove that the defendant was aware of a pending proceeding. See United States v. Aguilar, 515 U.S. 593, 599 (1995), citing Pettibone v. United States, 148 U.S. 197, 207 (1893).

Corruptly has been defined as acting knowingly and dishonestly, with the specific intent to subvert or undermine the due administration of justice. See Pattern Crim. Jury Instr. 5th Cir. 2.63A (2015); Arthur Andersen L.L.P. v. United States, 544 U.S. 696, 706-07 (2005); 18 U.S.C. § 1515(a)(6) and (b). Some circuits will use more general language (and more negative descriptive terms like "wicked" are avoided), but at a minimum there must be proof that defendants knew they were doing something wrong.

The use of the word endeavor was intended to get "rid of the technicalities which might be urged as besetting the word 'attempt' and it describes any effort or essay to accomplish the evil purpose that the section was enacted to prevent." United States v. Russell, 255 U.S. 138, 143 (1921). That is, an "endeavor" to obstruct can be less than an "attempt." Model Crim. Jury Instr. 8th Cir. 6.18.1510 Note (2017). Although this platitude is often stated, it is difficult to find actual examples of cases where something short of an attempt is accepted as an endeavor.

That being said, where the government is proceeding on an "endeavor" theory there must be a nexus; that is, "the act must have a relationship in time, causation, or logic with the judicial proceedings. In other words, the endeavor must have the 'natural and probable effect' of interfering with the due administration of justice." Aguilar, id. at 599 (1995) (citations omitted) (false statements to an investigating agent who might or might not testify before a grand jury is insufficient).

Nothing in chapter 73 prohibits "the providing of lawful, bona fide, legal representation services in connection with or in anticipation of an official proceeding." 18 U.S.C. § 1515(c).

The maximum term of incarceration for the base offense is ten years. If the conduct involved a killing, the punishment is that provided in 18 U.S.C. §§ 1111 and 1112. If it involved an attempted killing, or a case in which the offense was committed against a petit juror and in which a class A or B felony was charged, the maximum term is twenty years.

Witness tampering. The next commonly charged statute, § 1512, is a statute that describes at least seven discrete crimes directed at witnesses and informants:

  • § 1512(a)(1) "kills or attempts to kill another person, with intent to (A) prevent the attendance or testimony of any person in an official proceeding; (B) prevent the production of a record, document, or other object, in an official proceeding; or (C) prevent the communication by any person to a law enforcement officer or judge of the United States of information relating to the commission or possible commission of a Federal offense or a violation of conditions of probation, parole, or release pending judicial proceedings"
  • § 1512(a)(2) "uses physical force or the threat of physical force against any person, or attempts to do so, with intent to (A) influence, delay, or prevent the testimony of any person in an official proceeding; (B) cause or induce any person to (i) withhold testimony, or withhold a record, document, or other object, from an official proceeding; (ii) alter, destroy, mutilate, or conceal an object with intent to impair the integrity or availability of the object for use in an official proceeding; (iii) evade legal process summoning that person to appear as a witness, or to produce a record, document, or other object, in an official proceeding; or (iv) be absent from an official proceeding to which that person has been summoned by legal process; or (C) hinder, delay, or prevent the communication to a law enforcement officer or judge of the United States of information relating to the commission or possible commission of a Federal offense or a violation of conditions of probation, supervised release, parole, or release pending judicial proceedings"
  • § 1512(b)(1) "knowingly uses intimidation, threatens, or corruptly persuades another person, or attempts to do so, or engages in misleading conduct toward another person, with intent to (1) influence, delay, or prevent the testimony of any person in an official proceeding"
  • § 1512(b)(2) "knowingly uses intimidation, threatens, or corruptly persuades another person, or attempts to do so, or engages in misleading conduct toward another person, with intent to ... (2) cause or induce any person to—(A) withhold testimony, or withhold a record, document, or other object, from an official proceeding; (B) alter, destroy, mutilate, or conceal an object with intent to impair the object's integrity or availability for use in an official proceeding; (C) evade legal process summoning that person to appear as a witness, or to produce a record, document, or other object, in an official proceeding; or (D) be absent from an official proceeding to which such person has been summoned by legal process"
  • § 1512(b)(3) "knowingly uses intimidation, threatens, or corruptly persuades another person, or attempts to do so, or engages in misleading conduct toward another person, with intent to ... (3) hinder, delay, or prevent the communication to a law enforcement officer or judge of the United States of information relating to the commission or possible commission of a Federal offense or a violation of conditions of probation[,] supervised release, parole, or release pending judicial proceedings"
  • § 1512(c)(1) "corruptly (1) alters, destroys, mutilates, or conceals a record, document, or other object, or attempts to do so, with the intent to impair the object's integrity or availability for use in an official proceeding"
  • § 1512(c)(2) "corruptly ... (2) otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so" (omnibus clause)

In communication cases ((a)(1), (a)(2), and (b)(3)), though the government need not prove that the defendant knew that the judge was a federal judge or that the law enforcement officer was a federal officer, 18 U.S.C. § 1512(g)(2), it must show "that the likelihood of communication to a federal officer was more than remote, outlandish, or simply hypothetical." Fowler v. United States, 563 U.S. 668, 678 (2011) (a prosecution under § 1512(a)(1)(C)).

The term official proceeding includes federal court proceedings and proceedings before agencies "authorized by law." 18 U.S.C. § 1515(a). It also includes proceedings "involving the business of insurance whose activities affect interstate commerce before any insurance regulatory official or agency or any agent or examiner appointed by such official or agency to examine the affairs of any person engaged in the business of insurance whose activities affect interstate commerce." Id. Courts are divided over whether an FBI investigation may constitute an official proceeding.

Although 18 U.S.C. § 1512(f)(1) states that an official proceeding "need not be pending or about to be instituted at the time of the offense," the government has to establish a nexus between the defendant's acts and a particular proceeding. Arthur Andersen L.L.P. v. United States, 544 U.S. 696 (2005). The government must prove that the defendant contemplated a particular official proceeding that was foreseeable when he or she engaged in the proscribed conduct. Mod. Crim. Jury Instr. 3rd Cir. 6.18.1512A2 Comment (2013). Arthur Andersen was a prosecution under § 1512(b)(2), but this nexus requirement likely applies to all the provisions of § 1512 that relate to official proceedings, i.e., would not apply to § 1512(b)(3). A 1512(b)(3) prosecution, however, does require proof (per Fowler, supra) that the defendant believed it was reasonably likely that the witness, absent tampering, might communicate with federal authorities.

Corruptly in this context requires proof that the defendant had the purpose of wrongfully impeding the due administration of justice." Fed. Crim. Jury Instr. 7th Cir. 18 U.S.C. § 1512 Definition of Corruptly (2018); Arthur Anderson. id.

In cases involving a threat or the use of force against a witness, the threat or force does not have to be against the person testifying, and there need not be any direct contact with the witness. It could include "cases in which the defendant used force against, for example, a family member in order to silence a witness. Alternatively, the use of force or threat of force may be directed at a number of potential victims, as, for example, a case where the defendant blew up a courtroom." Mod. Crim. Jury Instr. 3rd Cir. 6.18.1512A2 Comment (2013) (citation omitted).

It is an affirmative defense "that the conduct consisted solely of lawful conduct and that the defendant's sole intention was to encourage, induce, or cause the other person to testify truthfully." 18 U.S.C. § 1512(e). Furthermore, as previously noted, the statute "does not prohibit or punish the providing of lawful, bona fide, legal representation services in connection with or in anticipation of an official proceeding." 18 U.S.C. § 1515(c).

The maximum punishment for a violation of 18 U.S.C. § 1512(a) is:

  • In the case of a killing, the punishment provided in 18 U.S.C. §§ 1111 and 1112.
  • In the case of an attempt to murder, or the use or attempted use of physical force against any person, imprisonment for not more than thirty years.
  • In the case of the threat of use of physical force against any person, imprisonment for not more than twenty years.

The maximum punishment for a violation of 18 U.S.C. § 1512(b) or (c) is twenty years. The maximum punishment for a violation of 18 U.S.C. § 1512(d) is three years.

"If the offense under [18 U.S.C. § 1512] occurs in connection with a trial of a criminal case, the maximum term of imprisonment which may be imposed for the offense shall be the higher of that otherwise provided by law or the maximum term that could have been imposed for any offense charged in such case." 18 U.S.C. § 1512(j).

Retaliation. A third statute, 18 U.S.C. § 1513, addresses retaliation against witnesses and informants. Paragraph (a) addresses killing or attempting to kill witnesses and informants using much the same language as § 1512(a)(1), except that it covers "intent to retaliate" instead of "intent to prevent." Paragraph (b) similarly punishes injuring, or attempting to injure, persons and property, using language that parallels § 1512(a)(2).

Paragraph (e) prohibits economic retaliation: "knowingly, with the intent to retaliate, takes any action harmful to any person, including interference with the lawful employment or livelihood of any person, for providing to a law enforcement officer any truthful information relating to the commission or possible commission of any Federal offense."

The definitions and defenses are generally handled just as they are in parallel provisions of § 1512.

The maximum term of incarceration for a violation of § 1513(b) is twenty years. "If the retaliation occurred because of attendance at or testimony in a criminal case, the maximum term of imprisonment which may be imposed for the offense under this section shall be the higher of that otherwise provided by law or the maximum term that could have been imposed for any offense charged in such case." 18 U.S.C. § 1513(c).

Deestruction of evidence. The fourth and final statute that we are looking at today is 18 U.S.C. § 1519. Enacted as part of the Sarbanes-Oxley Act of 2002, it prohibits the obstruction of federal investigations by the destruction of evidence (as the parallel 18 U.S.C. § 1512(c) prohibits the obstruction of federal proceedings by the destruction of evidence). It is violated where the defendant "knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States or any case filed under title 11, or in relation to or contemplation of any such matter or case."

Although the language of the statute more clearly focuses on the destruction of evidence, all the courts examining the issue have found that it covers the creation of false evidence.

The Eighth Circuit has noted that, despite there being no requirement of a pending matter or knowledge of the federal nature of a matter, § 1519 still requires proof of intent to obstruct, impede, or influence a matter; otherwise, the statute would forbid innocent conduct such as destruction of records "that a person consciously and in good faith determines are irrelevant to a foreseeable federal matter." Similarly, the Fifth Circuit has stated that, although the statute on its face does not require a "corrupt" intent like other obstruction of justice statutes (compare § 1519 with 18 U.S.C. §§ 1512(b) and 1503), "it still requires some form of obstructive intent, specifically a knowing destruction undertaken with the 'intent to impede, obstruct, or influence the investigation or proper administration of [a] matter.'".

Pattern Crim. Jury Instr. 5th Cir. 2.65 Note (2015) (citations omitted).

Two notable cases:

  • In Yates v. United States, 574 U.S. 528 (2015), the Supreme Court held that a "tangible object" must be one used to record or preserve information (the object in Yates was an undersized fish).
  • Moving emails into "deleted items" folder does not qualify as concealment under § 1519. United States v. Katakis, 800 F.3d 1017, 1030 (9th Cir. 2015).

The maximum term of incarceration for a violation of 18 U.S.C. § 1519 is twenty years.

Two final notes:

  • Sections 1512 and 1513 (but not 1503 or 1519) have their own conspiracy clauses that make conspiracy "subject to the same penalties as those prescribed for the offense the commission of which was the object of the conspiracy." 18 U.S.C. § 1512(k). This statute may be chosen by the government over 18 U.S.C. § 371 because of its potentially greater maximum sentence, and the lack of an overt act requirement.

  • Sections 1512 and 1513 (but not 1503 or 1519) have specific extraterritorial jurisdiction clauses.

(9/29/19)

A roundup of recent additions and revisions to state jury instructions

This is a listing of recent changes to state instructions posted on the Internet. There are other instructions that are only posted on Westlaw or Lexis/Nexis, or require a bar login, and those states don't show up in the list below. Presumably you can use the tools on those sites to bring up revisions if your state is one of those; see this listing for detailed information on where each state posts its instructions. I'll do a follow-up post soon on how to check "Westlaw states" for recent updates (I have Westlaw access).

Alabama has revised the following criminal instructions in May 2019:

Prior versions are archived here.

Arkansas has an implicit bias instruction up for comment.

The Judicial Council of California Civil Jury Instructions (CACI) has posted a May 2019 supplement and "2019 Additional Online-Only Revisions." There are hundreds of changes, too many to list here, but they are clearly noted in the linked documents.

In July Florida added Instruction 21.16 (Falsely Personating An Officer) to its list of criminal instructions under review because of recent legislation. Florida civil instructions are now dated "August 29, 2019," but the latest revisions are from 2018.

Iowa jury instructions can be accessed with a State Bar login, but non-members used to be able to bring them up with a google search. The June 2019 criminal instructions are still there, but someone deleted the Internet copy of the civil instructions. You can still pull up a 2012 copy on archive.org, though.

In September 2019 Michigan added criminal instruction 7.25 (Self-Defense as Defense to Felon in Possession of a Firearm), merged former 5.19 into 15.18 (Moving Violation Causing Death or Serious Impairment of a Body Function), and revised criminal instruction 3.11 (Deliberations and Verdict). Prior versions are archived here.

In August 2019 Utah amended a number of its criminal instructions: CR411 (404(b)) (apparently to note State v. Lane, 2019 UT App 86); and its assault instructions CR1302 et seq. Prior versions are archived here.

On August 19, 2019, Vermont Bar Association's criminal instructions revised its reporter's note for the crime of Lewd and Lascivious Conduct with a Child to include a reference to State v. Discola, 2018 VT 7, ¶¶ 23–24, 207 Vt. 216. On July 26 it revised the Self Defense (use of deadly force) instruction, CR07-111, to reflect that not all uses of deadly force result in a killing. Prior versions are archived here.

(9/20/19)

Previewing Banister v. Davis

The Supreme Court will be hearing arguments in December 2019 in a habeas corpus case, Bannister v. Davis. This site closely watches Supreme Court cases regarding habeas corpus, to make sure that the trialdex retroactivity tool continues to give accurate results (new to this site? Check out the links on the front page to see all the litigation tools available).

Banister was convicted in state court of a vehicular homicide, and was unable to get the conviction overturned on direct review. His state habeas petition was denied in 2008.

He filed a pro se petition for federal habeas corpus relief (28 U.S.C. § 2254) in 2014, which was dismissed with prejudice on May 15, 2017. Twenty-eight days later he filed a "Motion to Alter or Amend the Judgment" based on FRCP 59(e) that essentially restated the same claims made in his original § 2254 petition. This was denied on June 20, 2017.

A month after that, on July 20, 2017, the defendant filed a motion in the Fifth Circuit Court of Appeals for a certificate of appealability (COA). This was denied. The court noted that the FRCP 59(e) motion was timely filed, and that FRCP 59(e) motions can extend the time for filing an appeal, Federal Appellate Rule 4(a)(4)(A)(iv), but reasoned that it lacked jurisdiction because the purported FRCP 59(e) motion was really a successive § 2254 petition, which could not toll the time for filing a notice of appeal. You can't toll an appeal deadline by filing something that is labeled a FRCP 59(e) motion if it is really something else.

The question of whether the purported FRCP 59(e) motion was really a successive § 2254 petition might be governed by Gonzalez v. Crosby, 545 U.S. 524 (2005). The petitioner in Gonzalez filed a "Motion to Alter or Amend the Judgment," but filed it pursuant to FRCP 60(b). The Court in Gonzalez set out a test for when a motion is successive:

  • Motions raising substantive claims on the merits, or refuting a district court's denial on the merits are successive
  • Motions that allege a defect in the integrity of the proceeding (e.g., fraud on the court) are not

The motion in Gonzalez (statute of limitations calculation) was not successive, but if the Gonzalez test is applied to Banister's petition, his motion was clearly successive. Consequently, Banister has to argue that the Gonzales test is inapplicable to Rule 59(e).

The differences between the rules are not striking. FRCP 59(e) permits a motion to alter or amend a judgment within 28 days after the entry of the judgment. FRCP 60(b) permits motions to relieve a party from a final judgment or order on various enumerated grounds within a "reasonable time," in some cases a year.

Nevertheless, the circuits are split on the issue, with some circuits reasoning that recharacterizing Rule 59(e) motions would frustrate the Rule's purpose of allowing district courts to fix errors, or that it is not a collateral action because the motion suspends the finality of the judgment.

(9/18/19)

Ninth Circuit errata

The URLs for the WPD and PDF copies of the Ninth Circuit criminal instructions have changed slightly, just enough to have thrown off all of my links (they are fixed now).

I did a document compare to see if there were any substantive changes, and the only change appears to to be to Factor (1) of Instruction 4.11 (EYEWITNESS IDENTIFICATION), which now says "suspect" instead of "offender."

Another oddity about Ninth Circuit instructions; they continue to be invisible to Google (but not Bing or other search engines).

(9/11/19)

Mail and wire fraud 101 part 2 (elements in common)

This is the second of a two part discussion of mail and wire fraud. As noted in part 1 (jurisdictional elements), mail fraud (18 U.S.C. § 1341) and wire fraud (§ 1343) have essentially the same elements, except for the jurisdictional elements. Mail fraud involves mailing, and wire fraud requires a wire transmission that passes in interstate commerce.

Elements common to §§ 1341 and 1343 crimes are that:

  1. The defendant knowingly devised or participated in a scheme to defraud someone by using false or fraudulent pretenses, representations, or promises
  2. The false or fraudulent pretenses, representations, or promises were about a material fact
  3. The defendant intended to defraud someone

In most cases, a "scheme to defraud" means a plan or course of action intended to deceive or cheat someone out of money or property using false or fraudulent pretenses, representations, or promises. A separate statute, 18 U.S.C. § 1346, authorizes prosecutions where the scheme is intended to "deprive another of the intangible right of honest services." "Honest services" prosecutions must involve the payment of bribes or kickbacks. Skilling v. United States, 561 U.S. 358 (2010).

Proof of materiality is not a statutory requirement, but is required by Neder v. United States, 527 U.S. 1, 25 (1999). A "material fact" is "an important fact that a reasonable person would use to decide whether to do or not do something. A fact is "material" if it has the capacity or natural tendency to influence a person's decision. It doesn't matter whether the decision-maker actually relied on the statement or knew or should have known that the statement was false." Pattern Crim. Jury Instr. 11th Cir. OI O50.1 (2019).

To act with "intent to defraud" means "to act knowingly and with the specific intent use false or fraudulent pretenses, representations, or promises to cause loss or injury. Proving intent to deceive alone, without the intent to cause loss or injury, is not sufficient to prove intent to defraud." Id.

Although neither statute includes the words "omission" or "concealment," cases interpreting the statutes hold that omissions or concealment of material information may constitute money or property fraud, without proof of a duty to disclose the information pursuant to a specific statute or regulation. Fed. Crim. Jury Instr. 7th Cir. 18 U.S.C. §§ 1341 & 1343 Definition of Scheme to Defraud (2018). "Some cases state the proposition in a way that suggests that an omission-based fraud scheme must include an act of concealment." Id.

"Property" includes tangible and intangible property. Carpenter v. United States, 484 U.S. 19 (1987). It does not, however, necessarily include state and municipal licenses; "the thing obtained must be property in the hands of the victim." Cleveland v. United States, 531 U.S. 12, 15 (2000).

Circuits are split as to whether the fraud must be capable of deceiving persons based on a subjective ("however gullible") or objective ("person of ordinary prudence") standard. The Sixth Circuit adopts the objective standard. Pattern Crim. Jury Instr. 6th Cir. 10.01 Comment (2019). In other circuits, proof that the defendant intends to deceive the ignorant or gullible by preying on their infirmities is sufficient. See Pattern Crim. Jury Instr. 11th Cir. OI O50.1 Comment (2019). See also the extended discussion of this issue in United States v. Svete, 556 F.3d 1157 (11th Cir. 2009).

The Ninth Circuit takes the view in mortgage lending prosecutions that "lender negligence in verifying loan application information, or even intentional disregard of the information, is not a defense to fraud, and so evidence of such negligence or intentional disregard is inadmissible as a defense against charges of mortgage fraud." Model Crim. Jury Instr. 9th Cir. 8.124 (2019). In these cases, a lender's request for specific information in a loan application makes the information objectively material as a matter of law "regardless of the lenders' policies or practices with respect to use of that information." Id. "Evidence of general lending standards in the mortgage industry, however, is admissible to disprove materiality." Id.

The Seventh Circuit Court of Appeals has cautioned against extending the mail and wire fraud statutes to a person's "lack of candor about the negotiating positions of parties to a business deal." United States v. Weimert, 819 F.3d 351, 354 (7th Cir. 2016).

(9/10/19)

2019 amendments to the Eighth Circuit civil instructions

The Eighth Circuit has posted 2019 revisions to their Manual of Model Civil Jury Instructions. The prior version is archived here.
Chapters 5 (Title VII), 6 (Age Discrimination), and 15 (FELA) have been completely rewritten. Rather than discuss those changes individually, I have linked a redline/strikeout copy showing the changes. Other revisions are described below.
A sentence has been added at the beginning of the second paragraph of Instruction 1.02 ("EXPLANATORY: RECESS AT END OF VOIR DIRE"): "You must decide this case only from the evidence received by the court here in the courtroom and the instructions on the law that I give you."
New Instructions 2.15 ("EXPLANATORY: LIFE EXPECTANCY EVIDENCE") and 3.08 ("EXPLANATORY: EXPERT OPINION").
Instructions 7.20 ("DEFINITION: 'SUBSTANTIALLY EQUAL'"), 7.40 ("ELEMENTS OF CLAIM"), 7.60 ("ELEMENTS OF DEFENSES"), and 7.70 ("DAMAGES: ACTUAL") have some new supporting case citations in the Comments, but no changes to the text except as noted below:
  • The Comment to Instruction 7.60 ("ELEMENTS OF DEFENSES") now notes that "A 'bona fide' seniority system has been defined as 'one that was created for legitimate purposes, rather than for the purpose of discrimination,'" citing Boersig v. Union Elec. Co., 219 F.3d 816, 821 (8th Cir. 2000).
  • The case note for "Clark v. Eagle Food Ctrs., Inc., No. 95-3459, 105 F.3d 662, 1997 WL 6145 at *2 (8th Cir. Jan. 9, 1997) (Equal Pay Act provides two-year limitations period from filing of complaint or three-year limitations period if willful violation proven), has been removed from the Comment to Instruction 7.70 ("DAMAGES: ACTUAL").

The Overview to Chapter 10 ("EMPLOYMENT—RETALIATION (ANTI-DISCRIMINATION STATUTES)") has this modification at the beginning of the second paragraph: "Although the Americans with Disabilities Act (ADA) prohibits retaliation (42 U.S.C. § 12203), some courts have held that there is no statutory basis for jury trial, or award of compensatory or punitive damages, in ADA retaliation claims."
A note at the beginning of Chapter 14(FMLA) advises that the Chapter "is currently being re-edited to be completed in the near future."
The Comment to Instruction 19.40 ("ODOMETER FRAUD-ELEMENTS OF CLAIM") adds a short case note to Bedsworth v. G & J Automotive, Inc., 650 F. Supp. 763, 765-66 (E.D. Mo. 1996).
The Comment to Instruction 19.70 ("DAMAGES") now notes Farmers Co-op Co. v. Senske & Son Transfer Co., 572 F.3d 492, 498 (8th Cir. 2009) (district court did not err in allowing plaintiff to recover both the price difference attributable to the fraud and the repair costs that the jury found were proximately caused by Senske's misconduct).

(9/6/19)

July 2019 amendments to the Third Circuit civil instructions (Chapter 4)

The Third Circuit has posted extensive amendments to its Model Civil Jury Instructions. The following provisions were revised:
  • 4.1 ("Section 1983 Introductory Instruction")
  • 4.4 ("Section 1983—Action under Color of State Law")
  • 4.6.1 ("Section 1983—Liability in Connection with the Actions of Another—Supervisory Officials")
  • 4.6.2 ("Section 1983—Liability in Connection with the Actions of Another—Failure to Intervene")
  • 4.6.3 ("Section 1983—Liability in Connection with the Actions of Another—Municipalities—General Instruction")
  • 4.6.6 ("Section 1983—Liability in Connection with the Actions of Another—Municipalities—Custom")
  • 4.6.7 ("Section 1983—Liability in Connection with the Actions of Another— Municipalities—Liability Through Inadequate Training or Supervision")
  • 4.7.2 ("Section 1983 Affirmative Defenses—Qualified Immunity")
  • 4.9 ("Section 1983—Excessive Force (Including Some Types of Deadly Force)—Stop, Arrest, or other "Seizure"")
  • 4.10 ("Section 1983—Excessive Force—Convicted Prisoner")
  • 4.11.1 ("Section 1983—Conditions of Confinement—Convicted Prisoner—Denial of Adequate Medical Care")
  • 4.12 ("Section 1983—Unlawful Seizure")
  • 4.12.1 ("Section 1983—Unlawful Seizure—Terry Stop and Frisk")
  • 4.12.2 ("Section 1983—Unlawful Seizure—Arrest—Probable Cause")
  • 4.13 ("Section 1983—Malicious Prosecution")
  • 4.14 ("Section 1983—State-created Danger")
  • 4.15 ("Section 1983—High-Speed Chase")

  • 5.0 ("Title VII Introductory Instruction")
  • 5.1.2 ("Elements of a Title VII Claim—Disparate Treatment — Pretext")
  • 5.1.5 ("Elements of a Title VII Claim—Harassment—Hostile Work Environment—No Tangible Employment Action")
  • 5.1.7 ("Elements of a Title VII Claim—Retaliation")
  • 5.2.1 ("Title VII Definitions—Hostile or Abusive Work Environment")

  • 7.4 ("Employment Discrimination—Retaliation—First Amendment")

  • 8.0 ("ADEA Introductory Instruction")
  • 8.1.1 ("Disparate Treatment")
  • 8.1.4 ("Disparate Impact")

  • 9.0 ("ADA Employment Claims—Introductory Instruction")
  • 9.1.3 ("Reasonable Accommodation")
  • 9.2.1 ("Disability")
  • 9.2.2 ("Qualified Individual")
  • 9.3.1 ("Direct Threat")

  • 10.0 ("FMLA Introductory Instruction")
  • 10.1.4 ("Retaliation for Opposing Actions in Violation of FMLA")

The prior edition is archived here. There is a lot of ground to cover, so I am going to break up the changes into several separate posts.
Instruction 4.1 ("Section 1983 Introductory Instruction") now has an Comment that concludes that the "instructions generally do not focus on procedural matters that would not affect how the jury is instructed," citing exhaustion under the PLRA as an example.
The Comment to Instruction 4.4 ("Section 1983—Action under Color of State Law") now notes Manhattan Cmty. Access Corp. v. Halleck, 139 S.Ct. 1921, 1934 (2019) (holding that the operator of public access channels on a cable television system was not a state actor, while noting that the result might be different if a local government itself operated public access channels on a local cable system or obtained a property interest in the public access channels).
The Comment to Instruction 4.6.1 ("Section 1983—Liability in Connection with the Actions of Another—Supervisory Officials") now notes E. D. v. Sharkey, 928 F.3d 299, 309 (3d Cir. 2019) (holding that "there is enough evidence to support an inference that the Defendants knew of the risk facing [an immigration detainee], and that their failure to take additional steps to protect her—acting in their capacity as either a co-worker or supervisor—could be viewed by a factfinder as the sort of deliberate indifference to a detainee's safety that the Constitution forbids").
The Comment to Instruction 4.6.2 ("Section 1983—Liability in Connection with the Actions of Another—Failure to Intervene") now notes Ricks v. Shover, 891 F.3d 468, 479 (3d Cir. 2018) (holding that a failure to intervene claim was properly dismissed because the "encounter was so brief" that the officer "simply would have had no opportunity to instruct" the other officer to stop), and E. D. v. Sharkey, 928 F.3d 299, 309 (3d Cir. 2019) (holding that "there is enough evidence to support an inference that the Defendants knew of the risk facing [an immigration detainee], and that their failure to take additional steps to protect her—acting in their capacity as either a co-worker or supervisor—could be viewed by a factfinder as the sort of deliberate indifference to a detainee's safety that the Constitution forbids") (internal quotation marks omitted).
Instruction 4.6.3 ("Section 1983—Liability in Connection with the Actions of Another—Municipalities—General Instruction") is now footnoted with a reference to Forrest v. Parry, No. 16-4351, 2019 WL 2998601 (3d Cir. July 10, 2019), which was decided after the last meeting of the Committee, and consequently not evaluated as part of this set of amendments. The Comment to the Instruction now notes Lozman v. City of Riviera Beach, Fla., 138 S.Ct. 1945 (2018) (holding that a plaintiff suing a municipality for arresting him in retaliation for his exercise of First Amendment rights, where municipal liability was predicated on a policy adopted by the municipal legislators, need not show that the arrest was without probable cause, while reserving the question whether probable cause would defeat a First Amendment retaliation claim against an individual officer).
The Comment to Instruction 4.6.6 ("Section 1983—Liability in Connection with the Actions of Another—Municipalities—Custom") now notes Estate of Roman v. Newark, 914 F.3d 789 (3d Cir. 2019) (while the plaintiff must demonstrate that the city had knowledge of similar unlawful conduct in the past, he does not need to identify a responsible decisionmaker in his pleadings; a complaint alleging a custom of unconstitutional arrests was sufficient, where violations were widespread, and the Police Department was aware of them but rarely acted on citizen complaints; failure to train, supervise, and discipline claims were also adequately pled).
Instruction 4.6.7 ("Section 1983—Liability in Connection with the Actions of Another— Municipalities—Liability Through Inadequate Training or Supervision") also notes the potential impact of Forrest v. Parry. The Comment cites Estate of Roman, id., re a three-part test for deliberate indifference.
The Comment to Instruction 4.7.2 ("Section 1983 Affirmative Defenses—Qualified Immunity") now cites:
  • E.D. v. Sharkey re rejecting qualified immunity, along with Russell v. Richardson, 905 F.3d 239, 252 (3d Cir. 2018) (finding an "obvious case" where marshal used deadly force against a minor as he exited his bedroom wearing only underwear, and there was no indication the minor "was then engaged in any misconduct beyond disobeying his mother"); Kane v. Barger, 902 F.3d 185 (3d Cir. 2018) (relying on some analogous cases in rejecting qualified immunity for a police officer who touched the victim of a sexual assault and photographed her intimate areas with his personal cell phone for personal gratification rather than investigate ends, but also stating, "given the egregiousness of Barger's violation of Kane's personal security and bodily integrity, the right here is so 'obvious' that it could be deemed clearly established even without materially similar cases").
  • Kisela v. Hughes, 138 S.Ct. 1148 (2018) (noting that even if controlling circuit precedent could constitute clearly established law, the most analogous precedent favored the officer), and Escondido v. Emmons, 139 S.Ct. 500, 502, 504 (2019) (holding that the formulation of the clearly established right by the court of appeals—the "right to be free of excessive force"—"was far too general").
  • Baloga v. Pittston Area Sch. Dist., 927 F.3d 742, 763 (3d Cir. 2019) (concluding, based on a robust consensus in the courts of appeals, that the "right not to face retaliation for [one's] leadership role in a public union was clearly established at the relevant time"); United States v. Baroni, 909 F.3d 550, 588 (3d Cir. 2018) (applying qualified immunity precedents in a case arising under 18 U.S.C. §§ 241 and 242, and holding that "although four circuits (including our own) have found some form of a constitutional right to intrastate travel, there is hardly a 'robust consensus' that the right exists, let alone clarity as to its contours," and therefore, even though a prior circuit decision "is both clear and binding in our jurisdiction," that decision did not provide "fair warning" that the "conduct was illegal, especially in view of the state of the law in our sister circuits").
  • Sauers v. Borough of Nesquehoning, 905 F.3d 711, 715, 723 (3d Cir. Oct. 2, 2018) (acknowledging circuit split, while stating, "We hope ... to establish the law clearly now," and "our opinion today should resolve any ambiguity .... within this Circuit."); Bryan v. United States, 913 F.3d 356, 363 (3d Cir. 2019) ("For purposes of qualified immunity, a legal principle does not become 'clearly established' the day we announce a decision, or even one or two days later.").
  • Bland v. City of Newark, 900 F.3d 77 (3d Cir. 2018) (upholding qualified immunity for officers who shot driver of car after it crashed and was entangled in scaffolding because Bland threatened to kill the officers, the officers had reason to believe Bland was armed, and the officers had seen Bland extricate the car he was driving from an earlier crash and continue to flee).

The Comment to Instruction 4.9 ("Section 1983—Excessive Force (Including Some Types of Deadly Force)—Stop, Arrest, or other "Seizure"") now notes the requirement of identifying the actor from Jutrowski v. Twp. of Riverdale, 904 F.3d 280 (3d Cir. 2018), but notes that "there may be a viable claim for an after-the-fact conspiracy to deny the plaintiff his constitutional right of access to the courts."
The Comment to Instruction 4.10 ("Section 1983—Excessive Force—Convicted Prisoner") has a new footnote:

Drawing on the framework for excessive force claims set forth in Hudson v. McMillan, 503 U.S. 1 (1992), the court of appeals has held that sexual abuse of prisoners can violate the Constitution. Ricks v. Shover, 891 F.3d 468 (3d Cir. 2018). In these circumstances, the subjective prong depends on whether the official had a legitimate penological purpose or acted maliciously and sadistically for the very purpose of causing harm. The objective prong does not insist on "zero tolerance for all minor sexualized touching in prison," Ricks, 891 F.3d at 477, but objectively serious sexual contact does include "sexualized fondling, coerced sexual activity, combinations of ongoing harassment and abuse, and exchanges of sexual activity for special treatment or to avoid discipline." Id. at 478. See also E. D. v. Sharkey, 928 F.3d 299, 306-07 (3d Cir. 2019) (holding that "immigration detainees are entitled to the same due process protections" as pretrial detainees and have the "right to not be sexually assaulted by a state employee while in confinement") (internal quotation marks and citations omitted).

Footnote 179 of the Comment to Instruction 4.11.1 ("Section 1983—Conditions of Confinement—Convicted Prisoner—Denial of Adequate Medical Care") now cites E. D. v. Sharkey.
The Comment to Instruction 4.12 ("Section 1983—Unlawful Seizure") now cites United States v. Bey, 911 F.3d 139, 144 (3d Cir. 2018) (holding that a seizure occurred at the moment the defendant "submitted to police authority by raising his hands and turning to face the officers who had drawn their guns"); United States v. Hester, 910 F.3d 78, 87 (3d Cir. 2018) (holding that the defendant submitted to authority when he "waited in the passenger seat when two police cars boxed in [the] car along the curb and four officers approached the car on foot, and he continued to wait as one of the officers questioned [the driver] and ordered her out of the car. Unlike in Smith, by the time Hester said he could drive, stood up, and tried to run, Hester had long since submitted to authority."); United States v. De Castro, 905 F.3d 676 (3d Cir. 2018) (holding that a police officer's request that De Castro remove his hands from his pockets did not constitute a seizure because the request was made once, in a polite conversational tone, and no threats were made or weapons drawn); and Haberle v. Troxell, 885 F.3d 170 (3d Cir. 2018) (holding that an officer who merely knocked on the door of an apartment and announced his presence did not seize the person in the apartment—even if the action was unwise, crude, and had tragic consequences).
The Comment to Instruction 4.12.1 ("Section 1983—Unlawful Seizure—Terry Stop and Frisk") now cites United States v. McCants, 920 F.3d 169, 177 (3d Cir. 2019) (holding that police officers had reasonable suspicion where anonymous "caller used the 911 system to report an eyewitness account of domestic violence and provided the officers with a detailed description of the suspect and location, both of which were quickly confirmed by the police"); United States v. Foster, 891 F.3d 93, 105 (3d Cir. 2018) (finding reasonable suspicion even though the only description that the officer had of the suspect was that he was a black male, because the "geographic and temporal proximity of [the defendant] to the stolen car and the lack of any other suspect matching the general description of the suspect, along with [the officer's] long experience and familiarity with the area," which included his knowledge "that it was rare to see anybody other than two white special needs adults walking along the stretch of road where [the defendant] was stopped"); United States v. Green, 897 F.3d 173, 183-85 (3d Cir. 2018) (emphasizing that the totality of the circumstances included a prior stop (and consensual search that found no contraband) of the same driver in the same car by the same officer the previous day); United States v. Hester, 910 F.3d 78, 87–88 (3d Cir. 2018) (holding that police officers had reasonable suspicion where they "observed a vehicle illegally idling near a crosswalk, in front of a store with a known history of narcotics-related activity, close to midnight, in a high-crime area of Newark"); and United States v. Bey, 911 F.3d 139 (3d Cir. 2018) (holding that police officers had reasonable suspicion when they approached a person of the same race and gender as the fleeing suspect who was "wearing clothing similar to that worn by the fleeing suspect and ... where police expected to find that suspect").
The Comment to Instruction 4.12.2 ("Section 1983—Unlawful Seizure—Arrest—Probable Cause") now cites United States v. Foster, 891 F.3d 93, 106-07 (3d Cir. 2018) (holding that the scope of a permissible Terry stop was not exceeded even though the suspect was put in handcuffs and transported a short distance for identification); Lozman v. City of Riviera Beach, Fla., 138 S.Ct. 1945, 1954-55 (2018) (holding that because the plaintiff sued the city itself—based on the allegation that the city (through its legislators) formed a premeditated plan to intimidate him in retaliation for his speech and those same high officers ordered his arrest—probable cause did not defeat the claim, but not deciding whether probable cause would defeat a claim against an arresting officer who was the one alleged to have engaged in the retaliation); and Nieves v. Bartlett, 139 S.Ct. 1715, 1727 (2019) (holding that "probable cause should generally defeat a retaliatory arrest claim," but that "the no-probable-cause requirement should not apply when a plaintiff presents objective evidence that he was arrested when otherwise similarly situated individuals not engaged in the same sort of protected speech had not been").
The Comment to Instruction 4.13 ("Section 1983—Malicious Prosecution") now cites Hilfirty v. Cox, 902 F.3d 344, 356 (3d Cir. 2018) (holding that to determine whether a nolle prosequi order indicates innocence requires consideration of the underlying facts and particular circumstances and that where prosecutor anticipated that it would not be possible to prove the case beyond a reasonable doubt, the order indicated innocence and constituted a favorable termination).
Instruction 4.14 ("Section 1983—State-created Danger") added the phrase "created a danger to plaintiff" to the fourth element, and replaced two refences to "gross negligence or arbitrariness that shocks the conscience" with "conscious disregard of a great risk of serious harm." This was occasioned by note 6 of Sauers v. Borough of Nesquehoning, 905 F.3d 711 (3d Cir. Oct. 2, 2018), and by Haberle v. Troxell, 885 F.3d 170 (3d Cir. 2018). The Comment has accordingly been substantially revised.
The Comment to Instruction 4.15 ("Section 1983—High-Speed Chase") now cites Sauers (the intent-to-harm standard applies when officers are responding to emergencies or making split-second decisions to pursue fleeing suspects—but not when there is no compelling justification for an officer to engage in high-speed pursuit and the officer has time to consider whether to engage in such inherently risky behavior).
Next up ... Chapter 5.

July 2019 amendments to the Third Circuit civil instructions (Chapter 5)

We are going through the July 2019 amendments one post at a time. The changes to Chapter 4 are described above. The changes to Chapter 5 ("Employment Discrimination Claims Under Title VII") are descibed below.
The Comment to Instruction 5.0 ("Title VII Introductory Instruction") has a new footnote 3 describing Title VII's administrative-exhaustion requirement. The Comment concludes with a brief note about pending Supreme Court cases regarding whether Title VII bars discrimination against transgender people based on transgender status or sex stereotyping.
The Comment to Instruction 5.1.2 ("Elements of a Title VII Claim—Disparate Treatment — Pretext") now cites In In re Tribune Media Co., 902 F.3d 384 (3d Cir. 2018), where "the Court of Appeals upheld the lower courts' rejection of the claimant's Title VII race-discrimination wrongful-termination claim because the employer 'provided a legitimate, non-discriminatory reason for his discharge' and because this stated 'rationale was not pretextual because [the claimant] and [his allegedly-harassing co-worker] were both fired for engaging in the same conduct [and the claimant] gives us no examples of similarly situated individuals who were disciplined more leniently for the same type of conduct.'"
The Comment to Instruction 5.1.5 ("Elements of a Title VII Claim—Harassment—Hostile Work Environment—No Tangible Employment Action") now cites Minarsky v. Susquehanna Cty., 895 F.3d 303, 312 (3d Cir. 2018) (finding a jury question that precluded summary judgment on the first element of the Faragher-Ellerth defense where—though the County had provided plaintiff with its anti-harassment policy, had twice reprimanded her supervisor for conduct toward others, and ultimately fired the supervisor—there was evidence that "County officials were faced with indicators that [the supervisor's] behavior formed a pattern of conduct, as opposed to mere stray incidents, yet they seemingly turned a blind eye toward [his] harassment"); and In re Tribune Media Co., 902 F.3d 384 (3d Cir. 2018) (insufficient evidence "that the station had actual or constructive knowledge of" racial animus on the part of the claimant's co-worker at the time of the altercation between the two men. See id. at 400-01 (reasoning that statements by both supervisory and non-supervisory employees indicated the co-worker "had a 'problem'" but did not specifically point to "racial animosity"; a 1993 incident "involved disputed accusations of racial bias [by the co-worker] and occurred 15 years before" the events in suit; and the co-worker's self-declared nickname, "the Nazi," may not have been known to management). Even if the employer learned of racial animus on the co-worker's part when investigating the altercation, the Court of Appeals held, the employer took "prompt and appropriate remedial action" by firing the co-worker.).
The Comment to Instruction 5.1.7 ("Elements of a Title VII Claim—Retaliation")
  • cites Komis v. Sec'y of United States Dep't of Labor, 918 F.3d 289 (3d Cir. 2019), regarding the proper standard for proof of a retaliatory hostile work environment.
  • Corrected its desription of the holding in Fogleman v. Mercy Hospital, Inc., 283 F.3d 561, 562 (3d Cir. 2002).
  • added a section on Federal employees' retaliation claims

The Comment to Instruction 5.2.1 ("Title VII Definitions—Hostile or Abusive Work Environment") now cites Doe by & through Doe v. Boyertown Area School District, 897 F.3d 518, 521, 534-35 (3d Cir. 2018) (finding Title VII precedents persuasive in applying Title IX of the Education Amendments of 1972 and holding that school district's policy "allowing transgender students to use bathrooms and locker rooms that are consistent with the students' gender identities" did not create a hostile environment for cisgender students).

July 2019 amendments to the Third Circuit civil instructions (Chapters 7-10)

We are going through the July 2019 amendments one post at a time. The changes to Chapter 4 and Chapter 5 are described above. There were no changes to Chapter 6. Changes to Chapters 7-10 are described below.
The Comment to Instruction 7.4 ("Employment Discrimination—Retaliation—First Amendment") now cites Fulton v. City of Philadelphia, 922 F.3d 140, 162 (3d Cir. 2019) (suggesting that a litigant who is challenging a regulation of its conduct cannot transform that challenge into a retaliation claim simply because some speech is involved in the conduct or because it verbally acknowledges that it engages in that conduct). Footnote 35 of that Comment now notes that the public concern and private-citizen requirements are "no obstacle" if an association claim is based on union membership, and that if the speech happened after the plaintiff's public employment ceased, the government employer does not have a protectable interest in controlling the speech.
The Comment to Instruction 8.0 ("ADEA Introductory Instruction") adds a subheading for the "Ministerial Exception" (no change to the underlying text). There is a new subsection titled "Scope of the Chapter" noting that it "generally does not focus on other procedural matters." A footnote about administrative exhaustion provides an example of matters not within the scope of the chapter.
The Comment to Instruction 8.1.1 ("Disparate Treatment") now cites Bryan v. Gov't of Virgin Islands, 916 F.3d 242, 247, 249 (3d Cir. 2019) (holding that a territorial law "[r]equiring that long-tenured employees who declined to retire contribute 3% more of their salaries to the pension system each year ... did not discriminate based on age" because it was motivated by financial considerations and the criterion it employed – thirty years of service—was not "a direct proxy [that] could be masquerading as a factor other than age").
The Comment to Instruction 8.1.2 ("Harassment—Hostile Work Environment—Tangible Employment Action") substantially rewrites the opening paragraph.
The Comment to Instruction 8.1.4 ("Disparate Impact") now notes that the defendant's burden with respect to the RFOA defense is "relatively light," citing Bryan v. Gov't of Virgin Islands, 916 F.3d 242, 248-49 (3d Cir. 2019).
Instruction 9.0 ("ADA Employment Claims—Introductory Instruction") now clarifies that it is for use in cases not involving the "regarded as" prong of the definition of disability. The Comment now notes that the instruction is derived from 42 U.S.C. §§ 12102, 12111, 12112, and § 12201, and inserts a new paragraph explaining that the chapter refers to the three prongs of the disability definition as actual disability, record of disability, and regarded as disability, noting that reasonable accommodations may not be required in regarded as disability cases. The Comment now closes with a Note to Users urging them to check for changes to regulations.
Instruction 9.1.3 ("Reasonable Accommodation") has been substantially revised. The Comment more specifically identifies the statutes and regulations it is based on.
Instructions 9.2.1 ("Disability") and 9.2.2 ("Qualified Individual") have been substantially revised. The changes to the Instructions and the Comments are too extensive to describe here.
There are some changes to Instruction 9.3.1 ("Direct Threat"), starting with the second element:

Second: This direct threat could not be eliminated, or reduced to an acceptable level, by providing a reasonable accommodation, as I have previously defined that term for you.

A direct threat means a significant risk of substantial harm to the health or safety of the person or other persons that cannot be eliminated by reasonable accommodation. The determination that a direct threat exists must have been based on a specific personal an individualized assessment of [plaintiff's] ability to safely perform the essential functions of the job. This assessment of [plaintiff's] ability must have been based on either a reasonable medical judgment that relied on the most current medical knowledge, or on the best available objective evidence, or both.

In determining whether [plaintiff] would have created a significant risk of substantial harm, you should consider the following factors:

1) How long any risk would have lasted;

2) The nature of the potential harm and how severe the harm would be if it occurred; 3) The likelihood the harm would have occurred; and

4) Whether the potential harm would be likely was imminent, that is, whether it was about to recur happen soon.

The Comment has been substantially revised.
The Comment to Instruction 10.0 ("FMLA Introductory Instruction") now notes the 2009 amendments to the FMLA.
The Comment to Instruction 10.1.4 ("Retaliation for Opposing Actions in Violation of FMLA") now cites Gillispie v. RegionalCare Hosp. Partners Inc, 892 F.3d 585 (3d Cir. 2018), which interpreted the whistleblower-protection provision in the Emergency Medical Treatment and Active Labor Act ("EMTALA"), might shed some indirect light on the question whether protected conduct under the FMLA's anti-retaliation provision includes communications made only to the employer and not to an outside authority. In Gillispie, the court ruled that the EMTALA provision does extend to purely internal reports, both because the EMTALA provision contains no reference to "official" reports and because a contrary ruling would incentivize employers to fire employees before they had an opportunity to take their report to an outside authority.

(9/3/19)

 
 
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