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April 2019
What is the potential impact of Rehaif?
Seventh Circuit "2018" criminal revisions
Ninth Circuit adds three case notes to its civil instructions
Third Circuit revises its ADA instructions
Extensive Ninth Circuit criminal revisions include a new position on eyewitness identification, and adds Brady/Giglio and entrapment by estoppel instructions
March 2019
First Circuit unofficial instructions
2019 updates to state jury instructions
Eleventh Circuit clarifies mens rea issues, and adds a new health care fraud instruction
Eleventh Circuit revises its adverse employment claims instructions
Ninth Circuit criminal changes include clerical changes to attempt instructions, other minor changes
Some notes about the federal jury instruction index
Ninth Circuit civil instructions revised to add two new ADA instructions, and update civil rights, copyright, and securities instructions
Sixth Circuit criminal instruction revisions address inferences, Old Chief, drug conspiracies

jury instruction blog

April 2019   

Welcome SCOTUSblog readers

The Rehaif article below was linked in the SCOTUSblog "Roundup" this morning. This site has not been "officially launched"; there is still a bit of cleanup of the links in the Federal Jury Instruction Index that needs to be done. But the site is 99% ready if you want to take a look around.

The fundamental idea of the site is that no serious legal research is complete without looking at the pertinent pattern jury instructions and annotations, which are extraordinarily authoritative. So this site has been put together to make that essential part of your research easy to do. This is the only site on the Internet with a complete and up-to-date collection of instructions that can be browsed or full text searched.

An additional feature of the site is a collection of "trialdex tools," flowcharts and Q&As intended to simplify complex legal issues. The retroactive effect of Supreme Court decisions tool, for example, clarifies eligibility for post-conviction relief under the "Teague rule."

If you would like to know more about the site, click on the FAQ and About links.

(4/22/2019)

What is the potential impact of Rehaif?

Title 18 U.S.C. § 922(g) makes it unlawful for "prohibited persons" to possess firearms. The prohibited status list covers a number of classes of persons, including, for example, drug addicts, § 922(g)(3), persons adjudicated as "mental defectives," § 922(g)(4), and aliens unlawfully in the United States, § 922(g)(5), but the big deal cases are the ones brought against felons under § 922(g)(1) (often called "ex-con in possession" cases), because they may trigger lengthy mandatory sentences under the Armed Career Criminal Act.

Crimes almost always require some sort of culpable mental state (mens rea), but it is not always clear what the mental state is, or which elements the mental state applies to. Section 922(g) crimes have three elements; status, possession, and jurisdiction. There is a separate statute, § 924(a)(2), that tells us that the mens rea for § 922(g) crimes is "knowingly," but neither statute tells us which element or elements the mens rea applies to.

On April 23 the Supreme Court will hear arguments about this issue in Rehaif v. United States. Rehaif was convicted under § 922(g)(5)(A), possession of a firearm while his presence in the United States was unlawful. He is arguing that the government must prove that the statutory mens rea (knowingly) applies to both the possession (of the firearm) and status (that he knew that his status in the country was illegal) elements of the crime. The government asserts that the knowledge element (mens rea) only applies to the act of possession of the firearm.

(It is well established that the jurisdictional element—interstate or foreign commerce—does not require mens rea, and that is not an issue in this case.)

The issue is subtly different from an "ignorance of the law" defense, which does not apply in cases where the required mens rea is "knowingly" (as opposed to the higher mens rea of "willfully").

Prosecutions under § 922(g)(5) are rare; the best evidence of this is that no pattern instructions exist for the crime (there is a passing reference to it in a Ninth Circuit Comment that does not address mens rea). But it is almost certain that a government loss in this case will directly affect the much more common § 922(g)(1) prosecutions.

A quick survey of § 922(g)(1) cases is easy to do on trialdex; the instructions are listed here. Every court currently applies the mens rea to the possession element; no courts apply mens rea to the status element. There is some commentary suggesting that the statutes may require proof that the defendant knew that the object was a firearm and/or the firearm type (but not operability). Also, persons charged as aiders or abettors must know of the defendant's status. But none of the circuits today require that the government prove that defendants knew that they were felons.

It is also worth noting that a person's felony status is impacted by 18 U.S.C. § 921(a)(20), which states that convictions do not count if they have been "expunged, or set aside or for which a person has been pardoned or has had civil rights restored." If the government loses Rehaif, some defendants will no doubt argue that mens rea must be shown on this issue as well; a defendant's belief that his or her civil rights had been restored would be a defense.

There are, however, practical concerns that would make a mens rea "defense" unattractive to many criminal defendants. Defendants have had, at least since Old Chief v. United States, 519 U.S. 172 (1997), the option of stipulating to the prior conviction. In those cases the jury is told that the defendant is a convicted felon, but, to minimize prejudice, is not told what the felony was. So even if the Supreme Court rules that the government must prove the defendant's knowledge of status, many if not most defendants will want to stipulate to the knowledge element just as they have been stipulating to felony status. Without the stipulation, the government would be free to prove knowledge with highly prejudicial proof of the nature and circumstances of the prior crime.

So, even if the government loses, it can take some solace in the thought that a Rehaif defense won't help defendants with terrible criminal records.

Are there other crimes with similar issues? A good place to start looking: Mens Rea Reform: A Brief Overview (Congressional Research Service Apr. 14,2016).

(4/22/2019)

Seventh Circuit "2018" criminal revisions

This week the Seventh Circuit posted a new approved copy of its criminal instructions. These revised instructions have been up for review for months, and are titled as "(2012 Ed.) (plus 2015-2017 and 2018 changes)." So, it is basically the 2018 edition, and will be so described on the trialdex jury instruction page. Changes include:

  • Instruction 6.05 is now retitled "6.05 ENTRAPMENT INSTRUCTION—DEFINITIONS OF TERMS."
  • A new Instruction 6.09(B) ("DIMINISHED CAPACITY").
  • A new definition, "Official Act," has been added to the 18 U.S.C. § 201 definitions. It reflects the Supreme Court's treatment of this issue in McDonnell v. United States, 136 S. Ct. 2355 (2016), which is discussed at some length in the Committee Comment.
  • The elements list in Instruction 18 U.S.C. § 666(a)(1)(B) ("BRIBERY CONCERNING FEDERALLY FUNDED PROGRAM—ELEMENTS") has been revised to change "anything" to "something." That is:

    1. The defendant [solicited; demanded; accepted; agreed to accept] anything something of value from another person; and ...
    2. This business [transaction; series of transactions] involved any thing something of a value of $5,000 or more; .....
  • The Instruction and Committee Comment to 18 U.S.C. § 666(a)(1)(B) ("ACCEPTING A BRIBE") has been thoroughly rewritten, once again because of McDonnell.
  • A suggestion in the Committee Comment to 18 U.S.C. § 1028(d)(7) ("DEFINITION OF 'MEANS OF IDENTIFICATION'") that "a person's name, by itself, might not constitute a 'means of identification of another'" has been deleted. The prior passage had been supported by a 2008 Fourth Circuit case, but the issue appears to have been cleared up by United States v. Thomas, 763 F.3d 689, 692-93 (7th Cir. 2014).
  • Instruction 18 U.S.C. § 1028A(A)(1) ("AGGRAVATED IDENTITY THEFT—ELEMENTS") has been retitled to refer to the subparagraph, and the Instruction and Committee Comment thoroughly revised, once again because of Thomas.
  • The Committee Comment to 18 U.S.C. § 1030(a)(1) ("OBTAINING INFORMATION FROM COMPUTER INJURIOUS TO THE UNITED STATES—ELEMENTS") now ends "The term 'knowingly' is defined in Pattern Instruction 4.10, which should be given to define the term 'knowingly' in the first element of this instruction."
  • New homicide instructions:
    18 U.S.C. § 1111 FIRST DEGREE MURDER—ELEMENTS
    18 U.S.C. § 1111 DEFINITION OF MALICE AFORETHOUGHT
    18 U.S.C. § 1111 DEFINITION OF PREMEDITATION
    18 U.S.C. § 1111 SECOND DEGREE MURDER—ELEMENTS
    18 U.S.C. §§ 1111, 1112 JURISDICTION
    18 U.S.C. §§ 1111, 1112 CONDUCT CAUSED DEATH
    18 U.S.C. § 1112 VOLUNTARY MANSLAUGHTER—ELEMENTS
    18 U.S.C. § 1112 DEFINITION OF HEAT OF PASSION
    18 U.S.C. § 1112 DEFINITION OF VOLUNTARY MANSLAUGHTER
    18 U.S.C. § 1112 INVOLUNTARY MANSLAUGHTER—ELEMENTS
    18 U.S.C. § 1112 DEFINITION OF ASSAULT
    18 U.S.C. § 1112 DEFINITION OF DANGEROUS WEAPON
    18 U.S.C. § 1112 DEFINITION OF SERIOUS BODILY INJURY
  • The Committee Comment to Instruction 18 U.S.C. §§ 1341, 1343 & 1346 ("RECEIVING A BRIBE OR KICKBACK") has been extensively revised to note that "the bracketed list of fiduciaries is not necessarily an exhaustive list," and to note McDonnell. It calls attention to a potential conflict between McDonnell and United States v. Hawkins, 777 F.3d 880, 883-84 (7th Cir. 2015).
  • The Committee Comment to Instruction 18 U.S.C. §§ 1341, 1343 & 1346 ("OFFERING A BRIBE OR KICKBACK") notes McDonnell, but not as extensively, referencing the earlier discussions.
  • A Committee Comment has been added to Instruction 18 U.S.C. §§ 1341, 1343 & 1346 ("INTENT TO INFLUENCE") that addresses McDonnell.
  • Instruction 18 U.S.C. § 1344(1) SCHEME TO DEFRAUD—DEFINITION has been retitled, and this paragraph has been added:

    [In considering whether the government has proven a scheme to obtain moneys, funds, credits, assets, securities, or other property from a [bank] [financial institution] by means of false pretenses, representations or promises, the government must prove at least one of the [false pretenses, representations, promises, or] acts charged in the portion of the indictment describing the scheme. However, the government is not required to prove all of them.]

  • The interstate commerce discussion in Instruction 18 U.S.C. § 1347 ("HEALTH CARE BENEFIT PROGRAM/ INTERSTATE COMMERCE—DEFINITION") now states that the "government need only prove that the health care program itself either engaged in interstate commerce or that its activity affected interstate commerce to any degree." The change is briefly noted in the Committee Comment, with an admonition to consider adapting the parallel RICO definition.
  • Instructions 18 U.S.C. § 1591 ("SEX TRAFFICKING OF A MINOR—ELEMENTS") and 18 U.S.C. § 1591 ("BENEFITTING FROM SEX TRAFFICKING OF A MINOR—ELEMENTS") were previously blank ("under review"). We now have complete instructions and Committee Comments, and a new Instruction 18 U.S.C. § 1591(A)(1) ("SEX TRAFFICKING OF A MINOR OR BY FORCE, FRAUD, OR COERCION").
  • The Committee Comment to Instruction 18 U.S.C. § 1951 ("COLOR OF OFFICIAL RIGHT—DEFINITION") has been revised to address McDonnell.
  • New Instruction 18 U.S.C. § 1959(A) ("VIOLENT CRIMES IN AID OF RACKETEERING ACTIVITY").
  • The Instruction and Committee Comment to 18 U.S.C. § 2250(a) FAILURE TO REGISTER/UPDATE AS SEX OFFENDER—ELEMENTS now properly treat the temporal issue identified in Nichols v. United States, 136 S. Ct. 1113 (2016).
  • The § 2252A (child pornography) instructions have been rewritten. The changes include additional definitions, discussions of United States v. X-Citement Video, 513 U.S. 64 (1994), and specifying that the interstate commerce element includes computer transmissions. The Committee Comments to Instructions 18 U.S.C. § 2252A(a)(5)(A) and (B) now provide that:

    Pursuant to 18 U.S.C. § 2252A(b)(2), if the offense involved any image of child pornography involving a prepubescent minor or a minor who had not attained 12 years of age, the defendant faces a maximum sentence of 20 years-imprisonment, rather than 10 years-imprisonment. If this is alleged in a count charged under 18 U.S.C. § 2252A(a)(5)(A), the parties should modify the elements instruction accordingly or provide the jury with a special verdict form. See Apprendi v. New Jersey, 530 U.S. 466, 490 (2000).

  • Instruction 18 U.S.C. §2256(2)(A) ("SEXUALLY EXPLICIT CONDUCT—DEFINED") notes that the statute now includes "anus" (per the Amy, Vicky, and Andy Child Pornography Victim Assistance Act of 2018).
  • A couple of case notes have been added to the Committee Comment to instruction 18 U.S.C. § 2422(b) ENTICEMENT OF A MINOR-ELEMENTS, and there is a short note about unanimity regarding some of the elements.
  • A citation to Alleyne v. United States, 133 S. Ct. 2151 (2013), has been removed from the Committee Comment to the DRUG QUANTITY/SPECIAL VERDICT INSTRUCTIONS, along with these passages:

    The second paragraph of this instruction, which includes reference to narcotics involved in a conspiracy of which the defendant was a member, is derived from the Pinkerton instruction, Instruction 5.11. If the jury is asked to consider amounts involved in acts by the defendant's co-conspirators, it must be instructed that the defendant's liability "only extends to those criminal acts that (1) were reasonably foreseeable to the defendant[ ]; and (2) occurred during the time that [he was a] member[ ] of the conspiracy." United States v. Cruse, 805 F.3d 795, 817 (7th Cir. 2015)....

    If evidence of narcotics transactions or dealing not involved in the charged offense is admitted at trial under Federal Rule of Evidence 404(b) or otherwise, the court should consider a limiting instruction that those narcotics cannot be counted in the jury's quantity determination.

    The term "controlled substance" has been changed to "narcotic" in the instruction.
  • In some of the instructions, the word "charge" has been changed to "count." These do not appear to be changes of substance.
(4/18/2019)

mobile version

I put a bit of code at the top of the trialdex front page that switches the user to a "mobile" version of the page for people using small-screen browsers (i.e., cellphones). The code looks like this:

<script type="text/javascript">
<!--
if (screen.width <= 699) {
document.location = "mobile/index.html";
}
//-->
</script>

The characters on a mobile copy of a Web page have to be bigger and farther apart, and much of the content has to be removed, if the page is to be convenient to use on a small device, and my mobile front page does that.

The code worked when I tried accessing the site on a family member's android phone, but did not work not on my windows phone. I did not spend a lot of time on this, and did not design a complete mobile copy of the site. I don't see this site as being one that would be typically used on a cell phone, and have other things to fix on the site with a higher priority. I may revisit this later.

(4/15/2019)

sitemap xml

I understand that one should create a "sitemap.xml" file to encourage Google to regularly recrawl the site. There are a number of sites online that automate this process, and I gave them a spin, but I think it best to create my own, and regularly update it. I began by setting up an account at the Google Search Console.

Mine looks something like this:

<?xml version="1.0" encoding="UTF-8"?>
<urlset xmlns="http://www.sitemaps.org/schemas/sitemap/0.9">
<url>
 <loc>https://www.trialdex.com/</loc><lastmod>2019-04-09</lastmod>
<changefreq>weekly</changefreq></url>
<url>
 <loc>https://www.trialdex.com/index.html</loc><lastmod>2019-04-09</lastmod> <changefreq>weekly</changefreq></url>
<url>
 <loc>https://www.trialdex.com/blog.htm</loc><lastmod>2019-04-10</lastmod>
<changefreq>daily</changefreq></url>
.... <urlset>
The first two lines seem to be required for every sitemap.xml, but don't tell you anything about the site. I did not list every page; just the ones I would like Google to crawl regularly. The blog page is the really important one, because it (hopefully) changes a lot. There are some parameters missing that I understand that Google does not care about.

Some background reading about sitemap.xml files here and here.

(4/10/2019)

Ninth Circuit adds three case notes to its civil instructions

The Ninth Circuit added several case notes to its civil instructions in April 2019:

  • The Comment to Instruction 8. ("CIVIL RICO") now includes this paragraph: "As to the element of causation, a plaintiff must prove that the defendant’s unlawful conduct was the proximate cause of the plaintiff’s injury. Harmoni International Spice, Inc. v. Hume, 914 F.3d 648, 651 (9th Cir. 2019)."
  • The Comment to Instruction 9.18 ("PARTICULAR RIGHTS-FOURTH AMENDMENT-UNREASONABLE SEIZURE OF PROPERTY-GENERALLY") now notes Sandoval v. County of Sonoma, 912 F.3d 509, 516 (9th Cir. 2018) (community caretaking exception to warrant requirement does not categorically permit government officials to retain impounded private property).
  • The Comment to Instruction 12.9 ("ADA-RETALIATION") now notes Biel v. St. James School, 911 F.3d 603, 611 (9th Cir. 2018) (rejecting rule under which any school employee who teaches religion would fall within ministerial exception as contrary to constitutional and policy considerations underlying Hosanna Tabor).
(4/9/2019)

Third Circuit revises its ADA instructions

April 2019 revisions to the Third Circuit's ADA instructions include:

  • The discussion of the Rehabilitation Act in Instruction 9.0 has been substantially revised:

    Federal employers, federal contractors, and employers who that receive federal funding are subject to the Rehabilitation Act, which is a precursor of the ADA. 29 U.S.C. § 701 et seq. The substantive standards for a claim under the Rehabilitation Act are in many respects identical to those governing a claim under the ADA. See, e.g., Wishkin v. Potter, 476 F.3d 180, 184 (3d Cir. 2007) (“The Rehabilitation Act expressly makes the standards set forth in the 1990 Americans with Disabilities Act, 42 U.S.C. § 12101 et seq., applicable to federal employers and to employers receiving federal funding.”); Bragdon v. Abbott, 524 U.S. 624, 632 (1998) (determination in interpreting the ADA’s definition of “disability” is the same under the ADA by reference to interpretations of the Rehabilitation Act’s definition of “handicapped individual,” observing that 42 U.S.C. § 12201(a) directs the courts “to construe the ADA and to grant at least as much protection as provided by the regulations implementing the Rehabilitation Act"); Conneen v. MBNA America Bank, N.A., 334 F.3d 318, 330 n.13 (3d Cir. 2003) (noting that a precedent concerning the duty under the Rehabilitation Act cases applyof the employer and employee to engage in an interactive process “applies with equal force to accommodations under the ADA”); Deane v. Pocono Medical Center, 142 F.3d 138, 149 n.13 (3d Cir. 1998) (en banc) (explaining in an ADA employment-discrimination case that “interpretations of the Rehabilitation Act’s ‘reasonable accommodation’ provisions are relevant to our analysis of “reasonable accommodation” is the same under the ADA and vice versa because in 1992, Congress amended the section of the Rehabilitation Act). defining ‘reasonable accommodation’ to incorporate the standards of the ADA” (citing Mengine v. Runyon, 114 F.3d 415, 420 & n.4 (3d Cir. 1997) (in Rehabilitation Act case brought against a federal employer, quoting 29 U.S.C. § 794(d))). These ADA instructions can therefore be applied, and modified if necessary, to a adapted for use in a case involving an employment-discrimination claim brought under the Rehabilitation Act.

  • A new section, "Scope of Chapter," reads "These model instructions address the elements of ADA employment claims and defenses; pertinent definitions; and questions of damages. The commentary is designed to explain the drafting of the model instructions and generally does not focus on other procedural matters." A lengthy footnote explains how administrative exhaustion could be one of these "procedural matters."
  • A new footnote 9 has been added to the Comment to Instruction 9.1.3 ("Elements of an ADA Claim — Reasonable Accommodation") noting "that the same standards govern employment-discrimination claims under the ADA and the Rehabilitation Act," specifically including reasonable accomodation and modification. The Section of the Comment to Instruction 9.1.3 that used to be titled "Reasonable Accommodation Requirement as Applied to 'Regarded as' Disability" is now titled "Reasonable Accommodation Requirement Inapplicable to 'Regarded as' Disability. The Comment explains that this change was required by the ADA Amendments Act of 2008, citing Robinson v. First State Community Action Agency, 2019 WL 1431924, at *3 (3d Cir. Apr. 1, 2019).
  • Accordingly, lines 37-39 of Instruction 9.2.1 ("ADA Definitions-Disability") has been edited as follows:

    [For use when the claim is not one for reasonable accommodation and when there is a jury question on whether plaintiff is “regarded as” having a disability . Note that “regarded as” disability is not a basis for a reasonable-accommodation claim:]

    This change is discussed in the Comment. The Section formerly titled "'Regarded as' Having a Disability" has been retitled "'Regarded as' Having a Disability (for Purposes of Claims other than Reasonable Accommodation)," and the Section formerly titled "Reasonable Accommodation Requirement as Applied to 'Regarded as' Disability" is now titled "Reasonable Accommodation Requirement Inapplicable to 'Regarded as' Disability." The text of that latter Section has been deleted, and replaced with a paragraph explaining that the 2008 change makes the "regarded as" option unavailable for reasonable-accommodation claims.

I have posted a complete redline/strikeout PDF of the affected sections here.

(4/8/2019)

Extensive Ninth Circuit criminal revisions include a new position on eyewitness identifications, and adds Brady/Giglio and entrapment by estoppel instructions

The Ninth Circuit made extensive revisions to its criminal instructions in April 2019. I have posted a redline/strikeout pdf file showing the more complex markups. Here is a summary of the changes:

  • The Comment to Instruction 4.11 now provides:

    It is within the trial court’s sound discretion to instruct a jury both on eyewitness identification and general witness credibility. The need for heightened jury instructions should correlate with the amount of corroborative evidence. See United States v. Masterson, 529 F.2d 30, 32 (9th Cir. 1976).

    This is a noteworthy shift in position. The prior version "recommended against the giving of an eyewitness identification instruction," reasoning that the general witness credibility instruction was "sufficient." The wording of the actual instruction, however, is unchanged.

  • A new Instruction 4.20 ("UNTIMELY DISCLOSURE OF EXCULPATORY OR IMPEACHMENT EVIDENCE") provides:

    A trial court has discretion in shaping the remedies for violations of Brady v. Maryland, 373 U.S. 83 (1963) and Giglio v. United States, 405 U.S. 150 (1972). For example, in United States v. Garrison, 888 F.3d 1057, 1061 (9th Cir. 2018), “the government made grave mistakes in its prosecution of the case by repeatedly failing to timely disclose information to the defense.” Rather than dismiss the case, the district court instructed the jury that “the government's failure to timely comply with its constitutional obligations . . . could lead the jury to find reasonable doubt” as to guilt. The Ninth Circuit held that there was no error. Id. at 1066.

  • Sentences in instruction 5.3 ("Attempt"), and all of the attempt crime instructions (e.g., 8.1, attempted arson), have been revised to read: "To constitute a substantial step, a defendant’s act or actions must unequivocally demonstrate that the crime will take place unless interrupted by independent circumstances."
  • A new Instruction 6.2B ("ENTRAPMENT BY ESTOPPEL DEFENSE") describes a defense where the defendant reasonably relied on the affirmative advice of an authorized federal government official or agent. The Comment notes recent marijuana dispensary cases, and notes its application to statements made by federal firearms dealers. The Comment suggests that the burden of proof would be on the defendant by a preponderance of the evidence.
  • The Comment to Instruction 6.5 ("DURESS, COERCION OR COMPULSION (LEGAL EXCUSE)") now includes a paragraph regarding expert testimony on "battered women's syndrome," noting United States v. Lopez, 913 F.3d 807, 822-23 (9th Cir. 2019).
  • Edits to Instruction 8.0A ("MISPRISION OF FELONY (18 U.S.C. § 4)") clarify that the crime is a failure to notify federal authorities.
  • Phrases about the assault element in Instructions 8.3 and 8.4 have been tightened up; nothing of consequence, it was just poorly worded before.
  • New Instructions 8.7A, ("Assault by Striking or Wounding (18 U.S.C. § 113(a)(4))") and 8.10B ("Assault of Spouse, Intimate Partner, or Dating Partner (18 U.S.C. § 113(a)(7))").
  • References to "abuser" have been replaced by "defendant" in Instruction 8.10A ("ASSAULT BY STRANGULATION OR SUFFOCATION (18 U.S.C. § 113(a)(8))").
  • Instruction 8.12 ("BRIBERY OF PUBLIC OFFICIAL (18 U.S.C. § 201(b)(1))") has been amended to delete "for financial gain" from the definition of "corruptly."
  • The following sentence was added to the Comment to Instruction 8.13 ("RECEIVING BRIBE BY PUBLIC OFFICIAL (18 U.S.C. § 201(b)(2))"): "It is recommended that the instruction specifically describe the thing of value just as described in the indictment to avoid a variance. See Comment to Instruction 8.12 (Bribery of Public Official)." Instruction 8.12 is similarly referenced in Instructions 8.14-8.16.
  • The Comments to Instruction 8.121 ("MAIL FRAUD—SCHEME TO DEFRAUD OR TO OBTAIN MONEY OR PROPERTY BY FALSE PROMISES (18 U.S.C. § 1341)") and 8.124 ("WIRE FRAUD (18 U.S.C. § 1343)") now note the holding in United States v. Holden, 908 F.3d 395 (9th Cir. 2018), that criminalizes participation in the scheme. There is no change of position, just a note of the new supporting authority for a position already taken.
  • "Scheme to defraud" in Instruction 8.125 ("BANK FRAUD—SCHEME TO DEFRAUD BANK (18 U.S.C. § 1344(1))") now "means any deliberate plan of action or course of conduct by which someone intends to deceive or cheat or deprive a financial institution and deprive it of something of value." The Comment explains how this change is required by Shaw v. United States, 137 S. Ct. 462 (2016).
  • Instructions 8.181 to 8.185 ("SEXUAL EXPLOITATION OF CHILD") have been rewritten to emphasize that the defendant must be "directly involved in the actual sexual abuse or exploitation of minors," and in some places clarifies that the commerce or transporation elements are satisfied by any means, including by computer.
  • The Comment to Instruction 8.185 notes the holding in United States v. Chilaca, 909 F.3d 289, 295 (9th Cir. 2018) (simultaneous possession of different materials containing offending images at a single time and place constitutes a single violation), and further clarifies that possession is always a lesser included.
  • The Comment to Instruction 9.1 ("ALIEN—BRINGING OR ATTEMPTING TO BRING TO THE UNITED STATES (OTHER THAN DESIGNATED PLACE) (8 U.S.C. § 1324(a)(1)(A)(i))") now notes that Aiding and abetting the crime may take place entirely on the United States side of the border.
  • The fourth element of Instruction 9.3 ("ALIEN—HARBORING OR ATTEMPTED HARBORING (8 U.S.C. § 1324(a)(1)(A)(iii))") now reads "the defendant [harbored, concealed, or shielded from detection] [attempted to harbor, conceal, or shield from detection] [name of alien] for the purpose of avoiding [his] [her] detection by immigration authorities with intent to violate the law," and adds the definition to "acts with reckless disregard." The reasoning for the change is set out in the Comment. The Comment now notes that “to harbor” means to provide “shelter to.”
  • The text of Instruction 9.4 ("ALIEN—ENCOURAGING ILLEGAL ENTRY (8 U.S.C. § 1324(a)(1)(A)(iv))") has been withdrawn because of a case holding that the statute is constitutionally overbroad.
  • The discussion of the temporal issue in § 1326(b)(1) (government must prove beyond a reasonable doubt that the removal was after the predicate conviction) that appears in the Comment to Instruction 9.6 ("ALIEN—DEPORTED ALIEN REENTERING UNITED STATES WITHOUT CONSENT (8 U.S.C. § 1326(a))") has been substantially rewritten, but no substantial changes in position are readily apparent.
  • The Comment to Instruction 9.7 ("ALIEN—DEPORTED ALIEN REENTERING UNITED STATES WITHOUT CONSENT—ATTEMPT (8 U.S.C. § 1326(a))") adds this language (citations omitted):

    “Official restraint” means restraint by any government official, and thus an alien who enters the United States with the intent to go to jail lacks specific intent to enter the country free from official restraint. “Official restraint” does not make substantial steps toward entry impossible, and thus an alien who was under official restraint so as to preclude a conviction for illegal reentry may still be guilty of attempted reentry.

(4/7/2019)

March 2019   

Some progress with the search boxes

I took some time to work on the search boxes. I posted about them a couple of weeks ago, but I have a problem.

The official, current, Ninth Circuit civil and criminal instructions are invisible to Google. Try searching for a bit of text from a Ninth Circuit instruction; you'll bring up older copies of the instructions that are on other sites, but not the current ones. Interestingly, they are not invisible to Bing or Yahoo.

I tried posting copies of them on this site, with a redirect to the Ninth Circuit site at the top of the page, but that did not work. I assume that the redirect prevented Google from reading them here, so they did not get picked up by the Google search engine.

I'll try again with manual redirects. To make them work I need to plant two links here (9th Cir Civil Instructions) (9th Cir Criminal Instructions), and wait for Google to recrawl the site.

UPDATE: That worked.

(3/30/2019)

First Circuit unofficial instructions

There are no official pattern instructions, civil or criminal, posted on the First Circuit Web site. I believe that they used to post a set of criminal pattern instructions dated 1997, but not any more.

For some years Judge Brock Hornby (D. Maine) updated and posted the 1997 criminal instructions on the Maine District Court Web site, labeled "DISTRICT OF MAINE INTERNET SITE EDITION." He is on senior status now, and Maine Chief District Judge Nancy Torresen has continued to update these instructions.

I am not aware of any official civil instructions, but a set of civil instructions authored by Judge Hornby is on the site as well. These instructions are no longer being updated.

Although not official, I think that these instructions would be of interest to litigators, especially in the First Circuit, so they are linked and indexed on trialdex.

The criminal instructions were last updated on October 24, 2018, to add a new instruction 4.18.157 ("Bankruptcy Fraud, Scheme or Artifice to Defraud, 18 U.S.C. § 157").

(3/29/2019)

2019 updates to state jury instructions

I intend to closely follow changes to federal jury instructions, and to detail each change. Some of those changes are described in blog entries that appear below. Note that the site also offers free jury instruction email alerts that will definitely keep you up-to-date on the federal side.

This is more difficult to do for state instructions, which differ greatly in how they update their instructions. Some sets are quite old, and have not been updated in years. In other cases you have to drill down to find the dates of revisions. I am not sure how reliable I will be in catching every change. We'll see how I do as the site matures.

I did a survey today, and found three states that have made changes in 2019. I have summarized and linked the changes, and in some cases have added links to archived versions of the changed instructions, so that you can see the precise changes.

Illinois updated two sets of civil instructions in January 2019:

They also revised three sets of criminal instructions:

In January 2019 New York deleted its “Certain Former Crimes” and distributed the contents to the folder of the pertinent crime. It also revised a number of its criminal instructions. A description of the changes appears here. The prior versions are archived here.

Vermont regularly updates its criminal instructions, and describes the changes on this page.

Trialdex maintains a pretty complete list (the most comprehensive list on the Internet) of jury instruction sites. Please let me know if I have missed any.

(3/27/2019)

Eleventh Circuit focuses on mens rea issues, and adds a new health care fraud instruction

On January 24, 2019, the Eleventh Circuit approved changes to the following criminal instructions:

  • Mail fraid and wire fraud have similar elements; the only real difference is that mail fraud involves mailing, and wire fraud requires a wire transmission that passes in interstate commerce. Consequently, changes to Instructions O50.1 ("Mail Fraud") and 051 ("Wire Fraud") are the same. A phrase was stricken from the first element of each offense: "(1) the Defendant knowingly devised or participated in a scheme to defraud someone, or obtain money or property, by using false or fraudulent pretenses, representations, or promises."

  • The definition of "scheme to defraud" in those instructions now begins: "includes means any plan or course of action."

  • The definition of "intent to defraud" in O50.1 and O51 has been revised as follows:

    To act with "intent to defraud" means to act knowingly and with the specific intent to deceive use false or cheat someone, usually for personal financial gain fraudulent pretenses, representations, or promises to cause financial loss to someone else or injury. Proving intent to deceive alone, without the intent to cause loss or injury, is not sufficient to prove intent to defraud.

    A new paragraph has been added to the Annotations explaining that the revision was because of United States v. Takhalov, 827 F.3d 1307, 1315 (11th Cir. 2016), altered in part on denial of rehearing by United States v. Takhalov, 838 F.3d 1168 (11th Cir. 2016) ("A jury cannot convict a defendant of wire fraud, then, based on misrepresentations amounting only to a deceit." (internal quotation marks and citation omitted)).
  • The definition of "intent to defraud" in Instructions O50.2 ("Mail Fraud: Depriving Another of an Intangible Right of Honest Services 18 U.S.C. §§ [1341] and 1346"), O50.3 ("Mail Fraud: Depriving Another of an Intangible Right of Honest Services 18 U.S.C. §§ [1341] and 1346, Private Employee"), and O50.4 ("Mail Fraud: Depriving Another of an Intangible Right of Honest Services 18 U.S.C. §§ [1341] and 1346 Independent Contractor or Other Private Sector Contractual Relationship Besides Employer/Employee") has been revised as follows:

    To act with "intent to defraud" means to act knowingly and with the specific intent to use false or fraudulent pretenses, representations, or promises to cause loss of honest services. Proving intent to deceive someone, usually for personal financial gain or alone, without the intent to cause financial loss to someone else of honest services, is not sufficient to prove intent to defraud.

    Once again, the Annotation attributes the change to Takhalov. A discussion of Skilling and Aunspagh that formerly appeared in O50.4 now appears in O50.3 as well.
  • The definition of "intent to defraud" was also revised in Instructions O52 ("Bank Fraud") and O53.1 ("Health Care Fraud") (formerly O53), once again based on Takhalov.
  • There is a new instruction, O53.2 ("Health Care Fraud 18 U.S.C. § 1518(a) Obstruction of Criminal Investigations of Health Care Offenses").
  • A new paragraph has been added below the elements list in Instruction O98 ("Controlled Substances - Possession with Intent to Distribute 21 U.S.C. § 841(a)(1)"):

    The Defendant "knowingly" possessed the controlled substance if (1) the Defendant knew [he][she] possessed a substance listed on the federal schedules of controlled substances, even if the Defendant did not know the identity of the substance, or (2) the Defendant knew the identity of the substance [he][she] possessed, even if the Defendant did not know the substance was listed on the federal schedules of controlled substances.

    The Annotation explains:

    In McFadden v. United States, 135 S. Ct. 2298 (2015), the U.S. Supreme Court pronounced that there are two ways to satisfy the knowledge requirement under § 841(a)(1). "Th[e] knowledge requirement may be met by showing that the defendant knew he possessed a substance listed on the schedules, even if he did not know which substance it was." Id. at 2304. "The knowledge requirement may also be met by showing that the defendant knew the identity of the substance he possessed," even if the defendant did not know that the drug is "listed on the schedules" as a controlled substance. Id. (citation omitted).

  • The first element in Instruction O106.1 ("Possession of Unregistered Firearm 26 U.S.C. § 5861(d)") has been revised to read: "(1) the Defendant knowingly possessed a firearm." The Annotation, which used to be an analysis of the knowledge element in light of Staples v. United States, 511 U.S. 600 (1994), now simply reads: "No annotation is associated with this instruction."

(3/26/2019)

Eleventh Circuit revises its adverse employment claims instructions

On January 24, 2019, the Eleventh Circuit approved changes to the following instructions:

  • Instructions 4.1 ("Public Employee—First Amendment Claim—Discharge or Failure to Promote—Free Speech on Matter of Public Concern") and 4.2 ("Public Employee—First Amendment Claim—Discharge or Failure to Promote - Political Disloyalty or Key Employee") have been modified to cover circumstances where a public employer takes action against a public employee because of a mistaken belief that the employee had exercised First Amendment rights by speaking on a matter of public concern. The changes were made to conform the instructions to Heffernan v. City of Paterson, N.J., 136 S. Ct. 1412 (2016).

    The Third and Ninth Circuit have also noted Heffernan in their current instruction sets.

  • Instructions 4.6 ("Title VII—Civil Rights Act—Workplace Harassment by Supervisor—No Tangible Employment Action Taken (with Affirmative Defense by Employer)") and 4.7 ("Title VII—Civil Rights Act—Workplace Harassment by Co-Worker or Third Party—No Tangible Employment Action Taken") used to reference discrimination against employees in the "terms and conditions" of employment. Those references have been changed to "terms or conditions."

The Circuit also revised its criminal instructions. We will look at those changes tomorrow.

(3/25/2019)

Ninth Circuit criminal changes include clerical changes to attempt instructions, other minor changes

The Ninth Circuit made extensive revisions to its criminal instructions in January 2019. I have posted a redline/strikeout pdf file showing the changes. A close look, however, reveals that most of the changes had to do with the issue of attempt. These changes were not substantive.

Explanation: Federal crimes may only be charged as attempts if the statute so specifies. In the former version of the instructions, some of these crimes had their own instructions, e.g., Attempted Kidnapping, Attempted Murder, and so on. The comment to these instructions included language from United States v. Goetzke, 494 F.3d 1231, 1237 (9th Cir. 2007), supporting the instructions' definition of "substantial step." The Goetzke language was (and is) in the prior version of instruction 5.3 (Attempt).

In the new edition, instructions for other crimes that can be prosecuted as attempts were retitled to make that status clear; e.g., instruction 8.28 has been renamed from PASSING COUNTERFEIT OBLIGATIONS to PASSING OR ATTEMPTING TO PASS COUNTERFEIT OBLIGATIONS. Where this was done the accompanying comment was revised to include the Goetzke language.

There are other changes in the comment sections discussing attempt, but these changes just involve moving sentences from one place to another without any change to the content or substance of the guidance.

There were other changes to the instructions, mostly minor, but some substantive:

  • A new paragraph added to the end of the comment to instruction 3.5 tells courts to make sure that "language used in a verdict form does not require the jury to find the defendant not guilty beyond a reasonable doubt in order to acquit," an issue that arose in United States v. Espino, 892 F.3d 1048, 1053 (9th Cir. 2018).
  • The comment to Instruction 6.4 (Insanity) was revised to note that a "special verdict is required to resolve an insanity defense. if requested by the government or the defendant, or on the court's own motion. See 18 U.S.C. § 4242(b)." Suggested language for that special verdict appears at the end of the instruction.
  • The comment to Instruction 6.8 (Self-Defense) now concludes: "For self-defense claims involving excessive force, see United States v. Ornelas, 906 F.3d 1138, 1147-48 (9th Cir. 2018)."
  • Instruction 6.9 has been renamed from "INTOXICATION-DIMINISHED CAPACITY" to "DIMINISHED CAPACITY," and specifies that the intoxication can be from drugs or alcohol. The comment notes that, while the defense is generally unavailable to general intent crimes, that it can apply to attempts to commit those crimes, because attempts require specific intent. Regarding mental diminished capacity, the comment now notes that "there must be some evidence (however weak) of a link between the defendant's mental illness and his ability to form a specific intent."
  • A new paragraph appears at the end of the comments to Instructions 8.3 and 8.4 noting new case law regarding the definition of "official duties."
  • The comment to Instruction 8.20 (conspiracy-elements) now cites United States v. Gonzalez, 906 F.3d 784, 792 (9th Cir. 2018), which notes that a tacit agreement is sufficient for conspiracy conviction, and holds that proof of overt act is not necessary for conspiracy to violate civil rights.
  • Gonzalez is also cited in the comment to Instruction 8.131A (obstruction of justice), noting that reports prepared by law enforcement officers qualify as "records" or "documents" under 18 U.S.C. § 1519, and that the government does not have to prove that the matter in question falls within the jurisdiction of a federal department or agency.
  • A new paragraph was added at the end of the comment to Instruction 8.154:

    In United States v. Smith, 831 F.3d 1207, 1217-18 (9th Cir. 2016), the Ninth Circuit considered whether it was error for the lower court to state that the purpose "must be more than merely incidental." The Smith Court noted this phrasing could imply the standard was too low, which could result in error. Id. at 1219. The Court noted, however, that the instruction should not use the word dominant because it "has a flavor" "suggest[ing] that the standard is very high." Id. Ultimately the court declined to weigh on which word should be used but said "substantial" "would convey the idea with more precision." Id.
  • The comment to Instruction 8.157 used to begin with "If there is an issue whether there were two racketeering activities within ten years, the instruction should be modified by inserting 'within a period of ten years' after 'acts of racketeering were committed' at the end of the first element." That sentence has been deleted, and the ten years language simply inserted into the instructions.

  • Instruction 8.160 now ends with "See Reves v. Ernst & Young, 507 U.S. 170, 184 (1993) (holding that liability under section 1962 may also extend to lower rung participants who are under the direction of upper management)."
  • The comments to Instructions 8.168 and 8.169 now reference United States v. Etimani, 328 F.3d 493, 503 (9th Cir. 2003), which defines "sexual act" as "skin-to-skin touching," not touching over clothes.
  • Instruction 8.172 (SEXUAL ABUSE-INCAPACITY OF VICTIM) now asserts that a "person need not be physically helpless to be physically incapable of declining participation in or communicating unwillingness to engage in sexual act," citing United States v. James, 810 F.3d 674, 679 (9th Cir. 2016).
  • Instructions 8.18, , 8.182, and 8.183 now incorporate the statutory definition of "visual depiction." Instruction 8.182 also adds the statutory definition of "custody and control."
  • The comment at the end of Instruction 8.188—"For example, if a stolen item is concealed so that it may 'cool off,' the concealment is an integral part of the movement in interstate commerce rather than a break in it"—has been deleted.
  • The elements lists for Instructions 8.194 and 8.195 have been edited to specify the Bail Reform Act. This is explained in the first paragraph of the comment to 8.194, which now reads:

    If the defendant becomes a fugitive prior to the hearing, the defendant’s release is no longer pursuant to the Bail Reform Act, and the defendant thus may not be convicted under § 3146(a). United States v. Castaldo, 636 F.2d 1169, 1172 (9th Cir. 1980). Vacating a hearing prior to its occurrence precludes satisfaction of the second element because the defendant is no longer “under . . . order to appear on any date certain”; this rule applies even where the hearing is vacated because the defendant has failed to appear at prior hearings. United States v. Fisher, 137 F.3d 1158, 1163 (9th Cir. 1998).
(3/20/2019)

The search boxes

As indicated below, most of the work in creating this site went into the federal jury instruction index. But the index is limited in two respects; it does not include every single word, and it is limited to federal instructions. So I have added the ability to do full text searches for both federal and state jury instructions.

The technically inclined may be interested on how this was done. It did *not* involve complex javascript or even css. It was done with simple html.

  1. Folks who use Google a lot are familiar with the "site:" search query operator. This tells Google to search a particular folder on the Web (and its child folders). Consequently, if you wanted to limit a search to, say, Illinois murder jury instructions, you could limit the query to the folder where Illinois keeps its criminal jury instructions (which happens to be illinoiscourts.gov/circuitcourt/criminaljuryinstructions), and search using this query: murder site:illinoiscourts.gov/circuitcourt/criminaljuryinstructions.

    This is not that useful, but some of you will see where I am going with this.

  2. You can embed a Google query on a Web page using simple html; something like this:

    <form action="http://www.google.com/search" method="get"> <input type="text" name="q"/> <input type="submit" value="search" /> </form>

  3. You can then add the site: restriction with the line:

    <input type="hidden" name="q" value= "site:illinoiscourts.gov/circuitcourt/criminaljuryinstructions">

  4. That only gets you one site. To get all the sites, just add a bunch of "OR site:" terms to the end of the value (the OR has to be capitalized).

  5. Courts are somewhat undisciplined about their folder use, and some of these folders likely have documents in them that have nothing to do with jury instructions. I add the word "instructions" at the beginning, which narrows things acceptably.

So you could write html that looks like this:

<form action="http://www.google.com/search" method="get"> <input type="text" name="q"/> <input type="submit" value="state" /> <input type="hidden" name="query" value= "instruction site:public.courts.alaska.gov/web/cvpji/docs/ OR site:public.courts.alaska.gov/web/crpji/docs/ OR site:azbar.org/media/ OR
and so on ....

Unfortunately, Google limits the query size to 32 words, which in turn limits the number of sites that can be searched simultaneously. So I broke the queries into three parts using "radio buttons": federal; state (AL-LA) (Alabama-Louisiana); and state (MA-WA) (Massachusetts-Washington). This is an imprecise tool, but, I think, a helpful one.

Anyway, that is how I did it. Coding it was the easy part. The hard part was finding all the jury instructions, and then keeping track when the folders get renamed or moved. Which is the reason you use this site instead of making your own.

(3/15/2019)

Some notes about the federal jury instruction index

I learned many years ago that pattern jury instructions and their annotations are the best shortcut for just about any legal research project (explanation here). The federal instructions are particularly authoritative and well done.

The chief impediment to using them efficiently is that they are on many different sites. I used to search the sites one at a time, looking for answers to particular legal questions. So it seemed like a useful idea to index them.

Go ahead and give the index a spin. The index entries are more robust than typical index entries. They list the court and title, and sometimes include italicized text showing how the term is used in context.

I limited the index to federal instructions; it would have taken forever to include the state instructions as well. Indexing just the federal instructions was a daunting task. There are over 4,000 instructions in all, which, when you include the annotations, comes to about 10,000 pages of text.

So, I took these steps in creating the index.

  1. I read all of the instructions and annotations, and extracted every significant word or phrase, every reference to the U.S.C. or C.F.R., and every reference to a U.S. Supreme Court decision.

  2. I used a database program to sort all the terms alphabetically, and delete all of the duplicates. I ended up with over 25,000 terms.

  3. I wrote a computer program that would put the terms up on the screen one at a time, and display each occurence in context. I would then either accept or reject the occurance. If I accepted the term, the computer would generate the index entry. I ended up with more than 100,000 entries.

This took the better part of a year. The final result badly needs an edit, which will take months. I decided, however, that this first draft is actually a pretty useful tool, even in its current state, and so I posted it on this "beta" edition of the site.

Remember that this is just one way to look up instructions. The site has up-to-date links to all of the federal and state instructions, with full text search boxes (I'll talk about the search boxes tomorrow). Use the index, the links, and the search boxes to make sure you find the instruction or annotation you need.

(3/14/2019)

Ninth Circuit civil instructions revised to add two new ADA instructions, and update civil rights, copyright, and securities instructions

The Ninth Circuit published a revised edition of their model civil jury instructions in January 2019. The changes were as follows:

  • A paragraph was added to the end of the comment to instruction 9.5:

    In another post-Castro decision, the Ninth Circuit rejected a municipality's "argument that we must also apply a 'shocks the conscience' standard to [a parent's] Fourteenth Amendment substantive due process claim under Monell." Mann v. Cnty. of S.D., 907 F.3d 1154 (9th Cir. 2018) (distinguishing "direct" Monell claim based on municipality's policy or practice from "indirect" Monell claim based on constitutional violation resulting from omission and which requires showing of "deliberate indifference").
  • The comment to instruction 9.9 replaced a citation to a 2008 case with a citation to Barone v. City of Springfield, 902 F.3d 1091, 1099, 1101-06 (9th Cir. 2018) ("Whether an individual speaks as a public employee is a mixed question of fact and law .... First, a factual determination must be made as to the scope and content of a plaintiff’s job responsibilities .... Second, the ultimate constitutional significance of those facts must be determined as a matter of law.”) (citations and quotation marks omitted). This was just an updated cite, not a change in the circuit's position. Another reference to Barone was tacked on at the end:

    This instruction also should be modified when a public employee alleges an adverse employment action based on the employee's refusal to enter into an unconstitutional prior restraint, limiting the public employee's right to speak as a private citizen on a matter of public concern. See Barone v. City of Springfield, 902 F.3d 1091, 1101-06 (9th Cir. 2018).
  • Another citation to Barone appears at the end of instruction 9.10: "Barone v. City of Springfield, 902 F.3d 1091, 1101-06 (9th Cir. 2018) (holding that prior restraint prohibiting police officer from speaking or writing 'anything of a disparaging or negative manner related to the Department/Organization/City of Springfield or its Employees' violated First Amendment)."

  • A sentence was added at the end of the comment to instruction 9.20: "In addition, 'while the traditional Fourth Amendment analysis 'is predominantly an objective inquiry,' the 'actual motivations' of officers may be considered when applying the special needs doctrine.' Scott v. City. of San Bernardino, 903 F.3d 943, 949 (9th Cir. 2018) (affirming summary judgment in favor of plaintiff middle school students unreasonably arrested without probable cause)."

  • The same sentence was added at the end of the comment to instruction 9.23.

  • A paragraph was added at the end of the comment to instruction 9.32:

    For a case that may blur the distinction between procedural and substantive due process, see Mann v. Cnty. of S. D., 907 F.3d 1154 (9th Cir. 2018) (holding that county violated parents' Fourteenth Amendment substantive due process rights by performing medical examinations on parents' children without notifying parents and without obtaining either parents' consent or judicial authorization).
  • A brand new instruction 9.33A:

    9.33A PARTICULAR RIGHTS-FOURTEENETH AMENDMENT- DUE PROCESS-DELIBERATE OR RECKLESS SUPPRESSION OF EVIDENCE

    As previously explained, the plaintiff has the burden of proving that the [act[s]] [failure to act] of the defendant [name] deprived the plaintiff of particular rights under the United States Constitution. The Fourteenth Amendment protects against a person being subjected to a criminal trial when favorable evidence has been deliberately or recklessly withheld from the prosecutor. In this case, the plaintiff alleges the defendant deprived [him] [her] of [his] [her] rights under the Fourteenth Amendment to the Constitution when [insert factual basis of the plaintiff's claim].

    For the plaintiff to prevail on [his][her] claim of deliberate or reckless suppression of evidence, the plaintiff must prove the following elements by a preponderance of the evidence:

    1. The defendant [name] suppressed evidence that was favorable to the accused [plaintiff's name] from the prosecutor and the defense;
    2. The suppression harmed the accused [plaintiff's name]; and
    3. The defendant [name] acted with deliberate indifference to an accused's rights or for the truth in suppressing the evidence.

    "Deliberate indifference" is the conscious or reckless disregard of the consequences of one's acts or omissions.

    Comment

    Use this instruction only in conjunction with the applicable elements instructions, Instructions 9.3-9.9. See Mellen v. Winn, 900 F.3d 1085, 1096 (9th Cir. 2018); Tennison v. City & Cnty. of S.F., 570 F.3d 1078, 1087, 1089 (9th Cir. 2009); see also Carrillo v. Cnty. of L.A., 798 F.3d 1210, 1219 (9th Cir. 2015) ("The law in 1984 clearly established that police officers were bound to disclose material, exculpatory evidence.").

  • The Chapter 12 introduction has some minor edits:

    • "Because a substantial majority of the reported Supreme Court and Ninth Circuit decisions arise under the employment provisions of the ADA, these instructions are intended to cover focus on employment claims under the ADA.

    • Added before "In Chevron U.S.A.": "For a case involving a pre-employment claim under the ADA, see E.E.O.C. v. BNSF Rwy. Co., 902 F.3d 916 (9th Cir. 2018)."

  • Instruction 12.1 is renumbered as 12.1A, and the elements paragraphs are edited as follows:

    1. the plaintiff has a disability as that term is defined later in these instructions physical or mental impairment;
    2. such physical or mental impairment substantially limited one or more major life activities;
    3. the plaintiff was a qualified individual as that term is later defined later in these instructions; and
    4. the plaintiff was [[discharged] [not hired] [not promoted] [demoted] [state other adverse action]]] because of the plaintiff's disability [his/her] physical or mental impairment.

    A paragraph (that formerly appeared in 12.2) was added at the end of the instruction:

    Major life activities are the normal activities of living that a nondisabled person can do with little or no difficulty, such as [specify applicable major life activities].

    The comment now begins with two new paragraphs (which formerly appeared in instruction 12.2):

    Major life activites are defined in § 12102(2)(A)-(B) and include caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, working and the operation of a major bodily function such as the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine and reproductive functions. The Ninth Circuit has recognized interacting with others as a major life activity. Weaving v. City of Hillsboro, 763 F.3d 1106, 1112 (9th Cir. 2014).

    The term "substantially limits" must be interpreted consistently with the ADAA. Id. § 12102(4)(B). "'An impairment is a disability . . . if it substantially limits the ability of an individual to perform a major life activity as compared to most people in the general population. An impairment need not prevent, or significantly or severely restrict, the individual from performing a major life activity in order to be considered substantially limiting.'" Weaving v. City of Hillsboro, 763 F.3d 1106, 1111 (9th Cir. 2014) (quoting 29 C.F.R. § 1630.2(j)(1)(ii)).

  • A new instruction 12.1B ("ADA EMPLOYMENT ACTIONS-RECORD OF DISABILITY-ELEMENTS") reads as follows:

    The plaintiff claims that [his] [her] record of disability was the reason for the defendant's decision to [discharge] [not hire] [not promote] [demote] [state other adverse action] [him] [her]. To succeed on this claim the plaintiff has the burden of proving the following by a preponderance of the evidence:

    1. the plaintiff has a record of a physical or mental impairment;
    2. such physical or mental impairment substantially limited one or more major life activities;
    3. the plaintiff was a qualified individual as that term is later defined in these instructions; and
    4. the plaintiff was [discharged] [not hired] [not promoted] [demoted] [state other adverse action] because of [his/her] record of a physical or mental impairment].

    If you find that the plaintiff has proved all of these elements, your verdict should be for the plaintiff. If, on the other hand, the plaintiff has failed to prove any of these elements, your verdict should be for the defendant.

    Comment

    See Comment to Instruction 12.1A (ADA Employment Action-Actual Disability-Elements).

  • A new instruction 12.1C ("ADA EMPLOYMENT ACTIONS—REGARDED AS DISABILITY—ELEMENTS") reads as follows:

    The plaintiff claims that because the defendant regarded [him] [her] as disabled, the defendant [discharged] [did not hire] [did not promote] [demoted] [state other adverse action] [him] [her]. To succeed on this claim the plaintiff has the burden of proving the following by a preponderance of the evidence:

    1. the plaintiff was regarded as having a physical or mental impairment;
    2. the plaintiff was a qualified individual as that term is later defined in these instructions; and
    3. the plaintiff was [discharged] [not hired] [not promoted] [demoted] [state other adverse action] because [he] [she] was regarded as having a physical or mental impairment.
    If you find that the plaintiff has proved all of these elements, your verdict should be for the plaintiff. If, on the other hand, the plaintiff has failed to prove any of these elements, your verdict should be for the defendant.

    Comment

    See Comment to Instruction 12.1A (ADA Employment Action—Actual Disability—Elements).

    This instruction is intended to address the ADA Amendments Act of 2008, which clarified two points about “regarded as” disability claims:

    1. A plaintiff meets the requirements of being “regarded as” having a disability if he establishes that he has been discriminated against “because of an actual or perceived impairment whether or not the impairment limits or is perceived to limit a major life activity.” (emphasis added). 42 U.S.C. § 12102(3)(A).
    2. A plaintiff cannot be “regarded” as having a disability if the actual or perceived impairment is “transitory and minor.” 42 U.S.C. § 12102(3)(B). A “transitory” impairment is defined as one “with an actual or expected duration of 6 months or less.” Id.

    The “transitory and minor” exception is an affirmative defense, and as such, the employer bears the burden of establishing the defense. Nunies v. HIE Holdings, Inc., 908 F.3d 428, 435 (9th Cir. 2018).
  • The last paragraph of instruction 12.2 was moved to instruction 12.1. A new paragraph appears at the beginning of the comment:

    Some form of this instruction should be given when a claim involves a theory of actual or record disability. Whether this instruction or a modified version should be given when a claim involves only a theory that the plaintiff was "regarded as" having a disability may require further analysis. See Nunies v. HIE Holdings, Inc., 908 F.3d 428, 434 (9th Cir. 2018).
    The last six paragraphs of the comment were removed or moved elsewhere.

  • A new paragraph was added at the end of the comment to instruction 17.5.

    In Skidmore v. Led Zeppelin, 905 F.3d 1116 (9th Cir. 2018), a case involving the alleged copyright infringement of a musical composition, the Ninth Circuit worded the elements slightly differently. The Ninth Circuit stated: "In order to prove copyright infringement, a plaintiff must show (1) that he owns a valid copyright in his work, and (2) that the defendants copied protected aspects of the work's expression." Skidmore, 905 F.3d at 1125 (citation, quotation marks, and brackets omitted). The Ninth Circuit added: "Whether Defendants copied protected expression contains two separate and distinct components: 'copying' and 'unlawful appropriation.'" Skidmore, 905 F.3d at 1125 (citing Rentmeester v. Nike, Inc., 883 F.3d 1111, 1117 (9th Cir. 2018)).
  • Another paragraph about Skidmore was added at the end of the comment to instructions 17.14.

    In Skidmore v. Led Zeppelin, 905 F.3d 1116, 1125-30 (9th Cir. 2018), the Ninth Circuit provided an extensive discussion of "originality" in the context of a case involving the alleged copyright infringement of a musical composition. Among other things, the Ninth Circuit explained: "To prove 'unlawful appropriation,' a higher showing of substantial similarity is needed. The works must share substantial similarities and those similarities must involve parts of the plaintiff's work that are original and therefore protected by copyright." Skidmore, 905 F.3d at 1125 (citing Rentmeester v. Nike, Inc., 883 F.3d 1111, 1117 (9th Cir. 2018)).
  • Another paragraph about Skidmore was added at the end of the comment to instruction 17.17.

    In Skidmore v. Led Zeppelin, 905 F.3d 1116, 1130-31 (9th Cir. 2018), the Ninth Circuit provided an extensive discussion of the "inverse ratio rule" in the context of a case involving the alleged copyright infringement of a musical composition.
  • Another reference to Skidmore was added to the comment to instruction 17.19.

    In addition, in Skidmore v. Led Zeppelin, 905 F.3d 1116, 1125-27 (9th Cir. 2018), a case involving the alleged copyright infringement of a musical composition, the Ninth Circuit found reversible error in the district court's failure to instruct on "selection and arrangement" in considering extrinsic substantial similarity.
  • A string of case citations was added at the end of the first paragraph of the comment to instruction 17.21.

  • A new paragraph was added to the introduction to chapter 18:

    In Khoja v. Orexigen Therapeutics, Inc., 899 F.3d 988 (9th Cir. 2018), the Ninth Circuit thoroughly discussed and applied many of the key concepts that appear in securities cases, such as falsity, omissions, and materiality. The case also clarifies the circumstances for correctly applying the doctrine of incorporation-by-reference.
(3/11/2019).

Sixth Circuit criminal instruction revisions address inferences, Old Chief, drug conspiracies

A principal goal of this site is to be a complete and up-to-date collection of state and federal pattern jury instructions on the Internet. Nobody else does this. When jury instructions are added or revised, the changes will be analyzed on the trialdex jury instruction blog, using redline/strikeout quotations to clarify the changes.

Note that the site also offers free jury instruction email alerts whenever a circuit or state adds or revises a pattern jury instruction.

To get started, I have some notes to share regarding 2019 instruction amendments. Let's start with the Sixth Circuit, which replaced their December 2017 instructions with a revised set dated January 1, 2019.

  • The first substantive change is to instruction 1.05:

    (1) You are to consider only the evidence in the case. You should use your common sense in weighing the evidence. Consider itthe evidence in light of your everyday experience with people and events, and give it whatever weight you believe it deserves. If your experience tells you that certain evidence reasonably leads to a conclusion, you are free to reach that conclusion. (2) In our lives, we often look at one fact and conclude from it that another fact exists. In law we call this an "inference." A jury is allowed to make reasonable inferences, unless otherwise instructed. Any inferences you make must be reasonable and must be based on the evidence in the case. (3) The existence of an inference does not change or shift the burden of proof from the government to the defendant.
    The commentary indicates that the new first sentence was derived from treatises, and that "[p]aragraphs (2) and (3) were added in 2018, not to reflect a change in the law but to provide some additional plain-English explanation of permitted inferences."

  • The extended discussion of the inference of guilty knowledge that may be drawn from the fact of unexplained possession of stolen goods has been removed from the commentary to instruction 7.16, and replaced with a citation to relevant cases. The instruction itself is unchanged.

  • Instruction 7.16 now refers to "recorded conversations" rather than "tape recordings." A new paragraph has been added at the end of the commentary"

    If the case involves recordings in a foreign language and English transcripts are provided to the jury, see United States v. Garcia, 20 F.3d 670, 672-73 (6th Cir. 1994), citing United States v. Moreno, 933 F.2d 362, 375 (6th Cir. 1991) and United States v. Cruz, 765 F.2d 1020, 1023 (11th Cir. 1985).
  • A new paragraph has been inserted at the beginning of instruction 7.21:

    The general rule is that a defendant cannot stipulate or admit his way out of the full evidentiary force of the case as the government chooses to present it. Old Chief v. United States, 117 S. Ct. 644, 653 (1997); United States v. Luck, 852 F.3d 615, 624 (6th Cir. 2017). In Old Chief, the Court carved out an exception to this rule, holding that the government cannot refuse a defendant's offer to stipulate to felon status in felon-in-possession prosecutions under 18 U.S.C. § 922(g)(1). Old Chief, 117 S. Ct. at 654-55. The Supreme Court limited this exception to cases involving proof of felon status, see 117 S. Ct. at 651 note 7, and the Sixth Circuit has rejected attempts to expand the exception. Luck, 852 F.3d at 625.

  • Instruction 14.07B has been substantially revised:

    (1) The defendant is charged in Count _____ of the indictment with conspiracy to [insert object(s) of conspiracy]. If you find the defendant guilty of this charge, you will then be asked to determine the quantity of the controlled substance involved in the conspiracy as a whole that was attributable to him as the result of his own conduct and the conduct of other co-conspirators that was reasonably foreseeable to him. You will be provided with a special verdict form for this purpose.

    (2) If you find by unanimous agreement that the government has proved beyond a reasonable doubt that the conspiracy as a whole involved a quantity of at least ______ of a mixture or substance containing a detectable amount of [name controlled substance] was attributable to defendant as the result of his own conduct and the conduct of other co conspirators that was reasonably foreseeable to him, then please indicate this finding on the special verdict form.

    [(3) If you do not so find, you will then be asked to determine whether the government has proved a lesser quantity. If you unanimously find that the government has proved beyond a reasonable doubt that the conspiracy as a whole involved a quantity of at least _______ of a mixture or substance containing a detectable amount of [name controlled substance] was attributable to defendant as the result of his own conduct and the conduct of other co conspirators that was reasonably foreseeable to him, then please indicate that finding on the special verdict form.]

    (4) In determining the quantity of the controlled substance involved in the conspiracy as a whole, you need not find that the defendant knew thethat his offense involved this quantity involved in the offense of drugs.

    The revised commentary notes that courts have been inconsistent in addressing whether mandatory minimum sentences for § 846 drug conspiracy offenses are determined by "conspiracy wide" or "defendant specific" drug quantities, and encourages courts to take the approach outlined in United States v. Swiney, 203 F.3d 397, 405-06 (6th Cir. 2000).

    Special Verdict Form 14.07B-1 has been amended consistent with the revised instruction.

(3/10/2019)

Stats and broken links

Day two of the site being fully operational (it has been up for a while without the federal jury instruction index). Two initial tasks:

  1. Check for and fix broken links. I used an online free links checker at https://www.brokenlinkcheck.com/broken-links.php. No particular reason to use that one; it was the first one I tried, and it worked. It found 25 broken links; not too bad (the site probably has hundreds of thousands of links).

  2. Checked the stats. As noted below, I have not actively promoted the site, so I did not expect much. My hosting service, x10hosting, has something called a "cpanel" for common site maintenance tasks. If you scroll down, there is a "metrics" section, with something called "Awstats." It has these numbers:
    Month	  Unique visitors  Visits  Pages  Hits   Bandwidth
    Jan 2019  179	           1,481   1,715   1,876  22.17 MB
    Feb 2019  148	             853     954   1,095  11.35 MB
    Mar 2019   39	              52     111     142   6.24 MB
    Nothing startling here. Looks like there was a spike in January, and, of course, March is incomplete. I'll check back later to see if I am building any momentum.

(3/8/2019)

The federal jury instruction index is working now

I have reached a bit of a milestone in the project. The federal jury instruction index is working now. It is a little rough, so I'm not going to start promoting it yet. But I think the basic functionality is there, so I posted it today.

I am going to start posting on the blog now. I have not checked the numbers lately, but I assume that I am getting minimal page views at this point, so this blog is really a collection of progress notes about the site, mostly for my own benefit.

I am calling this a "jury instruction blog," and hope to post regularly about new or amended jury instructions. I'll also take some time to explain how to use this Web site, and how it was put together.

I think some of you might be interested in the nuts and bolts of creating a Web site, how it is hosted and updated, and how it is promoted and monetized. I am not an expert in those things, but I'll post what I learn as I go along. The "monetizing" part is very speculative at this point, but I have some ideas.

(3/8/2019)

January 2019   

Hello world

This site has not been officially launched yet. I am still working on the federal jury instruction index, a very large work that will take several more months to complete. So for the coming months there will not be new blog entries here (I hope to keep this page very active once the site is completed).

In its current state, however, the site has some useful features. Trialdex is the only Internet site I know of that has complete and up-to-date links to federal and state jury instructions that can be full text searched.

Bear in mind, however, that you are on a site that is under construction, so errors and bad links are still being worked on. I am, of course, happy to receive corrections and suggestions.

(1/9/2019)

 
 
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