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featured posts

June 2019
Did the Eighth Circuit err in a bankruptcy fraud instruction?
Federal attempt crimes
Accomplice liability
May 2019
Official restraint
Almendarez-Torres and immigration crimes
Harboring illegal aliens
Transporting illegal aliens—"reckless disregard"
Alien smuggling crimes
Bringing aliens to the United States other than at a designated port of entry
Alaska revises its eminent domain instructions
Massachusetts revises its preliminary criminal instructions
Decoding Mens rea
Food stamp fraud
Telfaire instructions
archived posts
April 2019
January-March 2019

jury instruction blog

June 2019

Did the Eighth Circuit err in a bankruptcy fraud instruction?

As noted here the other day, there is no generally applicable federal attempt statute. The statute must specifically include attempt language, or the crime may not be prosecuted as an attempt.

Title 18 U.S.C. § 152 provides an example. The statute sets out in separate paragraphs nine ways to commit bankruptcy fraud. The word "attempt" appears in paragraph (6) ("knowingly and fraudulently gives, offers, receives, or attempts to obtain any money or property, remuneration, compensation, reward, advantage, or promise thereof for acting or forbearing to act in any case under title 11"), but nowhere else in the statute. One would conclude from that scheme that the government can prosecute for attempted bankruptcy fraud under paragraph (6), but not otherwise.

Paragraph 152(1) criminalizes knowingly and fraudulently concealing property that was part of the bankruptcy estate. It says nothing about attempt, so the government cannot prosecute it as an attempt. One can imagine examples of attempted concealment that would not constitute concealment. A suspect who acts while under surreptitious surveillance does not "conceal" anything. Or consider a circumstance where the suspect falsely denies the existence of a bank account to a custodian who knows for certain that account exists. Finally, what if the defendant attempts to conceal something he that he thinks is part of the bankruptcy estate, but isn't? In each case, the suspect is attempting to conceal, but does not conceal property of the estate. There is attempted concealment, but not concealment, and consequently not a crime under paragraph 152(1).

However, Eighth Circuit Model Criminal Instruction 6.18.152A tells jurors that they can convict under paragraph (1) where the defendant "attempted to conceal" the property. This language, the Judicial Committee asserts, "should be used where an attempted concealment was unsuccessful. It is no defense that the defendant’s attempt to conceal was unsuccessful. See United States v. Cherek, 734 F.2d 1248, 1254 (7th Cir. 1984); United States v. Porter, 842 F.2d 1021, 1024 (8th Cir. 1988)."

Cherek says that "[e]ven if the asset is not ultimately determined to be property of the estate under the technical rules of the Federal Bankruptcy Code, Section 152 properly imposes sanctions on those who preempt a court's determination by failing to report the asset." But this is likely dicta. There was a genuine issue about whether the property was part of the bankruptcy estate, and the case was affirmed on plain-error review. Even more to the point, the assertion cannot possibly be true; the statute says "conceals ... any property belonging to the estate of a debtor." 18 U.S.C. § 152(1) (emphasis added).

Porter has nothing to say about the issue.

An attempt requires a substantial step, so proof of "attempt" looks very much like proof of an unsuccessful concealment. It is certainly true that an unsuccessful concealment can amount to a concealment. Paragraph § 152(1) prosecutions, almost by definition, involve botched concealments. The defendant hides property, and somebody finds it. That is an unsuccessful concealment in the normal understanding of the term.

But, as the examples above illustrate, it is more than an attempt. Note also that factual impossibility is not a defense to attempt, but is almost certainly a defense to concealing.

The Committee should have been clarified this issue in a separate definition of "conceal," not by adding "attempted concealment" to the elements list. Congress could have made attempted concealment a crime, but did not do so.

None of the other circuits include "attempted concealment" in the elements section of their § 152(1) model instructions.


Federal attempt crimes

Those accustomed to state criminal practice, where attempt is an optional theory for almost any crime, might be surprised to learn that there is no generally applicable federal attempt statute. In fact, most federal crimes cannot be charged as attempts. The statute must specifically include attempt language, or the crime may not be prosecuted as an attempt.

The United States Code does not define "attempt," but courts have adopted the 1962 Model Penal Code definition: (1) an intent to engage in criminal conduct, and (2) conduct constituting a "substantial step" toward commission of the intended offense which strongly corroborates the actor's criminal intent.

Some circuits have their own definitions for "substantial step." The Ninth Circuit, for example, defines a substantial step as requiring that the defendant's act or actions "demonstrate that the crime will take place unless interrupted by independent circumstances." Model Crim. Jury Instr. 9th Cir. 5.3. The Tenth Circuit defines "substantial step" as "something beyond mere preparation. A substantial step is an act which, in the ordinary and likely course of events, would lead to the commission of the particular crime. The step must be a strong indication of the defendant's criminal intent, and must unequivocally mark the defendant’s acts as criminal. It should demonstrate commitment to the crime charged." Pattern Crim. Jury Instr. 10th Cir. 1.32.


Accomplice liability

Accomplice liability for federal crimes is described in 18 U.S.C. § 2(a). Many discussions of this issue (also referred to as "aid and abet") begin by quoting United States v. Peoni, 100 F.2d 401, 402 (2d Cir. 1938), which defines it as occurring when one who "associate[s] himself with the venture ... participate[s] in it as something that he wishes to bring about ... [and] seek[s] by his action to make it succeed."

The most important case, though, is Rosemond v. United States, 572 U.S. 65 (2014). It confirms that, while any aid on any element is sufficient, there must be proof of a state of mind extending to the entire crime. Rosemond was a § 924(c) prosecution that held that the prosecution must prove that the accomplice knew in advance that the other person would use or carry a firearm in relation to crime of violence or drug trafficking crime.

A review of the pattern jury instructions turns up one unsettled issue. There is something called the "natural and probable consequences doctrine" that states that if the defendant was an accomplice to an offense, the defendant is criminally responsible for all crimes committed by the principal that were the "natural and probable consequence" of the original crime. This is a matter of some controversy. See Rosemond, id. n.7. In modern federal cases it would be unusual to see this theory pursued without proof of the defendant's knowledge that the principal intended to commit the additional crimes.

There are two closely related theories of liability. One is causing another to commit a crime, described at 18 U.S.C. § 2(b). There is some overlap between these two subsections of § 2. Subsection 2(b) is used in cases with innocent intermediaries. It also requires a willful mental state.

The other related theory of liability is Pinkerton liability, which we'll talk about later.


May 2019


I posted a YouTube video yesterday that explains how to use the trialdex police interrogation tool.

I used free copies of CamStudio and Shotcut to create the video. It is pretty vanilla, and certainly not compelling cinema, but posted in the hopes that people looking at it will check out this site.


Official restraint

Courts have reasoned that there is not an "entry" or "reentry" under 8 U.S.C. § 1325 or § 1326 unless the defendant is physically present in the United States and free from official restraint.

The rationale for this can be traced back to the distinction between exclusion and deportion. Excluded aliens are stopped and sent home at the border. Deported aliens are already physically in the United States, and have greater procedural rights. This distinction was problematic where aliens present themselves at a point of entry, and are taken to a secondary inspection area on this side of the border. Once they have entered the United States in this manner, are they entitled to claim the procedural rights they would have in deportation proceedings?

Courts resolved this by developing a legal fiction that entry is not accomplished until a person is free from official restraint. The leading case is Ex Parte Chow Chok, 161 F. 627 (N.D.N.Y.), aff'd, 163 F. 1021 (2d Cir. 1908). In that case government officials surveiled illegal aliens, keeping them under observation, before arresting them a quarter mile inside the border. The aliens claimed deportation procedural rights, but court found that the aliens had not successfully entered the United States because "from the moment when they crossed the border, they were in the actual, though not formal, custody of the inspectors." Id. at 630.

Courts soon began applying this definition of an entry in criminal cases, and continued to do so even after Congress broadly defined entry in the Immigration and Nationality Act of 1952.

The government may seek to avoid this issue by prosecuting these crimes as attempts. "Actual reentry requires physical presence in the United States and freedom from official restraint, while attempted reentry only requires that a previously deported alien approach a port of entry and make a false claim of citizenship or non-resident alien status." Pattern Crim. Jury Instr. 5th Cir. 2.0A Note.

In the Ninth Circuit, an alien "is under official restraint if, after crossing the border, he is 'deprived of his liberty and prevented from going at large within the United States.' An alien need not be in physical custody to be officially restrained. '[R]estraint may take the form of surveillance, unbeknownst to the alien.' The government has the burden of proving the defendant was free from official restraint, but need not respond to a defendant's free floating speculation that he might have been observed the whole time." Model Crim. Jury Instr. 9th Cir. 9.6 Comment (citations omitted). "[A]ttempted illegal reentry is a specific intent crime that requires proof of intent to enter the country free from official restraint. United States v. Argueta-Rosales, 819 F.3d 1149, 1151 (9th Cir. 2016).


Almendarez-Torres and immigration crimes

The "Apprendi rule," announced in Apprendi v. New Jersey, 530 U.S. 466 (2000), requires that any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt. The rule was later expanded to fines, Southern Union Co. v. United States, 567 U.S. 343 (2012), and mandatory minimums. Alleyne v. United States, 570 U.S. 99 (2013).

Two years before Apprendi, though, the Supreme Court in Almendarez-Torres v. United States, 523 U.S. 224 (1998), held that facts related to a defendant's recidivism need not be presented to a jury even if they could result in an increase in the sentence. This "Almendarez-Torres exception" survives Apprendi. There are, however, a couple of recognized exceptions to the exception in immigration cases, both of which originated in the Ninth Circuit, but have been accepted elsewhere.

  1. Although the fact of an aggravated felony conviction need not be alleged or proven to the jury, the government must establish that the removal came after the aggravated felony conviction. Model Crim. Jury Instr. 9th Cir. 9.6 Comment (2019); Model Crim. Jury Instr. 8th Cir. 6.8.1326(b) Comment (2017).
  2. Illegal entries are petty misdemeanors for a first offense, but two-year felonies for subsequent convictions. 8 U.S.C. § 1325(a). The Ninth Circuit has held that Almendarez-Torres does not apply to prior convictions under § 1325 because they elevate a misdemeanor to a felony. United States v. Rodriguez-Gonzales, 358 F.3d 1156 (9th Cir. 2004). The Fifth Circuit cites Rodriguez-Gonzales with approval in it § 1325 instructions. Pattern Crm. Jury Instr. 5th Cir. 2.0A Note (2015).


One month in

I have not been promoting the site lately, and the traffic has gone down to about 50 unique visitors a day. It is going to be hard to increase the traffic much beyond that. The issue is this. The site ought to be on the first page when someone googles "jury instructions." But it will never get near that until I get more traffic. But I can't get the traffic if Google doesn't put me on the front page. It is kind of like the old saw about getting your first job; they won't hire you if you don't have experience, but you can't get experience unless you get a job.

The one avenue I have avoided in social media; facebook, twitter, etc. I have never had a personal account on any of those platforms, and am hesitant to start now.

The encouraging thing is that the site is getting linked a lot on law school sites, etc. I am definitely going to keep the site going.


Encouraging illegal entry

There is only one pattern instruction (Seventh Circuit). The Ninth Circuit has held that 8 U.S.C. § 1324(a)(1)(A)(iv) is unconstitutionally overbroad. United States v. Sineneng-Smith, 910 F.3d 461, 485 (9th Cir. 2018).


Harboring illegal aliens

The statute, which has no recent amendments, reads:

knowing or in reckless disregard of the fact that an alien has come to, entered, or remains in the United States in violation of law, conceals, harbors, or shields from detection, or attempts to conceal, harbor, or shield from detection, such alien in any place, including any building or any means of transportation

Once again, there is no circuit consensus on the elements. We have already noted the split regarding "reckless disregard" in the post below (re transporting, which has the same phrase).

The Fifth Circuit takes the view that the government must prove that the defendant's conduct tended to "substantially facilitate" the alien entering, coming to, or remaining in the United States illegally. "Substantially facilitate" means "to make an alien's illegal presence in the United States substantially easier or less difficult." Pattern Crim. Jury Instr. 5th Cir. 2.01C (2015). None of the other circuits list this as an element.

The Ninth and Tenth Circuits require proof that the defendant concealed, harbored, or shielded the alien(s) with intent to violate the law.

The Eleventh Circuit inserts "knowingly" before concealing, harboring, or sheltering. This does not strike me as being particularly consequential.

An elements list therefore looks something like this:

  1. That the alien entered [came to] [remained in] the United States in violation of law
  2. The defendant ["knowingly" in the Eleventh Circuit] concealed [harbored] [shielded from detection] [attempted to conceal, harbor or shield from detection] the alien within the United States
  3. The defendant [knew] [acted in reckless disregard of the fact that] the alien entered [came to] [remained in] the United States in violation of law
  4. The defendant's conduct tended to substantially facilitate the alien entering [coming to] [remaining in] the United States illegally [Fifth Circuit]
  5. The defendant [harbored, concealed, or shielded from detection] [attempted to harbor, conceal, or shield from detection] [name of alien] with intent to violate the law [Ninth and Tenth Circuits]


Transporting illegal aliens—"reckless disregard"

Next up is the most commonly charged alien smuggling crime, transporting illegal aliens, 8 U.S.C. § 1324(a)(1)(A)(ii). The language of the statute has been unchanged for decades:

knowing or in reckless disregard of the fact that an alien has come to, entered, or remains in the United States in violation of law, transports, or moves or attempts to transport or move such alien within the United States by means of transportation or otherwise, in furtherance of such violation of law

Note the unusual mens rea. The prosecution has the option of proving "knowing" or "reckless disregard." The latter mental state is not defined in the United States Code. Does it mean mere recklessness, willful blindness, or willfulness (i.e., knew the aliens were illegal)? And what does the last clause mean? Does it require a mens rea?

Pattern jury instructions are an obvious first stop on questions like this.

An elements list combining all of the circuits would look something like this:

  1. That an alien had entered or remained in the United States in violation of the law
  2. That the defendant [knew] [recklessly disregarded the fact] that the alien was in the United States in violation of the law
  3. That the defendant [transported] [moved] [attempted to transport] [attempted to move] the alien within the United States
    1. with intent to further the alien's unlawful presence [Fifth Circuit]
    2. in furtherance of [alien’s] violation of the law [Seventh and Eleventh]
    3. in order to help [him] [her] remain in the United States illegally [Ninth and Tenth]

Here is how the circuits define "reckless disregard":

  • The Fifth Circuit notes case law rejecting "willful transportation" as an element, and defines reckless disregard as occurring when the defendant "is aware of, but consciously disregards, facts and circumstances indicating that the person transported was an alien who had entered or remained in the United States in violation of the law." Pattern Crim. Jury Instr. 5th Cir. 2.01B (2015).

  • The pattern instruction in the Seventh Circuit uses "knowing" in its elements list. It discusses "reckless disregard" in the Committee Comment, but notes that there is no helpful Seventh Circuit authority, and that there is not a helpful consensus in the other circuits.

  • The Ninth Circuit has a specific direction on how to proceed from recent case law, and defines reckless disregard as occurring where "(1) the person is aware of facts from which a reasonable inference could be drawn that the alleged alien was in fact an alien in the United States unlawfully; and (2) the person actually draws that inference." Model Crim. Jury Instr. 9th Cir. 9.2 (2018).

  • The Tenth Circuit defines reckless disregard as the "deliberate indifference to facts which, if considered and weighed in a reasonable manner, indicate the highest probability that the alleged aliens were in fact aliens and were in the United States unlawfully." Pattern Crim. Jury Instr. 10th Cir. 2.03 (2018).

  • The Eleventh Circuit instructs jurors that reckless disregard "means to be aware of but consciously and carelessly ignore facts and circumstances clearly indicating that the person transported was an alien who had entered or remained in the United States illegally."

So the Ninth Circuit uses language that sounds like willfulness, while the other courts use language that sounds like willful blindness. An older annotation to the Ninth Circuit instruction, quoted in the Seventh Circuit annotation, suggests that the legislative history of the statute referred to willful blindness.

In that regard, it should be noted that the definition of willful blindness was tightened up considerably by the Supreme Court in Global-Tech Appliances, Inc. v. SEB S.A., 131 S.Ct. 2060, 2070 (2011), which states that willful blindness has two elements: "(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." That second element wasn't consistently applied prior to Global-Tech, and does not appear in the current circuit definitions of "reckless disregard."

One ultimately determines the mens rea by marrying the way the courts treat the "in furtherance" clause with how they define "reckless disregard."


Alien smuggling crimes

Before moving to the next alien smuggling crime, it makes some sense to list all eight alien smuggling crimes (I probably should have done this first, before talking about § 1324(a)(1)(A)(i)).

The number in parenthesis is the number of times that the crime is mentioned in a Westlaw district court filing, which gives you a rough idea of how commonly the crime is charged:

  • § 1324(a)(1)(A)(i), bringing aliens to the U.S. other than at a designated port of entry (292)
  • § 1324(a)(1)(A)(ii), transporting illegal aliens (2462)
  • § 1324(a)(1)(A)(iii), harboring illegal aliens (720)
  • § 1324(a)(1)(A)(iv), encouraging illegal entry (372)
  • § 1324(a)(1)(A)(v)(I), conspiracy to smuggle aliens (889)
  • § 1324(a)(2), bringing aliens to the United States (2147)
  • § 1327, aiding or assisting entry of an aggravated felon (119)
  • § 1328, importation of aliens for immoral purposes (67)

There are no pattern instructions for the §§ 1327 and 1328.

Another side note; this survey of federal crimes is intended to serve several purposes:

  • One is to test the utility of the site. Does the study of jury instructions really help solve real world problems? Does the site do a good job of finding the instructions?
  • The site is new, and as readers of the prior posts know, I am trying to build traffic, both for the site and for the blog. I think that federal crimes are interesting subjects that people will want to read about, so hopefully having these articles get picked up by Google will cause some folks to be introduced to the site.
  • I am interested in monetizing this site in unobtrusive ways. You will notice that there are no ads on the site; to be honest, the traffic does not merit ads at this point, but I am certain that there will never be annoying ads or popups on the site (not ruling out ads that are not annoying, though). But one of the things one can do to generate revenue on a site is to sell products. I am thinking of writing a handbook on federal crimes, as an ebook or paperback, and selling it here. So this series of articles is part of the research for that project.


Bringing aliens to the United States other than at a designated port of entry

A few days ago I posted the first of what will be a series of posts about federal crimes. We'll focus on what you can learn about federal crimes from pattern jury instructions. We are selecting commonly charged federal crimes in the order that they appear in the United States Code.

Next up is Bringing aliens to the United States other than at a designated port of entry, 8 U.S.C. § 1324(a)(1)(A)(i). As always, we look first at the history of the statute, and in this case we have to go back to 1986 for the last significant revision. The statute originally read “bring into,” and courts had required proof of an entry. This was remedied in 1986, when the statute was amended to read "bring to." Interestingly, most pattern instructions use the pre-1986 language (only the Seventh and Ninth Circuits get it right).

There is a circuit split regarding the mens rea. An illustrative elements list looks like this:

  1. The defendant [brought] [or attempted to bring] [person named in the indictment] to the United States
  2. [person named in the indictment] was an alien
  3. The defendant knew [person named in the indictment] was an alien
  4. The [entry] [attempted entry] into the United States was [made] [attempted] at a place other than a designated port of entry:
  5. [Ninth Circuit] The defendant acted with the intent to violate the immigration laws
    [Tenth and Eleventh Circuits] The defendant acted with the intent to violate the law
Note the attempt language inserted in the elements list. State law criminal codes tend to have generally applicable crimes of attempt, but federal law does not. Instead, individual statutes either have, or do not have, attempt language. If there is no attempt language in the statute, it cannot be prosecuted as an attempt. See generally Attempt: An Overview of Federal Criminal Law (CRS 2015). Most of the commonly charged immigration crimes may be charged as attempts; this is a matter of greater consequence for some of the other immigration crimes.


Alaska revises its eminent domain instructions

Alaska has revised Article 27 ("Eminent Domain") of its Civil Pattern Jury Instructions. Instructions 27.00 ("No Instruction"), 27.06 ("Severance Damages"), 27.07A ("Easement—Definition"), and 27.11 ("Just Compensation Special Verdict Form") have been withdrawn. The prior version can be viewed here.


Massachusetts revises its preliminary criminal instructions

Massachusetts has recently posted the "March 2019" edition of its Criminal model jury instructions for use in the District Court. The changed sections are 1.100 ("Impaneling the jury"), 1.120 ("Preliminary instruction to jury before trial"), and 2.120 ("Function of the jury").

The changes are quite extensive. The prior language can be viewed here.


Decoding mens rea

Continuing with our jury instruction based analysis of food stamp fraud, the elements of the crime are:

  1. The defendant [transferred] [acquired] [altered] [possessed] benefits in a manner not authorized by law or Department of Agriculture regulations
  2. The defendant knew that [he] [she] was acting unlawfully and intended to violate the law
  3. The benefits had a value of at least $100 [$5,000]
Pattern Crim. Jury Instr. 11th Cir. OI O95. The mens rea (scienter, mental state) for the crime is that the defendant knew that he or she was acting unlawfully and intended to violate the law. The statute just says "knowingly uses, transfers, acquires, alters, or possesses benefits in any manner contrary to this chapter or the regulations issued pursuant to this chapter," which suggests that the mens rea might only be that he or she was knowingly acquiring or possessing food stamps. Where did the heightened mens rea come from? The answer comes from (as we noted in the last post) Liparota v. United States, 471 U.S. 419, 433 (1985) (all the § 2024 pattern instructions tell us that).

Some background. It would be helpful if statutes came with "elements lists" that specify the mental state that goes with each element, but they don't. Pattern jury instructions fill in the gaps, though, often with annotations explaining the reasons for the assignment. These decisions are based on certain interpretive rules set forth by the Supreme Court, which are also explained in the annotations for each crime. Two Circuits have extended introductory discussions:

Anyway, if you study the annotations, and read the cited Supreme Court decisions, you come up with this:

  • The elements of federal crimes are determined by Congress, because they are "solely creatures of statute." Liparota, id at 424.
  • However, the "mere omission from a criminal enactment of any mention of criminal intent" should not be read "as dispensing with it." Morissette v. United States, 342 U.S. 246, 250 (1952).
  • Unless congressional intent indicates otherwise, there is a presumption in favor of a scienter requirement for each of the statutory elements that criminalize otherwise innocent conduct. United States v. X-Citement Video, Inc., 513 U.S. 64, 72 (1994).
  • Courts have imposed strict liability in rare "public welfare" or "regulatory" offenses, even where the statute is silent about mens rea, but that exception is narrow. See Staples v. United States, 511 U.S. 600 (1994).
  • Ignorance or a mistake of law is not a defense. Cheek v. United States, 498 U.S. 192, 199 (1991).
  • However, defendants generally must know the facts that make the conduct fit the definition of the offense, even if they do not know that those facts give rise to a crime. Elonis v. United States, 135 S.Ct. 2001, 2009 (2015).
  • For crimes that are well defined in state and/or common law, silence by Congress may signal an intent to adopt the state or common law mental state. Morrisette, id. at 273.
  • The government does not have to prove any mental state regarding jurisdictional elements (e.g., interstate commerce). United States v. Feola, 420 U.S. 671, 677 n.9 (1975).

Food stamp fraud

This is the first of a number of articles illustrating how the use of pattern jury instructions tell you what you need to know about any commonly charged federal crime. We'll do it in the order that the crimes appear in the United States Code, which means we start with food stamp fraud.

Checking the pattern instructions tells us two things about the crime right away, first, that it gets charged (courts don't waste time drafting instructions for crimes that do not get charged), and second, that the statute is 18 U.S.C. § 2024. Before looking at the instructions further, one must quickly check to see if there have been amendments to the statute. In this case, there have been a number of amendments since 1996 (about as far as we need to go back). The most significant ones were in 2008. These were largely a matter of terminology; instructions that talk about "coupons," "authorization cards," and "access devices" instead of "benefits" and "supplemental nutrition assistance" are likely out of date. The statute no longer references criminal restitution, and criminal forfeiture provisions have been added.

With those changes in mind, we can look up § 2024 in the federal jury instruction index. Eleventh Circuit Instruction O95 is a good one with an elements list using current language.

All of the instructions note the Supreme Court's decision in Liparota v. United States, 471 U.S. 419, 433 (1985), which holds that the government need not show that the defendant knew of specific laws or regulations prohibiting the conduct; it is sufficient if the government shows by reference to facts and circumstances surrounding the case that the defendant knew that the conduct was unauthorized or illegal.

The instructions also alert you to an enhanced penalty where the value exceeds $5,000, and notes the Apprendi issue; the government will have to plead and prove that amount because it triggers a greater maximum sentence.


Telfaire instructions

For many years courts have suggested the use of special cautionary instructions about eyewitness testimony in cases where the identity of the perpetrator is at issue.

In United States v. Barber, 442 F.2d 517, 525 (3rd Cir. 1971), the court below gave a general instruction about evaluating the testimony of a witness, and added that:

The accuracy of an identification of a particular defendant by a witness in this case must be determined from all the circumstances relating to that identification. In this connection, if you believe from all the evidence and circumstances pertaining to a particular defendant that there is reasonable doubt as to the accuracy of the identification and of that defendant as a participant in the acts charged on the indictment, then you must find him not guilty. On the other hand, if you find beyond a reasonable doubt from all the evidence and circumstances that the identification of that particular defendant as a participant in the acts charged in the indictment is accurate, then you must find him guilty.

The Third Circuit affirmed the conviction on the facts of that case, but expressed dissatisfaction with "skeletal" pattern jury instructions in cases where identification is an issue, and approved (prospectively) an instruction that tells the jury to consider the opportunity to observe, how positive the identification was, and whether there was a prior failure to identify or by prior inconsistent identification. If there any issues remain, the testimony "must be received with caution and scrutinized with care." Id. at 528.

Shortly after that the D.C. Circuit upheld a robbery conviction, but, citing Barber, and to "further the administration of justice in the District of Columbia," adopted "model special instructions on identification." United States v. Telfaire, 469 F.2d 552 (D.C. Cir. 1972). Jurors are told to consider whether the witness had the capacity and an adequate opportunity to observe the offender, considering such things as distance, lighting, and prior acquaintance. The identification should be the product of the witness' own recollection, and the circumstances of any presentation of the defendant for identification should be scrutinized "with great care." Jurors should consider any failures to identify, or inconsistent identifications, and the general credibility of the witness.

The Telfaire court considered, but decided not to, mandate instructing the jury that inter-racial identifications are less reliable than other identifications.

The Federal Judicial Conference subcommittee drafted a set of criminal pattern jury instructions in 1982 that were revised in 1987, but have not been revised since then. They are not cited much any more, but may be referenced for historical purposes. Instruction 35 used Telfaire language. The Commentary suggests its use in cases where a one-witness identification is not corroborated.

In State v. Henderson, 27 A.3d 872 (N.J. 2011), the New Jersey Supreme Court revised its standard for admissibility of eyewitness testimony based on a report of a Special Master who had held hearings on the empirical studies of eyewitness reliability. It later crafted nine pages of jury instructions that tell jurors what the studies say about eyewitness identifications.

Specifically, they are told that

  • "a witness's level of confidence, standing alone, may not be an indication of the reliability of the identification."
  • "Even under the best viewing conditions, high levels of stress can reduce an eyewitness's ability to recall and make an accurate identification."
  • "time estimates given by witnesses may not always be accurate because witnesses tend to think events lasted longer than they actually did."
  • "the presence of a visible weapon may reduce the reliability of a subsequent identification if the crime is of short duration."
  • "a witness’s estimate of how far he or she was from the perpetrator may not always be accurate because people tend to have difficulty estimating distances."
  • "The perpetrator's use of a disguise can affect a witness's ability both to remember and identify the perpetrator."
  • "Research has shown that people may have greater difficulty in accurately identifying members of a different race."
The instructions also describes what are deemed to be proper police procedures for lineups and showups (e.g., the use of double blind administrators). "In determining the reliability of the identification, you should also consider whether the identification procedure was properly conducted."

The Supreme Court has encouraged the use of "Telfaire instructions" by citing Telfaire when it endorsed the use of jury instructions concerning the risks of eyewitness identification. Perry v. New Hampshire, 565 U.S. 228, 233, 246 (2012). It noted as well some factors not addressed in Telfaire—witness stress, presence of a weapon, and the race of the suspect and the witness—but did not specifically mandate instructions addressing those issues.

Later that year, the First Circuit, in United States v. Jones, 689 F.3d 12, 19-20 (1st Cir. 2012), opined "that information bearing on the effects of stress, witness confidence and cross-racial identification would be helpful to the jury ... if supported by the relevant studies," and that the trial judge is "fully entitled to conclude that this general information could be more reliably and efficiently conveyed by instructions rather than through dueling experts." If the government objects to one or more of the assertions in the instruction, it may "argue for, and provide supporting information, in favor of different language."

The First Circuit does not maintain official pattern jury instructions, but Instruction 2.22 of a set of unofficial instructions maintained and updated by Judge Torresen (D. Maine) tells jurors that they "may consider [risks of cross-racial identification] [risks of identification under stress] [at best, weak correlation between the witness's confidence and accuracy of the identification] [the influence of suggestive identification practices]."

As noted above, the Third Circuit started mandating Telfaire type instructions before Telfaire was decided. The current instruction goes beyond Telfaire, and identifies "whether the witness and the person committing the crime were of different races" as being a factor, but it does not affirmatively state anything specific, or mention studies concerning, that factor.

The Comment notes, however, that the "Third Circuit has appointed a Task Force on Eyewitness Identification. The Task Force has been directed to 'make recommendations regarding jury instructions, use of expert testimony, and other procedures and policies intended to promote reliable practices for eyewitness identification and to effectively deter unnecessarily suggestive identification procedures, which raise the risk of a wrongful conviction.'" The original termination date was June 9, 2017, but that deadline was extended without a further deadline, and at this writing there is no report.

The set of pattern instructions posted on the District of South Carolina are not official, but usefully discuss Fourth Circuit case law. A sample Telfaire instruction is provided, but the author concludes that it is not required in every case, and should be given "(1) there is a strong likelihood of misidentification, (2) there was uncertainty or qualification in the identification testimony, or (3) there were any special difficulties in the identification testimony."

Fifth Circuit Instruction 1.29 is of the Telfaire type. It does not mention cross-racial indentifications, and it does not recite social science conclusions. The Comment notes a case holding that it is not reversible error to refuse give the instruction.

Sixth Circuit Criminal Instruction 7.11 is "drawn directly from Telfaire, and does not mention cross-racial indentifications or social science conclusions. It "should be given when the identification has become an issue because of lack of corroboration, or limited opportunity for observation, or when the witness's memory has faded by the time of trial."

Seventh Circuit Criminal Instruction 3.12 is an abbreviated version of the Telfaire instruction. It "must be given when identification is at issue." Circuit practice is "to leave to argument the factors that may bear on the accuracy of an eyewitness identification." A judge "may consider whether it is appropriate in a given case to supplement this instruction by identifying a specific factor or factors for the jury's consideration." Also, a "court may, but is not required to, admit expert testimony regarding the reliability of eyewitness testimony."

Eighth Circuit Criminal Instruction 4.08 begins with Telfaire language, but also asserts that stress, weapons, and race are "[f]actors that bear on the likelihood of misidentification." The court noted that these additional considerations were mentioned in Perry. "While based upon Telfaire, this instruction also addresses the concerns the Supreme Court raised in Perry." The Comment further notes that in some circumstances the failure to give a cautionary instruction about eyewitness testimony would be reversible error.

Ninth Circuit Criminal Instruction 4.11 is of the Telfaire type. The Comment observes that the "need for heightened jury instructions should correlate with the amount of corroborative evidence." It also cited United States v. Hicks, 103 F.3d 837 (9th Cir. 1996), with approval. The trial court in Hicks properly exercised its discetion when it excluded the testimony of an expert regarding "weapons focus" and "cross-cultural identifications," giving instead a four-page Telfaire instruction.

Tenth Circuit Criminal Instruction 1.29 is a Telfaire instruction. The court suggests that some of it could be jettisoned without committing error. "The Committee believes that elaboration on the specific circumstances surrounding an identification is best left to argument at trial."

Eleventh Circuit Criminal Instruction S3 is a Telfaire instruction that also draws attention to "the way the Defendant was presented to the witness for identification."

In summary, then, most courts would likely give a Telfaire instruction—that is, a cautionary instruction that draws the jury's attention to certain common sense issues with eyewitness testimony—where the identification is seriously contested. Social scientists have suggested that other factors that jurors might not consider—stress, the presence of a weapon, cross-racial identifications, etc.—negatively affect the accuracy of identification testimony. There is authority suggesting that these issues could be communicated to the jury, and they might even be told of what the studies say, even without a foundation of expert testimony. Other courts may be unwilling to talk about such issues at all.


Reflections after the first week

The site has been up since early January, but that was beta testing, without any attempt to promote the site, and it was only getting a half dozen unique visitors each day. The site went off beta a week ago, and since then I have been writing emails to sites that I thought might be willing to give me a link or a review. I have not written a lot of these, and they have pretty much been written individually from scratch. I have received a lot of SPAM SEO PR emails since posting the site, and did not want recipients to associate mine with theirs (not that such an association would be entirely unfair; these are promotional emails).

Some of these emails have resulted in reviews or links, and now I am getting a couple hundred unique visitors a day. The number goes up and down, depending on whether there has been a recent article about my site elsewhere. I am mildly encouraged. I think that, for the next few weeks, I'll slow down on the emails and focus on content, and see where that takes things.


April 2019   

Triadex gets another SCOTUSBlog roundup link

This one was for my second Rehaif article, which addresses retroactivity.

Also, see Finally, an Online Compilation of Jury Instructions (Blog Law Online).


First Circuit unofficial criminal revisions

As we noted here a month ago, the First Circuit no longer updates their 1997 criminal instructions, but Maine Chief District Judge Nancy Torresen soldiers on, updating and posting an unofficial copy on the Maine District Court Web site. A new copy, dated February 1, 2019, recently appeared on the site.

  • The Comment to Instruction 2.22 ("Eyewitness Identification Instruction") has a new paragraph tacked on at the end that notes the First Circuit's "discomfort," expressed in Walker v. Medeiros, 911 F.3d 629, 635-36 (1st Cir. 2018), regarding the use of "all-suspect" photo arrays.
  • The Comment to Instruction 4.18.1343 ("Wire Fraud, 18 U.S.C. § 1343") now includes the holding in United States v. Pena, 910 F.3d 591, 602 (1st Cir. 2018), that trial courts need not give unanimity instructions in wire fraud cases because there is no requirement for jurors "to agree on a single means of commission, any more than the indictments were required to specify one alone."
  • The Comment to Instruction 4.18.2422(b) ("Coercion and Enticement, 18 U.S.C. § 2422(b)") notes United States v. Saldana-Rivera, 914 F.3d 721, 725 (1st Cir 2019). It cautions courts not to track the statutory language regarding the fourth element of the crime.
  • The Comment to Instruction 4.26.5861(d) ("Possession of an Unregistered Firearm, 26 U.S.C. § 5861(d)") notes the decision in United States v. Musso, 914 F.3d 26, 30 (1st Cir. 2019), that grenades with inoperable fuses are explosive grenades.

Trialdex gets noted on beSpacific, Stanford Law Library Blog, and the Law Librarian Blog

The posts just quote the LawSites post, but I am grateful to have them. I am slowly developing an appreciation of the value of links.

There is something called "SEO" (search engine optimization). Described uncharitably, it is gaming the system to make your site show up when folks Google certain phrases. It is the opposite of the Field of Dreams approach ("If you build it, they will come").

It seems to me that, if someone Googles "jury instructions," my site ought to be the first one that comes up. All modesty aside, it is the best jury instruction site out there. But that's not how Google operates. The first mention of this site comes up on page four, the LawSites article, after many fairly useless sites. I have no idea how deep trialdex itself is buried (it is not on the first ten pages). On top of that, new content on the site takes at least a week to show up on Google; the Google robot takes that long to revisit the site.

But that's the way it goes for small new sites. I am pretty sure trialdex will move up as more sites link it. That's why the new links are much appreciated.

On a related note, the LawSites post drove my traffic up 1000% on Thursday and Friday; once again, much appreciated.


Florida definition of weapons instruction is under review

The Florida Jury Instructions page has a note on it declaring that Instruction 3.3(b) (Definition of "weapon" for purposes of s. 775.087(1), Fla. Stat.) is "currently under review" due to Shepard v. State, 259 So. 3d 701 (Fla. 2018).


Arizona Civil Jury Instruction Committee adopts a spoliation instruction

In April 2019 the Arizona Civil Jury Instruction Committee adopted a spoliation instruction that creates a permissive inference of unfavorability where a party fails to preserve evidence that the party was required to preserve.

An examination of the Internet Archive "Wayback Machine" indicates that this instruction is new. A helpful annotation accompanies the instruction.


What is the potential retroactive effect of Rehaif?

In a prior blog entry, we suggested that a government loss in Rehaif would almost certainly apply to the far more common felon-in-possession cases, and noted that the decision would be contrary to current practice. We also noted the practical effect of the decision would be blunted in real life; raising the issue would permit the government to offer prejudicial evidence about the prior felony.

The case was argued on Tuesday, and there seems to be a consensus view that the government is indeed in trouble in this case. The impact of the decision on attacks on convictions (direct and collateral review) is something folks are sure to be talking about later this year.

Let's use the trialdex retroactivity tool to walk though the issue:

  • If the case is on direct review, and the defendant raised the issue below, the rule is available. It is not structural error, see Neder v. United States, 527 U.S. 1, 8 (1999), but the defendant gets a new trial unless the government can establish that it was harmless error.
  • If the case is on direct review, and the defense failed to raise the issue below, a court could, depending on the circumstances, view the error as having been waived (the defense intentionally did not raise the issue for tactical reasons). It is easy to see reasons why the defense would intentionally stay away the issue; if the principal defense is possession, why raise an issue that would open the door for prejudicial evidence regarding the prior felony? Or perhaps the defense was abandoned in order to obtain a favorable plea bargain. Proof of a waiver can be challenging, but if the government can show it, the issue is foreclosed on appeal.
  • If the case is on direct review, and the defense failed to raise the issue below, but the circumstances do not amount to a waiver, a court could nevertheless view the issue as forfeited, which means that the conviction is reviewed for plain error, which means that the error must satisfy the test set out in United States v. Olano, 507 U.S. 725, 732 (1993).
  • Now, let's look at collateral review. The first requirement is custody. Custody does not require actual incarceration; post-conviction supervision is enough.
  • Assuming custody, the next step is to examine whether a reversal in Rehaif would constitute a new or old rule. A rule is new when it breaks new ground or imposes a new obligation on the government. See Chaidez v. United States, 568 U.S. 342, 347 (2013). As noted in our previous discussion of Rehaif, a decision for Rehaif would definitely break new ground. All the pattern instructions apply the mens rea to possession, and not to status. And it would definitely impose a new obligation on the government. So I am inclined to think that courts would see this as a new rule.
  • New rules are only available on collateral review if they are watershed or substantive (the Teague rule). The Supreme Court has never recognized a rule as being watershed, and will not do so here. But adding an element to a crime is definitely substantive, so the claim will pass muster on this test.
  • New rules cannot be attacked on collateral review in a second or successive petition unless they have been declared retroactive by the Supreme Court. 28 U.S.C. § 2255(g)(2). The Court rarely does this, and I think it is unlikely to do so here. So convicted criminals who have attacked their convictions in prior collateral attacks will be out of luck.
  • Except for claims of ineffective counsel, claims not raised on direct appeal may not be raised on collateral review unless the defendant can show "cause" and "prejudice." See Massaro v. United States, 538 U.S. 500 (2003). In the first draft of this article, I had difficulty seeing how this requirement would apply to a substantive new rule, but I have since had my attention drawn to Bousley v. United States, 523 U.S. 614 (1998), which does so.
  • The petition has to be timely. The deadline could be one year after Rehaif is decided, or it might be one year after the petitioner's conviction became final, depending on how the courts view the decision or interpret § 2255(f)(3).
  • The issue must be cognizable. Courts will like find the conviction of a defendant without a finding on an essential element to be cognizable.

If the petitioner meets all of those requirements, the new rule is available. Since, as noted above, the issue is not "structural," the government may still prevail if it can establish that the error was harmless.

This article was edited on May 3. The original version ended with an issue left open because I could not find the case authority I needed. I have since received guidance on the issue from an expert in the field, and have revised the article (and the retroactivity tool) accordingly.


Welcome LawSites readers

Check out the note, New Site Is Comprehensive Resource for Federal and State Jury Instructions on Robert Ambrogi's excellent LawSites blog ("Tracking New and Intriguing Websites and Products for the Legal Profession"). It was a reminder for me that his site ought to be on the trialdex links page; done.


Beta testing is over; the site goes live today

A quick check of Web statistics shows that this site has barely had a pulse during the beta period; about 150 unique visitors a month. To this point, I have done almost nothing to promote the site. I emailed SCOTUSblog this week about my Rehaif blog post (see the note below), and that got me a much appreciated link (hard to get any traction with Google if nobody is linking your site), but that's it.

That changes today. I am going to start by identifying people and sites who might be interested in reviewing or linking trialdex, and sending them a friendly email.

I have never had any sort of social media presence, and doubt that I ever will. But it probably makes sense to sign the site up for some accounts. I'll have to do more reading about that.

I don't have any delusions of grandeur about this site, and don't expect to make much, if any money off of it. But I have about a year of work into it, and remain convinced that the concept behind it is strong. So I want folks to look at it.

This blog is chiefly about jury instructions, but I'll report back from time to time about technical issues, because I think that an attempt to launch and monetize a Web site is something others may want to read about.


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.


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).


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, 1112 JURISDICTION
    18 U.S.C. §§ 1111, 1112 CONDUCT CAUSED DEATH
  • 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.
  • 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.

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";

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.


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="">
 <loc></loc><lastmod>2019-04-09</lastmod> <changefreq>weekly</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.


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).

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.


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 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.


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