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September 2019
Ninth Circuit errata
Mail and wire fraud 101 part 2 (elements in common)
2019 amendments to the Eighth Circuit civil instructions
July 2019 amendments to the Third Circuit civil instructions

August 2019
Mail and wire fraud 101 part one (jurisdictional elements)
Conspiracy 101
Sixth Circuit updates to its criminal instructions include a Rehaif element for § 922(g)
Foreperson or presiding juror?
A roundup of recent additions and revisions to state jury instructions
District court clarifies the Rehaif mens rea
Prisoners with prior § 2255s are barred from raising Rehaif claims in the Eleventh Circuit
First Circuit unofficial criminal instructions now include a Rehaif fix for § 922(g) (and a new instruction for § 922(j))
New edition of Pattern Jury Instructions for Federal Criminal Cases, District of South Carolina

archived posts
July 2019 | June 2019 | May 2019
April 2019 | January-March 2019

trialdex blog

September 2019

Ninth Circuit errata

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

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

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

(9/11/19)

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

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

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

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

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

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

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

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

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

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

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

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

(9/10/19)

2019 amendments to the Eighth Circuit civil instructions

The Eighth Circuit has posted 2019 revisions to their Manual of Model Civil Jury Instructions. The prior version is archived here.
Chapters 5 (Title VII), 6 (Age Discrimination), and 15 (FELA) have been completely rewritten. Rather than discuss those changes individually, I have linked a redline/strikeout copy showing the changes. Other revisions are described below.
A sentence has been added at the beginning of the second paragraph of Instruction 1.02 ("EXPLANATORY: RECESS AT END OF VOIR DIRE"): "You must decide this case only from the evidence received by the court here in the courtroom and the instructions on the law that I give you."
New Instructions 2.15 ("EXPLANATORY: LIFE EXPECTANCY EVIDENCE") and 3.08 ("EXPLANATORY: EXPERT OPINION").
Instructions 7.20 ("DEFINITION: 'SUBSTANTIALLY EQUAL'"), 7.40 ("ELEMENTS OF CLAIM"), 7.60 ("ELEMENTS OF DEFENSES"), and 7.70 ("DAMAGES: ACTUAL") have some new supporting case citations in the Comments, but no changes to the text except as noted below:

  • The Comment to Instruction 7.60 ("ELEMENTS OF DEFENSES") now notes that "A 'bona fide' seniority system has been defined as 'one that was created for legitimate purposes, rather than for the purpose of discrimination,'" citing Boersig v. Union Elec. Co., 219 F.3d 816, 821 (8th Cir. 2000).
  • The case note for "Clark v. Eagle Food Ctrs., Inc., No. 95-3459, 105 F.3d 662, 1997 WL 6145 at *2 (8th Cir. Jan. 9, 1997) (Equal Pay Act provides two-year limitations period from filing of complaint or three-year limitations period if willful violation proven), has been removed from the Comment to Instruction 7.70 ("DAMAGES: ACTUAL").

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

(9/6/19)

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

The Third Circuit has posted extensive amendments to its Model Civil Jury Instructions. The following provisions were revised:

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

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

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

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

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

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

The prior edition is archived here. There is a lot of ground to cover, so I am going to break up the changes into several separate posts.
Instruction 4.1 ("Section 1983 Introductory Instruction") now has an Comment that concludes that the "instructions generally do not focus on procedural matters that would not affect how the jury is instructed," citing exhaustion under the PLRA as an example.
The Comment to Instruction 4.4 ("Section 1983—Action under Color of State Law") now notes Manhattan Cmty. Access Corp. v. Halleck, 139 S.Ct. 1921, 1934 (2019) (holding that the operator of public access channels on a cable television system was not a state actor, while noting that the result might be different if a local government itself operated public access channels on a local cable system or obtained a property interest in the public access channels).
The Comment to Instruction 4.6.1 ("Section 1983—Liability in Connection with the Actions of Another—Supervisory Officials") now notes E. D. v. Sharkey, 928 F.3d 299, 309 (3d Cir. 2019) (holding that "there is enough evidence to support an inference that the Defendants knew of the risk facing [an immigration detainee], and that their failure to take additional steps to protect her—acting in their capacity as either a co-worker or supervisor—could be viewed by a factfinder as the sort of deliberate indifference to a detainee’s safety that the Constitution forbids").
The Comment to Instruction 4.6.2 ("Section 1983—Liability in Connection with the Actions of Another—Failure to Intervene") now notes Ricks v. Shover, 891 F.3d 468, 479 (3d Cir. 2018) (holding that a failure to intervene claim was properly dismissed because the "encounter was so brief" that the officer "simply would have had no opportunity to instruct" the other officer to stop), and E. D. v. Sharkey, 928 F.3d 299, 309 (3d Cir. 2019) (holding that "there is enough evidence to support an inference that the Defendants knew of the risk facing [an immigration detainee], and that their failure to take additional steps to protect her—acting in their capacity as either a co-worker or supervisor—could be viewed by a factfinder as the sort of deliberate indifference to a detainee’s safety that the Constitution forbids") (internal quotation marks omitted).
Instruction 4.6.3 ("Section 1983—Liability in Connection with the Actions of Another—Municipalities—General Instruction") is now footnoted with a reference to Forrest v. Parry, No. 16-4351, 2019 WL 2998601 (3d Cir. July 10, 2019), which was decided after the last meeting of the Committee, and consequently not evaluated as part of this set of amendments. The Comment to the Instruction now notes Lozman v. City of Riviera Beach, Fla., 138 S.Ct. 1945 (2018) (holding that a plaintiff suing a municipality for arresting him in retaliation for his exercise of First Amendment rights, where municipal liability was predicated on a policy adopted by the municipal legislators, need not show that the arrest was without probable cause, while reserving the question whether probable cause would defeat a First Amendment retaliation claim against an individual officer).
The Comment to Instruction 4.6.6 ("Section 1983—Liability in Connection with the Actions of Another—Municipalities—Custom") now notes Estate of Roman v. Newark, 914 F.3d 789 (3d Cir. 2019) (while the plaintiff must demonstrate that the city had knowledge of similar unlawful conduct in the past, he does not need to identify a responsible decisionmaker in his pleadings; a complaint alleging a custom of unconstitutional arrests was sufficient, where violations were widespread, and the Police Department was aware of them but rarely acted on citizen complaints; failure to train, supervise, and discipline claims were also adequately pled).
Instruction 4.6.7 ("Section 1983—Liability in Connection with the Actions of Another— Municipalities—Liability Through Inadequate Training or Supervision") also notes the potential impact of Forrest v. Parry. The Comment cites Estate of Roman, id., re a three-part test for deliberate indifference.
The Comment to Instruction 4.7.2 ("Section 1983 Affirmative Defenses—Qualified Immunity") now cites:

  • E.D. v. Sharkey re rejecting qualified immunity, along with Russell v. Richardson, 905 F.3d 239, 252 (3d Cir. 2018) (finding an "obvious case" where marshal used deadly force against a minor as he exited his bedroom wearing only underwear, and there was no indication the minor "was then engaged in any misconduct beyond disobeying his mother"); Kane v. Barger, 902 F.3d 185 (3d Cir. 2018) (relying on some analogous cases in rejecting qualified immunity for a police officer who touched the victim of a sexual assault and photographed her intimate areas with his personal cell phone for personal gratification rather than investigate ends, but also stating, "given the egregiousness of Barger’s violation of Kane’s personal security and bodily integrity, the right here is so ‘obvious’ that it could be deemed clearly established even without materially similar cases").
  • Kisela v. Hughes, 138 S.Ct. 1148 (2018) (noting that even if controlling circuit precedent could constitute clearly established law, the most analogous precedent favored the officer), and Escondido v. Emmons, 139 S.Ct. 500, 502, 504 (2019) (holding that the formulation of the clearly established right by the court of appeals—the "right to be free of excessive force"—"was far too general").
  • Baloga v. Pittston Area Sch. Dist., 927 F.3d 742, 763 (3d Cir. 2019) (concluding, based on a robust consensus in the courts of appeals, that the "right not to face retaliation for [one’s] leadership role in a public union was clearly established at the relevant time"); United States v. Baroni, 909 F.3d 550, 588 (3d Cir. 2018) (applying qualified immunity precedents in a case arising under 18 U.S.C. §§ 241 and 242, and holding that "although four circuits (including our own) have found some form of a constitutional right to intrastate travel, there is hardly a ‘robust consensus’ that the right exists, let alone clarity as to its contours," and therefore, even though a prior circuit decision "is both clear and binding in our jurisdiction," that decision did not provide "fair warning" that the "conduct was illegal, especially in view of the state of the law in our sister circuits").
  • Sauers v. Borough of Nesquehoning, 905 F.3d 711, 715, 723 (3d Cir. Oct. 2, 2018) (acknowledging circuit split, while stating, "We hope ... to establish the law clearly now," and "our opinion today should resolve any ambiguity .... within this Circuit."); Bryan v. United States, 913 F.3d 356, 363 (3d Cir. 2019) ("For purposes of qualified immunity, a legal principle does not become ‘clearly established’ the day we announce a decision, or even one or two days later.").
  • Bland v. City of Newark, 900 F.3d 77 (3d Cir. 2018) (upholding qualified immunity for officers who shot driver of car after it crashed and was entangled in scaffolding because Bland threatened to kill the officers, the officers had reason to believe Bland was armed, and the officers had seen Bland extricate the car he was driving from an earlier crash and continue to flee).

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

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

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

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

  • cites Komis v. Sec'y of United States Dep't of Labor, 918 F.3d 289 (3d Cir. 2019), regarding the proper standard for proof of a retaliatory hostile work environment.
  • Corrected its desription of the holding in Fogleman v. Mercy Hospital, Inc., 283 F.3d 561, 562 (3d Cir. 2002).
  • added a section on Federal employees' retaliation claims

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

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

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

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

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

1) How long any risk would have lasted;

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

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

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

(9/3/19)


August 2019

Mail and wire fraud 101 part one (jurisdictional elements)

This is another of a series of posts illustrating how you can use this site to become reliably grounded on federal law issues.

Mail fraud (18 U.S.C. § 1341) and wire fraud (§ 1343) have essentially the same elements, except for the jurisdictional elements. Mail fraud involves mailing, and wire fraud requires a wire transmission that passes in interstate commerce. "Beyond the jurisdictional bases, the mail and wire fraud offenses are read in tandem and case law on the two is largely interchangeable." Pattern Crim. Jury Instr. 6th Cir. 10.00 (2019). For convenience, we'll break this discussion into two parts. First, we'll discuss the juridictional elements, and next we'll talk about the common elements.

Specifically, the jurisdictional element for mail fraud is that "the defendant used [the United States Postal Service by mailing or by causing to be mailed] [a private or commercial interstate carrier by depositing or causing to be deposited with the carrier] something meant to help carry out the scheme to defraud." Pattern Crim. Jury Instr. 11th Cir. OI O50.1 (2019). The charged mailings must be "for the purpose of executing the scheme." Kann v. United States, 323 U.S. 88, 94 (1944).

"Where one does an act with knowledge that the use of the mails will follow in the ordinary course of business, or where such use can reasonably be foreseen, even though not actually intended, then he ‘causes' the mails to be used." Pereira v. United States, 347 U.S. 1, 8-9 (1954).

Any mailing need only be incident to an essential part of the scheme or a step in the plot. It does not have to be an essential element of the scheme. Pattern Crim. Jury Instr. 11th Cir. OI O50.1 Comment (2019). It could, for example, occur after receipt of the goods obtained by fraud if they were designed to "lull" the victims into a false sense of security or postpone their complaint to the authorities. United States v. Lane, 474 U.S. 438, 451–52 (1986). The mailing may be routine or innocent, need not contain false information, and may even have been counterproductive. Schmuck v. United States, 489 U.S. 705, 715 (1989). "Each use of the mails to advance, or to further, or to carry out the scheme or plan may be a separate violation of the mail fraud statute." Mod. Crim. Jury Instr. 3rd Cir. 6.18.1341-6 Comment (2017).

The jurisdictional element of wire fraud is that the "defendant transmitted or caused to be transmitted by [wire] [radio] [television] some communication in interstate commerce to help carry out the scheme to defraud." Pattern Crim. Jury Instr. 11th Cir. OI O51 (2019).

[T]he government must prove beyond a reasonable doubt that a transmission by a wire, radio, or television communication facility in interstate commerce was, in fact, used in some manner to further, or to advance, or to carry out the scheme to defraud. The government must also prove either that [the defendant] used wire, radio, or television communication in interstate commerce, or that [the defendant] knew the use of the wire, radio, or television communication in interstate commerce would follow in the ordinary course of business or events, or that [the defendant] should reasonably have anticipated that wire, radio, or television communication in interstate commerce would be used.

It is not necessary that the information transmitted by means of wire, radio, or television communication in interstate commerce itself was false or fraudulent or contained any false or fraudulent pretense, representation, or promise, or contained any request for money or thing of value.

However, the government must prove beyond a reasonable doubt that the use of the wire, radio, or television communication in interstate commerce furthered, or advanced, or carried out, in some way, the scheme.

Mod. Crim. Jury Instr. 3rd Cir. 6.18.1343-1 (2016).

This would include emails, communications with Internet Web sites, and instant (text) messages. Id.; Fed. Crim. Jury Instr. 7th Cir. 18 U.S.C. § 1343 Wire Communication (2018).

As with mailings, "[wire communications] which are designed to lull victims into a false sense of security, postpone inquiries or complaints, or make the transaction less suspect are wire communications in furtherance of the scheme." Model Crim. Jury Instr. 8th Cir. 8.18.1343 (2017). "It is not necessary that the [government] prove that the [wire communication] was an essential part of the scheme. A [wire communication] may be routine or sent for a legitimate purpose so long as it assists in carrying out the fraud." Id. "Each transmission by wire communication in interstate commerce to advance, or to further, or to carry out the scheme or plan may be a separate violation of the wire fraud statute." Mod. Crim. Jury Instr. 3rd Cir. 6.18.1343-2 (2017).

(8/29/19)

Conspiracy 101

This site is chiefly about jury instructions, but from time to time I like to use the site to illustrate the point that much of your research on federal issues can be done using federal pattern jury instructions. You can, for example, use this material to put together a credible discussion of current conspiracy law, as I have done below.

A conspiracy is a joint commitment to an endeavor which, if completed, would satisfy all of the elements of the underlying substantive criminal offense. Ocasio v. United States, 136 S.Ct. 1423, 1429 (2016). A conspirator need not agree to commit or facilitate each and every part of the substantive offense, so long as there is a specific intent that the underlying crime be committed by some member of the conspiracy. Id. In fact, conspirators may be convicted even if they are incapable of committing the substantive offense themselves. Id. at 1432.

Many criminal statutes have their own conspiracy clauses. Examples include civil rights conspiracy, 18 U.S.C. § 241, money laundering conspiracy, 18 U.S.C. § 1956(h), and narcotics conspiracies, 21 U.S.C. §§ 846, 963. Criminal offense statutes that do not have conspiracy clauses may be prosecuted under the general conspiracy statute, 18 U.S.C. § 371.

Some conspiracy statutes (including § 371) require proof of the commission of an overt act in furtherance of the conspiracy. An overt act is any act, lawful or unlawful, done to carry out the goals of the conspiracy. Pattern Crim. Jury Instr. 7th Cir. 5.08(A) (2018). Many of the statutes that have conspiracy clauses are silent on whether an overt act is required. Unless there is significant legislative history to the contrary, these statutes do not require proof of an overt act. See, e.g., Whitfield v. United States, 543 U.S. 209 (2005).

"[W]here substantiation of a conspiracy charge requires proof of an overt act, it must be shown both that the conspiracy still subsisted [within the limitations period]... and that at least one overt act in furtherance of the conspiratorial agreement was performed within the period." Grunewald v. United States, 353 U.S. 391, 396-97 (1957).

There is no requirement that all members of a conspiracy be charged, named, or known. Pattern Crim. Jury Instr. 6th Cir. 3.06 (2019). "It is no defense to a conspiracy charge that success was impossible because of circumstances that the defendants did not know about." Pattern Crim. Jury Instr. 6th Cir. 3.13 (2019). See also United States v. Jimenez Recio, 537 U.S. 270, 274 (2003).

"Before being convicted of conspiracy, an individual must conspire with at least one co-conspirator. There can be no conspiracy when the only person with whom the defendant allegedly conspired was a government [agent] [informant] who secretly intended to frustrate the conspiracy." Mod. Crim. Jury Instr. 9th Cir. 8.26 (2017) (this is called a "Sears charge").

The acts or statements of any member of a conspiracy are treated as the acts or statements of all the members of the conspiracy, if these acts or statements were performed or spoken during the existence of the conspiracy and to further the objectives of the conspiracy, and are consequently admissible under Fed. R. Evid. 801(d)(2)(E). See also Mod. Crim. Jury Instr. 3rd Cir. 6.18.371K (2015).

Defendants sometimes defend against conspiracy charge by arguing that any conspiracy shown by the evidence was unconnected from the conspiracy charged in the indictment, that is, the defense will argue that there were multiple conspiracies, and the prosecution will argue that it was a single conspiracy. To prove a single conspiracy, the government must prove that each of the conspirators agreed to participate in what they knew or should have known was a single group activity directed toward a common objective (a single agreement on an overall objective). Multiple conspiracies are separate agreements operating independently of each other. A single conspiracy may exist, however, when there is a continuing core agreement that attracts different members at different times with different sub-groups committing acts in furtherance of an overall objective. Mod. Crim. Jury Instr. 3rd Cir. 6.18.371K (2015). See also Blumenthal v. United States, 332 U.S. 539, 558 (1948). This is sometimes called a "hub-and-spoke" conspiracy. Mod. Crim. Jury Instr. 3rd Cir. 6.18.371K Comment (2015).

Withdrawal from a conspiracy occurs when there have been "[a]ffirmative acts inconsistent with the object of the conspiracy and communicated in a manner reasonably calculated to reach co-conspirators." United States v. U.S. Gypsum Co., 438 U.S. 422, 464-65 (1978).

  1. Withdrawal terminates a defendant's liability for the post-withdrawal acts of co-conspirators. Consequently, if the conspiracy statute requires an overt act, and the defendant withdraws before any conspirator commits an overt act, the defendant is not guilty of conspiracy.
  2. Withdrawal may also have the effect of placing the defendant's conduct outside the statute of limitations.
  3. Finally, withdrawal may be a defense to substantive offenses committed by other co-conspirators (see the discussion of Pinkerton liability below).

Mod. Crim. Jury Instr. 3rd Cir. 6.18.371J-1 Comment (2015). Withdrawal, at least for the second type of defense (statute of limitations), is an affirmative defense. Smith v. United States, 568 U.S. 106 (2013).

The Pinkerton doctrine, from Pinkerton v. United States, 328 U.S. 640, 645-48 (1946), provides that a conspirator is responsible for offenses committed by another conspirator if:

  1. The conspirator was a member of the conspiracy when the offense was committed
  2. The offense was committed in furtherance of the conspiracy
  3. The offense was a foreseeable consequence of the conspiracy

The Fifth and Tenth Circuits take the view that elements two and three may be proved in the disjunctive; the doctrine applies if the offense is committed in furtherance or where it was foreseeable. Pattern Crim. Jury Instr. 5th Cir. 2.17 Note (2015) (noting circuit split); Pattern Crim. Jury Instruct. 10th Cir. 2.21 (2018). The other circuits require proof in the conjunctive. The Eleventh Circuit requires proof of "willful" membership. Pattern Crim. Jury Instr. 11th Cir. OI O13.5 (2019).

This doctrine applies to conspiracies charged under the general conspiracy statute, 18 U.S.C. § 371, and to conspiracies charged under specific statutes. Mod. Crim. Jury Instr. 3rd Cir. 7.03 Comment (2014). The doctrine is available even if the government did not charge conspiracy in the indictment. Id. "A defendant is not liable under the Pinkerton theory for an additional conspiracy offense committed by his confederates, but only for a substantive offense." Pattern Crim. Jury Instr. 5th Cir. 2.17 Note (2015).

(8/21/19)

Sixth Circuit updates of its criminal instructions include a Rehaif element for § 922(g)

The Sixth Circuit uploaded the following changes to their criminal instructions on August 12, 2019:

  • The Commentary to Instruction 4.01A (Causing an Act) notes support for its existing instruction from United States v. Gandy, 926 F.3d 248, 265 (6th Cir. 2019).
  • The Commentary to Instruction 8.03B (Unanimity Not Required—Means) notes that, based on United States v. Steele, 919 F.3d 965, 973 (6th Cir. 2019), it is sufficient that the jury to agree on "one instance" of firearm possession rather than a specific gun in §924(c) cases.
  • The Commentaries to Instructions 10.01 (Mail Fraud) and 10.02 (Wire Fraud) were extensively rewritten to incorporate references to United States v. Maddux, 917 F.3d 437, 443 (6th Cir. 2019). It is cited to further support previous positions the Committee has taken regarding material omissions. The court in Maddux counsels courts to be careful that juries understand that omissions may be material, but are not always material.
  • Maddux is also cited in the Commentary to money laundering instructions 11.02 and 11.03. Instruction 11.02 includes new passages discussing United States v. Faulkenberry, 614 F.3d 573, 586 (6th Cir. 2010).
  • Instruction 12.01 has a new element: "That at the time the defendant possessed the firearm [ammunition], he knew he had been convicted of a crime punishable by imprisonment for more than one year." The Commentary notes, of course, that this was in reaction to the Supreme Court's holding in Rehaif v. United States, 139 S.Ct. 2191 (2019). It further asserts that, even post-Rehaif, that the "government need not prove that the defendant knew that the firearm traveled in or affected interstate commerce."
  • The Commentaries to Instructions 12.02 and 12.03 were updated with a short reference to United States v. Davis, 139 S. Ct. 2319, 2327, 2337-2338 (2019), and a longer note about Steele, id. The standard instructions now specifically inform jurors that the government need not prove that a particular firearm was possessed.
  • Two new instructions have been added to Chapter 14, 14.02B (Distribution of a Controlled Substance when Death or Serious Bodily Injury Results), and 14.03B (Manufacture of a Controlled Substance when Death or Serious Bodily Injury Results) to cover the enhancements provided in 21 U.S.C. 841(b)(1)(A)-(C), as construed in Burrage v. United States, 134 S.Ct. 881 (2014). The Introduction to Chapter 14, 14.02A, and 14.03A have been updated accordingly. The Commentary explains that 14.02A is a lesser included of 14.02B, and 14.03A is a lesser included of 14.03B, and the new instructions were added "to minimize the editing required for individual trials."
  • The Commentary to Instruction 14.05 (§ 846 conspiracy) now has a reference to a discussion of the elements in United States v. Potter, 927 F.3d 446, 453 (6th Cir. 2019).
  • The Commentary to Instruction 15.04 (Aggravated Identity Theft) now has a reference to a discussion of the elements in United States v. Gandy, 926 F.3d 248, 258 (6th Cir. 2019).
  • New instruction 18.01 (Transmission of a Threat to Kidnap or Injure (18 U.S.C. § 875(c)), with an extended discussion of Elonis v. United States, 135 S.Ct. 2001 (2015).

(8/15/19)

Foreperson or presiding juror?

For many years now, courts have been reasonably assiduous in using gender neutral language. This applies to the conversion of nouns as, for example, police officer has replaced policeman in modern writing.

The naming of the position traditionally known as a "foreman" of the jury has been handled less gracefully. "Foreman" has been effectively purged from current federal instructions (a single occurence survives in a parenthetical in the Committee Comment to Seventh Circuit Civil Instruction 1.07), replaced by two terms, "foreperson" and "presiding juror."

A check of the trialdex jury instruction index shows that the somewhat clumsy foreperson is far more commonly used than the more graceful presiding juror. The superiority of "presiding juror" is recognized in Garner's Modern English Usage: "Yet [foreperson] is, for the time being, ensconced in federal procedural rules and may be difficult to oust."

Actually, the term "foreperson" only appears in Fed. R. Crim. P. 6 and 7, which pertain to grand jury proceedings, so courts are free to switch if they want to for their instructions to petit juries.

(8/9/19)

A roundup of recent additions and revisions to state jury instructions

Alaska has withdrawn its civil instruction 6.00 (Owners and Occupiers of Land) (archived here), and replaced it with four new instructions: 6.01 Landowner Liability—Improved Property; 6.02 Landowner Liability—Elements When the Landowner's Liability is Limited; 6.03 Landowner Liability—Elements When the Claim May be Subject to the Limits; 6.04 Verdict Form—Landowner Liability.

There is also a new criminal instruction 11.41.530(a) (coercion) that specifies that the defendant knowingly demanded, was at least reckless that the demand would instill fear. The change was apparently in response to Wilson v. State (Alaska App. Sept. 19, 2018) (unpublished), where the Alaska Court of Appeals "raised, but did not resolve, the issue of which mental states apply to coercion."

Arizona has published a new Fifth Edition of its criminal jury instructions. The Fourth Edition is archived here.

The Judicial Council of California has published its 2019 set of "CALCRIM" (Criminal Jury Instructions) approved at its March 2019 meeting. The new and revised instructions are:

104. Evidence (revised)
202. Note-Taking and Reading Back of Testimony (revised)
222. Evidence (revised)
301. Single Witness's Testimony (revised)
334. Accomplice Testimony Must Be Corroborated: Dispute Whether Witness Is Accomplice (revised)
335. Accomplice Testimony: No Dispute Whether Witness Is Accomplice (revised)
520. First or Second Degree Murder With Malice Aforethought (Pen. Code, § 187) (revised)
625. Voluntary Intoxication: Effects on Homicide Crimes (Pen. Code, § 29.4) (revised)
707. Special Circumstances: Accomplice Testimony Must Be Corroborated—Dispute Whether Witness Is Accomplice (Pen. Code, § 1111) (revised)
708. Special Circumstances: Accomplice Testimony Must Be Corroborated—No Dispute Whether Witness Is Accomplice (Pen. Code, § 1111) (revised)
984. Brandishing Firearm: Misdemeanor—Public Place (Pen. Code, § 417(a)(2)(A)) (revised)
1145. Possession of Matter Depicting Minor Engaged in Sexual Conduct (Pen. Code, § 311.11(a)) (new)
1161. Lewd Conduct in Public (Pen. Code, § 647(a)) (revised)
1162. Soliciting Lewd Conduct in Public (Pen. Code, § 647(a)) (revised)
1244. Causing Minor to Engage in Commercial Sex Act (Pen. Code, § 236.1(c)) (revised)
1650. Carjacking (Pen. Code, § 215) (revised)
1900. Forgery by False Signature (Pen. Code, § 470(a)) (revised)
1901. Forgery by Endorsement (Pen. Code, § 470(a)) (Pen. Code, § 470(a)) (revised)
1902. Forgery of Handwriting or Seal (Pen. Code, § 470(b)) (revised)
1904. Forgery by Falsifying, Altering, or Counterfeiting Document (Pen. Code, § 470(d)) (revised)
1905. Forgery by Passing or Attempting to Use Forged Document (Pen. Code, § 470(d)) (revised)
1930. Possession of Forged Document (Pen. Code, § 475(a)) (revised)
1932. Possession of Completed Check: With Intent to Defraud (Pen. Code, § 475(c)) (revised)
1935. Making, Passing, etc., Fictitious Check or Bill (Pen. Code, § 476) (revised)
2140. Failure to Perform Duty Following Accident: Death or Injury—Defendant Driver (Veh. Code, §§ 20001, 20003 & 20004) (revised)
2300. Sale, Transportation for Sale, etc., of Controlled Substance (Health & Saf. Code, §§ 11352, 11379) (revised)
2500. Illegal Possession, etc., of Weapon (revised)
2530. Carrying Loaded Firearm (Pen. Code, § 25850(a)) (revised)
2966. Disorderly Conduct: Under the Influence in Public (Pen. Code, § 647(f)) (revised)
3181. Sex Offenses: Sentencing Factors—Multiple Victims (Pen. Code, § 667.61(e)(4)) (revised)
3412. Compassionate Use (Health & Saf. Code, § 11362.5) (revised)
3413. Collective or Cooperative Cultivation Defense (Health & Saf. Code, § 11362.775) (revised)
3426. Voluntary Intoxication (Pen. Code, § 29.4) (revised)
3454. Initial Commitment as Sexually Violent Predator (Welf. & Inst. Code, §§ 6600, 6600.1) (revised)
The 2018 edition is archived here.

The Colorado Pattern Civil Jury Instructions Committee has published its 2019 civil instructions, along with a copy of the 2018 instructions on the together on the same page.

Connecticut has two new civil instructions, 3.9-11A (Definition of Defect or Dangerous Condition) and 3.13-12A (Damages—Trespass by Substance). Instruction 3.3-4 (Governmental Immunity—Municipal Employee) "was removed in light of Ventura v. East Haven, 330 Conn. 613 (2019). Previous versions are archived here.

Florida criminal instructions "under review because of recent legislation or case law":

3.3(b) (Definition of "weapon" for purposes of §775.087(1), Fla. Stat.) Shepard v. State, 259 So. 3d 701 (Fla. 2018)
8.26 (Sexual Cyberharassment, §784.049, Fla. Stat.), effective July 1, 2019 in Chapter 2019-53, Laws of Florida
11.10(g) (Lewd or Lascivious Exhibition. §800.09, Fla. Stat.), effective July 1, 2019. Chapter 2019-50, Laws of Florida
11.21 (Transmission of Material Harmful to Minors) Weitz v. State,—So. 3d—(Fla. 2d DCA 2019)

Illinois revised four civil instructions in May: 1.01 (Cautionary), 1.08 (Implicit bias), 105.10 (Professional Negligence—Introduction), and 105.11 (Claims Based On Apparent Agency—Principal Sued, But Not Agent—Principal Sued Under Respondeat Superior Only—Medical Malpractice Actions—Reliance On Principal Alleged). Prior versions are archived here.

The adoption of "implicit bias" instructions is a fairly recent development, discussed here. Illinois adopted its implicit bias instruction last year, and the 2019 changes are not substantive.

It is not easy to find, but Iowa has posted a June 2019 update of its criminal jury instructions. The prior version does not appear to be archived on the Internet.

Massachusetts has recently posted its June 2019 edition of its Criminal model jury instructions for use in the District Court. The changed sections are the ones criminalizing operating under the influence, assault and battery, and seriving support from earnings of a prostitute. Prior editions are archived here.

In April 2019 Michigan added two civil jury instructions, 4.01A (Support Persons or Animals) and 15.01A (Definition of The Proximate Cause), and amended 35.01 (No-Fault First-Party Benefits Action: Explanation of Statute). In July 2019 Michigan amended four civil instructions: 1.01 (Introductory Comments), 2.06 (Jurors to Keep Open Minds), 3.02 (Facts to Be Determined from Evidence), and 113.03 (Trade or Commerce-Definition). The prior version is archived here.

In July 2019 Michigan added criminal instructions 33.1 to 33.1g (animal fighting), and amended the verdict forms at 3.29, 3.30, and 3.31 to provide general "not guilty" options. There are also three amendments dated "September 2019" to 11.38 and 11.38a (felon possessing firearm), and 15.18 (moving violation causing death or serious impairment of a body function). The prior version is archived here.

On May 13, 2019. New Jersey added a model criminal charge, C:11-5.3 (Strict Liability Vehicular Homicide—Driving While Intoxicated), and revised 2C:20-11(b)(1)-(6) (Shoplifting) and 2C:39-3(j) (Possession of Large Capacity Ammunition Magazine). I can't find archived copies of these statutes on the Internet.

Vermont has an excellent criminal jury instruction page that documents updates. It reports that on July 8, 2019, the instruction committee revised the definition of "deadly weapon" in the reporter's notes to criminal instructions CR10-211, CR22-098, and CR22-361, -362 to incorporate a reference to State v. Kuzawski, 2017 VT 118, ¶¶ 8–18, 206 Vt. 351. The Committee also revised the reporter's note for the general attempt instruction (CR09-201) to incorporate references to more recent cases, including State v. Sawyer, 2018 VT 43, ¶¶ 12–22. Prior versions are archived here.

This list is not complete. Some states do not post their instructions on the Internet. Some of the states that do make it very difficult to search their instructions for recent revisions. Some states that do not make their instructions available on the Internet publish them on Westlaw and LexisNexis, and you can readily find revisions on those sites by searching for the term 2019. A complete list of state instruction links, with Westlaw and Lexis/Nexis links, is posted here.

(8/8/19)

District court clarifies the Rehaif mens rea requirement

The defendant in United States v. Phyfier, No. 2:17CR482-MHT (M.D. Ala. Aug. 5, 2019), granted a government motion to exclude evidence of a concealed carry permit that the defendant received after otaining a pardon that specifically did not restore his right to possess firearms.

Phyfier contends that evidence of the concealed-carry permit is relevant to showing that he did not have the knowing mental state that Rehaif requires for a felon-in-possession conviction. Specifically, he argues that Rehaif requires not only that the defendant knew he was a convicted felon at the time he possessed the firearm, but also that he knew he was prohibited from possessing the firearm.... Phyfier does not dispute that he knew he was a convicted felon. Instead, he argues that the permit tends to prove that he believed he was not prohibited from possessing the firearm. So, Phyfier's theory of relevance hinges on the validity of his interpretation that Rehaif requires the government to prove that the defendant knew he was prohibited from possessing the firearm. Because, for the reasons outlined below, Rehaif imposes no such requirement, Phyfier's theory fails.

(8/6/19)

Prisoners with prior § 2255s are barred from raising Rehaif claims in the Eleventh Circuit

Title 18 U.S.C. § 922(g) bars nine categories of individuals (most notably, felons) from shipping, transporting, possessing, or receiving firearms or ammunition. Title 18 § 924(a)(2), provides that anyone who knowingly violates § 922(g) the first provision shall be fined or imprisoned for up to 10 years.

Circuit courts had uniformly held that the "knowingly" mens rea applied to the possession element, but not to the status element. For example, in felon-in-possession of a firearm cases, the government had to prove that defendants knowingly possessed the firearm, but did not need to prove that that they knew that they were felons.

This all changed on June 21, 2019, when the Supreme Court issued its decision in Rehaif v. United States, 139 S.Ct. 2191 (2019). The government must now prove "that the defendant knew he possessed a firearm and also that he knew he had the relevant status when he possessed it."

In "What is the potential retroactive effect of Rehaif? we discussed "pipeline" (direct appeal and post-conviction) attacks based on Rehaif, with a demonstration of how to use the trialdex retroactivity tool to predict outcomes in different types of cases. For prisoners who had been convicted, and had previously filed a § 2255, we concluded:

A new rule cannot be attacked on collateral review in a second or successive petition unless it is a "new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court." 28 U.S.C. § 2255(h)(2). Even if the rule is declared to be retroactive, Rehaif is not a new constitutional rule. It is a rule construing a statute (convicting someone of a non-crime certainly implicates constitutional due process, but that's not a new constitutional rule). This would bar Rehaif claims made on second § 2255 petitions unless the defendant files in a circuit that permits these claims to be made under 28 U.S.C. § 2241 because of the § 2255(e) "saving clause".

The "saving clause" is described in some detail in another trialdex blog post, The circuit split over the § 2255(e) "saving clause". A clause at the end of § 2255(e) permits a prisoner to avoid § 2255 bars and proceed under 28 U.S.C. § 2241 where the "remedy" under § 2255 is "inadequate or ineffective to test the legality of his detention." Most, but not all, circuit courts permit the use of this clause to cover convictions based on altered elements in crimes and egregious changes in permissible sentences.

We now have a circuit level case confirming this prediction. The petitioner in In re Palacios, No. 19-12571-G (11th Cir. July 30, 2019), filed a motion seeking an order (COA) authorizing the district court to consider a second or successive motion to vacate, set aside, or correct his federal sentence, based on Rehaif, which he characterized as a "new rule of constitutional law." He further asked the court "to hold his application in abeyance until the Supreme Court makes its holding in Rehaif retroactively applicable to cases on collateral review."

His petition was denied. Rehaif is a statutory, not constitutional, rule, and the Supreme Court has not made it retroactive.

In most circuits, the court could consider whether relief was nevertheless available under the § 922(e) "saving clause." But the petition was filed in the Eleventh Circuit, which (along with the Tenth Circuit), won't permit defendants to use the saving clause to sidestep § 2255 bars, even where the Supreme Court has changed the elements of the underlying crime.

(8/3/19)

First Circuit unofficial criminal instructions now include a Rehaif fix for § 922(g) (and a new instruction for § 922(j))

As noted here earlier this year, the First Circuit no longer updates their 1997 criminal instructions, but Maine Chief District Judge Nancy Torresen publishes and regularly updates an unofficial copy that is posted on the Maine District Court Web site. A new copy, dated June 21, 2019, is the first federal instruction set I know about, official of unofficial, to address the Supreme Court's decision in Rehaif v. United States, 139 S.Ct. 2191 (2019).

Here is the pertinent part in redline/strikeout:

4.18.922(g) Possession of a Firearm or Ammunition in or Affecting Commerce by a Convicted Felon, 18 U.S.C. § 922(g)(1), (4)

* * * *

First, that [defendant] has been and knows that he/she has been convicted in any court of [at least one] crime punishable by imprisonment for a term exceeding one year. I instruct you that the crime of [______] is such a crime.

[Alternative: The parties have stipulated that [defendant] has been was convicted and knew he/she was convicted of a crime which is punishable by imprisonment for a term exceeding one year. You are to take that fact as proven.]

OR, that [defendant] was previously involuntarily committed to a mental institution and that he/she knew that he/she was so committed.

Second, that [defendant] knowingly possessed the [firearm; ammunition] described in the indictment. [The term "firearm" means any weapon which will or is designed or may readily be converted to expel a projectile by the action of an explosive. The term "firearm" also includes the frame or receiver of any such weapon.]

The word "knowingly" means that the [firearm; ammunition] act was connected with interstate [ done voluntarily and intentionally, not because of mistake or foreign] commerce. This means accident.

Third, that the [firearm; ammunition], at any time after it was manufactured, moved from one state to another [or from a foreign country into the United States]. The travel need not have been connected to the charge in the indictment, need not have been in furtherance of any unlawful activity and need not have occurred while [defendant] possessed the [firearm; ammunition].

The government does not have to prove that [defendant] knew that his/her conduct was illegal.

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The word "knowingly" means that the act was done voluntarily and intentionally, not because of mistake or accident.

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Comment

(1) The charge is based on United States v. Bartelho, 71 F.3d 436, 439 (1st Cir. 1995), and Rehaif v. United States, 139 S. Ct. 2191 (2019) (the word "knowingly" found in 18 U.S.C. § 924(a) applies to both the defendant's conduct (i.e., his or her possession of the firearm) and to the defendant's status (i.e., the relevant category of prohibited person as spelled out in § 922(g)). In Rehaif the Court expressed no view "about what precisely the Government must prove to establish a defendant's knowledge of status in respect to other § 922(g) provisions not at issue." Id. at 2200. (2) The definition of "knowingly" as applied to the defendant's conduct is based on United States v. Tracy, 36 F.3d 187, 194-95 (1st Cir. 1994). "Beyond that, however, 18 U.S.C. § 922(g) is a strict liability statute, which contains no specific mens rea element at all." United States v. Leahy, 473 F.3d 401, 408 (1st Cir. 2007). Care must be taken, however, for some parts of the firearms statute require proof of willfulness. See 18 U.S.C. § 924(a)(1)(D)....

Judge Torresen also added a new instruction, 4.18.922(g)(9) (Possession of a Firearm By a Person Previously Convicted of a Misdemeanor Crime Of Domestic Violence, 18 U.S.C. § 922(g)(9)).

Prior versions of this set of instructions are archived here.

(8/2/19)

New edition of Pattern Jury Instructions for Federal Criminal Cases, District of South Carolina

The Fourth Circuit does not have official pattern jury instructions, but there are a couple of unofficial sets of criminal instructions available.

  • Former U.S. Magistrate Judge Carl Horn publishes Federal Criminal Jury Instructions for the Fourth Circuit. You have to purchase these; they are not on the Internet. I have never seen them, but understand that they ae widely used. The order form says that "these are the only published federal criminal jury instructions in the Fourth Circuit States." That's not true, though ...
  • Since 2005 former AUSA Eric Wm. Ruschky has published a set of criminal instructions that are posted on the South Carolina District Court Web site, Pattern Jury Instructions for Federal Criminal Cases, District of South Carolina.

I have consulted the Ruschky instructions on numerous occasions of the years, and have found them to be comprehensive and accurate. For that reason, they are included in the Trialdex Jury Instruction Index despite their non-official status.

One thing to note about these instructions; they cover many more crimes than official sets do. If you are researching a crime, and its not in your local circuit jury instruction set, there is an excellent chance that it is covered in the Ruschky set.

There is another reason to praise the Ruschky set; it gets updated every year. The July 1, 2019 edition is posted now. The Introduction indicates that the updates are now being done by Miller W. Shealy, Jr., Professor of Law, Charleston School of Law.

Sadly, the new edition does not note the Supreme Court's June 21, 2019, decision in Rehaif v. United States, 139 S.Ct. 2191 (2019). I am still waiting for a circuit to apply this case to the not inconsiderable number of instructions that it impacts (the Ninth Circuit has flagged the issue, but without further comment).

(8/1/19)

 
 
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