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jury instruction blog archive

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?

[I have revised this article (and the related retroactivity tool) from time to time, most recently on July 4, 2019.]

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.

[Rehaif was decided against the government on June 21.]

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 (and collateral review).
  • 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.
  • 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".
  • 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). Cause will not be hard to show in these cases, especially where there was contrary binding precedent. Prejudice is a completely different issue, to be decided on a case-by-case basis.
  • 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. An error of law does not provide a basis for collateral attack unless the claimed error constituted a "fundamental defect which inherently results in a complete miscarriage of justice." See United States v. Addonizio, 442 U.S. 178, 185 (1979). This can, however, be non-constitutional error. Davis v. United States, 417 U.S. 333, 346 (1974). A Rehaif error would seem to fit this description.

If the convicted person meets all of those requirements, the new rule in Rehaif 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. If it is a claim being made for the first time on collateral review, the petitioner will also need to show prejudice.


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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