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July 2019

Recent noteworthy Rehaif cases

Two cases of note this week:

  • From United States v. Haag, No. 18-3255 (10th Cir. July 25, 2019) (unpublished):

    On September 7, 2018, defendant Alan J. Haag was convicted of a single count of possession of a firearm by a prohibited person pursuant to 18 U.S.C. § 922(g). Judgment entered on November 28, 2018, and this appeal followed. On July 23, 2019 the parties filed a Joint Motion for Summary Disposition. In the Motion, the parties request that we vacate Mr. Haag's conviction in light of Rehaif v. United States, 139 S.Ct. 2191 (2019), and that we direct a remand so that the United States may dismiss Mr. Haag's § 922(g)(1) charge. Upon consideration, the Motion is granted as modified in this Order and Judgment.
    This was a case that was on direct appeal, but there is nothing in the briefs hinting at a Rehaif issue. Based on this skimpy record, I am thinking that the government wants a dismissal because:

    1. the indictment reads something like "having previously been convicted ... did knowingly possess," and they need to change it to read something like "knowing that he was previously convicted ... did knowingly possess."
    2. *perhaps* there was some litigation of the Rehaif issue below that was abandoned on direct appeal.
    3. *perhaps* there has been internal DOJ guidance suggesting that prosecutors not adopt an aggressive posture regarding waiver and forfeiture for Rehaif on direct review.

  • Rehaif relief was summarily denied in United States v. Grigsby, No. 12-10174-JTM (D. Kan. July 23, 2019). The petitioner, as is often the case attempted to label his successive § 2255 petition as something else, but the district court declined to play along, and restyled it as a § 2255. A district court acts as a gatekeeper at this stage; it can transfer the case to circuit court so that he can apply for a certificate of appealability (COA), or, simply dismiss it.

    The district court in Grigsby took the latter course. The new rule in Rehaif is statutory, not constitutional, has not been made retroactively applicable to cases on collateral review. "A certificate of appealability may issue only if the applicant has made a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2).... For reasons stated above, the Court finds that defendant has not satisfied this standard."

For background on the pipeline issues discussed in these cases, see my April blog post, "What is the potential retroactive effect of Rehaif? It talks about 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.


D.C. Circuit holds that a Rehaif claim is waived by an unconditional guilty plea

On June 21, in Rehaif v. United States, the Supreme Court held that "in a prosecution under 18 U.S.C. § 922(g) and § 924(a)(2), the Government must prove both that the defendant knew he possessed a firearm and that he knew he belonged to the relevant category of persons barred from possessing a firearm." This decision almost certainly has broad application to statutes that pose similar scienter issues. Defendants with cases on direct review, where this issue was raised below, will certainly receive the benefit of this new holding. Others may not. The ground rules are discussed here.

The defendant in United States v. Class, No. 15-3015 (D.C. Cir. July 19, 2019), unconditionally pleaded guilty to the possession of firearms on the grounds of the United States Capitol. 40 U.S.C. § 5104(e). On appeal, he argued, inter alia, that the statute violated the Due Process Clause of the Fifth Amendment because its definition of the Capitol Grounds was complicated enough that Class lacked notice that he was on them. His appeal was summarily denied in 2016 as having been waived by the guilty plea. That decision was reversed by the Supreme Court last year in Class v. United States, 138 S.Ct. 798 (2018), which held that he did not waive a constitutional claim that challenged the government's very power to make his conduct criminal.

On remand to the D.C. Court of appeals, Class lost again, with the court applying standard vagueness principles. The court noted that "the district court interpreted the Capitol Grounds ban as requiring knowledge as to the possession of a firearm, but not as to presence on the Capitol Grounds." The lack of a scienter requirement is clearly a factor a vagueness analysis, but was not fatal here.

That disposed of the Fifth Amendment claim, but begs a question regarding the scienter issue.

We note in closing that the lack of a scienter requirement in the ban might raise issues of statutory construction. But Class has waived those arguments. In two cases, including one decided very recently, the Supreme Court has concluded that restrictions on the possession of firearms require proof of scienter. Rehaif, 139 S. Ct. at 2200 (“[T]he Government must prove both that the defendant knew he possessed a firearm and that he knew he belonged to the relevant category of persons barred from possessing a firearm.”); Staples v. United States, 511 U.S. 600, 619 (1994) (“[T]o obtain a conviction, the Government should have been required to prove that [the defendant] knew of the features of his [gun] that brought it within the scope of the [prohibition].”). The parallel is clear: Rehaif concerned a ban on possession of a gun by a person with a particular immigration status; Staples concerned a ban on possession of a particular type of gun; and this case concerns a ban on possession of a gun in a particular place.

But those cases resolved only “question[s] of statutory construction,” not the constitutional right to due process. Staples, 511 U.S. at 604; see Rehaif, 139 S.Ct. at 2194. That is, Staples and Rehaif both concluded that Congress had not intended to impose criminal penalties for possession of a gun without proof of scienter; neither case addressed whether or not Congress lacks the power to impose such penalties. And here, the Supreme Court held only that the claims which survived Class’s guilty plea were those that “challenge the Government’s power to criminalize” his conduct. See Class, 138 S.Ct. at 805. We therefore reiterate our prior holding that Class waived his statutory claims.


Eighth Circuit comment on federal program bribery needs an update

The Eighth Circuit Model Jury Instructions are posted online with this explanation: "The 2017 edition Manual, available soon in print, is updated here to reflect new and revised instructions approved by the Judicial Committee on Model Jury Instructions for the Eighth Circuit since publication of the 2014 edition Manual."

It includes two citations to United States v. Marmolejo, 89 F.3d 1185, 1191 (5th Cir. 1996), cert. granted sub nom., Salinas v. United States, 522 U.S. 52 (1997), in its Comment to Instruction 6.18.666B, most significantly to note what it describes as a circuit split on the issue of whether a tracing of federal funds is required in bribery cases charged under § 666(a)(1)(B).

These citations should be replaced with citations to Salinas v. United States, 522 U.S. 52 (1997), and Sabri v. United States, 541 U.S. 600 (2004), which resolved the issue favorably to the government.

I sent a note last month to the Chairman of the Eighth Circuit Model Criminal Instructions subcommittee about another issue I spotted in their Model Instructions, but did not receive a response, so I won't pester them about this issue. It is probably self-evident (one can safely assume that 1997 cert grants have been resolved one way or another).


The trialdex federal jury instruction index now reflects June Ninth Circuit revisions

The trialdex federal jury instruction index indexes all of the terms, USC, CFR, and Supreme Court cases in all of the official and unofficial federal jury instructions. This is a massive work; there are over 100,000 entries.

It has now been updated to include the June changes to the Ninth Circuit Model Civil and Criminal Instructions. It took a little longer than normal because I am trying to automate more of the process. I rewrote some of the computer code and batch files that make this site go. The extra time spent on optimizing these tools should make future updates go more quickly.


June Ninth Circuit revisions to Model Criminal Instructions flag Rehaif issues

The Ninth Circuit revised thirty of its Model Criminal Jury Instructions in June (I know I am writing this in July, but the changes just popped up on the Circuit's Web site). Some of the changes were trivial or clerical. Instructions affected by the Supreme Court's decision in Rehaif v. United States were flagged, but not revised.

Here are the noteworthy changes:

  • The Comment to Instruction 1.1 (duty of jury) now has a paragraph about jury nullification, noting the recent decision in United States v. Lynch, 903 F.3d 1061, 1079 (9th Cir. 2018).
  • The Comment to Instruction 4.14 (opinion evidence, expert witness) now notes United States v. Ruvalcaba Garcia, 923 F.3d 1183, 1189 (9th Cir. 2019) ("a district court abuses its discretion when it either abdicates its role as gatekeeper by failing to assess the scientific validity or methodology of an expert’s proposed testimony, or delegates that role to the jury by admitting the expert testimony without first finding it to be relevant and reliable").
  • The Comment to Instruction 7.10 (readback or playback) now cites United States v. Price, 921 F.3d 777, 792 (9th Cir. 2019) (re the district court’s great latitude to address requests for readbacks).
  • The Comment to Instruction 8.22 (multiple conspiracies) now cites United States v. Singh, 2019 WL 2135166 (9th Cir. May 16, 2019) (approving multiple conspiracy instruction that reflected defendant’s theory of case).
  • Firearms instructions 8.63 (unlawful receipt), 8.64 (unlawful shipment or transportation), 8.65 (unlawful possession), 8.65A (unlawful possession—convicted felon), are "currently under review in light of [Rehaif v. United States] (June 21, 2019) (holding that 'in a prosecution under 18 U.S.C. § 922(g) and § 924(a)(2), the Government must prove both that the defendant knew he possessed a firearm and that he knew he belonged to the relevant category of persons barred from possessing a firearm')."
  • The Comment to Instruction 8.105 (harboring or concealing person from arrest) now cites United States v. Yarbrough, 852 F.2d 1522, 1543 (9th Cir. 1988), for the proposition that "[f]ailure to disclose a fugitive’s location to law enforcement and making false statements to law enforcement are not crimes under the statute."
  • The Comment to Instruction 8.106 (harboring or concealing escaped prisoner) also adds a cite to Yarbrough, and now cites United States v. Hobson, 519 F.2d 765, 771 (9th Cir. 1975) ("escape from an institution designated by the Attorney General, pursuant to a commitment to his custody, under a federal sentence, is an escape from 'the custody of the Attorney General' in the legal sense, even though the institution is run by the State."), United States v. Eaglin, 571 F.2d 1069, 1073-74 (9th Cir. 1977) ("The custody of the Attorney General continues despite the unsupervised nature of the temporary release from confinement granted under a social pass"; government must prove that the defendant knew the person aided was an escapee, but does not need to prove that the defendant knew the escape was from federal custody), and United States v. Kutas, 542 F.2d 527, 528-29 (9th Cir. 1976) (holding no error in instructing jury that "[t]he words 'harbor' and 'conceal' refer to any physical act of providing assistance, including food, shelter, and other assistance to aid the prisoner in avoiding detection and apprehension").
  • The Comment to Instruction 8.107 (murder—first degree) now counsels that "[w]hen felony murder is charged, the instruction relevant to premeditation should be appropriately modified, citing examples from recent Tenth and Eleventh Circuit Pattern Instructions. It also now notes that manslaughter is not a lesser included offense of felony murder.
  • The Comments to Instructions 8.108 (murder—second degree), 8.109 (manslaughter—voluntary), and 8.110 (manslaughter—involuntary), have been rewritten, but not in any apparently substantive way, except to note that manslaughter is not a lesser included offense of felony murder.
  • The first paragraph of the Comment to Instruction 8.112 (killing or attempting to kill federal officer or employee) is amended so that it now reads: "require the jury to find that the victim was a federal officer or employee, and that at the time of the killing the victim was engaged in the victim’s official duties or was killed on account of the performance of his/her official duties." A new paragraph is added:

    For an instruction defining "official duties," see United States v. Ornelas, 906 F.3d 1138, 1149 (9th Cir. 2018) (upholding “official duties” instruction stating that test for determining whether officer is "[e]ngaged in the performance of official duties" is "whether the officer is acting within the scope of his employment, that is, whether the officer's actions fall within his agency’s overall mission, in contrast to engaging in a personal frolic of his own"); see also United States v. Juvenile Female, 566 F.3d 943, 950 (9th Cir. 2009) (describing official duties test as "whether [the officer] is acting within the scope of what he is employed to do, as distinguished from engaging in a personal frolic of his own").

  • Instruction 8.113 (determination of indian status for offenses committed within indian country) now clarifies that judges are to instruct juries that the tribe is federally recognized. The Comment has been substantially rewritten, but not in any apparently substantive way.
  • The elements list for Instruction 8.114 (kidnapping—interstate transportation) has been amended:

    First, the defendant [[kidnapped] [[seized] [confined]] [inveigled] [decoyed] [kidnapped] [abducted] [carried away] [name of kidnapped person];

    Second, the defendant [held] [detained] [name of kidnapped person] for ransom, reward or other benefitagainst [his][her] will; and

    [Third, the defendant intentionally transported [name of kidnapped person] across state lines.]


    [Third, the defendant [traveled in [interstate][foreign] commerce] [used the mail [in committing] [in furtherance of] the offense] [used any [means] [facility] [instrumentality] of [interstate][foreign] commerce in [committing] [furtherance of committing] the offense].

    [The government is not required to prove that the defendant kidnapped [name of kidnapped person] for reward or ransom, or for any other purpose.]

    [The fact that [name of kidnapped person] [may have] initially voluntarily accompanied the defendant does not necessarily [prevent the occurrence] [negate the existence] of a later kidnapping.]

    A new Comment reads:

    A previous version of this instruction included language requiring that the kidnapping be for "ransom, reward, or other benefit." The Committee has deleted this language in light of contrary case law. See United States v. Healy, 376 U.S. 75, 81 (1964) (noting that 1934 amendment to §1201(a) "was intended to make clear that a nonpecuniary motive did not preclude prosecution under the statute .... The wording certainly suggests no distinction based on the ultimate purpose of a kidnaping"); Gawne v. United States, 409 F.2d 1399, 1403 (9th Cir. 1969) ("[I]n light of the language and legislative history of the 1934 amendment a purpose to obtain pecuniary benefit [is] no longer required ... [and] an illegal purpose need not be shown") (internal quotations and citations omitted). Cf. United States v. Bradshaw, 690 F.2d 704, 708 (9th Cir. 1982) ("Although it is true that motive need not be proved under 18 U.S.C. § 1201, it is far from irrelevant. Motive is evidence of the commission of any crime").

    "The act of holding a kidnapped person ... necessarily implies an unlawful physical or mental restraint for an appreciable period against the person's will and with a willful intent so to confine the victim. If the victim is of such an age or mental state as to be incapable of having a recognizable will, the confinement then must be against the will of the parents or legal guardian of the victim." Chatwin v. United States, 326 U.S. 455, 460 (1946). The "involuntariness of seizure and detention ... is the very essence of the crime of kidnaping." Id. at 464.

    As to the last paragraph of the instruction, see United States v. Redmond, 803 F.2d 438, 439 (9th Cir. 1986) ("The fact that one originally accompanies another without being forced does not prevent the occurrence of a kidnapping where force is later used to seize or confine the victim.").

  • The elements list for Instruction 8.115 (kidnapping—within special maritime and territorial jurisdiction of United States) has been amended:

    First, the defendant [[kidnapped] [[seized] [confined]] [inveigled] [decoyed] [kidnapped] [abducted] [carried away] [name of kidnapped person] within [specify place of federal jurisdiction];

    Second, the defendant [held] [detained] [name of kidnapped person] against [his][her] will.

    [The government is not required to prove that the defendant kidnapped [name of kidnapped person] for ransom, reward or ransom, or for any other benefit purpose.]

    [The fact that [name of kidnapped person] [may have] initially voluntarily accompanied the defendant does not necessarily [prevent the occurrence] [negate the existence] of a later kidnapping.]

    The Comment cross-references the Comment to Instruction 8.114.

  • Essentially the same changes were made to Instructions 8.116 (kidnapping—foreign official or official guest) and 8.117 (kidnapping—federal officer or employee).
  • The first element of 8.118 (attempted kidnapping—foreign official or official guest) was amended:

    First, the defendant intended to [seize] [confine] [kidnap inveigle] [decoy] [kidnap] [abduct] [carry away] and hold [a foreign official] [an official guest] [an internationally protected person] for ransom, reward or other benefitagainst [his] [her] will; and

    The Comment cross-references the Comment to Instruction 8.114.

  • Essentially the same changes were made to Instruction 8.119 (attempted kidnapping— federal officer or employee). Also, a Ornelas/Juvenile Female paragraph that was added to Instruction 8.112 was also added to 8.119. The rest of the Comment was rewritten, but rewritten, but not in any apparently substantive way.
  • The Comment to Instruction 8.120 (hostage taking) has been rewritten:

    In a case involving foreign national defendants, the Ninth Circuit has held that along with these three elements, 18 U.S.C. § 1203(b) "requires some international element," but does not require proof of nexus to international terrorism. United States v. Mikhel, 889 F.3d 1003, 1022 (9th Cir. 2018).

    The crime of hostage taking is not limited to taking aliens as hostages. United States v. Sierra-Velasquez, 310 F.3d 1217, 1220 (9th Cir. 2002), cert. denied, 538 U.S. 952 (2003). In the context of alien smuggling, it is not necessary that the smuggler demand an increase in fee in order for the smuggler to be found guilty of hostage taking. Id. See 18 U.S.C. § 1203(b)(1) and (2) limiting the application of this offense.

    As to the specific intent element, see United States v. Fei Lin, 139 F.3d 1303, 1305-06 (9th Cir. 1998) (holding that statute "does contemplate that the defendant must not merely engage in conduct knowingly, but purposefully and intentionally"). As to the penultimate paragraph of the instruction, see United States v. Carrion-Caliz, 944 F.2d 220,225 (5th Cir. 1991) (a holding that hostage is "seized" or "detained" within the meaning of the Hostage Taking Act "when she is held or confined against her will for an appreciable period of time"). As to the last paragraph of the instruction, see United States v. Lopez-Flores, 63 F.3d 1468, 1477 (9th Cir. 1995) ("that [T]hat the hostage may initially agree to accompany the hostage taker does not prevent a later 'seizure' or 'detention' within the meaning of the Hostage Taking Act") (quoting Carrion-Caliz, 944 F.2d at 226); see also Sierra Valasquez, 310 F.3d at 1220 ("There was a seizure or detention within the meaning of § 1203(a) from the time the defendants began to hold the aliens in a manner that was not contemplated in the alien smuggling agreement. At that point, the aliens were no longer consensually in the custody of the smuggling defendants.").

  • The Comment to Instruction 8.180 (abusive sexual contact—without permission) now begins: "See United States v. Price, 921 F.3d 777, 781 (9th Cir. 2019) (approving instruction)."
  • A paragraph was added at the end of the Comment to Instruction 9.9 (securities fraud):

    For insider trading schemes, Rule 10b 5(b) prohibits individuals owing a fiduciary duty to a source from using material, undisclosed insider information from that source for their personal benefit. See Dirks v. S.E.C., 463 U.S. 646, 653 54 (1983). Thus, tipping inside information to others for one's own personal benefit violates Rule 10b 5. Id. at 659 ("Not only are insiders forbidden by their fiduciary relationship from personally using undisclosed corporate information to their advantage, but they may not give such information to an outsider for the same purpose of exploiting the information for their personal gain."). In such a situation, the person receiving the undisclosed, material inside information (the "tippee") is equally liable under Rule 10b 5(b) if: (1) "the tippee knows or should know" that the person disclosing the information (the "tipper") did so for their personal benefit; and (2) the tippee trades on that information anyway. Id. at 662 63; see also Salman v. United States, 137 S. Ct. 420, 421 (2016). A jury can infer the tipper personally benefitted "where the tipper receives something of value in exchange for the tip or ‘makes a gift of confidential information to a trading relative or friend.'" Salman, 137 S.Ct. at 423 (quoting Dirks, 463 U.S. at 664). But if the tipper did not personally benefit from tipping the undisclosed inside information, then the tippee is not liable under Rule 10b 5(b). See, e.g., Dirks, 463 U.S. at 649-50 (finding no tippee liability because tipper was whistleblower who did not personally benefit from tipping material, undisclosed inside information).

I don't know of any archived copies of the former version of these instructions on the Internet, but I keep copies for my own purposes that I would be happy to share.

June revisions to the Ninth Circuit Model Civil Instructions

The Ninth Circuit also revised twenty of its Model Civil Jury Instructions in June. Noteworthy changes:

  • One of the paragraphs of the Comment to Instruction 9.11 (particular rights—First amendment—“Citizen” plaintiff) has been amended:

    Off-campus student speech, under certain circumstances, may not be protected under the First Amendment when it is sufficiently tied to, or it is reasonably foreseeable that the speech could reach into, the student’s school. C.R. v. Eugene Sch. Dist. 4J, 835 F.3d 1142, 1150-52 (9th Cir. 2016). Off-campus student speech may not be protected under the First Amendment when, based on the totality of the circumstances, the speech bears a sufficient nexus to the school. McNeil v. Sherwood Sch. Dist. 88J, 918 F.3d 700, 707 (9th Cir. 2019). Relevant considerations into whether speech bears a sufficient nexus to the school include: (1) the degree and likelihood of harm to the school caused or augured by the speech, (2) whether it was reasonably foreseeable that the speech would reach and impact the school, and (3) the relation between the content and context of the speech and the school.” Id.; see also C.R. v. Eugene Sch. Dist. 4J, 835 F.3d 1142, 1150 52 (9th Cir. 2016); Wynar v. Douglas Cnty. Sch. Dist., 728 F. 3d. 1062, 1069 (9th Cir. 2013).

  • Instruction 9.30 (particular rights—Fourteenth Amendment—pretrial detainee’s claim re conditions of confinement/medical care) used to be just a comment. There is now an instruction:

    The plaintiff has brought a claim under the Fourteenth Amendment to the United States Constitution against the defendant. The plaintiff asserts the defendant failed to provide [safe conditions of confinement] [needed medical care].

    To prevail on this claim, the plaintiff has the burden of proving each of the following elements by a preponderance of the evidence:

    1. The defendant made an intentional decision regarding [the conditions under which the plaintiff was confined] [the denial of needed medical care];
    2. The [conditions of confinement] [denial of needed medical care] put the plaintiff at substantial risk of suffering serious harm;
    3. The defendant did not take reasonable available measures to abate or reduce the risk of serious harm, even though a reasonable officer under the circumstances would have understood the high degree of risk involved—making the consequences of the defendant’s conduct obvious; and
    4. By not taking such measures the defendant caused the plaintiff’s injuries.
    With respect to the third element, the defendant’s conduct must be objectively unreasonable.
    The Comment now reads:

    In Castro v. County of Los Angeles, 833 F.3d 1060, 1070 (9th Cir. 2016) (en banc), the Ninth Circuit overruled Clouthier v. County. of Contra Costa, 591 F.3d 1232, 1253 54 (9th Cir. 2010), “to the extent that it identified a single deliberate indifference standard for all § 1983 claims ....” Castro at 1070. The Ninth Circuit in Castro also approved a jury instruction for a pretrial detainee’s claim of failure to protect. See Instruction 9.31 (Particular Rights—Fourteenth Amendment—Pretrial Detainee’s Claim of Failure to Protect).

    See also Gordon v. County of Orange, 888 F.3d 1118, 1124-25 (9th Cir. 2018) (“we hold that claims for violations of the right to adequate medical care ‘brought by pretrial detainees against individual defendants under the Fourteenth Amendment’ must be evaluated under an objective deliberate indifference standard”) (extending Castro).

  • New Instruction 9.32A (particular rights—Fourteenth Amendment—due process—civil commitment)

  • The second paragraph of the Comment to 9.34 (qualified immunity) now ends: "see also Jessop v. City of Fresno, 918 F.3d 1031, 1035 (9th Cir. 2019). But see District of Columbia v. Wesby, 138 S.Ct. 577, 589 (2018) ('We continue to stress that lower courts 'should think hard, and then think hard again,' before addressing both qualified immunity and the merits of an underlying constitutional claim')." The seventh paragraph now ends: see also Jessop, 918 F.3d at 1033 34, 1036 (stating there is 'no clearly established law holding that officers violate the Fourth or Fourteenth Amendment when they steal property that is seized pursuant to a warrant,' where Ninth Circuit had not decided issue and other circuits are divided; although officers 'ought to have recognized that' stealing seized property 'would be improper, they did not have clear notice that it violated the Fourth Amendment')."
  • New Instruction 15.19A (expressive works).
  • A new paragraph has been added at the end of the Comment to Instruction 17.1 (preliminary instruction—copyright):

    Regarding the “How Copyright Is Obtained” section of this instruction, "'registration ... has been made' within the meaning of 17 U.S.C. § 411(a) not when an application for registration is filed, but when the Register has registered a copyright after examining a properly filed application.” Fourth Estate Pub. Benefit Corp. v. Wall, LLC, 139 S. Ct. 881, 892 (2019).

  • The last sentence of the second paragraph of the Comment to Instruction 17.5 (copyright infringement—elements—ownership and copying) has been deleted, and replaced with

    see also VHT, Inc. v. Zillow Grp., Inc., 918 F.3d 723, 732 (9th Cir. 2019) (“‘[D]irect infringement requires 'active' involvement.”). If causation is contested, it may be appropriate to modify this instruction to explicitly include causation as an element.

    In VHT, Inc. v. Zillow Group, Inc., the Ninth Circuit provided an extensive discussion of the causation requirement in a case involving alleged copyright infringement of website images. 918 F.3d at 731 32 (“[T]here must be actual infringing conduct with a nexus sufficiently close and causal to the illegal copying that one could conclude that the machine owner himself trespassed on the exclusive domain of the copyright owner.”).

  • The Comment to Instruction 17.7 (copyright infringement— copyright registration certificate) has been amended to note that Cosmetic Ideas, Inc. v. IAC/Interactivecorp, 606 F.3d 612, 619 (9th Cir. 2010), has been abrogated by Fourth Estate Pub. Benefit Corp. v. Wall, LLC, 139 S. Ct. 881, 886 87 (2019) (“[R]egistration occurs, and a copyright claimant may commence an infringement suit, when the Copyright Office registers a copyright. Upon registration of the copyright, however, a copyright owner can recover for infringement that occurred both before and after registration.”).
  • The definition of "Other Than Dramatic or Literary Works" in the Comment to 17.19 (substantial similarity—extrinsic test; intrinsic test) now cites Malibu Textiles, Inc., v. Label Lane Int’l, Inc., 922 F.3d 946 (9th Cir. 2019) (involving original selection, coordination, and arrangement of floral pattern printed fabric).
  • The Comment to Instruction 17.20 (secondary liability—vicarious infringement—elements and burden of proof) now cites VHT, Inc. v. Zillow Grp., Inc., 918 F.3d 723, 745 (9th Cir. 2019). The end of the Comment has been amended:

    Right and Ability To Supervise or Control: A defendant’s ability to supervise or control infringing activity is assessed based on the defendant’s actual ability at the time of infringement. Perfect 10, Inc. v. Visa Int'l Serv. Ass'n, 494 F3d 788, 805 (9th Cir. 2007) (“[T]he defendant must have the right and ability to supervise and control the infringement, not just affect it . . . .”). The To show an ability to exert an “indirect effect on the supervise infringing activity” is not enough. Id. conduct, a plaintiff must show that the defendant had the technical ability to identify and remove infringements. VHT, Inc., 918 F.3d at 746 (noting defendant's “failure to change its operations to avoid assisting [users] to distribute ... infringing content ... is not the same as declining to exercise a right and ability to make [third parties] stop their direct infringement.” (quoting Perfect 10, Inc. v., Inc., 508 F.3d 1146, 1175 (9th Cir. 2007))). The ability to exert an “indirect effect on the infringing activity” is not enough. Id.

    Direct Financial Benefit: “A financial benefit is not 'direct' unless there is a 'causal relationship between the infringing activity and [the] financial benefit.'” Erickson Prods., Inc. v. Kast, 921 F.3d 822, 829 30 (9th Cir. 2019) (quoting Ellison, 357 F.3d at 1079 (9th Cir. 2004)). A direct infringer's avoidance of licensing fees “alone” is not a “direct” financial benefit to the vicarious infringer. Id. at 840 (noting defendant benefitted only indirectly from website developer's avoidance of licensing fees).

  • The Comment to Instruction 17.21 (secondary liability—contributory infringement—elements and burden of proof) now cites Erickson Prods., Inc. v. Kast, 921 F.3d 822, 831 (9th Cir. 2019) ("A party engages in contributory copyright infringement when it '(1) has knowledge of another;s infringement and (2) either (a) materially contributes to or (b) induces that infringement'"), and VHT, Inc. v. Zillow Grp., 918 F.3d 723, 745 (9th Cir. 2019) (stating that website did not have "information necessary to take 'simple measures' to remedy the violation" because website had no means to identify allegedly infringing images uploaded by users).
  • The Comment to Instruction 17.22 (copyright—affirmative defense—fair use) now cites VHT, Inc. v. Zillow Grp., Inc., 918 F.3d 723, 743 (9th Cir. 2019) (concluding website’s tagging of photos for searchable functionality was not transformative).
  • The second paragraph of the Comment to Instruction 17.37 (copyright—damages—willful infringement) has been amended:

    The Comment to this Instruction in the 2007 edition described a revision of an earlier instruction on willful infringement. The 2007 edition revised the earlier instruction to reflect Ninth Circuit precedents stating that willful infringement required defendant‘s “knowledge that the defendants’ conduct constituted an act of infringement.” Peer Int’l Corp. v. Pausa Records, Inc., 909 F.2d 1332, 1335 & n.3 (9th Cir. 1990); see also Columbia Pictures Television v. Krypton Broad. of Birmingham, Inc., 106 F.3d 284, 293 (9th Cir. 1997) (“Willful” means acting “with knowledge that [one's] conduct constitutes copyright infringement.”), rev’d on other grounds sub nom. Feltner v. Columbia Pictures Television, Inc., 523 U.S. 340 (1998). Since at least 2008, however, the Ninth Circuit has recognized that “a finding of ‘willfulness’ in this context can be based on either ‘intentional’ behavior, or merely ‘reckless’ behavior.” In re Barboza, 545 F.3d 702, 707 (9th Cir. 2008); see also Wash. Shoe Co. v. A Z Sporting Goods Inc., 704 F.3d 668, 674 (9th Cir. 2012) (“[T]o prove ‘willfulness’ under the Copyright Act, the plaintiff must show (1) that the defendant was actually aware of the infringing activity, or (2) that the defendant’s actions were the result of ‘reckless disregard’ for, or ‘willful blindness’ to, the copyright holder’s rights.” (quoting Louis Vuitton Malletier, S.A. v. Akanoc Solutions, Inc., 658 F.3d 936, 944 (9th Cir. 2011))). This instruction reflects that change. See also Erickson Prods., Inc. v. Kast, 921 F.3d 822, 833 (9th Cir. 2019) (“Negligence is a less culpable mental state than actual knowledge, willful blindness, or recklessness, the three mental states that properly support a finding of willfulness.”).

    It also has a cite to VHT, Inc. v. Zillow Grp., 918 F.3d 723, 748 (9th Cir. 2019).

  • A new paragraph has been added to Instruction 18.2 (securities—rule 10b-5 claim):

    A defendant may also be liable if the defendant disseminates false statements with intent to defraud. Lorenzo v. S.E.C., 139 S. Ct. 1094 (2019). Where a defendant does not “make” a statement but disseminates information that is “understood to contain material untruths,” such conduct can fall within the scope of a 10b-5 claim. Id. at 1101; see also id. at 1103 (“[U]sing false representations to induce the purchase of securities would seem a paradigmatic example of securities fraud.”).

I don't know of any archived copies of the former version of these instructions on the Internet, but I keep copies for my own purposes that I would be happy to share.


Updated the Rehaif pipeline post

Over the past couple of months I have been writing about Rehaif v. United States, No. 17-9560 (U.S., Jun. 21, 2019):

The second article (and the trialdex retroactivity tool) did not note the effect of the § 2255(e) "saving clause." I have rewritten the original post (and updated the retroactivity tool) to include a discussion of § 2255(e).


The circuit split over the § 2255(e) "saving clause"

In 1948 Congress required the filing of a motion to vacate, codified at 28 U.S.C. § 2255, instead of a traditional petition for a writ of habeas corpus, 28 U.S.C. § 2241, to collaterally attack sentences. In 1996 Congress enacted the Antiterrorism and Effective Death Penalty Act (AEDPA), which made § 2255 relief harder to get by adding a bar on second or successive motions, 28 U.S.C. § 2255(h), and a statute of limitations, § 2255(f).

From time to time the Supreme Court (or a circuit court) will announce a change in the law that has the effect of making conduct that was previously unlawful lawful. For example, in Bailey v. United States, 516 U.S. 137 (1995), the Court held that "use" in 18 U.S.C. § 924(c) cases does not include mere possession. The Court later made this holding retroactive in Bousley v. United States, 523 U.S. 614 (1998). There were many persons imprisoned at that time under the prior use-includes-possession standard, and many of them had already litigated and lost § 2255 proceedings raising different issues (often because of adverse binding circuit precedent).

A clause at the end of § 2255(e) (called the "saving clause" or "savings clause") permits a prisoner to avoid § 2255 bars and proceed under § 2241 where the "remedy" under § 2255 is "inadequate or ineffective to test the legality of his detention." Petitioners facing § 2255 bars have cited this provision with some success, not just for altered elements in crimes, but for egregious changes in permissible sentences.

For example, in United States v. Wheeler, 886 F.3d 415 (4th Cir. 2018), a defendant received an enhanced sentence based on a North Carolina drug conviction. A subsequent circuit decision invalidated enhancements that were based on convictions under that North Carolina statute, and yet another circuit decision declared that the holding was retroactive. The petitioner was permitted to proceed under these circumstances:

  1. At the time of sentencing, settled law of the circuit or the Supreme Court established the legality of the sentence.
  2. Subsequent to the prisoner's direct appeal and first § 2255 motion, the aforementioned settled substantive law changed and was deemed to apply retroactively on collateral review.
  3. The prisoner is unable to meet the gatekeeping provisions of § 2255.
  4. Due to this retroactive change, the sentence now presents an error sufficiently grave to be deemed a fundamental defect.

Nine circuits recognize "the ability of persons in federal custody to invoke Section 2255(e)'s saving clause to seek relief under Section 2241 where an intervening and retroactively applicable statutory-interpretation decision of this Court rendered their continuing custody illegal." McCarthan v. Collins, Petition for a Writ of Certiorari at 14 (July 217), available at (see the Petition for a summary of the holdings).

Two circuits, the Tenth and the Eleventh, disagree. In a decision authored by current Supreme Court Justice Neil Gorsuch, Prost v. Anderson, 636 F.3d 578 (10th Cir. 2011), the petitioner sought to collaterally attack his 1999 money laundering conviction based on a 2008 Supreme Court decision, United States v. Santos, 553 U.S. 507 (2008) (government must show laundering of profits, not merely gross receipts), but he had already litigated and lost a § 2255 proceeding years before. Since a § 2255 attack was not available, he argued that § 2255(e) authorized a habeas corpus challenge under § 2241.

This was rejected. "The relevant metric or measure, we hold, is whether a petitioner's argument challenging the legality of his detention could have been tested in an initial § 2255 motion." Prost, id. at 584. The court rejected Prost's argument that he should be excused for failing to bring a "novel" argument for relief, even where there was adverse circuit precedent.

We readily acknowledge that circuit precedent sometimes requires judges to reject a claim on its merits, and sometimes that precedent is quite wrong in doing so. But as we've already detailed at length, the possibility of an erroneous result—the denial of relief that should have been granted—does not render the procedural mechanism Congress provided for bringing that claim ... an inadequate or ineffective remedial vehicle for testing its merits within the plain meaning of the savings clause.

Id. at 590.

The petitioner in McCarthan v. Dir. of Goodwill Indus.-Suncoast, Inc., 851 F.3d 1076 (11th Cir. 2017) (en banc), pleaded guilty in 2003 to being a felon in possession of a firearm, and did not appeal his enhanced ACCA sentence. Shortly after that he filed a § 2255 petition that did not challenge the sentence enhancement. It was denied.

In 2009 a Supreme Court decision affected the validity of his predicate convictions. It was a statutory interpretation, so § 2255(h) barred a second § 2255 petition. So he filed a petition under § 2241, relying on the "saving clause" of § 2255(e), something that was previously permitted in the Eleventh Circuit. An en banc court changed course; it now holds that a change in caselaw does not make a motion to vacate a prisoner's sentence "inadequate or ineffective to test the legality of his detention" under 28 U.S.C. § 2255(e).

First, the court concluded that the terms and the whole text of § 2255(e) "makes clear that a change in caselaw does not trigger relief under the saving clause."

  • The court noted the statute's use of the word "remedy" rather than relief: "[A] procedural bar might prevent relief, but that bar does not render the motion itself an ineffective or inadequate remedy."
  • Similarly, the word "test": "The opportunity to test or try a claim, however, neither guarantees any relief nor requires any particular probability of success; it guarantees access to a procedure." Even with adverse binding precedent, the petitioner "could have tested the legality of his detention by requesting that we reconsider our precedent en banc or by petitioning the Supreme Court for a writ of certiorari."
  • "Inadequate" means unfitted or not adapted to the end in view. "Ineffective" means of such a nature as not to produce the intended effect. Section 2255 is still "'adapted to the end' of testing the claim regardless of the claim's success on the merits." "The word 'or' in 'inadequate or ineffective' does not overpower the ordinary meaning of the words, which have similar definitions. We are hard pressed to imagine a remedy that is 'lacking in effectiveness' but not 'ineffective,' or 'of such a nature as not to produce the intended effect' but not 'inadequate.'"

A better reading of § 2255(e) is that it permits attacks on aspects of the detention in ways that do not challenge the validity of his sentence, e.g., denial of good time credis or revocation of parole.


Allowing a prisoner to use the saving clause to bring a statutory claim in a habeas petition circumvents the bar on successive petitions. 28 U.S.C. § 2255(h). It does away with the one-year statute of limitations. Id. § 2255(f). It renders the process for obtaining permission to file a second or successive motion, id. § 2253(b), and that for obtaining a certificate of appealability, id. § 2253(c)(1), a nullity.

Chief Judge Carnes, concurring, notes that"

Congress could have simply added a third exception to the list so that subsection (h) would have read:

A second or successive motion must be certified as provided in section 2244 by a panel of the appropriate court of appeals to contain—
(1) newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense; or
(2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable, or
(3) a new rule of statutory law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.

Simple as that would have been, Congress did not do it.
With such a glaring circuit split on such an important issue, it would be reasonable to think that the Supreme Court would be interested in taking up the issue. But the Court has repeatedly denied cert in these cases.


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