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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).


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).


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).


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.


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 deriving 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.


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.


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.


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 or 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.

* * * *

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

* * * *


(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.


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).


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