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Ninth Circuit criminal changes include clerical changes to attempt instructions, other minor changes
The search boxes
Some notes about the federal jury instruction index
Ninth Circuit civil instructions revised to add two new ADA instructions, and update civil rights, copyright, and securities instructions
Sixth Circuit criminal instruction revisions address inferences, Old Chief, drug conspiracies
The federal jury instruction index is working now

    jury instruction blog

    March 2019   

    Ninth Circuit criminal changes include clerical changes to attempt instructions, other minor changes
    The Ninth Circuit made extensive revisions to its criminal instructions in January. I have posted a redline/strikeout pdf file showing the changes. A close look, however, reveals that most of the changes had to do with the issue of attempt. These changes were not substantive.

    Explanation: Federal crimes may only be charged as attempts if the statute so specifies. In the former version of the instructions, some of these crimes had their own instructions, e.g., Attempted Kidnapping, Attempted Murder, and so on. The comment to these instructions included language from United States v. Goetzke, 494 F.3d 1231, 1237 (9th Cir. 2007), supporting the instructions' definition of "substantial step." The Goetzke language was (and is) in the prior version of instruction 5.3 (Attempt).

    In the new edition, instructions for other crimes that can be prosecuted as attempts were retitled to make that status clear; e.g., instruction 8.28 has been renamed from PASSING COUNTERFEIT OBLIGATIONS to PASSING OR ATTEMPTING TO PASS COUNTERFEIT OBLIGATIONS. Where this was done the accompanying comment was revised to include the Goetzke language.

    There are other changes in the comment sections discussing attempt, but these changes just involve moving sentences from one place to another without any change to the content or substance of the guidance.

    There were other changes to the instructions, mostly minor, but some substantive:

    • A new paragraph added to the end of the comment to instruction 3.5 tells courts to make sure that "language used in a verdict form does not require the jury to find the defendant not guilty beyond a reasonable doubt in order to acquit," an issue that arose in United States v. Espino, 892 F.3d 1048, 1053 (9th Cir. 2018).
    • The comment to Instruction 6.4 (Insanity) was revised to note that a "special verdict is required to resolve an insanity defense. if requested by the government or the defendant, or on the court's own motion. See 18 U.S.C. § 4242(b)." Suggested language for that special verdict appears at the end of the instruction.
    • The comment to Instruction 6.8 (Self-Defense) now concludes: "For self-defense claims involving excessive force, see United States v. Ornelas, 906 F.3d 1138, 1147-48 (9th Cir. 2018)."
    • Instruction 6.9 has been renamed from "INTOXICATION-DIMINISHED CAPACITY" to "DIMINISHED CAPACITY," and specifies that the intoxication can be from drugs or alcohol. The comment notes that, while the defense is generally unavailable to general intent crimes, that it can apply to attempts to commit those crimes, because attempts require specific intent. Regarding mental diminished capacity, the comment now notes that "there must be some evidence (however weak) of a link between the defendant's mental illness and his ability to form a specific intent."
    • A new paragraph appears at the end of the comments to Instructions 8.3 and 8.4 noting new case law regarding the definition of "official duties."
    • The comment to Instruction 8.20 (conspiracy-elements) now cites United States v. Gonzalez, 906 F.3d 784, 792 (9th Cir. 2018), which notes that a tacit agreement is sufficient for conspiracy conviction, and holds that proof of overt act is not necessary for conspiracy to violate civil rights.
    • Gonzalez is also cited in the comment to Instruction 8.131A (obstruction of justice), noting that reports prepared by law enforcement officers qualify as "records" or "documents" under 18 U.S.C. § 1519, and that the government does not have to prove that the matter in question falls within the jurisdiction of a federal department or agency.
    • A new paragraph was added at the end of the comment to Instruction 8.154:

      In United States v. Smith, 831 F.3d 1207, 1217-18 (9th Cir. 2016), the Ninth Circuit considered whether it was error for the lower court to state that the purpose "must be more than merely incidental." The Smith Court noted this phrasing could imply the standard was too low, which could result in error. Id. at 1219. The Court noted, however, that the instruction should not use the word dominant because it "has a flavor" "suggest[ing] that the standard is very high." Id. Ultimately the court declined to weigh on which word should be used but said "substantial" "would convey the idea with more precision." Id.
    • The comment to Instruction 8.157 used to begin with "If there is an issue whether there were two racketeering activities within ten years, the instruction should be modified by inserting 'within a period of ten years' after 'acts of racketeering were committed' at the end of the first element." That sentence has been deleted, and the ten years language simply inserted into the instructions.

    • Instruction 8.160 now ends with "See Reves v. Ernst & Young, 507 U.S. 170, 184 (1993) (holding that liability under section 1962 may also extend to lower rung participants who are under the direction of upper management)."
    • The comments to Instructions 8.168 and 8.169 now reference United States v. Etimani, 328 F.3d 493, 503 (9th Cir. 2003), which defines "sexual act" as "skin-to-skin touching," not touching over clothes.
    • Instruction 8.172 (SEXUAL ABUSE-INCAPACITY OF VICTIM) now asserts that a "person need not be physically helpless to be physically incapable of declining participation in or communicating unwillingness to engage in sexual act," citing United States v. James, 810 F.3d 674, 679 (9th Cir. 2016).
    • Instructions 8.181, 8.182, and 8.183 now incorporate the statutory definition of "visual depiction." Instruction 8.182 also adds the statutory definition of "custody and control."
    • The comment at the end of Instruction 8.188—"For example, if a stolen item is concealed so that it may 'cool off,' the concealment is an integral part of the movement in interstate commerce rather than a break in it"—has been deleted.
    • The elements lists for Instructions 8.194 and 8.195 have been edited to specify the Bail Reform Act. This is explained in the first paragraph of the comment to 8.194, which now reads:

      If the defendant becomes a fugitive prior to the hearing, the defendant’s release is no longer pursuant to the Bail Reform Act, and the defendant thus may not be convicted under § 3146(a). United States v. Castaldo, 636 F.2d 1169, 1172 (9th Cir. 1980). Vacating a hearing prior to its occurrence precludes satisfaction of the second element because the defendant is no longer “under . . . order to appear on any date certain”; this rule applies even where the hearing is vacated because the defendant has failed to appear at prior hearings. United States v. Fisher, 137 F.3d 1158, 1163 (9th Cir. 1998).
    (3/20/2019)

    The search boxes
    As indicated below, most of the work in creating this site went into the federal jury instruction index. But the index is limited in two respects; it does not include every single word, and it is limited to federal instructions. So I have added the ability to do full text searches for both federal and state jury instructions.

    The technically inclined may be interested on how this was done. It did *not* involve complex javascript or even css. It was done with simple html.

    1. Most folks who use Google a lot are familiar with the "site:" search query operator. This tells Google to search a particular folder on the Web (and its child folders). Consequently, if you wanted to limit a search to, say, Illinois murder jury instructions, you could limit the query to the folder where Illinois keeps its criminal jury instructions (which happens to be illinoiscourts.gov/circuitcourt/criminaljuryinstructions), and search using this query: murder site:illinoiscourts.gov/circuitcourt/criminaljuryinstructions.

      This is not that useful, but some of you will see where I am going with this.

    2. You can embed a Google query on a Web page using simple html; something like this:

      <form action="http://www.google.com/search" method="get"> <input type="text" name="q"/> <input type="submit" value="search" /> </form>

    3. You can then add the site: restriction with the line:

      <input type="hidden" name="q" value= "site:illinoiscourts.gov/circuitcourt/criminaljuryinstructions">

    4. That only gets you one site. To get all the sites, just add a bunch of "OR site:" terms to the end of the value (the OR has to be capitalized).

    5. Courts are somewhat undisciplined about their folder use, and some of these folders likely have documents in them that have nothing to do with jury instructions. I add the word "instructions" at the beginning, which narrows things acceptably.

    So you could write html that looks like this:

    <form action="http://www.google.com/search" method="get"> <input type="text" name="q"/> <input type="submit" value="state" /> <input type="hidden" name="q" value= "instruction site:public.courts.alaska.gov/web/cvpji/docs/ OR site:public.courts.alaska.gov/web/crpji/docs/ OR site:azbar.org/media/ OR
    and so on ....

    There are several issues:

    • Google limits the query size to 32 words, which in turn limits the number of sites that can be searched simultaneously. So I broke the queries into three parts using "radio buttons": federal; state (AL-LA) (Alabama-Louisiana); and state (MA-WA) (Massachusetts-Washington).
    • On a second or subsequent query, the Google results page may show the results of the previous query instead of your current one. If this happens, just press CtrlR or F5 to refresh the page.

    This is, therefore, an imprecise tool, but, I think, a helpful one.

    Anyway, that is how I did it. Coding it was the easy part. The hard part was finding all the jury instructions, and then keeping track when the folders get renamed or moved. Which is the reason you use this site instead of making your own.

    (3/15/2019)

    Some notes about the federal jury instruction index
    I learned many years ago that pattern jury instructions and their annotations are the best shortcut for just about any legal research project (explanation here). The federal instructions are particularly authoritative and well done.

    The chief impediment to using them efficiently is that they are on many different sites. I used to search the sites one at a time, looking for answers to particular legal questions. So it seemed like a useful idea to index them.

    Go ahead and give the index a spin. The index entries are more robust than typical index entries. They list the court and title, and sometimes include italicized text showing how the term is used in context.

    I limited the index to federal instructions; it would have taken forever to include the state instructions as well. Indexing just the federal instructions was a daunting task. There are over 4,000 instructions in all, which, when you include the annotations, comes to about 10,000 pages of text.

    So, I took these steps in creating the index.

    1. I read all of the instructions and annotations, and extracted every significant word or phrase, every reference to the U.S.C. or C.F.R., and every reference to a U.S. Supreme Court decision.

    2. I used a database program to sort all the terms alphabetically, and delete all of the duplicates. I ended up with over 25,000 terms.

    3. I wrote a computer program that would put the terms up on the screen one at a time, and display each occurence in context. I would then either accept or reject the occurance. If I accepted the term, the computer would generate the index entry. I ended up with more than 100,000 entries.

    This took the better part of a year. The final result badly needs an edit, which will take months. I decided, however, that this first draft is actually a pretty useful tool, even in its current state, and so I posted it on this "beta" edition of the site.

    Remember that this is just one way to look up instructions. The site has up-to-date links to all of the federal and state instructions, with full text search boxes (I'll talk about the search boxes tomorrow). Use the index, the links, and the search boxes to make sure you find the instruction or annotation you need.

    (3/14/2019)

    Ninth Circuit civil instructions revised to add two new ADA instructions, and update civil rights, copyright, and securities instructions
    The Ninth Circuit published a revised edition of their model civil jury instructions in January 2019. The changes were as follows:

    • A paragraph was added to the end of the comment to instruction 9.5:

      In another post-Castro decision, the Ninth Circuit rejected a municipality's "argument that we must also apply a 'shocks the conscience' standard to [a parent's] Fourteenth Amendment substantive due process claim under Monell." Mann v. Cnty. of S.D., 907 F.3d 1154 (9th Cir. 2018) (distinguishing "direct" Monell claim based on municipality's policy or practice from "indirect" Monell claim based on constitutional violation resulting from omission and which requires showing of "deliberate indifference").
    • The comment to instruction 9.9 replaced a citation to a 2008 case with a citation to Barone v. City of Springfield, 902 F.3d 1091, 1099, 1101-06 (9th Cir. 2018) ("Whether an individual speaks as a public employee is a mixed question of fact and law .... First, a factual determination must be made as to the scope and content of a plaintiff’s job responsibilities .... Second, the ultimate constitutional significance of those facts must be determined as a matter of law.”) (citations and quotation marks omitted). This was just an updated cite, not a change in the circuit's position. Another reference to Barone was tacked on at the end:

      This instruction also should be modified when a public employee alleges an adverse employment action based on the employee's refusal to enter into an unconstitutional prior restraint, limiting the public employee's right to speak as a private citizen on a matter of public concern. See Barone v. City of Springfield, 902 F.3d 1091, 1101-06 (9th Cir. 2018).
    • Another citation to Barone appears at the end of instruction 9.10: "Barone v. City of Springfield, 902 F.3d 1091, 1101-06 (9th Cir. 2018) (holding that prior restraint prohibiting police officer from speaking or writing 'anything of a disparaging or negative manner related to the Department/Organization/City of Springfield or its Employees' violated First Amendment)."

    • A sentence was added at the end of the comment to instruction 9.20: "In addition, 'while the traditional Fourth Amendment analysis 'is predominantly an objective inquiry,' the 'actual motivations' of officers may be considered when applying the special needs doctrine.' Scott v. City. of San Bernardino, 903 F.3d 943, 949 (9th Cir. 2018) (affirming summary judgment in favor of plaintiff middle school students unreasonably arrested without probable cause)."

    • The same sentence was added at the end of the comment to instruction 9.23.

    • A paragraph was added at the end of the comment to instruction 9.32:

      For a case that may blur the distinction between procedural and substantive due process, see Mann v. Cnty. of S. D., 907 F.3d 1154 (9th Cir. 2018) (holding that county violated parents' Fourteenth Amendment substantive due process rights by performing medical examinations on parents' children without notifying parents and without obtaining either parents' consent or judicial authorization).
    • A brand new instruction 9.33A:

      9.33A PARTICULAR RIGHTS-FOURTEENETH AMENDMENT- DUE PROCESS-DELIBERATE OR RECKLESS SUPPRESSION OF EVIDENCE

      As previously explained, the plaintiff has the burden of proving that the [act[s]] [failure to act] of the defendant [name] deprived the plaintiff of particular rights under the United States Constitution. The Fourteenth Amendment protects against a person being subjected to a criminal trial when favorable evidence has been deliberately or recklessly withheld from the prosecutor. In this case, the plaintiff alleges the defendant deprived [him] [her] of [his] [her] rights under the Fourteenth Amendment to the Constitution when [insert factual basis of the plaintiff's claim].

      For the plaintiff to prevail on [his][her] claim of deliberate or reckless suppression of evidence, the plaintiff must prove the following elements by a preponderance of the evidence:

      1. The defendant [name] suppressed evidence that was favorable to the accused [plaintiff's name] from the prosecutor and the defense;
      2. The suppression harmed the accused [plaintiff's name]; and
      3. The defendant [name] acted with deliberate indifference to an accused's rights or for the truth in suppressing the evidence.

      "Deliberate indifference" is the conscious or reckless disregard of the consequences of one's acts or omissions.

      Comment

      Use this instruction only in conjunction with the applicable elements instructions, Instructions 9.3-9.9. See Mellen v. Winn, 900 F.3d 1085, 1096 (9th Cir. 2018); Tennison v. City & Cnty. of S.F., 570 F.3d 1078, 1087, 1089 (9th Cir. 2009); see also Carrillo v. Cnty. of L.A., 798 F.3d 1210, 1219 (9th Cir. 2015) ("The law in 1984 clearly established that police officers were bound to disclose material, exculpatory evidence.").

    • The Chapter 12 introduction has some minor edits:

      • "Because a substantial majority of the reported Supreme Court and Ninth Circuit decisions arise under the employment provisions of the ADA, these instructions are intended to cover focus on employment claims under the ADA.

      • Added before "In Chevron U.S.A.": "For a case involving a pre-employment claim under the ADA, see E.E.O.C. v. BNSF Rwy. Co., 902 F.3d 916 (9th Cir. 2018)."

    • Instruction 12.1 is renumbered as 12.1A, and the elements paragraphs are edited as follows:

      1. the plaintiff has a disability as that term is defined later in these instructions physical or mental impairment;
      2. such physical or mental impairment substantially limited one or more major life activities;
      3. the plaintiff was a qualified individual as that term is later defined later in these instructions; and
      4. the plaintiff was [[discharged] [not hired] [not promoted] [demoted] [state other adverse action]]] because of the plaintiff's disability [his/her] physical or mental impairment.

      A paragraph (that formerly appeared in 12.2) was added at the end of the instruction:

      Major life activities are the normal activities of living that a nondisabled person can do with little or no difficulty, such as [specify applicable major life activities].

      The comment now begins with two new paragraphs (which formerly appeared in instruction 12.2):

      Major life activites are defined in § 12102(2)(A)-(B) and include caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, working and the operation of a major bodily function such as the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine and reproductive functions. The Ninth Circuit has recognized interacting with others as a major life activity. Weaving v. City of Hillsboro, 763 F.3d 1106, 1112 (9th Cir. 2014).

      The term "substantially limits" must be interpreted consistently with the ADAA. Id. § 12102(4)(B). "'An impairment is a disability . . . if it substantially limits the ability of an individual to perform a major life activity as compared to most people in the general population. An impairment need not prevent, or significantly or severely restrict, the individual from performing a major life activity in order to be considered substantially limiting.'" Weaving v. City of Hillsboro, 763 F.3d 1106, 1111 (9th Cir. 2014) (quoting 29 C.F.R. § 1630.2(j)(1)(ii)).

    • A new instruction 12.1B ("ADA EMPLOYMENT ACTIONS-RECORD OF DISABILITY-ELEMENTS") reads as follows:

      The plaintiff claims that [his] [her] record of disability was the reason for the defendant's decision to [discharge] [not hire] [not promote] [demote] [state other adverse action] [him] [her]. To succeed on this claim the plaintiff has the burden of proving the following by a preponderance of the evidence:

      1. the plaintiff has a record of a physical or mental impairment;
      2. such physical or mental impairment substantially limited one or more major life activities;
      3. the plaintiff was a qualified individual as that term is later defined in these instructions; and
      4. the plaintiff was [discharged] [not hired] [not promoted] [demoted] [state other adverse action] because of [his/her] record of a physical or mental impairment].

      If you find that the plaintiff has proved all of these elements, your verdict should be for the plaintiff. If, on the other hand, the plaintiff has failed to prove any of these elements, your verdict should be for the defendant.

      Comment

      See Comment to Instruction 12.1A (ADA Employment Action-Actual Disability-Elements).

    • A new instruction 12.1C ("ADA EMPLOYMENT ACTIONS—REGARDED AS DISABILITY—ELEMENTS") reads as follows:

      The plaintiff claims that because the defendant regarded [him] [her] as disabled, the defendant [discharged] [did not hire] [did not promote] [demoted] [state other adverse action] [him] [her]. To succeed on this claim the plaintiff has the burden of proving the following by a preponderance of the evidence:

      1. the plaintiff was regarded as having a physical or mental impairment;
      2. the plaintiff was a qualified individual as that term is later defined in these instructions; and
      3. the plaintiff was [discharged] [not hired] [not promoted] [demoted] [state other adverse action] because [he] [she] was regarded as having a physical or mental impairment.
      If you find that the plaintiff has proved all of these elements, your verdict should be for the plaintiff. If, on the other hand, the plaintiff has failed to prove any of these elements, your verdict should be for the defendant.

      Comment

      See Comment to Instruction 12.1A (ADA Employment Action—Actual Disability—Elements).

      This instruction is intended to address the ADA Amendments Act of 2008, which clarified two points about “regarded as” disability claims:

      1. A plaintiff meets the requirements of being “regarded as” having a disability if he establishes that he has been discriminated against “because of an actual or perceived impairment whether or not the impairment limits or is perceived to limit a major life activity.” (emphasis added). 42 U.S.C. § 12102(3)(A).
      2. A plaintiff cannot be “regarded” as having a disability if the actual or perceived impairment is “transitory and minor.” 42 U.S.C. § 12102(3)(B). A “transitory” impairment is defined as one “with an actual or expected duration of 6 months or less.” Id.

      The “transitory and minor” exception is an affirmative defense, and as such, the employer bears the burden of establishing the defense. Nunies v. HIE Holdings, Inc., 908 F.3d 428, 435 (9th Cir. 2018).
    • The last paragraph of instruction 12.2 was moved to instruction 12.1. A new paragraph appears at the beginning of the comment:

      Some form of this instruction should be given when a claim involves a theory of actual or record disability. Whether this instruction or a modified version should be given when a claim involves only a theory that the plaintiff was "regarded as" having a disability may require further analysis. See Nunies v. HIE Holdings, Inc., 908 F.3d 428, 434 (9th Cir. 2018).
      The last six paragraphs of the comment were removed or moved elsewhere.

    • A new paragraph was added at the end of the comment to instruction 17.5.

      In Skidmore v. Led Zeppelin, 905 F.3d 1116 (9th Cir. 2018), a case involving the alleged copyright infringement of a musical composition, the Ninth Circuit worded the elements slightly differently. The Ninth Circuit stated: "In order to prove copyright infringement, a plaintiff must show (1) that he owns a valid copyright in his work, and (2) that the defendants copied protected aspects of the work's expression." Skidmore, 905 F.3d at 1125 (citation, quotation marks, and brackets omitted). The Ninth Circuit added: "Whether Defendants copied protected expression contains two separate and distinct components: 'copying' and 'unlawful appropriation.'" Skidmore, 905 F.3d at 1125 (citing Rentmeester v. Nike, Inc., 883 F.3d 1111, 1117 (9th Cir. 2018)).
    • Another paragraph about Skidmore was added at the end of the comment to instructions 17.14.

      In Skidmore v. Led Zeppelin, 905 F.3d 1116, 1125-30 (9th Cir. 2018), the Ninth Circuit provided an extensive discussion of "originality" in the context of a case involving the alleged copyright infringement of a musical composition. Among other things, the Ninth Circuit explained: "To prove 'unlawful appropriation,' a higher showing of substantial similarity is needed. The works must share substantial similarities and those similarities must involve parts of the plaintiff's work that are original and therefore protected by copyright." Skidmore, 905 F.3d at 1125 (citing Rentmeester v. Nike, Inc., 883 F.3d 1111, 1117 (9th Cir. 2018)).
    • Another paragraph about Skidmore was added at the end of the comment to instruction 17.17.

      In Skidmore v. Led Zeppelin, 905 F.3d 1116, 1130-31 (9th Cir. 2018), the Ninth Circuit provided an extensive discussion of the "inverse ratio rule" in the context of a case involving the alleged copyright infringement of a musical composition.
    • Another reference to Skidmore was added to the comment to instruction 17.19.

      In addition, in Skidmore v. Led Zeppelin, 905 F.3d 1116, 1125-27 (9th Cir. 2018), a case involving the alleged copyright infringement of a musical composition, the Ninth Circuit found reversible error in the district court's failure to instruct on "selection and arrangement" in considering extrinsic substantial similarity.
    • A string of case citations was added at the end of the first paragraph of the comment to instruction 17.21.

    • A new paragraph was added to the introduction to chapter 18:

      In Khoja v. Orexigen Therapeutics, Inc., 899 F.3d 988 (9th Cir. 2018), the Ninth Circuit thoroughly discussed and applied many of the key concepts that appear in securities cases, such as falsity, omissions, and materiality. The case also clarifies the circumstances for correctly applying the doctrine of incorporation-by-reference.
    (3/11/2019).

    Sixth Circuit criminal instruction revisions address inferences, Old Chief, drug conspiracies
    A principal goal of this site is to be a complete and up-to-date collection of state and federal pattern jury instructions on the Internet. Nobody else does this. When jury instructions are added or revised, the changes will be analyzed on the trialdex jury instruction blog, using redline/strikeout quotations to clarify the changes.

    Note that the site also offers free jury instruction email alerts whenever a circuit or state adds or revises a pattern jury instruction.

    To get started, I have some notes to share regarding 2019 instruction amendments. Let's start with the Sixth Circuit, which replaced their December 2017 instructions with a revised set dated January 1, 2019.

    • The first substantive change is to instruction 1.05:

      (1) You are to consider only the evidence in the case. You should use your common sense in weighing the evidence. Consider itthe evidence in light of your everyday experience with people and events, and give it whatever weight you believe it deserves. If your experience tells you that certain evidence reasonably leads to a conclusion, you are free to reach that conclusion. (2) In our lives, we often look at one fact and conclude from it that another fact exists. In law we call this an "inference." A jury is allowed to make reasonable inferences, unless otherwise instructed. Any inferences you make must be reasonable and must be based on the evidence in the case. (3) The existence of an inference does not change or shift the burden of proof from the government to the defendant.
      The commentary indicates that the new first sentence was derived from treatises, and that "[p]aragraphs (2) and (3) were added in 2018, not to reflect a change in the law but to provide some additional plain-English explanation of permitted inferences."

    • The extended discussion of the inference of guilty knowledge that may be drawn from the fact of unexplained possession of stolen goods has been removed from the commentary to instruction 7.16, and replaced with a citation to relevant cases. The instruction itself is unchanged.

    • Instruction 7.16 now refers to "recorded conversations" rather than "tape recordings." A new paragraph has been added at the end of the commentary"

      If the case involves recordings in a foreign language and English transcripts are provided to the jury, see United States v. Garcia, 20 F.3d 670, 672-73 (6th Cir. 1994), citing United States v. Moreno, 933 F.2d 362, 375 (6th Cir. 1991) and United States v. Cruz, 765 F.2d 1020, 1023 (11th Cir. 1985).
    • A new paragraph has been inserted at the beginning of instruction 7.21:

      The general rule is that a defendant cannot stipulate or admit his way out of the full evidentiary force of the case as the government chooses to present it. Old Chief v. United States, 117 S. Ct. 644, 653 (1997); United States v. Luck, 852 F.3d 615, 624 (6th Cir. 2017). In Old Chief, the Court carved out an exception to this rule, holding that the government cannot refuse a defendant's offer to stipulate to felon status in felon-in-possession prosecutions under 18 U.S.C. § 922(g)(1). Old Chief, 117 S. Ct. at 654-55. The Supreme Court limited this exception to cases involving proof of felon status, see 117 S. Ct. at 651 note 7, and the Sixth Circuit has rejected attempts to expand the exception. Luck, 852 F.3d at 625.

    • Instruction 14.07B has been substantially revised:

      (1) The defendant is charged in Count _____ of the indictment with conspiracy to [insert object(s) of conspiracy]. If you find the defendant guilty of this charge, you will then be asked to determine the quantity of the controlled substance involved in the conspiracy as a whole that was attributable to him as the result of his own conduct and the conduct of other co-conspirators that was reasonably foreseeable to him. You will be provided with a special verdict form for this purpose.

      (2) If you find by unanimous agreement that the government has proved beyond a reasonable doubt that the conspiracy as a whole involved a quantity of at least ______ of a mixture or substance containing a detectable amount of [name controlled substance] was attributable to defendant as the result of his own conduct and the conduct of other co conspirators that was reasonably foreseeable to him, then please indicate this finding on the special verdict form.

      [(3) If you do not so find, you will then be asked to determine whether the government has proved a lesser quantity. If you unanimously find that the government has proved beyond a reasonable doubt that the conspiracy as a whole involved a quantity of at least _______ of a mixture or substance containing a detectable amount of [name controlled substance] was attributable to defendant as the result of his own conduct and the conduct of other co conspirators that was reasonably foreseeable to him, then please indicate that finding on the special verdict form.]

      (4) In determining the quantity of the controlled substance involved in the conspiracy as a whole, you need not find that the defendant knew thethat his offense involved this quantity involved in the offense of drugs.

      The revised commentary notes that courts have been inconsistent in addressing whether mandatory minimum sentences for § 846 drug conspiracy offenses are determined by "conspiracy wide" or "defendant specific" drug quantities, and encourages courts to take the approach outlined in United States v. Swiney, 203 F.3d 397, 405-06 (6th Cir. 2000).

      Special Verdict Form 14.07B-1 has been amended consistent with the revised instruction.

    (3/10/2019)

    Stats and broken links
    Day two of the site being fully operational (it has been up for a while without the federal jury instruction index). Two initial tasks:

    1. Check for and fix broken links. I used an online free links checker at https://www.brokenlinkcheck.com/broken-links.php. No particular reason to use that one; it was the first one I tried, and it worked. It found 25 broken links; not too bad (the site has about a thousand files).

    2. Checked the stats. As noted below, I have not actively promoted the site, so I did not expect much. My hosting service, x10hosting, has something called a "cpanel" for common site maintenance tasks. If you scroll down, there is a "metrics" section, with something called "Awstats." It has these numbers:
      Month	  Unique visitors  Visits  Pages  Hits   Bandwidth
      Jan 2019  179	           1,481   1,715   1,876  22.17 MB
      Feb 2019  148	             853     954   1,095  11.35 MB
      Mar 2019   39	              52     111     142   6.24 MB
      Nothing startling here. Looks like there was a spike in January, and, of course, March is incomplete. I'll check back later to see if I am building any momentum.

    (3/8/2019)

    The federal jury instruction index is working now
    I have reached a bit of a milestone in the project. The federal jury instruction index is working now. It is a little rough, so I'm not going to start promoting it yet. But I think the basic functionality is there, so I posted it today.

    I am going to start posting on the blog now. I have not checked the numbers lately, but I assume that I am getting minimal page views at this point, so this blog is really a collection of progress notes about the site, mostly for my own benefit.

    I am calling this a "jury instruction blog," and hope to post regularly about new or amended jury instructions. I'll also take some time to explain how to use this Web site, and how it was put together.

    I think some of you might be interested in the nuts and bolts of creating a Web site, how it is hosted and updated, and how it is promoted and monetized. I am not an expert in those things, but I'll post what I learn as I go along. The "monetizing" part is very speculative at this point, but I have some ideas.

    (3/8/2019)

    January 2019   

    Hello world
    This site has not been officially launched yet. I am still working on the federal jury instruction index, a very large work that will take several more months to complete. So for the coming months there will not be new blog entries here (I hope to keep this page very active once the site is completed).

    In its current state, however, the site has some useful features. Trialdex is the only Internet site I know of that has complete and up-to-date links to federal and state jury instructions that can be full text searched.

    Bear in mind, however, that you are on a site that is under construction, so errors and bad links are still being worked on. I am, of course, happy to receive corrections and suggestions.

    (1/9/2019)

     
 
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