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Ninth Circuit December 2019 revisions to its Model Criminal Jury Instructions

The December 2019 revisions to the Ninth Circuit Model Criminal Jury Instructions have been posted. There are two new instructions:

  • 8.128B ("SOLICITING OR RECEIVING KICKBACKS IN CONNECTION WITH MEDICARE OR FEDERAL HEALTH CARE PROGRAM PAYMENTS (42 U.S.C. § 1320a-7b(b)(1)(A)))
  • 8.192A ("USING OR ATTEMPTING TO USE THE MAIL OR A MEANS OF INTERSTATE COMMERCE TO PERSUADE OR COERCE A MINOR TO TRAVEL TO ENGAGE IN PROSTITUTION OR SEXUAL ACTIVITY (18 U.S.C. § 2422(b))

Other non-clerical changes:

  • The Comment to Instruction 1.1 ("DUTY OF JURY") notes a new "shortened" video about unconscious bias that may be shown to jurors. Like the original video, it goes beyond mere admonitions, and features "attorneys" reciting the results of "studies."
  • The introduction to Chapter 3. ("INSTRUCTIONS AT END OF CASE") notes United States v. Becerra, 939 F.3d 995 (9th Cir. 2019), which found structural error where the judge did not read the instructions to the jury, but simply gave them written copies.
  • The Comment to Instruction 5.8 ("DELIBERATE IGNORANCE") notes United States v. Hong, 938 F.3d 1040 (9th Cir. 2019), which cautions about the overuse of wilful blindness instructions.
  • Instruction 7.7 ("DEADLOCKED JURY"), among other things, now omits the paragraph:

    All of you are equally honest and conscientious jurors who have heard the same evidence. All of you share an equal desire to arrive at a verdict. Each of you should ask yourself whether you should question the correctness of your present position.

    and adds:

    What I have just said is not meant to rush you or pressure you into agreeing on a verdict. Take as much time as you need to discuss things. There is no hurry.

  • The Comment to Instruction 8.83 ("AGGRAVATED IDENTITY THEFT (18 U.S.C. § 1028A)") now notes Hong, id., which narrowly construes the word "use."
  • The Comment to Instruction 8.128A("HEALTH CARE FRAUD (18 U.S.C. § 1347)") now notes Hong's discussion of wilful blindness instructions.
  • The Comments to the Hobbs Act instructions (8.142 et seq.) now note a circuit split regarding whether the Hobbs Act requires specific intent to steal.
  • The Comment to Instruction 8.150 ("MONEY LAUNDERING (18 U.S.C. § 1957)") now notes a discussion in United States v. Chi, 936 F.3d 888, 893 (9th Cir. 2019), regarding "specified unlawful activity."
  • Instruction 8.192 (18 U.S.C. § 2422(a)) has been renamed as "PERSUADING OR COERCING TO TRAVEL TO ENGAGE IN PROSTITUTION OR SEXUAL ACTIVITY."
  • The Comments to Instructions 9.37 ("ATTEMPT TO EVADE OR DEFEAT INCOME TAX (26 U.S.C. § 7201)") and 9.39 ("FILING FALSE TAX RETURN (26 U.S.C. § 7206(1))") replace references to "dividend" with "distribution" and "capital distribution" with "return of capital."

A redline/strikeout document showing these changes is posted here.

(12/19/19) (permalink)

 
 
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