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Seventh Circuit posts revised pattern criminal jury instructions

The Seventh Circuit posts revsions to their criminal pattern jury instructions each Spring, using the prior year as the date ("Pattern Criminal Jury Instructions (2012 ed.) (includes the 2015-2019 changes)").

New Instructions include:

  • 6.09(B) ("Diminished Capacity")
  • "18 U.S.C. § 201 Official Act")
  • "18 U.S.C. § 1035(A)(1 & 2) Definition of Health Care Benefit Program"
  • New homicide instructions: "18 U.S.C. § 1111 First Degree Murder – Elements"; "18 U.S.C. § 1111 Definition of Malice Aforethought"; "18 U.S.C. § 1111 Definition of Premeditation"; "18 U.S.C. § 1111 Second Degree Murder – Elements"; "18 U.S.C. §§ 1111, 1112 Jurisdiction"; "18 U.S.C. §§ 1111, 1112 Conduct Caused Death"; "18 U.S.C. § 1112 VOLUNTARY MANSLAUGHTER – ELEMENTS"; "18 U.S.C. § 1112 Definition of Heat of Passion"; "18 U.S.C. § 1112 Definition of Voluntary Manslaughter"; "18 U.S.C. § 1112 Involuntary Manslaughter - Elements"; "18 U.S.C. § 1112 Definition of Assault"; "18 U.S.C. § 1112 Definition of Dangerous Weapon"; and "18 U.S.C. § 1112 Definition of Serious Bodily Injury"
  • New Instructions "18 U.S.C. § 1344 Scheme – Definition," "18 U.S.C. § 1344 Multiple False Statements Charged," and "18 U.S.C. § 1344(1) Scheme to Defraud a Financial Institution – Elements" replace "18 U.S.C. § 1347(1) Scheme – Definition" and "18 U.S.C. § 1347(2) Obtaining Property From a Health Care Benefit Program by False or Fraudulent Pretenses – Elements."
  • "18 U.S.C. § 1591 Sex Trafficking of a Minor – Elements" (the former instruction had been removed and labeled "under review") and "18 U.S.C. § 1591 Benefitting From Sex Trafficking of a Minor – Elements."
  • "18 U.S.C. § 1959(A) Violent Crimes in Aid of Racketeering Activity."
  • "18 U.S.C. § 2252A(a)(4)(B) Sale or Possession With Intent to Sell of Child Pornography in Interstate or Foreign Commerce – Elements"

In addition to the change to the Rehaif change to the § 922(g) instruction noted above, the revised instructions include these changes:

  • Several instructions replace the word "charge" with "count."
  • Instruction "18 U.S.C. § 666(a)(1)(B) Bribery Concerning Federally Funded Program – Elements" has been edited to replace the word "anything" with "something" where those words appear in the instruction.
  • Instructions "18 U.S.C. § 666(a)(1)(B) Accepting a Bribe" and "18 U.S.C. § 666(a)(2) Paying a Bribe" replace references to "something" with "a thing" where those words appear in the instructions, and a passage in each of the the Comments that discussed United States v. Blagojevich, 794 F.3d 729 (7th Cir. 2015), was replaced with a discussion of United States v. Robinson, 663 F.3d 265, 271–73 (7th Cir. 2011), and McDonnell v. United States, 136 S. Ct. 2355 (2016).
  • Instruction "18 U.S.C. § 1028(d)(7) DEFINITION OF 'Means of Identification'” replaces a discussion of a Fourth Circuit case, United States v. Mitchell, 518 F.3d 230 (4th Cir. 2008), with a brief cite to United States v. Thomas, 763 F.3d 689 (7th Cir. 2014).
  • The intent element of Instriction "18 U.S.C. § 1028A(A)(1) Aggravated Identity Theft – Elements" has been tightened up to conform with recent Seventh Circuit cases. The reason for the change is described in the Comment section.
  • The Comment to Instruction "18 U.S.C. § 1030(a)(1) Obtaining Information From Computer Injurious to the United States – Elements" adds this sentence in the end: "The term 'knowingly' is defined in Pattern Instruction 4.10, which should be given to define the term 'knowingly' in the first element of this instruction."
  • The Comment to Instruction "18 U.S.C. §§ 1341, 1343 & 1346 Receiving a Bribe or Kickback" now notes that "the bracketed list of fiduciaries is not necessarily an exhaustive list." The definition of "Official Act" cross-references a discussion of McDonnell elsewhere in the instructions. The Comment also deletes a discussion of Blagolevich, regarding cases where the payment was a mere gratuity or where the defendant falsely promised to take official action but never intended to do so, substituting a discussion of United States v. Hawkins, 777 F.3d 880, 883-84 (7th Cir. 2015), and McDonnell.
  • The Comment to Instruction "18 U.S.C. § 1344(1) Scheme to Defraud a Financial Institution – Elements" now notes that "a materially false or fraudulent pretense, representation, or promise may be accomplished by an omission or by the concealment of material information."
  • Instruction "18 U.S.C. § 1347 Health Care Benefit Program/ Interstate Commerce – Definition" adds the admonition "The government need only prove that the health care program itself either engaged in interstate commerce or that its activity affected interstate commerce to any degree," and the Comment has a note about United States v. Lucien, 2003 WL 22336124 (2d Cir. Oct. 14, 2003).
  • The Comment to Instruction "18 U.S.C. § 1951 Color of Official Right – Definition" deletes a discussion of Blagojevich, substituting a cross-reference to McDonnell.
  • The Comment to Instruction "18 U.S.C. § 2250(a) Failure to Register/ Update as Sex Offender – Elements" has a note about Nichols v. United States, 136 S.Ct. 1113 (2016), and United States v. Haslage, 853 F.3d 331 (7th Cir. 2017).
  • Instruction "18 U.S.C. § 2251A(b) Purchasing or Obtaining Children" has been removed.
  • The § 2252A instructions have all been rewritten to take the position that United States v. X-Citement Video, 513 U.S. 64 (1994), governs the intent element.
  • Instruction "18 U.S.C. § 2256(9) – 18 U.S.C. § 2252A(C) – Affirmative Defense to Charges Under 18 U.S.C. §§ 2252A(A)(1), (A)(2), (A)(3)(A), (A)(4) OR (A)(5)" notes that the the Amy, Vicky, and Andy Child Pornography Victim Assistance Act of 2018 has added the word "anus."
  • The Comment to Instruction "18 U.S.C. § 2422(b) Enticement of a Minor – Elements" now discusses adult-to-adult communications, the mistaken belief that the victim was a minor, and jury unanimity.
  • Instruction "DRUG QUANTITY/SPECIAL VERDICT" replaces "controlled substances" with "narcotics," and deletes discussions of Pinkerton liability and 404(b) evidence.

A redline/strikeout copy of the affected instructions is posted here. Prior versions of these instructions are archived here.

(03/07/20) (permalink)

 
 
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