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Eleventh Circuit posts revised criminal pattern jury instructions

The Eleventh Circuit has posted its February 2020 jury instructions on its jury instruction Web site. New Instructions include:

  • B8.1 (Conjunctively Charged Counts)
  • O24.3 (Bribery of Agent of Entity Receiving Benefits Under a Federal Assistance Program 18 U.S.C. § 666(a)(2))
  • O60.1 (Misuse of a Passport 18 U.S.C. § 1544 (First and Second Paragraphs))
  • O82.1 (Advertising Child Pornography 18 U.S.C. § 2251(d))
  • O96.4 (Conspiracy to Encourage or Induce Aliens to Enter the United States 8 U.S.C. § 1324(a)(1)(A)(v)(I))
  • O120 (Procurement of Citizenship or Naturalization Unlawfully 18 U.S.C. § 1425

Changes from the 2019 edition include:

  • The social media paragraph in the "Credibility of witnesses" section of Instruction P1 (Preliminary Instructions - Criminal Cases) has been modified:

    In this age of instant electronic communication and research, I want to emphasize that in addition to not talking face to face with anyone about the case, you must not communicate with anyone about the case by any other means, including by telephone, text messages, email, Internet chat, chat rooms, blogs, or social-networking websites and apps such as Facebook, My Space, Instagram, Snapchat, YouTube, or Twitter. You may not use any similar technology of social media, even if I have not specifically mentioned it here.

  • The annotation to Instruction O13.1 (General Conspiracy Charge 18 U.S.C. § 371) has a new paragraph tacked on at the end:

    The general conspiracy statute, 18 U.S.C. § 371, expressly makes an overt act an element of the offense. A conspiracy charged under other conspiracy statutes may not include an overt act as an element. See, e.g., 18 U.S.C. §§ 286, 1349, 1956(h), 1962(d); and 21 U.S.C. §§ 846, 963. To the extent that district courts are relying on this instruction as guidance for drafting an instruction for a different conspiracy offense, the Committee cautions that the United States Supreme Court has held in several circumstances that proof of an overt act is not required when a conspiracy statute does not expressly contain an overt act requirement. See Whitfield v. United States, 543 U.S. 209, 214 (2005) (finding no overt act requirement in 18 U.S.C. § 1956(h)); Salinas v. United States, 522 U.S. 52, 63 (1997) (same as to 18 U.S.C. § 1962(d)); United States v. Shabani 513 U.S. 10, 11 (1994) (same as to 21 U.S.C. § 846). Reference to instructions related to those statutes may provide useful guidance. See O74.5, O75.2, O100.

  • The second element of Instruction O24.2 (Bribery Concerning a Program Receiving Federal Funds 18 U.S.C. § 666(a)(1)(B)) now begins "(2) [same name of affected entity as above] ...", and the third element now begins "(3) during that the one-year period the Defendant ...." An extended discussion of McDonnell v. United States, 136 S.Ct. 2355 (2016), has been added to the Annotation.
  • Instruction O75.2 RICO (Conspiracy Offense 18 U.S.C. § 1962(d)) adds definitions for enterprise, racketeering activity, and pattern of racketeering activity. Also, the elements list now begins:

    (1) two or more people agreed to try to accomplish an unlawful plan to engage participate in the affairs of an enterprise through a pattern of racketeering activity;

    (2) that the unlawful plan affected interstate commerce;
    (3) the Defendant knowingly and willfully joined in the conspiracy; and (4) when the Defendant ...

    A brief explanatory paragraph has been added to the Annotation.

  • The second paragraph after the elements list in Instruction O92.3 (Attempted Coercion and Enticement of a Minor to Engage in Sexual Activity 18 U.S.C. § 2422(b)) now reads:

    Also, it is not necessary for the Government to prove that the individual was actually [persuaded] [or induced] [or enticed] [or coerced] to engage in [prostitution or] sexual activity; but it is necessary for the Government to prove that the Defendant intended to cause agreement on the part of the individual to engage in [prostitution or] some form of unlawful sexual activity with the individual and knowingly took some action that was a substantial step toward bringing about or engaging causing agreement on the part of the individual to engage in that [prostitution or] some form of unlawful sexual activity. A "substantial step" is an important action leading up to committing an offense - not just an inconsequential act. It must be more than simply preparing. It must be an act that would normally result in the persuasion, inducement, enticement, or coercion.

    The Annotation adds a long parenthetical regarding United States v. Lee, 603 F.3d 904, 917 (11th Cir. 2010). The discussion of the non-requirement of actual minor victims in attempt cases is rewritten.

  • The treatment of drug weight and Apprendi is rewritten in Instruction O98 (Controlled Substances - Possession with Intent to Distribute 21 U.S.C. § 841(a)(1)), but it is not clear that any changes in substance are intended.

A redline/strikeout copy of the affected instructions is posted here.

(03/10/20) (permalink)

 
 
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