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"May 2020" Ninth Circuit revisions to its Manual of Model Criminal Jury Instructions

The Ninth Circuit has also revised its Manual of Model Criminal Jury Instructions. Just as with the civil instructions, they are dated "May 2020," but just went up the other day. The delay is likely COVID-19 related.

The notable changes were as follows:

  • Instruction 3.1 DUTIES OF JURY TO FIND FACTS AND FOLLOW LAW and 7.1 DUTY TO DELIBERATE add language admonishing jurors not to be affected by unconscious bias. It was already part of the preliminary instructions (DUTY OF JURY); now it gets repeated multiple times.
  • Instruction 7.13 (POST-DISCHARGE INSTRUCTION) is new, and addresses what jurors may or should say about the case after the trial.
  • The elements list for Instruction 8.13 (RECEIVING BRIBE BY PUBLIC OFFICIAL (18 U.S.C. § 201(b)(2))) has been amended as follows:

    First, the defendant was a public official;
    Second, the defendant [solicited demanded] [sought] [received] [accepted] [agreed to receive or accept something of value, [specify the thing of value], in return for [being influenced in the performance of an official act] [being influenced to commit or allow a fraud on the United States] [being persuaded induced to do or not to do an act in violation of defendant’s official duty]; and
    Third, the defendant acted corruptly, that is, intending to be influenced [in the performance of an official act] [to commit or allow a fraud on the United States] [to do or to omit to do an act in violation of the defendant’s official duty]. A public official acts "corruptly" when he or she accepts or receives, or agrees to accept or receive, a thing of value, in return for being influenced with the intent that, in exchange for the thing of value, some act would be influenced.
    The Comment notes that the agreement need not be explicit, and the defendant need not intend to follow though, citing United States v. Kimbrew, 944 F.3d 810 (9th Cir. 2019).
  • The Comment to Instruction 8.71 (FIREARMS—USING, CARRYING, OR BRANDISHING IN COMMISSION OF CRIME OF VIOLENCE OR DRUG TRAFFICKING CRIME (18 U.S.C. § 924(c))) now defines a "crime of violence" as an offense that is a felony and "has an element the use, attempted use, or threatened use of physical force against the person or property of another," citing United States v. Davis, 139 S.Ct. 2319 (2019) and 18 U.S.C. § 924(c)(3)(A)). "Physical force" is "force capable of causing physical pain or injury," and includes "the amount of force necessary to overcome a victim’s resistance," citing Stokeling v. United States, 139 S.Ct. 544, 533-55 (2019), and Johnson v. United States, 559 U.S. 133, 140 (2010)). It also provides that a crime of violence for purposes of § 924(c)(3)(A) is one whose commission requires proof of both the specific intent to complete a crime of violence, and a substantial step actually (not theoretically) taken toward its completion,and that it does not matter that the substantial step is not itself a violent act or even a crime, citing United States v. Dominguez, 954 F.3d 1251, 1255 (9th Cir. 2020). “The definition of ‘crime of violence’ in § 924(c)(3)(A) explicitly includes not just completed crimes, but those felonies that have the ‘attempted use’ of physical force as an element.” Thus, “when a substantive offense would be a crime of violence under 18 U.S.C. § 924(c)(3)(A), an attempt to commit that offense is also a crime of violence.”
  • The Comment to Instruction 8.83 (FRAUD IN CONNECTION WITH IDENTIFICATION DOCUMENTS-AGGRAVATED IDENTITY THEFT (18 U.S.C. § 1028A) now notes United States v. Gagarin, 950 F.3d 596, 604 (9th Cir. 2020), for the proposition that, when a defendant forged another person’s signature on a life insurance application as part of a scheme to defraud the insurance company, the forgery constituted a “use of another person’s name” in a way that furthered and facilitated the scheme to defraud, even if the other person had consented to the use of the signature.
  • The Comment to Instruction 8.143A (HOBBS ACT—ROBBERY OR ATTEMPTED ROBBERY (18 U.S.C. § 1951)) now asserts that 18 U.S.C. § 1951 requires specific intent as an element, citing Dominguez.
  • The Comment to Instruction 8.147 (LAUNDERING OR ATTEMPTING TO LAUNDER MONETARY INSTRUMENTS) now asserts that “nexus with interstate commerce is both a jurisdictional requirement and an essential element of the offense,” but that the connection "need not be extensive," citing United States v. Costanzo, 956 F.3d 1091 (9th Cir. 2020).

I have posted a PDF showing the changes.

(09/24/20) (permalink)

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