The Ninth Circuit posts revisions to its
Model Jury Instructions every three months. They posted the December 2020 revisions this week. The Civil revisions are as follows:
Civil Instruction 1.15 (CONDUCT OF THE JURY) has the following edits:
"This includes discussing the case in person, in writing, by phone, tablet, or
computer, or any other electronic means, via email, text messaging, or any internet chat room, blog, website or application, including but not limited to Facebook, YouTube, Twitter, Instagram, LinkedIn, Snapchat,
Tiktok, or any other forms of social media....
Do not visit or view any place discussed in this case, and do not use the Internet programs or any other devices resource to search for or view any place discussed during the trial....
The practice in federal court of repeatedly instructing jurors not to discuss the case until deliberations is widespread....
State court practice in some jurisdictions does allow discussion If the court decides to allow discussion, the third sentence of the fourth paragraph of the instruction should be modified accordingly, and the following language may be included: You may discuss with fellow case by jurors the testimony as it is presented, provided that all jurors are present for the discussion. You are to keep an open mind throughout the case until you have fully deliberated. prior to the beginning of deliberations. The Ninth Circuit has not addressed this practice."
New Civil Instruction 2.0 (CAUTIONARY INSTRUCTIONS).
Civil Instruction 3.2 (CONSIDERATION OF EVIDENCE—-CONDUCT OF THE JURY) has been edited as follows: "This includes discussing the case in person, in writing, by phone, tablet, computer, or electronic
any other means, via email, via text messaging, or any internet chat room, blog, website or application, including but not limited to Facebook, YouTube, Twitter, Instagram, LinkedIn, Snapchat,
TikTok, or any other forms of social media."
The Comment to Civil Instruction 9.12 (PARTICULAR RIGHTS—-FOURTH AMENDMENT—-UNREASONABLE SEARCH—-GENERALLY) now notes Cates v. Stroud, 976 F.3d 972, 978-85 (9th Cir. 2020) (examining search of prison visitor and holding that prior to strip search, visitor must be given opportunity to leave prison).
The Comment to Civil Instruction 15.6 (INFRINGEMENT—-ELEMENTS AND BURDEN OF PROOF—-TRADEMARK) now notes Arcona, Inc. v. Farmacy Beauty, LLC, 976 F.3d 1074, 1079 (9th Cir. 2020) (holding that "a counterfeit claim requires a showing of likelihood of confusion under Section 1114.").
The Comment to Civil Instruction 18.8 (SECURITIES—-CAUSATION) now concludes:
"To establish loss causation in a fraud-on-the-market case, the plaintiff must show that after purchasing her shares and before selling, the following occurred: (1) 'the truth became known,' and (2) the revelation caused the fraud-induced inflation in the stock's price to be reduced or eliminated." In re BofI Holding, Inc. Sec. Litig., 977 F.3d 781, 789 (9th Cir. 2020) (quoting Dura Pharms., Inc., 544 U.S. at 347). A plaintiff may prove that "the truth became known" by identifying one or more "corrective disclosures." Id. at 790. "A corrective disclosure occurs when 'information correcting the misstatement or omission that is the basis for the action is disseminated to the market.'" Id. (quoting 15 U.S.C. § 78u-4(e)(1)); see also Grigsby v. BofI Holding, Inc., No. 19-55042, 2020 WL 6438912 (9th Cir Nov. 3, 2020) (holding news article with information from FOIA request can be corrective disclosure, but Internet article with publicly available information from whistleblower was not corrective disclosure). The Ninth Circuit offered guidance on what constitutes a corrective disclosure in In re BofI Holding, Inc. Sec. Litig., 977 F.3d 781, 790 (9th Cir. 2020), explaining that "a corrective disclosure need not consist of an admission of fraud by the defendant or a formal finding of fraud by a government agency"; rather, it may "come from any source, including knowledgeable third parties such as whistleblowers, analysts, or investigative reporters." Id. A corrective disclosure also "need not reveal the full scope of the defendant's fraud in one fell swoop; the true facts concealed by the defendant's misstatements may be revealed over time through a series of partial disclosures." Id. A corrective disclosure "need not precisely mirror the earlier misrepresentation," id. (internal quotation marks omitted), as it "is enough if the disclosure reveals new facts that, taken as true, render some aspect of the defendant's prior statements false or misleading." Id. Against this backdrop, the Ninth Circuit rejected the district court's conclusion that, "to adequately plead loss causation, the shareholders had to identify an additional disclosure that confirmed the truth of [the] allegations" in the corrective disclosure. Id. at 792. Rather, the court noted that "short of an admission by the defendant or a formal finding of fraud-neither of which is required-any corrective disclosure will necessarily take the form of contestable allegations of wrongdoing." Id. (citations omitted). While the "plaintiff must, of course, prove that the defendant's misstatements were false, . . . that can be done through proof other than the corrective disclosure itself." Id.
The Criminal revisions are as follows:
Criminal Instruction (1.8 CONDUCT OF THE JURY) has the same edits found in Civil Instruction 3.2 (CONSIDERATION OF EVIDENCE—-CONDUCT OF THE JURY) (described above).
Former Criminal Instruction 2.1 (CAUTIONARY INSTRUCTION—FIRST RECESS) no longer has "FIRST RECESS" in its title. It is now intended to be given "At the End of Each Day of the Case" and has been rephrased accordingly. It also now includes alternative language for open court, and for voir dire with each juror individually. It now has a Comment that states: "This instruction is derived from the model instruction prepared by the Judicial Conference Committee on Court Administration and Case Management in June 2020. The practice in federal court of repeatedly instructing jurors not to discuss the case until deliberations is widespread. See e.g., United States v. Pino-Noriega, 189 F.3d 1089, 1096 (9th Cir. 1999)."
The Comment to Criminal Instruction 8.56 (FIREARMS—UNLAWFUL TRANSPORTATION OF DESTRUCTIVE DEVICE, MACHINE GUN, SHORT–BARRELED SHOTGUN OR SHORT–BARRELED RIFLE) now concludes "26 U.S.C. § 5845(b) provides the definition of 'machine gun.' United States v. Kuzma, 967 F.3d 959, 967 (9th Cir. 2020). '[A] weapon is ‘designed to shoot’ automatically if it has a specific configuration of objective structural features that, in the absence of any minor defect, would give the weapon the capacity to shoot automatically.' Id. at 969-70."
The Comments to Criminal Instructions 8.176 (SEXUAL ABUSE OF PERSON IN OFFICIAL DETENTION) and 8.177 (ATTEMPTED SEXUAL ABUSE OF PERSON IN OFFICIAL DETENTION) now note that "'Official detention' includes a minor who is being held in a facility who has been served with a Notice to Appear in Immigration Court, and who has been placed into removal proceedings. United States v. Pacheco, 977 F.3d 764, 766 (9th Cir. 2020)."
The Comment to Criminal Instruction 8.180 (ABUSIVE SEXUAL CONTACT—WITHOUT PERMISSION) has an updated citation to United States v. Price, 980 F.3d 1211, 1217-1224 (9th Cir. 2020) (approving instruction). "In this case, the Ninth Circuit held that the government must prove beyond a reasonable doubt that the defendant knowingly had sexual contact with the victim and that the sexual contact was without the victim’s permission. 'Permission' includes both explicit and implicit permission and may be proven by either direct or circumstantial evidence. The government is not required to prove that the defendant subjectively knew that the sexual contact was without the victim’s permission. Id."
The Comment to Criminal Instruction 8.183 (SEXUAL EXPLOITATION OF CHILD—NOTICE OR ADVERTISEMENT SEEKING OR OFFERING) now provides that one-to-one communication can satisfy the notice requirement under 18 U.S.C. § 2251(d)(1), citing United States v. Cox, 963 F.3d 915, 922 (9th Cir. 2020).
The Comment to Criminal Instruction 9.9 (SECURITIES FRAUD) now states: "As in the Securities Exchange Act §10(b) context, 18 U.S.C. § 1348’s requirement of 'in connection with' is broadly construed and can be met by proof of dissemination and materiality of the misrepresentation or omission. See United States v. Hussein, 972 F.3d 1128, 1147 (9th Cir. 2020)."
The Comment to Criminal Instruction 9.19 (CONTROLLED SUBSTANCE—CONSPIRACY TO DISTRIBUTE OR MANUFACTURE) now cites United States v. Collazo, 982 F.3d 596 (9th 2020) and deletes both references to "and (b) that the type and quantity of drugs fell within the scope of [name of defendant]’s agreement or was reasonably foreseeable to [name of defendant]" from the SUGGESTED VERDICT FORM.