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March 2021 changes to the Sixth Circuit criminal instructions

The Sixth Circuit has revised several criminal jury instructions.

  • Instruction 8.02 (Experiments, Research, Investigation and Outside Communications) now reads in part: "You may not use any electronic device or media, or application [unless specifically instructed to do so by this court], and adds the language "Even using your smartphones, tablets, and computers—and the news and social media apps on those devices—may inadvertently expose you to certain notices, such as pop ups or advertisements, that could influence your consideration of the matters you’ve heard about in this courtroom." It also adds to the list of proscribed social media platforms. The Use Note is substantially rewritten; it was formerly based on a 2013 Benchbook, but is now taken from the Proposed Model Jury Instructions on the Use of Electronic Technology to Learn or Communicate about a Case, Prepared by the Judicial Conference Committee on Court Administration and Case Management (June 2020).
  • Paragraph (1)(A) of Instruction 10.01 (Mail Fraud) replaces the word "obtain" with "deprive another of." Paragraph (2)(C) deletes the word "intentionally." Paragraph (2)(D) replaces "either causing a financial loss to another or bringing about a financial gain to oneself [to another person]" with "depriving another of money or property." The reasons for these changes are discussed in an extensively rewritten Commentary, and include a note about Kelly v. United States, 140 S. Ct. 1565 (2020).
  • The same changes were made to Instruction 10.02 (Wire Fraud). The Use Note regarding Paragraph (2)(D) suggests that "if the prosecution’s theory of fraud is based on concealment of required reports, the court should consider instructing that a failure to file required reports may be a material omission." Once again, the Commentary is substantially rewritten.
  • An additional element has been added to Instruction 14.02B (Distribution of a Controlled Substance when Death or Serious Bodily Injury Results): "[(D) Fourth, the defendant was part of the of the distribution chain that placed the [name controlled substance] into the hands of [name of person injured/deceased]]." The Use Note explains this language "should be used only when the defendant’s liability for the distribution offense is based on a Pinkerton conspiracy theory." The revised Commentary explains that the new element comes from United States v. Hamm, 952 F.3d 728, 747 note 11 (6th Cir. 2020).
  • The same changes are made to Instruction 14.03B (Manufacture of a Controlled Substance when Death or Serious Bodily Injury Results).
  • Instruction 18.01 (Transmission of a Threat to Kidnap or Injure) now provides that the "government need not prove that the defendant [intended to carry out the threat or was capable of carrying out the threat at the time it was made] [made the targeted individual feel threatened or that the targeted individual knew about the threat against him.]." The Commentary was updated to note the court's decision in United States v. Howard, 947 F.3d 936, 946 (6th Cir. 2020).

Previous versions of these instructions are archived here.

(03/27/21) (permalink)