The Tenth Circuit has posted a
2021 edition of its criminal pattern jury instructions. This is the first update since 2018, and the changes are extensive:
Instruction 2.01 (FOOD STAMPS-UNAUTHORIZED USE) no longer concludes with "Finally, in determining the value of [food stamp coupons] [authorization cards] [access devices], you should rely on their face value [if specified or otherwise determinable]." The Comment more concisely describes the knowledge element.
The fourth element of Instruction 2.02.1 (BRINGING IN AN ALIEN) now defines "reckless disregard" as a "deliberate indifference to facts which, if considered and weighed in a reasonable manner, indicate the highest probability that the alleged aliens were in fact aliens and were in the United States unlawfully." The Comment notes that reckless disregard is not defined in Title 8, and discusses the applicable case law. It further notes case law regarding defense claims of being a national.
The first two elements of Instruction 2.03 (ALIEN-ILLEGAL TRANSPORTATION) have been combined, with the added phrase "or was present in the United States in violation of law." The last element now has "in furtherance of the alien's violation of law" tacked on at the end. The Comment was extensively rewritten to explain this.
The first two elements of Instruction 2.04 (ALIEN-CONCEALMENT) have been combined with an added alternative means ("come to").
The Use Note for Instruction 2.05 (REENTRY OF DEPORTED ALIEN) now references United States v. Marceleno, 819 F.3d 1267 (10th Cir. 2016), regarding a duress defense.
The Comment to Instruction 2.06 (AID AND ABET) has been rewritten with an extended discussion of Rosemond v. United States, 572 U.S. 65 (2014).
Instruction 2.07 (ACCESSORY AFTER THE FACT) combines the first two elements into one without making any substantive change.
Instruction 2.09 (ASSAULTING A FEDERAL OFFICER) now has an additional element with two alternatives: "the defendant [made physical contact with the federal officer] [acted with the intent to commit another felony]." It further provides:
Before you can find the defendant guilty you must find, beyond a reasonable doubt, that he acted forcibly. The defendant acted forcibly if he used force, attempted to use force, or threatened to presently use force against the federal officer. A threat to use force at some unspecified time in the future is not sufficient to establish that the defendant acted forcibly.
The acts proscribed by the offense - assault, resist, oppose, impede, intimidate, and interfere with - each require an underlying simple assault.
Simple assault means any intentional attempt or threat to inflict injury upon someone else, when coupled with an apparent present ability to do so. and includes any intentional display of force that would give a reasonable person cause to expect immediate bodily harm, whether or not the threat or attempt is actually carried out or the victim is injured.]
A finding that one used force (or attempted or threatened to use it) isn't the same as a finding that he attempted or threatened to inflict injury. Thus, in addition to finding beyond a reasonable doubt that the defendant acted forcibly, you must also find that the defendant intended to inflict or intended to threaten injury.
This is explained in the Comment, which has been extensively rewritten.
The fourth element of Instruction 2.10 (BANKRUPTCY FRAUD (PROPERTY CONCEALMENT)) has been rewritten to strike the word "fraudulently" and substitute in its place "with the intent to defraud the [custodian or trustee or marshal or other officer of the court, who was charged with control or custody of the property] [in Ch. 11 cases: creditors or United States Trustee]." An extended discussion of materiality in the Comment has been deleted.
There is a new Instruction 2.10.1 (BANKRUPTCY FRAUD (SCHEME OR ARTIFICE TO DEFRAUD)).
Instruction 2.11 (BRIBERY OF A PUBLIC OFFICIAL) now defines "official act" and the Comment now has an extended discussion of McDonnell v. United States, 136 S. Ct. 2355 (2016).
Instruction 2.12 (RECEIVING A BRIBE BY A PUBLIC OFFICIAL) adds the element "at that time, defendant was a public official."
The second element of Instruction 2.13 (ILLEGAL GRATUITY TO A PUBLIC OFFICIAL) now reads:
"the defendant [gave] [offered] [promised] anything of value not authorized by law
for the proper discharge of official duty to [name of official] [directly or indirectly]." The Comment notes United States v. Sun-Diamond Growers of Cal., 526 U.S. 398, 414 (1999) (to prove a violation of § 201(c)(1)(A) "the Government must prove a link between a thing of value conferred upon a public official and a specific 'official act' for or because of which it was given").
Two paragraphs have been added to the Use Note for Instruction 2.15 (BRIBERY OR REWARD OF A BANK OFFICER) discussing the "gravamen of the offense" and the term "corruptly."
Instruction 2.16 (CONSPIRACY TO DEPRIVE PERSON OF CIVIL RIGHTS) now references United States v. Shabani, 513 U.S. 10 (1994).
The Comment to Instruction 2.17 (DEPRIVATION OF CIVIL RIGHTS) adds more case authority, noting that the "purpose need not be expressed; it may at times be reasonably inferred from all the circumstances."
2.18 (FALSE CLAIMS AGAINST THE GOVERNMENT) now clarifies that the false or fraudulent claim must be made to a person or officer in civilian or military service of the United States or to a department or agency of the United States, and defines "claim" as "a demand for money, property, credit or reimbursement."
The Comment and User Note to Instruction 2.19 (CONSPIRACY) has been rewritten, mostly to delete case notes without any really substantive changes to the guidance.
The last paragraph of Instruction 2.22 (WITHDRAWAL) now reads: "In order to find that the defendant withdrew from the conspiracy, you must be convinced that the defendant has proven by a preponderance of the evidence that he took an affirmative step to either defeat the purpose of the conspiracy,
either by reporting to the authorities or communicating to tell his coconspirators that he was no longer participating in the conspiracy." Some additional cases have been added to the Comment. The Use Note now emphasizes that the conspirator has the burden of proof.
The first element of Instruction 2.23 (COUNTERFEITING) now reads " First: the defendant
[falsely made counterfeit] [forged] [counterfeited] [name obligation or security]."
The Hanzlicek case note in the Use Note has been deleted.
The first two elements of Instruction 2.24 (PASSING COUNTERFEIT OBLIGATIONS OR SECURITIES) now read
"First: the defendant [passed counterfeit] [uttered] [published] [sold], [falsely made] [forged] [counterfeited] [altered] [name obligation or security]; Second: the defendant knew that the [name obligation or security] was [falsely made] [forged] [counterfeit] [altered]"
The first two elements of Instruction 2.24.1 (IMPORTATION, POSSESSION OR CONCEALMENT OF COUNTERFEIT OBLIGATIONS OR SECURITIES) now read "First: the defendant [brought into the United States] [kept in his possession] [concealed] ], [falsely made] [forged] [counterfeit]
[altered] [name obligation or security]; Second: the defendant knew that the [name obligation or security] was [falsely made] [forged] [counterfeit;] [altered]"
The first two paragraphs of the Comment to Instruction 2.30 (UNLAWFUL IMPORTATION) have been deleted.
Case notes describing the different contexts of federal custody were added to the Comment to Instruction 2.35 (ESCAPE).
The last sentence of the definitions of "threat" in Instructions 2.37 (INTERSTATE TRANSMISSION OF EXTORTIONATE COMMUNICATION) and 2.37.1 (INTERSTATE TRANSMISSION OF THREATENING COMMUNICATION)
now read: "It is not necessary that the defendant intended to orcarry out the threat, nor is it necessary that the defendant had the ability to carry out the threat."
The Comment to Instruction 2.44 (POSSESSION OF A FIREARM BY A CONVICTED FELON) now references Rehaif v. United States, 139 S. Ct. 2191 (2019) (defendant must have knowledge that he was convicted of a felony).
Instructions 2.45.2 (AIDING AND ABETTING USING/CARRYING A FIREARM DURING COMMISSION OF A DRUG TRAFFICKING CRIME OR CRIME OF VIOLENCE) and 2.45.3 (AIDING AND ABETTING POSSESSION OF A FIREARM IN FURTHERANCE OF A DRUG TRAFFICKING CRIME OR CRIME OF VIOLENCE) are new.
The Comment to Instruction 2.46.2 (USING A FALSE WRITING) adds a couple of case parentheticals.
The Comment to Instruction 2.47 (FALSE STATEMENTS IN BANK RECORDS) cites cases saying that "neither the Supreme Court nor this court has addressed whether the false bank entry statue, 18 U.S.C. § 1005, requires proof of materiality," the "omission of material information qualifies as a false entry," and that the "defendant need not have made the false entries himself."
The second element in Instruction 2.49 (FALSE IDENTIFICATION DOCUMENTS) deletes the "willfulness" requirement. Specifically, it now reads "the defendant did so knowingly and willfully, with the intent to use unlawfully or transfer
unlawfully the false identification documents." The Use Note adds that the "offenses set out at § 1028(a) are subject to the circumstances of § 1028(c)," and cross-references
§ 1028(d) for definitions.
Instruction 2.50.1 has been renamed "FRAUD IN CONNECTION WITH COUNTERFEIT CREDIT CARDS OR OTHER
ACCESS DEVICES." The Comment observes that the "essence of the offense is the willfulknowing use of a counterfeit access device with intent to defraud." A new paragraph regarding the statute's legislative history now appears at the end of the Use Note.
The same legislative history paragraph has also been added to the Use Note for Instruction 2.50.2 (USE OF UNAUTHORIZED ACCESS DEVICE)
The elements of Instruction 2.51 (TRANSMISSION OF WAGERING INFORMATION) have been rewritten:
First: the defendant was engaged in the business of betting or wagering;
Second: the defendant regularly devoted time, attention and labor to betting or wagering for profit;
Third: the defendant knowingly used a wire communication facility [to place bets or wagers on any sporting event or contest] [to provide information to assist with the placing of bets or wagers] [to inform someone that he or she had won a bet or wager and was entitled to payment or credit; and
Fourth: the transmission was made from one state to another state or foreign country.
Illustrative case notes have been added to the Comment.
An extended note about jurisdiction in § 924(j)(1) murders has been excised from the Comment to Instruction 2.52 (FIRST DEGREE MURDER). The phrase "or defense of another" is added to the last paragraph of the Comment.
An extended note about the liability of non-shooters has been excised from the Comment to Instruction 2.52.1 (FELONY MURDER).
The discussion of malice aforethought in the Comment to Instruction 2.53 (MURDER IN THE SECOND DEGREE) has been rewritten.
The third element of Instruction 2.54 (VOLUNTARY MANSLAUGHTER) has been rewritten as: "while in [sudden quarrel] [heat of passion], and therefore without malice, the defendant intentionally killed[acted with a general intent to kill] [the victim]; or [intended to cause the victim] serious bodily injury;] or [acted with a depraved heart,
that is, recklessly with extreme disregard for human life." The definition of :intentionally killed" was removed from the instruction. The Comment was extensively revised in accord with these changes.
The first two elements of Instruction 2.54.1 (INVOLUNTARY MANSLAUGHTER) were combined. A new second element requires that "the defendant knew that his conduct was a threat to the lives of others or it was foreseeable to him that his conduct was a threat to the lives of others." A new paragraph regarding the intent element, quoting United States v. Benally, 756 F.2d 773, 776 (10th Cir. 1985), was added to the Comment.
The references to honest services in Instruction 2.56 (MAIL FRAUD) was moved to the beginning of the instruction. The Comment now references Shaw v. United States, 137 S. Ct. 462, 467 (2016), and Skilling v. United States, 561 U.S. 358 (2010).
The third element of Instruction 2.58 (BANK FRAUD) no longer requires an intent to defraud a financial institution. The Comment now references Shaw v. United States.
The Comment to Instruction 2.62 (CORRUPTLY OBSTRUCTING ADMINISTRATION OF JUSTICE) now references United States v. Erickson, 561 F.3d 1150, 1160 (10th Cir. 2009) ("[A]n act is done 'corruptly' when 'done with the purpose of obstructing justice.'").
The Comment to Instruction 2.65 (WITNESS TAMPERING) now references United States v. Banks, 884 F.3d 998, 1021-22 (10th Cir. 2018), regarding cases involving the use of physical force, see 18 U.S.C. § 1512(a)(2).
Instruction 2.70 (Hobbs Act [ROBBERY] [EXTORTION] BY FORCE, VIOLENCE, OR FEAR) now requires that
the property includes money and other tangible and intangible things of value that are transferable. The Comment explains that this is in accord with Sekhar v. United States, 570 U.S. 729 (2013). The Instruction also requires that the "force" be an act capable of causing physical pain or injury to another person. The Comment notes recent Tenth ircuit authority that requires this.
Instruction 2.71 (Hobbs Act EXTORTION UNDER COLOR OF OFFICIAL RIGHT) also incorporates Sekhar. The definitions of "wrongfully obtain property under color of official right" and "official action" have been rewritten. The Comment notes that this was in compliance with McDonnell v. United States, 136 S. Ct. 2355 (2016).
The Comment to Instruction 2.73 (MONEY LAUNDERING USING ILLEGAL PROCEEDS TO PROMOTE ILLEGAL ACTIVITY) now notes that the government need not prove that the defendant conducted the financial transaction with funds actually received as a result of unlawful activity, citing United States v. Johnson, 821 F.3d 1194 (10th Cir. 2016).
The Comment to Instruction 2.73.1 (MONEY LAUNDERING CONCEALING ILLEGAL PROCEEDS) now notes that the government need not prove that the money laundering transaction was designed to make the criminal proceeds appear legitimate, citing United States v. Gonzales, 918 F.3d 808 (10th Cir. 2019).
The Use Note for Instruction 2.81 (RECEIPT OR SALE OF A STOLEN MOTOR VEHICLE OR AIRCRAFT) has been deleted.
Instruction 2.87 (CONTROLLED SUBSTANCES-CONSPIRACY) now provides that there "can be no conspiracy between a defendant and a government agent." The Comment cites United States v. Leal, 921 F.3d 951 (10th Cir. 2019), in support of this.
The Comment to Instruction 2.92 (TAX EVASION) used to set forth with approval an Eleventh Circuit instruction on "Intentional Violation of a Known Legal Duty (as Proof of Willfulness Under the Internal Revenue Code)." This passage has been deleted.
A new sixth element has been added to Instruction 2.93 (FALSE STATEMENTS ON INCOME TAX RETURN):
"the defendant [filed] [caused someone to file] the [income] tax return with the Internal Revenue Service."