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Ninth Circuit June 2021 Model Criminal Instruction revisions include a new instruction applying Rehaif to § 931(a) crimes

The Ninth Circuit posted June 2021 revisions to its criminal instructions this week.

There is a brand new instruction 8.72A FIREARMS—UNLAWFUL POSSESSION OF BODY ARMOR (18 U.S.C. § 931(a)). Notably, it requires proof not just that the defendant knew that the prior conviction was a felony, but that the defendant knew that the prior felony conviction had as an element the use, attempted use, or threatened use of physical force. This was required by United States v. Door, 996 F.3d 606, 615 (9th Cir. 2021), which so extended the Supreme Court's holding in Rehaif.

Many of the revisions to existing instructions have to do with writing style (for example, substituting "For" for "In order for". "After" for "Subsequent to"). Some parentheticals are rewritten to make them read better without changing the meaning. There are substantive changes as well:

  • The Comment to Instruction 8.63 (FIREARMS—UNLAWFUL RECEIPT (18 U.S.C. § 922(g))) now cites United States v. Door, 996 F.3d 606 (9th Cir. April 28, 2021).
  • The Comment to Instruction 8.71 (FIREARMS—USING, CARRYING, OR BRANDISHING IN COMMISSION OF CRIME OF VIOLENCE OR DRUG TRAFFICKING CRIME) now notes that "[w]ith respect to 18 U.S.C. § 924(c)(1)(B)(i), there is no mens rea requirement that the defendant knew the rifle barrel’s length," citing United States v. Woodberry, 987 F.3d 1231 (9th Cir. 2021).
  • The Comment to Instruction 8.72 (FIREARMS—POSSESSION IN FURTHERANCE OF CRIME OF VIOLENCE OR DRUG TRAFFICKING CRIME) also cites Woodberry, which held that the fact that a firearm is a short-barrel rifle is element of offense, but there is no mens rea requirement that the defendant knew the rifle barrel’s length.
  • The Comments to Instructions 8.126 (BANK FRAUD—SCHEME TO DEPRIVE BANK OF INTANGIBLE RIGHT OF HONEST SERVICES)and 8.126A (ATTEMPTED BANK FRAUD—SCHEME TO DEPRIVE OF INTANGIBLE RIGHT OF HONEST SERVICES) add this language "Caution: Honest services fraud criminalizes only schemes to defraud that involve bribery or kickbacks. Skilling v. United States, 561 U.S. 358, 408-409 (2010); Black v. United States, 561 U.S. 465, 471 (2010)."
  • The discussion of Loughrin in Comment to Instruction 8.127 (BANK FRAUD—SCHEME TO DEFRAUD BY FALSE PROMISES) has been edited as follows: "The Supreme Court held that the government need not prove the defendant intended to defraud a bank, and that Section 1344(2)’s 'by means of' language is satisfied when 'the defendant’s false statement was the mechanism naturally inducing a bank (or custodian of bank property) to part with money in its control.'"
  • The Comment to Instruction 8.142A (HOBBS ACT—EXTORTION OR ATTEMPTED EXTORTION BY NONVIOLENT THREAT) adds the following "'[T]hreats of sham litigation, which are made to obtain property to which the defendant knows he has no lawful claim, are ‘wrongful’ under the Hobbs Act.” United States v. Koziol, 993 F.3d 1160, 1170 (9th Cir. 2021).'" It also flags an issue raised in Koziol: “We do not decide whether the Hobbs Act imposes liability absent proof that the defendant knew he was not entitled to the property.”
  • The Comment to Instruction 8.143B (HOBBS ACT—AFFECTING INTERSTATE COMMERCE) replaces a citation to Woodberry with "See generally United States v. Tuan Ngoc Luong, 965 F.3d 973, 986 (9th Cir. 2020) (holding that district court did not err by instruction that '[a]n effect on interstate commerce is established by proof of an actual impact, however small, or in the absence of an actual impact, proof of a probable or potential impact. This impact can be slight, but not speculative.')."

(08/14/21) (permalink)